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2015 DIGILAW 1534 (GAU)

Oriental Insurance Co. Ltd. v. Narayan Bhuyan

2015-12-16

N.CHAUDHURY

body2015
JUDGMENT : In this appeal under Section under Section 173 of the Motor Vehicle Act, 1988, Oriental Insurance company is the appellant challenging the judgment and award dated 31.3.2011 passed by the learned Member, MACT, Golaghat, in MAC Case No.67 of 2005 whereby learned Tribunal has directed the insurance company to make payment of Rs.4,32,500/- to the claimant as compensation. 3. The aforesaid motor accident claim case was instituted on the basis of a petition filed by one Narayan Bhuyan stating that on 16.3.2005, at about 5.45 am when his brother was travelling in a mini truck bearing registration No. AS-01/J-9576 carrying fish for sale, the vehicle dashed against a truck bearing registration No.AS-01/P/0251. The vehicle carrying the victim, Horen Bhuyan was moving in a rash and negligent manner and the injured victim died on the spot. Immediately police case was registered vide Bokakhat P.S. Case No.23 of 2005 under Section 279/338/304(A) IPC against the driver of the mini truck bearing registration No. AS-01/J-9576. The claimant further stated that the deceased was 32 years of age at the time of the accident and was earning Rs.7000/- from fish vending. He was unmarried and on his income, his family members survived. The claimant claimed that he is entitled to compensation to the tune of Rs.8,60,000/-. 4. On being notified, the owner and the driver of the vehicle did not appear and did not contest the proceeding. However, opposite parties Nos. 3 and 5 who are the two insurance companies appeared and submitted respective written statements denying the case of the claimant. The present appellant being the insurer of the offending vehicle (mini truck bearing registration No. AS-01/J-9576) stated in the written statement that the averments made in the claim petition are not admitted as the deponent of the written statement did not have any personal knowledge about the averments made in paragraphs-1 and 4 of the written statement. The learned tribunal framed following three issues on consideration of the written statements filed by the two insurance companies vis-à-vis claim petition. (I) Whether there is any cause of action for the claim petition? (II) Whether the accident took place due to rash and negligent driving of the driver of offending vehicle No. AS-01/J-9576 (407 Mini bus)? (III) Whether the claimant is entitled to get any compensation? If so, what amount and from whom? 5. (I) Whether there is any cause of action for the claim petition? (II) Whether the accident took place due to rash and negligent driving of the driver of offending vehicle No. AS-01/J-9576 (407 Mini bus)? (III) Whether the claimant is entitled to get any compensation? If so, what amount and from whom? 5. In course of trial, Claimant examined two witnesses including himself whereas the opposite parties did not lead any evidence. However, witnesses examined by the claimants were cross examined by the insurance company. The learned tribunal after consideration of the materials available on record arrived at the finding that the deceased died in a motor accident owing to rash and negligent driving of the vehicle, that the deceased had a monthly income of Rs. 5000/- and that he was 32 years of age. Accordingly, compensation was calculated at Rs.4,32,500/- by taking 15 as multiplier. This judgment and award dated 31.3.2011 stands challenged by the insurance company, inter alia, on the ground that the deceased was a gratitutious passenger of the vehicle. 6. I have heard Mr. S Dutta, learned counsel for the appellant. None appears for the respondents although names of the learned counsel are shown in the Cause List. I have perused the materials available on record including the pleadings of the parties led by the claimants. 7. The claimant stated in his claim petition that on 16.3.2005 at about 5.45 am one Horen Bhuyan was travelling by a truck bearing registration No.AS-01/P-0251 in order to carry fish from Kuthori to Jorhat where it met with an accident. The oriental Insurance Company being the opposite party No.3 submitted a written statement. In the written statement, it was stated that the opposite party No. 3 does not have any knowledge about the statements made in para-1 to 6 of the claim petition and that it does not have any personal knowledge about the alleged accident, injuries and registration of P.S. case etc. It is further admitted that the offending vehicle was duly insured by the opposite party No. 3. The amount claimed was exaggerated, excessive and without any basis of law. In paragraph-6 of the written statement, an objection was raised showing that the deceased was an unauthorized passenger of the vehicle and that he did not hire the vehicle. With these averments, prayer was made for disposal of the claim case. 8. The amount claimed was exaggerated, excessive and without any basis of law. In paragraph-6 of the written statement, an objection was raised showing that the deceased was an unauthorized passenger of the vehicle and that he did not hire the vehicle. With these averments, prayer was made for disposal of the claim case. 8. In course of evidence, claimant Narayan Bhuyan submitted his examination in chief in the form of affidavit and reiterated the pleaded case that Horen Bhuyan was carrying fish by the vehicle which met with accident on 16.3.2005 at about 5.45 am. This specific statement made by the claimant was not challenged in course of cross examination. Rather a suggestion was given to the witness that the accident had taken place owing to head on collision between the two vehicle. The claimant maintained his stand even in his cross examination that his brother was carrying fish and that his monthly income was Rs.5000/-. He procured a certificate given by Gaonburah as Exhibit-4 to show that deceased was earning Rs.7000/- per month. Exhibit-1 is the accident report, Exhibit-2 is the certified copy of the FIR and Exhibit-3 is the age proff certificate, Exhibit-4 is the income certificate and Exhibit-5 is the certificate of village Headman produced by the claimant. While the certificate of Gaonburah was challenged as not valid in course of cross examination, no question was put in regard to validity of the Exhibit-4 Certificate and it went unrebutted in the evidence. 