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Gauhati High Court · body

2015 DIGILAW 1543 (GAU)

Luna Devi v. National Insurance Co. Ltd.

2015-12-18

N.CHAUDHURY

body2015
JUDGMENT : As many as 4 (four) appeals under section 173 of the Motor Vehicles Act, 1988, namely, MAC Appeal No. 65/2011, MAC Appeal No. 247/2012, MAC Appeal 66/2011 and MAC Appeal No. 230/2012 have arisen out of same and single motor vehicle accident. Two motor accident claim cases being MAC Case No. 695/2005 and MAC Case No. 810/2005 were registered with respect to the same motor accident held on 04.11.2004. Learned MAC Tribunal disposed these two cases by two separate judgments passed on 29.12.2010. Out of these two judgments, the present four appeals have arisen. Since, all the four appeals are connected to each other and have arisen out of the same motor accident, they are taken up together for disposal. 2. MAC Appeal No. 65/2011 is preferred by Smti. Luna Devi and her daughter Smti. Puja Devi challenging the judgment and award dated 29.12.2010 passed in MAC Case No. 695/2005. By the impugned judgment and award, the learned Tribunal directed the National Insurance Company Limited to make payment of Rs. 6,87,584/- in all along with interest at the rate of 6% per annum from the date of filing the claim petition till realisation. While claimants, namely, Smti. Luna Devi and her daughter have preferred MAC Appeal No. 65/2011 for enhancement of compensation amount, the National Insurance Company Limited by filing MAC Appeal No. 247/2012 has prayed for interference with the same judgment and award claiming that there was contributory negligence on the part of the C.R.P.F. vehicle bearing registration No. HR-26-F-1945 and so the appellant insurance company is not liable to make payment of the entire compensation. The MAC Appeal No. 65/2011 and MAC Appeal No. 247/2012, thus, have arisen from the same judgment passed by the learned MACT, Kamrup at Guwahati on 29.12.2010 passed in MAC Case No. 695/2005. 3. Similarly, Smt. Nazira Begum and others being claimants in MAC Case No. 810/2005 have preferred the MAC Appeal No. 66/2011 praying for enhancement of compensation awarded by the learned Tribunal on 29.12.2010 whereby the learned Tribunal directed the insurance company to make payment of Rs. 9,08,675/- along with interest at the rate of 6% per annum from the date of filing the claim petition till realisation. 9,08,675/- along with interest at the rate of 6% per annum from the date of filing the claim petition till realisation. As in the previous case, the National Insurance Company Limited has preferred another appeal in the present case being MAC Appeal No. 230/2012 praying for interference with the award passed by the learned MACT, Kamrup at Guwahati in MAC Case No. 810/2005 on the similar ground that the insurance company of the offending vehicle bearing registration No. AS-15/3557 is not liable to make payment of the entire compensation amount. It is the case of the appellant in MAC Appeal No. 230/2012 that there being contributory negligence on the part of the C.R.P.F. vehicle bearing registration No. HR-26-F-1945, the Union of India is also liable to bear the liability proportionately. Thus, MAC Appeal No. 66/2011 and MAC Appeal No. 230/2012 arise out of the same judgment and award dated 29.12.2010 passed by the learned MACT, Kamrup at Guwahati in MAC Case No. 810/2005. 4. The brief facts involved in this four appeals are that a CRPF vehicle bearing registration No. HR-26-F-1945 carrying CRPF jawans was proceeding on 04.11.2004 towards 136 Bn. CRPF at Ulukuchi in the district of Karbi Anlong from the same battalion at Saraitoli in the district of Nalbari. When the vehicle reached near Chandra Kalita Oil Depot on NH 37 at around Kaira Bridge, a bus bearing registration No. AS-15/3557 came in rash and negligent manner from opposite side and hit the aforesaid CRPF official vehicle (Gypsy) causing accident. Consequently, constable Nityananda Nath and constable Abdul Aziz Khan were seriously injured. They were taken to Nalbari Civil Hospital but both of them succumbed to the injuries sustained. The legal heirs of Nityananda Nath are Smti. Luna Devi and her daughter Smti. Puja Devi whereas the legal heirs of Abdul Aziz Khan are Smti. Nazira Begum and her four off-springs. Luna Devi instituted MAC Case No. 281/2005 before the learned MACT, Kamrup at Guwahati claiming compensation to the tune of Rs. 15,00,000/- for the above accident. This proceeding was later on re-numbered as MAC Case No. 695/2005. In the same way, Nazira Begum and her four off-springs instituted MAC Case No. 311/2005 before the learned MACT, Kamrup at Guwahati claiming compensation to the tune of Rs. 15,00,000/- and the same proceeding was subsequently re-numbered as MAC Case No. 810/2005. 