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Gauhati High Court · body

2019 DIGILAW 226 (GAU)

Sujalkha v. Manager, Reliance General Insurance Co. Ltd.

2019-02-19

MANISH CHOUDHURY

body2019
JUDGMENT : MANISH CHOUDHURY, J. 1. This appeal under Section 173. Motor Vehicles Act, 1988, as amended, has been preferred against the judgment and award dated 29.06.2013 passed by the learned Member, Motor Accident Claims Tribunal, Bongaigaon in MAC Case No. 155/2009. By the impugned judgment and award dated 29.6.2013, the learned Tribunal has awarded an amount of Rs. 1,52,000/- as compensation to the claimants and the respondent No. 1 herein i.e. the opposite party No. 1 -insurer in MAC Case No. 155/2009 has been directed to make payment of the said compensation within 2 (two) months from the date of receipt of the notice with interest @ 6% per annum from the date of passing the judgment till payment, subject to deduction of statutory deposit, if any. 2. The two appellants herein were the claimants in MAC Case No. 155/2009. The facts, in brief, leading to the institution of MAC Case No. 155/2009 are that on 26.07.2009 at about 10.30 a.m., while the minor daughter of the claimants, Shirina Begum was coming from Kurshakada towards Ziaguri by the left side of the National Highway No. 31 along with her grandmother, a vehicle (Tata Winger) bearing registration No. AS-19/C-1119, coming from the backside in a rash and negligent manner, directly hit the daughter of the claimants. As a result of the said accident, the daughter of the claimants sustained serious injuries on various parts of her person, more particularly, on the head. She was immediately taken to Bongaigaon with the assistance of local people and was admitted at Bongaigaon Civil Hospital. 3. Considering the serious condition of the minor girl, she was, thereafter, referred to Lower Assam Hospital & Research Centre. Bongaigaon by the doctor of Bongaigaon Civil Hospital but at about 11.45 p.m. on 26.7.2009 i.e. the date of the accident, the minor daughter of the appellants-claimants succumbed to her injuries at Lower Assam Hospital & Research Centre and later on, postmortem examination was conducted at Bongaigaon Civil Hospital on 27.07.2009. The accident had occurred within an area under the jurisdiction of Abhayapuri Police Station and in respect of the accident involving the vehicle bearing Registration No. AS-19/C-1119, a police case being Abhayapuri Police Station Case No. 250/2009 was registered against the driver under Sections 279/304A, Indian Penal Code. 4. The accident had occurred within an area under the jurisdiction of Abhayapuri Police Station and in respect of the accident involving the vehicle bearing Registration No. AS-19/C-1119, a police case being Abhayapuri Police Station Case No. 250/2009 was registered against the driver under Sections 279/304A, Indian Penal Code. 4. The appellants pursuant to the death of their daughter, as the claimants instituted an application under Section 166, Motor Vehicles Act, 1988, as amended, (hereinafter referred to as the Act) claiming compensation for the death of their daughter, who was about 12 years at the time of the accident, and the same was registered as MAC Case No. 155/2009. In the claim application, the insurer, the owner and the driver of the offending vehicle bearing registration No. AS-19/C-1119 were impleaded as opposite party No. 1, opposite party No. 2 and opposite party No. 3 respectively. On institution of the said claim application as MAC Case No. 155/2009, notices were issued to the opposite parties for their appearances. The opposite party No. 1 i.e. the insurer of the vehicle bearing registration No. AS-19/C-1119, on receipt of the notice, appeared and contested the case by filing written statement. The proceeding, however, proceeded ex-parte against the owner and the driver respectively of the vehicle. 5. On the basis of the pleadings of the parties, the learned Tribunal framed the following issues :- 1. Whether motor vehicle accident took place on 26.07.2009 as alleged and if so, whether vehicle No. AS-19/C-1119 was involved in the accident? 2. Whether the accident in question took place due to rash and negligent driving of the driver of the vehicle? 3. Whether the death of Shirina Begum was caused in the accident in question due to hit by the vehicle No. AS-19/C-1119? 4. Whether the claimants are entitled to get compensation for the death of the deceased Shirina Begum, if so to what extent and by whom it should be paid? 6. The claimant's side adduced the evidence of two witnesses and exhibited a number of documents. The witnesses were duly cross-examined by the learned counsel for the insurer. The learned Tribunal decided all the issues in favour of the claimants and thereafter, the Tribunal had allowed the claim application by the judgment and award dated 29.06.2013 assessing the total compensation at Rs. 1,52,000/- to be paid by the insurer of the vehicle in the manner mentioned herein above. The learned Tribunal decided all the issues in favour of the claimants and thereafter, the Tribunal had allowed the claim application by the judgment and award dated 29.06.2013 assessing the total compensation at Rs. 1,52,000/- to be paid by the insurer of the vehicle in the manner mentioned herein above. 