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Gauhati High Court · body

2016 DIGILAW 240 (GAU)

Sukla Chakraborty v. Director of Agriculture & 3

2016-03-31

SUMAN SHYAM

body2016
JUDGMENT : Heard Mr. J. Das, learned counsel for the appellant. Also heard Mr. G. Sarma, learned Govt. Advocate, Assam appearing on behalf of the respondent. 2. This appeal is directed against the judgment and award dated 03-09-2009 passed by the learned Member, MACT, Karimganj in MAC Case No. 79/2006 seeking enhancement of the amount awarded by the learned Tribunal on account of death of the husband of the claimant/ appellant No. 1. 3. The brief factual background of the case is that the husband of the appellant/ claimant No. 1 and the father of the appellant/ claimant No. 1 Sankar Chakraborty met with an accident on 01-11-2005 when he was pillion riding a scooter along with another person, named, Amar Dev which had met with a accident resulting into death of both the rider as well as the pillion rider. The accident occurred on 01-11-2005 when a jeep bearing number AS-10/1900 belonging to the Department of Agriculture, Karimganj came on dashed against the scooter while being driven by rash and negligent manner. The case of the appellant/ claimant is that at the time of his death the deceased was aged about 39 years and was earning Rs. 6,500/- per month in connection with his employment. It was also the case of the appellant that the accident took place solely on account of rash and negligent driving on the part of the driver of the jeep Shri Jadav Lal Choudhury. Under the circumstances, the claim petition was filed by the claimant seeking an amount of Rs. 8,00,000/- as compensation. 4. The respondents/ opposite parties had appeared before the Tribunal and filed their joint written statement questioning the maintainability of the claim petition. The respondent had also taken a plea that the scooter AS-01/7175 was also been driven by the scooterist in a rash and negligent manner which has resulted into the accident. 5. Based on the pleadings of the parties, the learned Tribunal has framed the following issues: 1. Whether the claimants has/ have cause of action of this case? 2. Whether the alleged accident occurred due to rash and negligent driving of the vehicle in question? 3. Whether the claimants is/ are entitled to get any compensation, if so, to what extent? 4. To what other relief/ reliefs the claimants are entitled in law and equality? 6. Whether the claimants has/ have cause of action of this case? 2. Whether the alleged accident occurred due to rash and negligent driving of the vehicle in question? 3. Whether the claimants is/ are entitled to get any compensation, if so, to what extent? 4. To what other relief/ reliefs the claimants are entitled in law and equality? 6. On the basis of the evidence available on record, the learned Tribunal had decided all the issues in favour of the claimant thereby holding that the appellants/ claimants would be entitled to a compensation of Rs. 5,96,000/- in total. However, having held as such, the learned Tribunal had also concluded that there was contributory negligence on the part of the deceased husband of the claimant No. 1, as a result of which, only 50% of the total liability was required to be borne by the respondents. The respondents have not preferred any appeal against the impugned judgment and award. 7. Mr. Das, learned counsel for the appellants submits that the deceased husband of the claimant No. 1 was merely pillion riding the bike. There was nothing on record to suggest that there was any contributory negligence on the part of the husband of the claimant No. 1. Under such circumstances, there was no justification for the learned Tribunal to permit only 50% of the awarded amount to be recovered by the claimants. 8. By referring to the decision of the Hon’ble Apex Court in the case of Rajesh & Ors. Vs. Rajbir Singh & Ors. reported in (2013) 9 SCC 54 , Mr. Das further submitted that learned Tribunal had awarded an amount of Rs. 10,000/- only on account of loss of consortium whereas it is settled position of law that atleast an amount of Rs. 1,00,000/- is required to be awarded for loss of consortium. 9. Mr. Sarma, learned Govt. Advocate on the other hand submits that the awarded amount made by the learned Tribunal is fairly balanced and reasonable one and as such no infirmity can be attributed to the said award. Learned Govt. Advocate further submits that having regard to the facts and circumstance of the case, this Court may consider an appropriate amount of compensation taking note of the decision cited by the learned counsel for the appellants. 10. Learned Govt. Advocate further submits that having regard to the facts and circumstance of the case, this Court may consider an appropriate amount of compensation taking note of the decision cited by the learned counsel for the appellants. 