5. 15,00,000/- for the above accident. This proceeding was later on re-numbered as MAC Case No. 695/2005. In the same way, Nazira Begum and her four off-springs instituted MAC Case No. 311/2005 before the learned MACT, Kamrup at Guwahati claiming compensation to the tune of Rs. 15,00,000/- and the same proceeding was subsequently re-numbered as MAC Case No. 810/2005. 5. On being notified, the National Insurance Company Limited as well as the Deputy Inspector General of Police who were impleaded as party respondents appeared and submitted separate written statements but the owner and driver of the offending vehicle bearing registration No. AS-15/3557 (bus) did not appear and so both the proceedings were held ex-parte against them. Finally the learned Tribunal framed identical issues in both the proceedings and they are as follows:- 1. Whether on last 04.11.2004 at about 1-45 P.M., the victim Nityananda Nath died in vehicular accident due to rash and negligent driving of the driver of the vehicle No. AS/3557 (Bus)? 2. Whether the accident took place due to rash and negligent driving of the driver of the vehicle bearing registration No. HR-26-F-1945 by which the victim was travelling at the time of accident? 3. Whether the claimants are entitled to get compensation as claimed, if so, to what extent and from whom the same is recoverable? 6. Both the claimants examined two witnesses each on their behalf. Both the claimants were examined as PW 1 and both of them examined one common eye witness as PW 2. They also adduced documentary evidence like accident information report as Ext. 1, post mortem report as Ext. 9 and charge sheet as Ext. 3. The salary certificates of both the deceased were exhibited as Ext. 8 in each case. The insurance company did not lead any evidence but cross examined the witnesses of the claimants. Upon perusal of these evidence available on record, the learned Tribunal passed two separate judgments and awards on 29.12.2010 as aforesaid leading to the present set of four appeals. The learned tribunal deducted the monthly family pension from the monthly dependency and thereupon calculated the amount of compensation using appropriate multiplier. The tribunal awarded Rs. 5,000/- for funeral expenses and Rs. 10,000/- for loss of consortium. 7. I have heard Mr. R De, learned counsel for the appellants in MAC Appeal No. 65/2011 as well as MAC Appeal No. 66/2011. Mr. The tribunal awarded Rs. 5,000/- for funeral expenses and Rs. 10,000/- for loss of consortium. 7. I have heard Mr. R De, learned counsel for the appellants in MAC Appeal No. 65/2011 as well as MAC Appeal No. 66/2011. Mr. A Sharma has been heard on behalf of the insurance company/respondent in these two appeals. The other two appeals, namely, MAC Appeal No. 247/2012 and MAC Appeal No. 230/2012 preferred by the insurance company are also heard at the same time as the basic facts and documents are same. I have heard Ms. S Roy for the appellant insurance company in these two appeals and Mr. R De, learned counsel for the claimants in both these two appeals. I have also heard Mr. H Gupta, learned CGC for DIG, CRPF. I have perused the lower court records. 8. Thus there are two points for determination in there four appeals:- (i) Whether learned Tribunal committed erred in deducting amount of family pension from total dependency? (ii) Whether Rs. 5,000/- is inadequate compensation towards funeral expenses and Rs. 10,000/- towards loss of consortium? 