7. I have heard Mr. S.C. Biswas, learned counsel for the appellants. I have also heard Mr. R. Goswami, learned counsel for the respondent No. 1 and Mr. M. Khan, learned counsel for the respondent Nos. 2 and 3. I have also perused the materials available on record. 8. Mr. Biswas, learned counsel for the appellants has submitted that the instant appeal has been preferred by the appellants, who were the claimants in MAC Case No. 155/2009 and the parents of Late Shirina Begum on the ground that the amount awarded by the Tribunal is inadequate and the same could not be considered as just compensation. Mr. Biswas has submitted that learned Tribunal while arriving at the compensation in respect of the death of the minor child, did not take into consideration some vital factors. The aspects he highlighted are that the Tribunal did not take into account the conventional heads towards loss of love and affection, funeral expenses and the expenses which the appellants had incurred towards the medical expenditure of the minor child till the time of her death. Referring to Exhibit-5, Exhibit-6, Exhibit-7 and Exhibit-8, he has submitted that the appellants-claimants had incurred an amount of about Rs. 11,000/- towards medical expenditure of the deceased but that amount was not added while passing the award. He has also submitted that the amount granted towards funeral expenses is inadequate and there was no amount added in respect of loss of love and affection. The appellants-claimants being the parents of the deceased, who was a minor of 12 years at the time of her death, ought to have been granted compensation under different heads like loss of estate, love and affection as well as lose of future prospect as their expectation from the deceased was very high. As regards payment of interest, the Tribunal had granted interest @ 6% per annum only from the date of passing of the judgment till payment. 9. Mr. As regards payment of interest, the Tribunal had granted interest @ 6% per annum only from the date of passing of the judgment till payment. 9. Mr. Goswami, learned counsel for the respondent No. 1 -insurer has submitted that in so far as the expenses incurred by the appellants-claimants towards medical treatment of their daughter, the same should be on the basis of evidence produced before the Tribunal. The actual expenses incurred towards medical treatment should be allowed on the basis of the documents produced by the claimants in the proceedings before the Tribunal. Thus, if any documentary evidence was led in respect of the medical expenditure before the Tribunal, this Court, in exercise of appellate jurisdiction, can certainly look into acceptability or otherwise of such documentary evidence and decide accordingly. Mr. Goswami further submits that in so far as the future prospects of the minor children is concerned, it was for the claimants to lead evidence in that regard and in the absence of any cogent evidence as regards future prospects of the children no amount can be granted towards future prospects. In respect of the amount to be awarded under the head of funeral expenses, the same is to be awarded as per the position settled by the Apex Court. As regards grant of interest, the Act has provided the discretion to the Tribunal and the Tribunal, in the instant case, considering the fact situation obtaining in the case, had exercised the discretion to grant interest from the date of the award and there is, thus, no illegality committed by the Tribunal. Mr. Khan, learned counsel for the respondent Nos. 2 and 3 has submitted that at the time and date of the accident, the vehicle bearing registration No. AS-19/C-1119 was duly insured under a policy of insurance with the respondent No. 1 -insurer and as the deceased was a third party, for any compensation awarded the owner is liable to be indemnified by the insurer of the vehicle as no policy violation was alleged by the respondent No. 1 -insurer. 10. In the instant case, the death of the minor child was the subject matter of the claim application filed under the Act, 1988. In so far as the issues framed by the tribunal were concerned, the parties were not in dispute as regards the Issue No. 1, 2 and 3 were concerned. 10. In the instant case, the death of the minor child was the subject matter of the claim application filed under the Act, 1988. In so far as the issues framed by the tribunal were concerned, the parties were not in dispute as regards the Issue No. 1, 2 and 3 were concerned. It is the amount of compensation which is assailed in the instant appeal. In the instant case, the learned Tribunal had arrived at an amount of Rs. 1,50,000/- as compensation and to that amount of Rs. 1,50,000/-, an amount of Rs. 2,000/- had been added towards funeral expenses. Apart from the amount of compensation, the appellants had contended that the claimants are also entitled for amounts under other heads. The Tribunal. in the instant case, had adopted the multiplier of 15 as applicable in respect of person up to 15 years and notional income of Rs. 15,000/- per annum for the deceased as applicable for a non-earning person, as per the second schedule of the Act and arrived at the figure of Rs. 1,50,000/-. Adding Rs. 2,000/- towards funeral expenses, the Tribunal awarded the compensation of Rs. 1,52,000/-. 