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2018 DIGILAW 1170 (GAU)

Oriental Insurance Co. Ltd v. Nani Gopal Kalita

2018-08-08

RUMI KUMARI PHUKAN

body2018
JUDGMENT : Rumi Kumari Phukan, J. Heard Mr. S. Dutta, the learned senior counsel appearing for the appellant Oriental Insurance Co. Ltd. (hereinafter referred as 'the Insurance Company'). Also heard Mr. N. Ahmed, the learned counsel appearing for the respondent Nos.1 & 2. 2. Brief case of the claimants who preferred the claim petition is that on 8.5.2009, at about 3:30 P.M., while Ms. Mamoni Kalita along with her mother Putuli Kalita and brother Gautam were waiting for bus at Maroi on the National Highway 52, then suddenly the offending vehicle No. AS-25-A-4444 (Oil Tanker), coming in a high speed lost its control and knocked them. As a result, mother Putuli Kalita and brother Gautam Kalita sustained grievous injuries on their person and on the way to the hospital, both of her mother and brother died. It is alleged that the accident occurred due to rush and negligent driving of the aforesaid vehicle. 3. The surviving legal heirs i.e. Mamoni Kalita along with her brother Nani Gopal Kalita preferred a cliam petition before the Tribunal, claiming Rs. 30 lakh as compensation, by stating that their mother used to earn Rs. 5,000/- per month by doing some handy works as a waiver and by maintaining some animal husbandry. 4. Necessary notice was issued by the Tribunal to the driver, owner and insurer of the vehicle and in turn both the owner as well as the insurer of the vehicle contested the case by filing written statement, submitting inter alia that the petition is not maintainable and there was no any rush and negligent driving on the part of the driver of the vehicle. The insurance company also contends that they are not liable to indemnify the insured, if there is violation of policy condition and the claimants failed to prove the accident in strict manner. 5. On the pleadings of both the parties, following issues were framed: 1. Whether there is cause of action for the claim? 2. Whether the accident occurred due to rush and negligent driving of the driver, causing death to Putuli Kalita? 3. Whether the claimants are entitled to get any compensation as prayed for? 4. To what relief/relieves the parties are entitled to? 6. During the course of proceeding, the claimant examined two witnesses in support of their case and respondent/appellant adduced no any evidence. 3. Whether the claimants are entitled to get any compensation as prayed for? 4. To what relief/relieves the parties are entitled to? 6. During the course of proceeding, the claimant examined two witnesses in support of their case and respondent/appellant adduced no any evidence. The learned Tribunal after examining the evidence on record, comes to the finding that the accident occurred due to the rush and negligent driving of the vehicle resulting the death of the deceased. On the other hand, a police case has also been registered against the driver of the said vehicle, as Sipajhar P.S. Case No.163/09, under Sections 279/304(A) of the IPC. 7. As regards the income of the deceased which is stated to be Rs. 5000/- per month by weaving, knitting and rearing husbandry etc., the learned Tribunal took the monthly income of the deceased as Rs. 4000/- and after deducting 1/3rd of the income, the Tribunal has assessed their annual dependency as Rs. 36,000/- per annum and by using the multiplier 13, according to the age of the victim, an amount of Rs. 4,85,000/- was granted as compensation to the claimants with interest @ 7% per annum, to be granted from the date of filing of the petition till realization. 8. Challenging the aforesaid award, the Insurance Company has preferred the present appeal on the ground that the quantum is on higher side as there is no definite proof as regards the income of the deceased. Although at the time of filling written statement, the Insurance Company has not challenged the status of the claimants to raise the claim, not being dependent but the same has been now raised before this Court that the aforesaid claimants are not entitled to get compensation as has been awarded by the Tribunal. 9. The income certificate that was given by the PW.2, having no authority to issue such certificate is also under challenge. The learned counsel for the respondents has however justified the award that was awarded by the Tribunal. 10. I have duly considered the submissions of learned counsel for both the parties and the impugned award passed by the learned Tribunal. 11. The two claimants herein are the son and daughter of the deceased and they stated to be dependent upon the deceased at the time of her death and the claim has been preferred being the legal representatives of the deceased mother. 12. 11. The two claimants herein are the son and daughter of the deceased and they stated to be dependent upon the deceased at the time of her death and the claim has been preferred being the legal representatives of the deceased mother. 12. It is to be noted that the learned Tribunal has assessed the income of the deceased as Rs. 4000/- per month, on the basis of the certificate that was issued by the PW.2. But the PW.2 is not a person in authority to issue such income certificate being simply a resident of the locality although he is stated to be the Secretary of Maroi Banik Sangstha. 13. By referring to the decision of New India Insuracne Co. Ltd. vs. Kawllian Thanga and another, (2007) 3 GauLT 444 , it has been submitted that such a certificate issued by a person not in authority cannot be accepted in evidence to quantify the income of a deceased. Further by relying on the decision of Laxmi Devi and others vs. Mohammad Tabbar and another, (2008) 12 SCC 165 , it has been submitted that in absence of specific evidence as regards the income, the Court can take into account notional income of the deceased i.e. Rs. 3000/- per month. Obviously, in this case there is no specific evidence as regards the proper income of the deceased. In view of the matter, the income of the deceased is taken as Rs. 3000/- per month and after deducting 1/3rd of the same and by taking the age and multiplier as same of the victim, the loss of dependency will be Rs. 3,12,000/- (Rs. 2000/- X 12 X 13) and on account of funeral expenses and loss of estate, an amount of Rs. 30,000/- can be added, as a compensation as per the prevailing position of law. Thus the total amount of Rs. 3,42,000/- is now assessed, as a just and fair compensation to be awarded to the claimants. 14. Accordingly the Insurance Company/appellant is hereby directed to pay the aforesaid amount along with interest @ 7% per annum, as awarded earlier from the date of filing till realization. The Insurance Company will deposit the amount within 6 weeks from today before the Registry, by deducting the amount already deposited/paid, including the statutory deposit. 15. With the above discussions and findings, the appeal stands disposed of. Send back the LCR immediately.