9. While arguing the MAC Appeal No. 65/2011 and MAC Appeal No. 66/2011, Mr. R De, learned counsel for the appellants, submits that the learned Tribunal committed error in assessing just compensation on two counts:- (i) First, the learned Tribunal deducted the quantum of family pension available to the claimants from the total dependency on the plea that the claimants would be compensated by the Government by way of giving family pension which is not permissible in accordance with law. In support of his contention, he has placed reliance on the judgments of the Hon’ble Supreme Court in the case of Lal Dei and others v. Himachal Road Transport reported in (2007) 8 SCC 319 and Helen C. Rebello (Mrs) and others v. Maharashtra State Road Transport Corporation and another reported in (1999) 1 SCC 90 . (ii) Secondly, the learned Tribunal committed error in granting only a sum of Rs. 5,000/- towards funeral expenses and another sum of Rs. 10,000/- towards loss of consortium by preponderant judicial pronouncements, the usual quantum allowed for loss of consortium is Rs. 1,00,000/- and the same allowed for funeral expenses is Rs. 25,000/-. (ii) Secondly, the learned Tribunal committed error in granting only a sum of Rs. 5,000/- towards funeral expenses and another sum of Rs. 10,000/- towards loss of consortium by preponderant judicial pronouncements, the usual quantum allowed for loss of consortium is Rs. 1,00,000/- and the same allowed for funeral expenses is Rs. 25,000/-. In support of his contention, he has placed reliance on the judgments of the Hon’ble Supreme Court in the case of Smt. Savita v. Bindar Singh and others reported in (2014) 4 SCC 505 and Sangappa Nigappa Chamoji v. Konda reported in (2015) ACJ 2148. 10. Mr. A Sharma, learned counsel for the insurance company/ respondent in these two appeals strenuously urges that there cannot be a straight jacket formula for granting compensation to the claimants in case of loss of consortium and funeral expenses. The amounts would vary from case to case depending upon facts and circumstances and the learned Tribunal being aware about the facts and circumstances of the cases in hand was of the view that the claimants are entitled to Rs. 5,000/- towards funeral expenses and Rs. 10,000/- towards loss of consortium and so the submission made by the learned counsel for the appellant on this count is liable to be repudiated. Mr. Sharma further argues that even the learned Tribunal has not committed any error in deducting an amount equal to family pension from the total dependency as the same is based on reality. The claimants have become entitled to family pension but for the untimely death of the victim and once the claimants are favoured with some compensation by the Government they cannot get double benefit from the insurance. He, therefore, prays that the appeals be dismissed with cost. 11. Ms. S Roy, learned counsel for the appellant in MAC Appeal No. 247/2012 and MAC Appeal No. 230/2012, argues that it is apparent from the evidence of PW 2 that the offending bus bearing registration No. AS-15/3557 was not entirely responsible for the unfortunate accident held on 04.11.2004 in which two persons lost lives. She submits that the CRPF Gypsy bearing registration No. HR-26-F-1945 is also equally responsible for the accident, inasmuch as, it could have very well avoided the accident. She submits that the CRPF Gypsy bearing registration No. HR-26-F-1945 is also equally responsible for the accident, inasmuch as, it could have very well avoided the accident. PW 2 being eye witness of the accident himself stated that the offending bus hit at the side of the driver’s seat of the CRPF Gypsy and so had the Gypsy been little bit careful, it could have avoided the accident. She, therefore, submits that the CRPF Gypsy being guilty of contributory negligence, 50% of the awarded compensation should be payable by the Union of India which is the owner of the CRPF Gypsy. Mr. R De, on the other hand, submits that the offending vehicle was going at a speed of 60 km/hour and the same has been witnessed by the PW 2. No question has been put to this witness to show that the offending bus was not moving in rash and negligent manner. On the other hand, PW 2 has stated in no uncertain words that the CRPF Gypsy was moving only at a speed of 35 km/hour. Moreover, the point of contact between the two vehicles is only at the region of the driver seat of the victim vehicle which is