Research › Search › Judgment

Gauhati High Court · body

2020 DIGILAW 529 (GAU)

Oriental Insurance Co. Ltd. v. Tlangngaihzuali

2020-05-27

NELSON SAILO

body2020
JUDGMENT Nelson Sailo, J. - This is an appeal filed by the appellant Insurance Company against the Judgment & Award dated 23.04.2019, passed by the Presiding Officer, Motor Accident Claims Tribunal, Aizawl (the Tribunal) in MACT Case No. 36/2016, awarding a sum of Rs. 97,93,016/- (Rupees Ninety seven lakhs ninety three thousand and sixteen) only alongwith interest @7% per annum, from the date of filing of the claim application to the claimants for the death of the deceased, who was the husband and father of the claimant Nos. 1 & 2 respectively. The claimant Nos. 1 & 2 are arrayed as respondent Nos. 1 & 2 in the instant appeal. The respondent No. 3 is the owner of the accident vehicle, which was insured with the appellant Insurance Company and was arrayed as Opposite Party No.1 in the claim before the Tribunal. Having regard to the grounds taken by the appellant, the appeal is taken up for disposal at the admission stage itself, as agreed to by the learned counsels appearing for the parties. 2. Heard Mr. Vanlalnghaka, the learned counsel for the appellant as well as Mr. Zochhuana, the learned counsel appearing for the respondent Nos. 1 & 2. 3. The facts of the case in brief is that the husband of the respondent No. 1 and father of the respondent No. 2, Sh. Lalthanzauva, aged about 24 years, on 10.08.2014 at around 12:24 PM, while travelling in a Tata Sumo tourist vehicle bearing registration No. AS11-BC-3076 and proceeding from Mizoram towards Guwahati, upon reaching Lad-Mukhla village (Meghalaya) in National Highway 44 met with an accident by colliding against one truck bearing Registration No. NL01-K-1588 coming from the opposite direction. The Tata Sumo vehicle was driven by Sh. Laltlanzova, S/o L.V. Zuia of Thakthing Venghnuai. As a result of the accident, both the vehicles were badly damaged. There were 8 (eight) occupants in the Tata Sumo vehicle including the driver. 7 (seven) of the passengers including Sh. Lalthanzova received serious injuries on their person, while one of the passengers Sh. Abishek Mahindra Bhimani expired on the spot. Sh. Lalthanzova succumbed to his injuries, while being taken to NEIGRIHMS, Shillong. As a result, an FIR was filed and investigation conducted by the concerned Investigating Officer. After the investigation was completed, charge sheet vide CS No. 150/2014 dated 10.10.2014 was filed. The respondent Nos. Abishek Mahindra Bhimani expired on the spot. Sh. Lalthanzova succumbed to his injuries, while being taken to NEIGRIHMS, Shillong. As a result, an FIR was filed and investigation conducted by the concerned Investigating Officer. After the investigation was completed, charge sheet vide CS No. 150/2014 dated 10.10.2014 was filed. The respondent Nos. 1 & 2 thereafter filed a claim application before the Tribunal claiming a sum of Rs. 1,01,73,016/-, as compensation under Section 166 of the Motor Vehicles Act, 1988 (MV Act). According to the claimants, the deceased was a Sepoy in the Indian Army. He joined the 9th Assam Regiment on 29.06.2007 and his Army No. was 04374720N and he was earning a monthly income of Rs. 44,551/-. According to the claimants, the accident occurred due to the rash and negligent driving of the driver of the accident vehicle. The accident vehicle was validly insured with the appellant Insurance Company having a validity w.e.f. 04.10.2013 to 03.10.2014 and as such, the claimants were liable to be compensated for the death of the deceased on whose salary they were solely dependent upon. 4. The appellant Insurance Company was arrayed as opposite party No. 3 and contested the claim by filing written statement. Similarly, the respondent No. 3, who is the owner of the accident vehicle, was arrayed as opposite party No. 1 and he contested the claim application by submitting a written statement denying his liability to pay any compensation with the claimants. According to him, the vehicle was validly insured with the appellant Insurance Company while the driver of the accident vehicle was having a valid driving license. Therefore, if there was any liability to pay compensation, the same should be paid by the appellant Insurance Company. 5. In order to establish their case, the claimants examined as many as 5 (five) claimant witnesses, while the opposite parties did not examine any witnesses of their own. Consequently, the Tribunal disposed of the claim by awarding compensation to the claimants in the manner already stated hereinabove. 6. Mr. Vanlalnghaka, the learned counsel for the appellant submits that the grounds of challenge made by the appellant are two fold. He submits that the Tribunal committed an error for having awarded a sum of Rs. 1 lakh towards the conventional head ''loss of expectation of life'', contrary to the Constitution Bench decision of the Apex Court in National Insurance Company Limited Vs. He submits that the Tribunal committed an error for having awarded a sum of Rs. 1 lakh towards the conventional head ''loss of expectation of life'', contrary to the Constitution Bench decision of the Apex Court in National Insurance Company Limited Vs. Pranay Sethi & Ors., (2017) 16 SCC 680 . Secondly, the learned counsel submits that the Tribunal erred in law and on facts in passing the impugned judgment and award making the appellant Insurance Company liable to pay compensation to the claimants, while it was clear from the deposition of the case Investigating Officer during his cross examination that he clearly admitted to the suggestion that the cause of the accident was due to mechanical failure on the part of the accident vehicle. He therefore submits that the impugned judgment and award is unsustainable and the same should be set aside and quashed. 