10. I have considered the argument made by the learned counsel for the parties and have also perused the materials available on record. In this case there is no dispute regarding the fact that the deceased husband of the claimant No. 1 had died in the accident on being hit by the jeep belonging to the Agriculture Department, Karimganj while he was pillion riding the scooter along with Amar Dev. There is also no dispute about the age as well as the income status of the deceased person. Taking note of the aforesaid factual position the learned Tribunal has observed as follows: “On the basis of materials revealed and considering the age of the deceased it is concluded, for the purpose of calculation of compensation, that the deceased was earning rupees four thousand five hundred per month. Taking this as basis for calculation of compensation, the annual income comes to Rs. 54,000/- considering the age of the deceased being 39 years as mentioned above, multiplier is fixed as 16. Accordingly, the loss incurred by the claimant is found to be Rs. 54,000/- X 16 = 8,64,000/-. After deducting one third of income of the deceased towards his personal expenses, it comes to Rs. 5,76,000/- (Rupees five seventy six thousand). She is also entitled to funeral expenses of rupees ten thousand and consortium of rupees ten thousand. As such, it comes to Rs. 5,96,000/- (Rupees five lack ninety six thousand) only in total. It has already been discussed in issue no. 2 that the liability on the part of the Ops shall be 50% of the total liability. Accordingly, the claimants are entitled Rs. 2,98,000/- (Rupees two lakhs ninety eight thousand) from the Ops who are liable to pay the same. The issue is accordingly decided in favour of the claimants.” 11. The basic grievance of the appellants, as noticed above, is that having awarded an amount of Rs. 5,96,000/- as compensation, the learned Tribunal had committed error in permitting only 50% of the amount to be recovered by the claimant by holding that there was contributory negligence on the part of the pillion rider as well. The basic grievance of the appellants, as noticed above, is that having awarded an amount of Rs. 5,96,000/- as compensation, the learned Tribunal had committed error in permitting only 50% of the amount to be recovered by the claimant by holding that there was contributory negligence on the part of the pillion rider as well. However, there is nothing on record to support the aforesaid finding of fact recorded by the learned Tribunal. Since the deceased husband of the claimant No. 1 was not the rider of the scooter, as such, it would not be possible for this Court to readily presume any contributory negligence on his part unless cogent evidence showing some covert act of negligence on the part of the pillion rider is brought on record. In the present case, there is no such material. 12. In view of the above, I am of the considered opinion that the learned Tribunal was not correct in the eye of law in permitting only 50% of the total awarded amount to be released to the claimants. Accordingly, it is held that the claimants would be entitled to recover the entire amount of Rs. 5,96,000/- from the respondents. 13. Coming to the question of compensation granted on account of loss of consortium, it is found that the learned Tribunal had awarded an amount of Rs. 10,000/- only to the claimant on such count. However, taking note of the ratio of the law declared by the Hon’ble Apex Court in the case of Rajesh & Ors. (Supra) it is held that the entitlement on account of loss of consortium will be atleast Rs. 1,00,000/- (Rupees one lakh). In view of the above and considering the fact that Rs. 10,000/- has already been awarded by the Tribunal, it is hereby directed that a further amount of Rs. 90,000/- would be added to the amount of Rs. 5,96,000/- constituting the total compensation payable to the appellant/ claimant. In that view of the matter, the appellant/ claimant would be entitled to a total sum of Rs. 6,86,000/- (Rupees six lakhs eighty six thousand) only being the compensation on account of death caused to the husband/ father in the aforesaid accident which occurred on 01-11-2005 along with the interest as awarded by the learned Tribunal. The respondent No. 1 and 2 herein will be responsible for making the payment of compensation. 6,86,000/- (Rupees six lakhs eighty six thousand) only being the compensation on account of death caused to the husband/ father in the aforesaid accident which occurred on 01-11-2005 along with the interest as awarded by the learned Tribunal. The respondent No. 1 and 2 herein will be responsible for making the payment of compensation. With the above observation, this appeal stands allowed to the extent indicated hereinabove. Considering the trauma suffered by the claimants due to the death of their loved one, an attempt may be made by the respondent No. 1 to complete the payment of compensation within a period of 3 (three) months from the date of receipt of the certified copy of this order.