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2018 DIGILAW 1157 (GAU)

Bharati Axa General Insurance Company Ltd. v. Loni Borah

2018-08-07

RUMI KUMARI PHUKAN

body2018
JUDGMENT : Rumi Kumari Phukan, J. Heard Mr. R. Goswami, learned counsel for the appellant. Also heard Mr. S. K. Goswami, learned counsel for the respondents. 2. The appeal has been preferred basically challenging the award dated 23.02.2015 so passed by the Ld. Member MACT No. 2, Kamrup in MAC Case No. 171/2012 on the ground of having no permit on the part of the offending vehicle and also wrong calculation of the award on different heads by the Tribunal. 3. Briefly stated that the claim petition was preferred by the 4 (four) claimants u/s 166 of MV Act 1988, seeking compensation for the death of Bitupan Borah @ Bitopan who is the husband of the petitioner No. 1 Loni Borah and others claimants are parents and minor children of the deceased. 4. So far as the facts are concerned on 15.11.2011 when the deceased was going towards Lokhara side by riding his motor cycle bearing Registration No. AS-01-Q-3933 and on the way, when he reached at Boragaon, on NH 37, he knocked down by the offending vehicle No. NL-01-G-5971 (Trailor) coming from Jalukbari side in a rash and negligent manner and in high speed as a result of which As a result of which the accident occurred and said Bitupan Borah sustained severe injury on his person and on the way to hospital he succumbed to his injuries. The above 4 (four) claimants made a prayer for compensation stating that deceased was the sole earner of family and his earnings was Rs. 9,700/- per month and he was 31 years old. 5. Although the owner and driver of the vehicle did not turn up initially to file any written statement but subsequently the owner appeared before the Tribunal and filed permit pertaining to the vehicle. On the other hand, Insurance Company (appellant) filed the case by filing their written statement denying the allegations and submitted that payment of compensation is subject to production of proper driving license on the permit etc. as well as the proof of accident. 6. The Tribunal after examining all the evidence on record and perusing the documents come to a findings that the accident occurred due to the rash and negligent driving of the aforesaid vehicle No. NL-01-G-5971 (Trailor) and as the vehicle was insured with the appellant insurance company was liable to pay the compensation. 7. 6. The Tribunal after examining all the evidence on record and perusing the documents come to a findings that the accident occurred due to the rash and negligent driving of the aforesaid vehicle No. NL-01-G-5971 (Trailor) and as the vehicle was insured with the appellant insurance company was liable to pay the compensation. 7. On the next taking into account about the age of the deceased at the time of his death and following guidelines rendered in Sarla Verma (SMT) and others Vs. Delhi Transport Corporation, (2009) 6 SCC 121 and Rajesh & Ors. Vs. Rajbir Singh and Ors., (2013) ACJ 1403, the award for funeral expenses, loss of consortium and loss of care and guidance for minor as well as some general damages was awarded to justify the situation as follows: 1. Loss of Dependency Rs. 11,52,000/- 2. Funeral Expenses Rs. 25,000/- 3. Consortium Rs. 1,00,000/- 4. Loss of care and guidance Rs. 1,00,000/- For minor 5. Loss of estate Rs. 5,000/- 6. Transportation of Body Of the deceased Rs. 5,000/- Total Rs. 13,87,000/- The Tribunal awarded of Rs. 13,87,000 along with 6 % interest from the date of filing of the claim petition till realization. 8. I have heard the submission of learned counsel for the parties and also gone through the matters on record. Today, learned counsel for the appellant has fairly submitted that on verification of LCR the permit is found to be submitted by the owner. However, according to learned counsel for the appellant the Ld. Tribunal has calculated certain amount in the wrong notion and same is required to be calculated in the proper manner like future prospect, consortium of loss and care and guidance for minor. 9. Learned counsel for the respondent has also made a fair submission that in view of the decision rendered in National Insurance Company Vs. Pranay Sethi and others on 31.10.2017 in Special Leave Petition (Civil) No. 25590/2014, the amount of compensation required to be re-calculated in the following manner. a. Total Monthly Income Rs. 6,000/- b. Annual Income Rs. 72,000/- (6000 x 12) c. Add 40 % Rs. 1,00,800/- (72,000 + 28,800) d. Less 1/3 rd Rs. 67,200/- e. Multiplier 16 Loss of dependency Rs. 10,75,200/- (67,200 x 16) f. Loss of estate Rs. 15,000/- g. Loss of consortium Rs. 40,000/- h. Funeral expenses Rs. 15,000/- Total Rs. 11,45,200/- 10. 6,000/- b. Annual Income Rs. 72,000/- (6000 x 12) c. Add 40 % Rs. 1,00,800/- (72,000 + 28,800) d. Less 1/3 rd Rs. 67,200/- e. Multiplier 16 Loss of dependency Rs. 10,75,200/- (67,200 x 16) f. Loss of estate Rs. 15,000/- g. Loss of consortium Rs. 40,000/- h. Funeral expenses Rs. 15,000/- Total Rs. 11,45,200/- 10. Accordingly appeal is partly allowed and the insurance company is hereby directed to pay the above amount with interest of 6 % as indicated in the award from the date of filing the petition till realization and however the averment is directed by the Court. The amount of statutory deposit be refunded to the appellant. 11. Insurance company will deposit the balance amount after deducting the amount already paid before the Registry. 12. Matter stands disposed of. Return the LCR.