7. Mr. Zochhuana, the learned counsel for the respondent Nos. 1 & 2/claimants submits that insofar as the amount of Rs. 1 lakh awarded by the Tribunal towards the conventional heads ''loss of expectation of life'', the same having not been provided in the Constitution Bench judgment Pranay Sethi & Ors. (Supra), he has no objection if the said amount is deducted from the award made by the Tribunal. Insofar as the second ground taken by the appellant that the case Investigating Officer in his cross examination admitted that the cause of the accident was due to mechanical failure he submits that the same is not the case from a perusal of the evidence of the said witness. He submits that the said witness in his cross examination stated that it was not a fact that the cause of the accident was the mechanical failure on the part of the Tata Sumo. Therefore, the observation made by the learned Tribunal in the last sentence of paragraph No. 7 of the impugned judgment and award is only erroneous. 8. Mr. Zochhuana, by referring to the examination-in-chief of the claimant witness no. 5 as well as claimant witness No. 2 submits that it is clearly establish by the claimants that the accident occurred due to the negligence of the accident vehicle insured with the appellant and therefore, the learned Tribunal has not committed any error in passing the impugned judgment and award. 5 as well as claimant witness No. 2 submits that it is clearly establish by the claimants that the accident occurred due to the negligence of the accident vehicle insured with the appellant and therefore, the learned Tribunal has not committed any error in passing the impugned judgment and award. He also submits that there is no dispute with regard to the age of the deceased and his monthly income and as such, under the facts and circumstances, the appeal is without any merit insofar as the second ground is concerned and therefore, the same is liable to be dismissed. 9. I have heard the submissions made by the learned counsels for the parties and I have also perused the photo copies of the deposition of the claimant witnesses, as produced by the learned counsel for the respondent Nos. 1 & 2 and which is also given to the counsel for the appellant. 10. As may be noticed the appellant''s counsel has pressed two grounds of appeal in challenging the impugned judgment and award passed by the Tribunal. The first ground is with regard to the award of Rs. 1 lakh towards the conventional heads ''loss of expectation of life''. The Constitution Bench of the Apex Court in Pranay Sethi & Ors. (Supra) insofar as conventional heads are concerned has provided for a sum of Rs. 15,000/-, Rs. 40,000/- and Rs. 15,000/- towards loss of estate, loss of consortium and funeral expenses respectively. Besides these heads, no other conventional heads have been provided and therefore, I am of the considered view that the Tribunal could not have awarded a sum of Rs. 1 lakh towards the conventional heads ''loss of expectation of life'' and particularly, when 50% of the annual income of the deceased has already been added towards future prospects. 11. Insofar as the other ground taken by the appellant that as per the case Investigating Officer, the accident occurred due to mechanical failure of the vehicle, it will be gainful if the statement made by the said witness on this specific issue is reproduced as below - wxyz "XXX 6. It is not a fact that the cause of the accident was the Mechanical Failure on the part of the Tata Sumo". zyxw 12. It is not a fact that the cause of the accident was the Mechanical Failure on the part of the Tata Sumo". zyxw 12. From the above abstract, it is clear that the case Investigating Officer did not admit in his cross examination the fact that the accident was caused due to mechanical failure, as observed by the Tribunal in its impugned judgment and award. Therefore, I find no merit in the ground taken by the appellant on this issue as well. 13. However, one aspect of the matter, which is noticed by this Court is that the Tribunal has directed for a deposit of Rs. 2,50,000/- in favour of the minor son of the deceased by way of a fixed deposit in a Nationalized Bank but however, the said amount is written as Rs. 25 lakhs in words. On putting a query to the learned counsels appearing for the parties on this discrepancy, they submit that even in the records of the Tribunal, the amount has been indicated as 2.5 lakhs in figures, while it is written as 25 lakhs in words. Upon giving due consideration to the submissions made by the learned counsels for the rival parties and upon perusal of the materials available on record, I am of the considered view that the amount to be kept in favour of the minor son of the deceased i.e., Sh. R. Lalthanpuia should be Rs. 25 lakhs (Rupees twenty five lakhs) only. 14. Thus, the amount of compensation payable will be as follows:- wxyz (1) Annual income = Rs. 44,551x12 = 534612 zyxw wxyz (2) Addition of 50% of future prospect = Rs. 534612x50 =267306 100 zyxw wxyz (3) Loss of income = 534612+267306x18x2 =9623016 3 zyxw wxyz (4) Funeral Expenses = Rs. 15,000 zyxw wxyz (5) Loss of Estate = Rs. 15,000 zyxw wxyz (6) Loss of Consortium = Rs. 40,000 zyxw wxyz Total Compensation Awarded = Rs. 96,93,016 zyxw wxyz (Rupees ninety six lakhs ninety three thousand and sixteen) only. zyxw 15. The appellant Insurance Company is directed to deposit the entire amount awarded before the Tribunal alongwith interest @ 7% per annum within a period of 2 (two) months from the date of receipt of a certified copy of this order. Out of the amount so deposited, a sum of Rs. zyxw 15. The appellant Insurance Company is directed to deposit the entire amount awarded before the Tribunal alongwith interest @ 7% per annum within a period of 2 (two) months from the date of receipt of a certified copy of this order. Out of the amount so deposited, a sum of Rs. 25 lakhs (Rupees twenty five lakhs) only shall be kept in a fixed deposit in any Nationalized Bank in the name of the minor son of the deceased i.e., Sh. R. Lalthanpuia and if necessary, represented by his legal guardian. The said amount should be renewed at regular intervals and will be payable to Sh. R. Lalthanpuia, once he attains the age of majority. 16. With the above observations and directions, the impugned judgment and award stands modified and the appeal stands disposed of. The appellant is permitted to withdraw the statutory fee of Rs.25,000/- deposited in the Registry for filing this appeal.