admittedly at the right extremity of the anterior side of the vehicle and so it is clear that the Gypsy was moving along the left side of the national highway. The insurance company did not lead any evidence to show that there was any rash and negligent driving from the side of CRPF vehicle and so it does not lie in the mouth of the insurance company at this stage to argue that there was contributory negligence on the part of the CRPF vehicle. Having heard the submissions and counter submissions on the point of contributory negligence, it appears that the insurance company having taken the issue did not lead any evidence. The driver of the offending vehicle bearing registration No. AS-15/3557 could have been examined by issuing appropriate order or by enforcing his attendance in accordance with law to show that he was not guilty of rash and negligent driving or that the CRPF vehicle was equally responsible for the accident. The driver of the offending vehicle bearing registration No. AS-15/3557 could have been examined by issuing appropriate order or by enforcing his attendance in accordance with law to show that he was not guilty of rash and negligent driving or that the CRPF vehicle was equally responsible for the accident. There being evidence on the side of the insurance company but they not having produced the same to the witness box, presumption under section 114 of the Evidence Act is liable to be taken against the insurance company. Moreover, the point of impact is on the right extremity of the anterior side of the vehicle. This shows that the CRPF vehicle was moving along the left side of the national highway. Since, insurance company did not lead any evidence but the claimants examined one eye witness being PW 2 in both the cases which shows that the CRPF Gypsy was moving only at a speed of 35 km/hr whereas the offending bus was moving at a speed of 60 km/hr, the plea of contributory negligence taken by the insurance company by preferring two appeals as aforesaid does not appear to be acceptable. 12. Accordingly, these two appeals, namely, MAC Appeal No. 230/2012 and MAC Appeal No. 247/2012 are dismissed. No cost. 13. Coming to the appeals preferred by the two claimants it would appear that the salary certificates of both the claimants were before the learned Tribunal and their monthly salary was duly proved before the Tribunal. The learned Tribunal correctly made a calculation as to the annual salary of both the claimants and correctly made deduction from their annual income towards personal expenses. Nityananda Nath left behind his wife and a daughter and so one-third of his annual salary was deducted towards personal expenses. On the other hand, Abdul Aziz Khan left behind his wife and four children and so rightly one-fourth of his annual salary was deducted towards personal expenses. The amounts of annual dependency of both the claimants, therefore, were rightly taken by the learned Tribunal. The learned Tribunal also did not commit any error in choice of multiplier. Nityananda Nath was 34 years of age at the time of accident and so applying the ratio of Sarla Verma and others v. DTC and others reported in (2009) 6 SCC 121 , the learned Tribunal chose 16 to be the multiplier. The learned Tribunal also did not commit any error in choice of multiplier. Nityananda Nath was 34 years of age at the time of accident and so applying the ratio of Sarla Verma and others v. DTC and others reported in (2009) 6 SCC 121 , the learned Tribunal chose 16 to be the multiplier. On the other hand, Abdul Aziz Khan being 30 years of age at the time of accident, multiplier 17 was chosen in his case relying Sarla Verma (supra). But thereafter, the learned Tribunal proceeded to deduct the amounts equal to the family pension payable to the claimants from the annual dependency which does not appear to be in consonance with the law in force in assessing compensation in motor accident cases. The judgments of the Hon’ble Supreme Court in the case of Lal Dei (Supra) and Helen C. Rebello (supra) clearly show that such amount has no nexus in connection with the compensation available in a motor accident. They are based on two different considerations and so the Hon’ble Supreme Court did not find favour with deducting any amount equal to family pension from the entitlement of claimant in motor vehicle accident claim case. The law being settled in this regard in the aforesaid cases, the first point for determination as to untenability of such deduction decided in the affirmative. Accordingly, the learned Tribunal committed error in making the deduction of family pension from the entitlement of the claimants. 