9. CW-2, Bhupan Nath claims to be a co-passenger in the same truck. He being an eye witness proved the accident and death of Horen Bhuyan in the accident. This witness does not appear to have cross examined by the insurance company. 10. The learned Tribunal, however, did not accept the evidence led by the claimant as to monthly salary of the deceased. Rather by applying guesswork, it was held that the income of the deceased must be Rs.5000/-. Mr. S Dutta, learned counsel for the appellant would argue that if the learned tribunal did not believe the evidence of the claimant in regard to the income of the deceased in that event, the learned tribunal ought to have relied on some basis to arrived at the finding that the monthly income of the deceased was Rs.5000/- or in the alternative, he could have accepted Rs.3000/- being notional income. According to Mr. According to Mr. S Dutta, assumption of the monthly income of the deceased to be Rs.5000/ is without any material basis and as such the award is liable to be interred only on this ground. He further argued that admittedly the deceased was a bachelor and so in his case, usual deduction towards personal expenses ought to have been 50% and not 1/3rd. He placed reliance in the case of Sarla Verma (SMT) vs. DTC reported in (2009) 6 SCC 121 . Referring to para-32 of the judgment, Mr. Dutta would argue that living expenses of the bachelor is liable to be taken 50% and so his contribution in the family would be only 50%. According to him on these two counts, the impugned judgment of the learned tribunal is liable to be set aside and the matter is liable to be remanded to the learned trial court for fresh trial. 11. As no one has appeared at the time of hearing on behalf of the claimants when the matter is taken up for hearing, I have perused the LCR to find out as to what should be just compensation in the present case. As pointed out above, the claimant stated both in the pleadings as well as in course of deposition that the deceased was carrying fish by the offending vehicle. He was accompanying fish when the vehicle met with an accident owing to rash and negligent driving and dashed against the vehicle. No cross examination has been done as to correctness or otherwise of such claims made by the claimants. Under such circumstances, it appears that the submission of the insurance company that the deceased was gratituous passenger is devoid of any factual matrix. The insurance company has not laid any evidence to prove the contrary. On the other hand, claimant has made statements that his brother was carrying fish by the other vehicle and this statement has not been argued in course of cross objection. This being the position, the first submission that deceased was gratituous passenger is not entertained. 12. The second submission made by Mr. Dutta that the learned Tribunal committed error in presuming Rs.5000/- to be monthly income of the deceased appears to have some subsistence in it. This being the position, the first submission that deceased was gratituous passenger is not entertained. 12. The second submission made by Mr. Dutta that the learned Tribunal committed error in presuming Rs.5000/- to be monthly income of the deceased appears to have some subsistence in it. The evidence led by the claimant in regard to monthly income of the deceased not having been accepted by the learned tribunal, tribunal could not have made such a guesswork which does not have any basis. Such a guesswork without any virtual basis cannot be permitted for the purpose of making calculation. In that event, it is to be held that there is no evidence in support of the monthly income of the deceased and consequently learned tribunal has to rely on notional income for the purpose of making calculation. The submission of the learned counsel for the appellant is accepted and accordingly, the impugned judgment is hereby set aside and a fresh calculation is made to ascertain the just compensation. In the impugned judgment it is held that the deceased was 32 years of age and so 15 was not the correct multiplier. Applying the law laid by the Hon’ble Supreme Court in the case of Sarala Verma (supra) proper multiplier should have been 16 and accordingly this multiplier 16 is adopted for the purpose of making calculation. The learned tribunal assessed Rs. 25,000/- towards loss of estate which appears to be too low. In a catena of cases, the Hon’ble Supreme Court took Rs.1 lakh towards loss of estate and the same is adopted in the present case. The other findings of the learned tribunal are is not interfered with. Accordingly, the compensation is re-calculated as follows:- The notional income being and he being a bachelor Rs.36000/-, His annual dependency would be Rs.18000/- The total dependency = Rs.18000 X 16= Rs. 2,88,000/- Add, towards loss of estate = Rs.1,00,000/- Add, towards loss of love and affection Rs.10,000/- The total amount is Rs.3,98,000/- 13. The claimant would be entitled to this amount of Rs.3,98,000/-which shall carry interest @ 9% per annum from the date of filing application till realization. It is stated at the bar that a sum of Rs.2 lakhs was already deposited by the insurance company and the same had already been withdrawn by the claimant. The claimant would be entitled to this amount of Rs.3,98,000/-which shall carry interest @ 9% per annum from the date of filing application till realization. It is stated at the bar that a sum of Rs.2 lakhs was already deposited by the insurance company and the same had already been withdrawn by the claimant. The aforesaid amount shall be deducted from the total entitlement in addition to the amount of no fault liability if already paid. The statutory deposit of Rs.25,000/- deposited by the insurance company shall be adjusted against the total amount of compensation. 14. The balance amount shall be deposited by the insurance company within 6(six) weeks and upon such deposit being made, the claimant shall be entitled to withdraw the same on proper identification to the satisfaction of the Registry. 15. Appeal stands allowed.