11. In New India Assurance Co. Ltd. Vs. Satender & Ors., reported in (2006) 13 SCC 60, the factual background, in a nutshell, were that a child, aged about nine years, was knocked down by a truck which was the subject matter of insurance with the appellant therein. As a result of the accident, the said child died. A claim application was filed under Section 166 of the Act claiming compensation and the Tribunal found that the child was not earning and, therefore, the compensation had to be assessed on the basis of notional income. The Tribunal referred to the second schedule to the Act and held that the notional income as per the said schedule was Rs. 15,000/- per annum, but the same was unrealistic. Accordingly, the notional income was taken as Rs. 30,000/- per annum. After deducting 1/3rd towards personal expenses, the financial dependency of the parents was fixed at Rs. 20,000/- per annum. Considering the age of the parents, multiplier of 17 was adopted. The total financial dependency was calculated at Rs. 3,40,000/- for financial loss and a sum of Rs. 1,00,000/- was added for emotional loss and adding a sum of Rs. 5,000/- for funeral expenses, a sum of Rs. 20,000/- per annum. Considering the age of the parents, multiplier of 17 was adopted. The total financial dependency was calculated at Rs. 3,40,000/- for financial loss and a sum of Rs. 1,00,000/- was added for emotional loss and adding a sum of Rs. 5,000/- for funeral expenses, a sum of Rs. 4,45,000/- was awarded as compensation with interest at the rate of 9% per annum from the date of institution of the claim application till payment. An appeal was filed before the High Court by the appellant which came to be dismissed. In appeal, the Supreme Court referred to the case of State of Haryana & Anr. Vs. Jasbir Kaur & Ors., reported in (2003) 7 SCC 484 , and had observed as under :- "12. In cases of young children of tender age, in view of uncertainties abound, neither their income at the time of death nor the prospects of the future increase in their income nor chances of advancement of their career are capable of proper determination on estimated basis. The reason is that at such an early age, the uncertainties in regard to their academic pursuits, achievements in career and thereafter advancement in life are so many that nothing can be assumed with reasonable certainty. Therefore, neither the income of the deceased child is capable of assessment on estimated basis nor the financial loss suffered by the parents is capable of mathematical computation." Applying the principles indicated in Jasbir Kaur's case (supra) to the facts of the said case, the Supreme Court found it appropriate to award a sum of Rs. 1,80,000/- as appropriate to meet the ends of justice. In Kaushlya Devi Vs. Karan Arora & Ors., reported in (2007) 11 SCC 120 , the facts, in brief, were that the deceased was aged about 14 years and was the only son of the appellant. The Tribunal on consideration of the rival stands, came to award a sum of Rs. 1,00,000/- along with interest @12% from the date of the claim till realization. In appeal, the Supreme Court considering the principle indicated in New India Assurance Co. Ltd. vs. Satender and others (supra) to the facts of the said case, did not interfere with the quantum awarded. 12. In Reshma Kumari & Ors. Vs. 1,00,000/- along with interest @12% from the date of the claim till realization. In appeal, the Supreme Court considering the principle indicated in New India Assurance Co. Ltd. vs. Satender and others (supra) to the facts of the said case, did not interfere with the quantum awarded. 12. In Reshma Kumari & Ors. Vs. Madan Mohan & Anr., reported in (2013) 9 SCC 65 , it is held that as regards the cases where the age of the deceased is up to 15 years, irrespective of Section 166 or Section 163A of the Act under which the claim for compensation has been made, multiplier of 15 and the assessment as indicated in the Second Schedule subject to correction as pointed out in Column (6) of the Table in Sarla Verma (Smt) & Ors. Vs. Delhi Transport Corporation & Anr. (2009) 6 SCC 121 , should be followed. In National Insurance Co. Ltd. Vs. Pranay Sethi, reported in (2017) 16 SCC 680 , a Constitution Bench of the Hon'ble Supreme Court has observed that the same shall be followed as it shall subserve the cause of justice and the unnecessary contest before the Tribunal and the Courts would be avoided. 13. Considering the fact situation obtaining in the present case and also the observations as regards compensation in respect of death of a young child, aged upto 15 years, in the decisions of the Apex Court referred above, no interference is called for in respect of award of the amount of Rs. 1,50,000/- so arrived at by the learned Tribunal. 