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2018 DIGILAW 1446 (GAU)

Rekha Rani Ray v. State of Assam

2018-09-27

RUMI KUMARI PHUKAN

body2018
JUDGMENT : Rumi Kumari Phukan, J. Heard Mr. S.K. Saharia, learned counsel for the appellant. Ms. M. Phukan, learned Govt. Advocate, Assam represents the State respondents. 2. The present appeal has been preferred against the judgment and award dated 30.07.2012, passed by the learned Member, MACT, Bongaigaon, in MAC Case No.57/1994. 3. Briefly stated, the case of the claimant is that her husband Monomohan Deb Ray, who was an employee in the Election Office, North Salmara, Abhayapuri, while leaving his office on 10.08.1993, at about 5:45 P.M. on his scooter, the offending vehicle No.ASG-2615 (Jeep), which was used on election duty, was on back gear in front of his scooter and suddenly knocked down the scooter of the deceased with high speed, as a result of which the deceased fell down from the scooter and sustained grievous injuries and his scooter also got damaged. The victim died on 31.08.1993 in the hospital, out of the injury he sustained in the said accident. The deceased left behind his wife (claimant) and his minor son and old parents at the time of his death. With the allegation that the accident occurred due to rush and negligent driving of the said vehicle, the claim petition was preferred by the wife of the deceased, claiming compensation due to the death of her husband as a result of the motor vehicle accident. 4. The learned Tribunal issued notice to all the opposite parties. In turn, the State of Assam through the District Agricultural Officer, Bongaigaon, contested the case by filing written statement wherein it is contended that although the said vehicle belongs to the Agriculture Department but the same was at the disposal of the District Election Officer, Bongaigaon on being requisitioned. Although the occurrence of the accident is admitted but it stated that the accident took place due to the fault of the deceased himself and not for the fault of the driver of the jeep and therefore, the Department of Agriculture is not liable to pay the compensation. It is further stated that the claimant is entitled to family pension on the death of the Government servant and the claim is highly exaggerated. The driver and the owner of the vehicle filed no separate written statement in the said case. 5. It is further stated that the claimant is entitled to family pension on the death of the Government servant and the claim is highly exaggerated. The driver and the owner of the vehicle filed no separate written statement in the said case. 5. The learned Tribunal on the basis of the pleadings framed the following issues:- (1) Whether the accident took place due to rush and negligent driving of the driver? (2) Whether the opposite party is liable to pay compensation. If so, to what amount? 6. In support of her claim, the claimant examined three witnesses and the opposite party also examined two witnesses and exhibited some documents. The three witnesses including the claimant in their evidence have given the same sort of evidence in support of the facts given in the claim petition that the accident took place due to the fault of driver of the jeep. The matter was also informed to the police and only G.D. Entry was made and the police registered no separate case. Although the PW.1 and PW.2 were not eye witnesses of the occurrence but the PW.3 is an eye witness to the occurrence and has stated specifically that on the way from market in the evening, as soon as he crossed the Election Office, he saw the accident with his own eyes, which occurred in front of the PWD quarter. It is stated that the driver of the offending jeep, while on his back-gear with high speed, without looking backside towards the road, knocked down the scooter of the deceased. 7. The PW.1/claimant has stated that after the accident, she has got Group Insurance benefit amounting to Rs. 30,000/- and also got a job after the death of her husband on compassionate ground. She has remarried in the year 2002, after the death of her husband in the year 1993. 8. On the other hand, the defence witness DW.1 and DW.2, although has tried to project that the accident took place due to the fault of the deceased and the scooter of the deceased hit the vehicle (jeep) of his own, which cannot be acted upon for the reason, that admittedly the DW.1 is not an eye witness to the occurrence and has no personal knowledge about the matter. The DW.2 although has claimed himself to be the driver of the offending jeep but he could not say/submit the driving license and appointment letter etc. and rather he admitted that he was a casual employee of the Department. That being the position, it cannot be held that he was a driver of the vehicle and his evidence cannot be accepted as authentic. The evidence of PW.3 (eye witness) is specific on this aspect. 9. The learned Tribunal however without appreciating the evidence in proper perspective was pleased to hold that the drivers of both the vehicles were liable for the accident. The learned Tribunal was of the opinion that as the vehicle was requisitioned at the time of occurrence, so the State of Assam is liable to pay 50% of the awarded compensation, which is also not sustainable. 10. I have considered the submissions of learned counsel for both the parties on the matter and has also carefully examined the evidence on record which is discussed above. Now only the facts that the claimant has now re-married and has given a Govt. job, the same cannot be a ground to debar her to prefer the compensation being a legal heir of the deceased husband. The other members of the family have not come forward to prefer any claim. So the same cannot be adjudicated upon, at this stage. 11. Regarding the dependency, the learned Tribunal on the basis of the salary certificate as on 1993 of Rs. 2,689/- per month and deducting one third for personal expenses of the deceased and applying the multiplier 16, computed the total amount of dependency at Rs. 4,21,844/-, out of which 50% of the amount is directed to be given by the State of Assam. The present appeal has been basically preferred challenging the quantum as well as the liability assessed by the Tribunal. 12. Although the learned counsel for the State has made an attempt to resist the claim on the ground of re-marriage of the claimant and her job benefit, the same cannot be a ground to discard the claim for compensation, which is already adjudicated in the year 2012. 13. Accordingly, considering all the above, after deducting 1/3rd from the salary i.e. Rs. 2,689/- per month and applying the multiplier 16, the amount of dependency comes to be Rs. 3,44,192/-. To this amount, another amount of Rs. 13. Accordingly, considering all the above, after deducting 1/3rd from the salary i.e. Rs. 2,689/- per month and applying the multiplier 16, the amount of dependency comes to be Rs. 3,44,192/-. To this amount, another amount of Rs. 70,000/- may be added for funeral expenses, loss of estate, etc. as per the verdict of the Supreme Court in National Insurance Co. Ltd. vs. Pranay Sethi and Others, (2017) AIR SC 5157. Thus the total amount of compensation comes to Rs. Rs. 4,14,192/-. This amount will carry interest @7% per annum from the date of filing of the claim petition till realization of the awarded amount. 14. Accordingly, the State respondent Nos.1 & 2 are hereby directed to pay the compensation amount to the claimant, which will be deposited before the concerned Tribunal at Bongaigaon, within a period of two months from today and the claimant can withdraw the same on proper identification. 15. With the aforesaid direction, the appeal stands disposed of. 16. Return the LCR forthwith along with a copy of this order.