14. Now let us examine the second point for determination. In various judgments of the Hon’ble Supreme Court including the cases of Smt. Savita (supra) and Sangappa Nigappa Chamoji (supra), there is precedence of granting Rs. 25,000/- towards funeral expenses and payment of Rs. 1,00,000/- towards loss of consortium. The judgment and award, therefore, requires modification in these two counts. Both the appeals being MAC Appeal No. 65/2011 and MAC Appeal No. 66/2011 are accordingly modified by allowing Rs. 1,00,000/- towards loss of consortium and Rs. 25,000/- towards funeral expenses. Accordingly, re-assessment of the compensation in MAC Appeal No. 65/2011 corresponding to MAC Case No. 695/2005 shall be as follows:- Monthly income of the victim Rs. 6,954/- One-third of the same is deducted towards Personal expenses and thus monthly dependency Rs. 4636/- Annual dependency Rs. 4636/- x 12 50% of annual dependency would be added Rs. 55,632/- Towards future prospect Rs. 27,816/- Total Rs. 6,954/- One-third of the same is deducted towards Personal expenses and thus monthly dependency Rs. 4636/- Annual dependency Rs. 4636/- x 12 50% of annual dependency would be added Rs. 55,632/- Towards future prospect Rs. 27,816/- Total Rs. 83,448/- By multiplying by Multiplier 16 Rs.83,448/- x16 Rs. 13,35,168/- In addition to this amount, the claimants are entitled to Rs. 1,00,000/- towards loss of consortium and Rs. 25,000/- towards funeral expenses. This shall be the just compensation in the present appeal along with interest at the rate of 6% per annum from the date of filing the claim petition till realisation and claimants shall be entitled to this amount. The amount already paid either by way of no fault liability or by interim payment shall be adjusted from this amount. Rs. 25,000/- paid by the appellant at the time of presentation of this appeal shall be adjusted against this amount and the balance amount shall be deposited by the insurance company with the Registry of this court within a period of 6 weeks and upon such deposit being made, the claimants shall be entitled to withdraw the same from the Registry subject to proper identification by the learned counsel. 15. Coming to MAC Appeal No. 66/2011 corresponding to MAC Case No. 810/2005, the re-assessment of the calculation shall be as follows:- Monthly income of the victim Rs. 6,970/- One-fourth of monthly income Rs. 1742.50 Rs. 1743/- One-fourth of the same is deducted towards personal expenses and thus monthly dependency Rs. 5227/- Annual dependency Rs. 5227/- x 12 Rs. 62,724/- 50% of annual dependency would be added towards future prospect Rs. 31,362/- Total Rs. 94,086/- By multiplying by Multiplier 17 Rs.94,086/- x17 Rs. 15,99,462/- Which is rounded off to Rs. 15,99,460/- In addition to this amount, the claimants are entitled to Rs. 1,00,000/- towards loss of consortium and Rs. 25,000/- towards funeral expenses. This shall be the just compensation in the present appeal along with interest at the rate of 6% per annum from the date of filing the claim petition till realisation and claimants shall be entitled to this amount. The amount already paid towards no fault liability as well as the amount paid by virtue of interim order by this court as well as Rs. The amount already paid towards no fault liability as well as the amount paid by virtue of interim order by this court as well as Rs. 25,000/- towards statutory deposit by the appellant at the time of presentation of the appeal shall stand adjusted from the total amount and the balance amount shall be deposited by the insurance company within a period of 2 months from today and upon such deposit being made, the claimants shall be entitled to withdraw the same subject to the proper identification by the learned counsel. 16. These two appeals stand allowed. 17. No order as to costs.