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2015 DIGILAW 1523 (GAU)

National Insurance Company Limited v. Namita Deka

2015-12-14

N.CHAUDHURY

body2015
JUDGMENT : In this appeal under section 173 of the Motor Vehicles Act, 1988, insurance company is appellant. The learned Additional District Judge (FTC) No. 3, Kamrup at Guwahati passed the impugned judgment and award directing the insurance company to make payment of Rs. 5,47,000/- to the claimants along with interest at the rate of 6% per annum from the date of filing claim petition till realisation. 2. The original claim petition was filed by three claimants, namely, Ms. Namita Deka, Ms. Pranita Deka and Ms. Swarnalata Deka stating that on 31.05.2007 a truck bearing registration No. AMK-9701 coming from Jalukbari Sangchari towards Baihata Chariali in rash and negligent manner hit their mother Rashmi Deka at Pialikhata at around 7.30 a.m. She sustained grievous injuries on her person and on the way to hospital she died. It was claimed that she had substantial income at the time of her death and so compensation was claimed from the owner of the truck as well as the insurer. 3. On being notified, the opposite party No. 1, National Insurance Co. Ltd. appeared and submitted written statement denying liability and denied all averments of facts made in the claim petition. Upon such pleadings of the parties, the learned Tribunal framed following 2 issues:- 1. Whether Late Rashmi Deka died by a motor accident on 31.05.2007 at Pialikhata at about 7.30 a.m. by driving the truck in rash and negligently? 2. Whether the claimants are entitled to get compensation and if so with what extent and against whom recoverable? 4. Claimants examined 2 witnesses and adduced some documents. The insurance company did not lead any evidence of its own but cross examined the two witnesses examined by the claimants. Upon perusal of the evidence, the learned Tribunal held by deciding issue No. 1 in the affirmative that Late Rashmi Deka died in motor accident on 31.05.2007 at Pialikhata at about 7.30 a.m. owing to rash and negligent driving of offending truck bearing registration No. AMK-9701. Coming to the issue No. 2 the learned Tribunal considered the evidence of PW 1 and PW 2 and held that the deceased was 40 years of age as on the date of accident. Without accepting the evidence led by the claimants in regard to monthly income of the deceased, the learned Tribunal held that the deceased was having monthly income of Rs. Without accepting the evidence led by the claimants in regard to monthly income of the deceased, the learned Tribunal held that the deceased was having monthly income of Rs. 3,000/- and thereupon compensation was calculated at Rs. 5,47,000/- and the insurance company was directed to make payment along with interest at the rate of 6% per annum. This judgment and award dated 06.01.2011 has been called in question in the present appeal. 5. I have heard Ms. R.D. Mozumdar, learned counsel for the appellant. No one has put up appearance on behalf of the claimants although names have been clearly shown in the cause list. I have perused the lower court records including the evidence adduced by the claimants side. 6. Ms. R.D. Mozumdar, learned counsel for the appellant, would argue that even if the learned court assessed the monthly income of the deceased at Rs. 3,000/-, he was duty bound to make deduction towards personal expenses but the same was not done. If the monthly income of the deceased was Rs. 3,000/-, in that event one-third ought to have deducted towards personal expenses in terms of the judgment passed by Hon’ble Supreme Court in the case of Sarla Verma and others vs. Delhi Transport Corporation and another reported in (2009) 6 SCC 121 . She further submits that at the time of accident all the three claimants were majors and there is nothing on record to suggest that they were dependants of the deceased for their subsistence. Having heard the learned counsel for the appellant and having perused the records it appears that in the impugned judgment and award, the learned Tribunal presumed the monthly income of the deceased at Rs. 3,000/- in the absence of any evidence in that regard. If Rs. 3,000/- is accepted to be the notional income, in that event one-third of the same ought to have deducted towards personal expenses and had it been so, in that event the annual dependency would be of Rs. 24,000/- and not Rs. 36,000/- as has been calculated by the learned Tribunal. The learned Tribunal accepted the age of the deceased as 40 years at the time of the accident and so the learned Tribunal has not committed any error in choosing 15 as multiplier in terms of judgment of Sarla Verma (supra). 24,000/- and not Rs. 36,000/- as has been calculated by the learned Tribunal. The learned Tribunal accepted the age of the deceased as 40 years at the time of the accident and so the learned Tribunal has not committed any error in choosing 15 as multiplier in terms of judgment of Sarla Verma (supra). The learned Tribunal lost sight of the fact that the three claimants being none other than daughters of the deceased, they are entitled to some amount towards care and affection. At least Rs. 1,00,000/- ought to have been allowed to the claimants towards loss of care and affection. Having so found, the impugned judgment and award cannot be sustained and accordingly the compensation is required to be re-assessed as follows:- Rs. 24,000/- x 15 x 12 = Rs. 3,60,000/- To this amount, Rs. 1,00,000/- is to be added towards care and affection and thus the amount becomes Rs. 4,60,000/-. This amount will carry interest at the rate of 6% per annum from the date of filing of claim petition till realisation. Any amount already paid, if any, in the mean time shall be deducted from this amount and the balance amount shall be deposited with the Registry of this court within a period of 4 (four) weeks from today. The appeal stands allowed with the aforesaid modification. 7. No order as to costs.