14. In a claim under the Act, the claimant is entitled for actual medical expenses. However the very same amount cannot be awarded twice, since the same would amount to a pecuniary benefit. In the instant case, the learned Tribunal while arriving at the amount of total compensation, did not take any amount into account in respect of medical expenditure, claimed to have been incurred by the claimants. In his evidence, the claimant No. 1 had deposed that an amount of Rs. 25,000/- was incurred towards the treatment of their daughter from the time of the accident till her death. I have perused the documents submitted by the claimants in respect of expenditure incurred towards medical treatment of the deceased and from Exhibit-5 to Exhibit-8, it is evident that an amount of about Rs. 25,000/- was incurred towards the treatment of their daughter from the time of the accident till her death. I have perused the documents submitted by the claimants in respect of expenditure incurred towards medical treatment of the deceased and from Exhibit-5 to Exhibit-8, it is evident that an amount of about Rs. 11,000/- had been spent by the claimants for the treatment of their minor daughter till her death. The same amount ought to have been included in arriving at the award. The Tribunal had erred in not including the said sum of Rs. 11,000/- towards medical expenses. In the absence of any evidence that the claimants had received the said amount from any other source, the same cannot be denied to the claimants. Thus. the claimants are entitled to the said amount of Rs. 11,000/- incurred towards medical expenses. 15. In National Insurance Co. Ltd. vs. Pranay Sethi (supra), the Hon'ble Supreme Court has observed that Rs. 15,000/-. Rs. 40,000/- and Rs. 15,000/- are reasonable figures on conventional heads, namely, loss of estate, loss of consortium and funeral expenses respectively. The Supreme Court in Sureshchandra Bagmal Doshi & Anr. Vs. New India Assurance Company Limited & Ors., reported in (2008) 15 SCC 649, considered the assessment of compensation in respect of a claim application by the claimants for the death of their daughter. In that case, the Hon'ble Court has added the figure of Rs. 40,000/- towards loss of love and affection, instead of loss of consortium. As such, the appellants-claimants are entitled to amounts of Rs. 15,000/-, Rs. 40,000/- and Rs. 15,000/- on conventional heads, namely, loss of estate, loss of love and affection and funeral expenses respectively and such amount of Rs. 70,000/- is to be added to the compensation to be awarded under the Act. 16. In respect of the grant of interest is concerned, Section 171 of the Act has prescribed that when a Claims Tribunal allows a claim for compensation made under the Act. such Tribunal may direct that in addition of the amount of compensation simple interest shall also be paid at such rate and from such date not earlier than the date of making the claim as it may specify in that behalf. such Tribunal may direct that in addition of the amount of compensation simple interest shall also be paid at such rate and from such date not earlier than the date of making the claim as it may specify in that behalf. Section 171 of the Act, thus, gives a discretion to the Tribunal while allowing a claim for compensation to award interest at such rate and from such date not earlier than the date of making the claim as it may specify in this behalf. Award of interest is compensation for forbearance or detention of money and interest is being awarded to a party on being kept out of the money, which ought to have been paid to him. Normally, it is from the date of making the claim application interest is granted unless there is special reason to grant from any other subsequent date. In the instant case, the learned Tribunal did not assign any reason as to why the interest was not to be granted from the date of claim application but to be granted from the date of making the award. In view of absence of any reason, the interest should have been granted from the date of making the claim application before the learned Tribunal. In that view of the matter, it is directed that the interest @ 6% per annum shall be calculated from the date of making the claim application in MAC Case No. 155/2009 i.e. 25.08.2009, till payment. 17. In terms of the above observation, it is held that the amount as regards the total loss of dependency at Rs. 1,50,000/- is not to be interfered with. In addition, the claimants will be entitled to a sum of Rs. 11,000/- towards expenses incurred towards medical expenditure. The appellants-claimants will also be entitled to Rs. 15,000/-, Rs. 40,000/- and Rs. 15,000/- on conventional heads, namely, loss of estate, loss of love and affection and funeral expenses respectively. Thus, the total amount of compensation will be Rs. 2,31,000/-. After deducting Rs. 1,52,000/- awarded by the learned Tribunal, the enhancement would be Rs. 79,000/-. The said enhanced amount shall carry interest @ 6% from the date of claim i.e. 25.08.2009 till realization. 18. Consequently, the impugned judgment and award dated 29.06.2013 stands modified and the appeal is allowed in part accordingly. The appellants will be entitled to the said sum of Rs. 1,52,000/- awarded by the learned Tribunal, the enhancement would be Rs. 79,000/-. The said enhanced amount shall carry interest @ 6% from the date of claim i.e. 25.08.2009 till realization. 18. Consequently, the impugned judgment and award dated 29.06.2013 stands modified and the appeal is allowed in part accordingly. The appellants will be entitled to the said sum of Rs. 79,000/- in addition to what is already awarded by the judgment and award dated 29.06.2013. The respondent No. 1-insurer shall deposit the amount indicated above within a period of 4 (four) months from today. 19. With the above observations, this appeal stands allowed to the extent indicated above. Office to send back the LCR. No order as to costs.