Roitualiani Darlong, W/O. Lt. Siamkunga Darlong v. Bani Sarkar Saha, W/O. Shri Pradip Saha
2017-01-16
T.VAIPHEI
body2017
DigiLaw.ai
JUDGMENT & ORDER : Heard Mr. P.S. Roy, the learned counsel for the appellants. Also heard Mr. K. Bhattacharjee, the learned counsel for the insurance company. 2. The appellants are aggrieved by the judgment dated 16.07.2015 passed by the learned Member, Motor Accident Claims Tribunal, Court No.2, West Tripura, Agartala in Title Suit (MAC) Case No.150/2013 awarding Rs.6,65,250/- to the appellant No.1 after making deduction to the extent of 50% for the contributory negligence of the deceased. 3. The facts giving rise to the appeal may be briefly noted at the outset. On 27.02.2013 at about 3.00 p.m., the deceased (J.T. Vanneisanga Darlong) was proceeding from Kumarghat towards Pacharthal by the left side of Assam-Agartala road in a motor bike bearing registration No.TR02-B-7954. When he reached near SDM Office at Kumarghat, he stopped his motor bike and parked it by the side of the road and was about to proceed towards SDM Office on foot when, according to the appellants, one mini bus bearing registration No.TR01-A-1293 coming from Dharmanagar side with excessive speed driven in a rash and negligent manner dashed against him and his motor bike lying on the road. As a result, the deceased sustained serious injuries on his person and subsequently, succumbed to his injuries. The deceased was found by the Tribunal to 28 years old at the time of the accident and is survived by his mother, two sisters and one brother. The appellants filed the claim petition claiming compensation for the death of the deceased. 4. The claim petition was contested by both the owner of the vehicle as well as the insurance company by filing their respective written objection. At the conclusion of the trial, the impugned award was passed against which the appellants are now coming up before this Court. The learned counsel for the appellants submits that the finding of the Tribunal that the accident was caused by contributory negligence of both the deceased and the owner of the vehicle is not borne by the record and, as such, this finding is perverse. He further submits that the appellant Nos.2, 3 and 4 being the sisters and brother of the deceased were his dependants and are equally entitled to compensation for the death of their benefactor; the Tribunal wrong in awarding the compensation only to the appellant No.1 and in denying the compensation to the remaining appellants.
He further submits that the appellant Nos.2, 3 and 4 being the sisters and brother of the deceased were his dependants and are equally entitled to compensation for the death of their benefactor; the Tribunal wrong in awarding the compensation only to the appellant No.1 and in denying the compensation to the remaining appellants. The impugned judgment is, however, supported by the learned counsel for the insurance company by submitting that the finding made by the Tribunal about the contributory negligence on the part of both the deceased in the vehicular accident is substantiated by the police report and, as such, the impugned judgment is sustainable in law and does not require interference of this Court. 5. Before proceeding further, I must hold without any hesitation that the brothers and sisters of the deceased are not entitled to any compensation as there is no proof that they were his dependants. I say this on the authority of Sarla Verma v. Delhi Transport Corporation, 2009 ACJ 1298 . As for contributory negligence, I have carefully examined the depositions of the claimant-appellant, who was examined as PW-1, and PW- 2 produced by the appellant and other materials on record. On perusing the FIR as well as the charge sheet submitted by the police against the driver of the offending vehicle, there is absolutely no evidence to support the findings of the Tribunal that “due to collision of minibus and motor bike the said incident took place when two vehicle collided face to face, in absence of any cogent evidence that a particular vehicle was driven in a rash and negligent manner, negligence of both the vehicles should be inferred…….[Since the rider of the bike has expired, after investigation, police submitted only against the driver of the bus as charge-sheet cannot be submitted against a deceased person. So, in the instance case, it appears to me that the incident took place due to rash and negligent driving of both the vehicles involved. I am satisfied that the deceased being rider of his own vehicle has also contributed his action by driving his bike in rash and negligent (sic).” To my mind, the approach of the Tribunal is wrong. The police in the charge sheet did not say so. No evidence was adduced by the insurer to show that the deceased was driving the bike in a rash and negligent manner.
The police in the charge sheet did not say so. No evidence was adduced by the insurer to show that the deceased was driving the bike in a rash and negligent manner. In my opinion, the findings of the Tribunal on this aspect of the matter are apparently based on figment of its imagination and are, therefore, perverse. Head-on collision does not necessarily lead to the conclusion that the accident occurred due to the negligence of both the vehicle. In the absence of any direct or corroborative evidence, no inference can be drawn as to contributory negligence on the part of the victim.- See Jiju Kuruvila v. Kunjujamma Mohan, (2013) 9 SCC 166 . Consequently, I hold that there is contributory negligence on the part of the deceased in the vehicular accident. In the absence of contributory negligence, the Tribunal has, therefore, grossly erred in deducting 50% of the compensation payable to the appellant on the ground of contributory negligence of the deceased. In M. Mansoor v. United India Insurance Co., (2013) 15 SCC 603 and the decision of the three-Judge Bench of the Apex Court in Munna Lal Jain v. Vipin Kumar Sharma, (2015) 6 SCC 347 , it has been clearly held that multiplier is to be used with reference to the age of the deceased and not the age of the parents. The appellant is, therefore, entitled to loss of dependency to the extent of Rs.13,00,500/- without any deduction, to which shall be added a sum Rs.50,000/- for loss of love and affection and another of Rs.50,000/- for loss of estate. Another sum of Rs.25,000/- shall be added for his funeral expenses plus a sum of Rs.10,000/- for transportation and medical expenses incurred for his treatment before his death. Therefore, the total amount of compensation payable to the appellant will come to Rs.14,35,500/- with interest calculated at the rate of 6% per annum from the date of the claim petition. 6. Resultantly, this appeal partly succeeds. The Oriental Insurance Co. Ltd. is, therefore, directed to deposit the afore-mentioned awarded amount with interest to this Registry within a period of two months from the date of receipt of this judgment for payment to the appellant. As and when the amount is deposited, the same shall be released to the appellant after observing the usual formalities without further reference from this Court.
Ltd. is, therefore, directed to deposit the afore-mentioned awarded amount with interest to this Registry within a period of two months from the date of receipt of this judgment for payment to the appellant. As and when the amount is deposited, the same shall be released to the appellant after observing the usual formalities without further reference from this Court. The impugned judgment stands modified in the manner and to the extent indicated above. Transmit the L.C. record forthwith.