Research › Search › Judgment

Gauhati High Court · body

2021 DIGILAW 625 (GAU)

Ramngaihawmi v. Mahesh Kumar Dewan

2021-10-27

NELSON SAILO

body2021
JUDGMENT : NELSON SAILO, J. 1. This is an appeal filed by the appellant/claimant against the Judgment and Award dated 05.03.2018 passed by the Member-cum-Presiding Officer, Motor Accident Claims Tribunal, Aizawl (Tribunal) in MACT Case No. 50/2016. The main grievance projected by the appellant is that the Tribunal came to a finding that the appellant did not prove the income of the deceased and as a result, dismissed the claim. It is also the case of the appellant that the appellant filed the claim application under Section 166 of the Motor Vehicles Act, 1988 (M.V. Act) and the Tribunal came to a finding that there was fault on the part of the offending vehicle. However, as it came to a finding that the appellant failed to prove the income of the deceased, the claim application was dismissed despite fault being proved by the claimant/appellant. 2. Brief facts of the case essential for disposal of the instant appeal is that due to a motor vehicle accident on 17.10.2016, Mr. Chhandama aged 55 years was run over by a vehicle bearing Registration No. MZ-01K-6288, which was driven by Sukh Ranjan Das at around 9:00 P.M. As a result, Mr. Chhandama died on the spot. The appellant who is the wife of the deceased person thereafter filed a claim application before the Tribunal which was registered and numbered as MACT Case No. 50/2016 claiming compensation from the opposite parties/respondents. Opposite Party No. 1/respondent No. 1 is the owner of the accident vehicle while opposite party No. 2/respondent No. 2 is the Insurance Company where the accident vehicle was insured. Both the opposite parties/respondents contest the claim by filing their written statements. Based on the pleadings, the Tribunal framed three (3) issues, which are as follows: (i) Whether the claim application is maintainable in its present form and style? (ii) Whether there was fault/negligent on the part of the driver of the accident vehicle? (iii) Whether the Claimant is entitled to get compensation, if so, who is liable to pay and to what extend? 3. In order to substantiate her claim, the appellant examined three (3) witnesses including herself. As for the opposite parties/respondents, they did not adduce evidence. Upon conclusion of the evidence of the appellant, the learned Tribunal after hearing the rival parties decided issue Nos. 1 and 2 in favor of the appellant. 3. In order to substantiate her claim, the appellant examined three (3) witnesses including herself. As for the opposite parties/respondents, they did not adduce evidence. Upon conclusion of the evidence of the appellant, the learned Tribunal after hearing the rival parties decided issue Nos. 1 and 2 in favor of the appellant. However, the 3rd issue was decided against the appellant and the Tribunal proceed to dismiss the claim through the impugned Judgment and Award. Aggrieved, the appellant is before this Court. 4. Mr. Saurabh Pradhan, learned counsel for the appellant submits that according to the Tribunal, there was negligence on the part of the driver who drove the accident vehicle and therefore, the duty cast upon the claimant to prove the fault of the accident vehicle in a claim under Section 166 of the M.V. Act has been discharged by the appellant. He further submits that the deceased at the relevant time was earning not less than Rs. 4,000/- per month and therefore, the Tribunal ought to have awarded the appellant appropriate compensation by taking into consideration the monthly income of the deceased person. He further submits that even if the Tribunal was of the opinion that the income of the deceased person was not proved by the appellant, the Tribunal still ought to have awarded compensation to the appellant by taking the notional income of the deceased person. In this connection, the learned counsel relies upon the Judgment and Award of the Tribunal itself passed on 13.05.2020 in MACT Case No. 68/2017 (T. Vanlaldika vs. Managing Director, Mizofed, Aizawl and Others). The learned counsel submits that in that case, the Tribunal took a sum of Rs. 5,000/- as the notional income of the deceased person per month. Similarly, in the facts and circumstances of the present case, the Tribunal ought to have made a similar conclusion for awarding compensation to the appellant. He thus submits that the impugned Judgment and Award may be suitably interfered with by this Court. 5. Mr. Bhanu Kawar, learned counsel appearing for the respondent No. 1 submits that the documents exhibited by the appellant before the Tribunal including Insurance Policy being valid, the liability to pay compensation to the claimant/appellant, if any, would rest upon the Insurance Company. He therefore submits that Court may pass appropriate order as it may deem fit and proper. 6. Mr. Bhanu Kawar, learned counsel appearing for the respondent No. 1 submits that the documents exhibited by the appellant before the Tribunal including Insurance Policy being valid, the liability to pay compensation to the claimant/appellant, if any, would rest upon the Insurance Company. He therefore submits that Court may pass appropriate order as it may deem fit and proper. 6. Mr. Johny L. Tochhawng, learned counsel for the respondent No. 2 submits that the Tribunal in the given facts and circumstances of the case could not have come to a finding that there was fault on the part of the driver of the accident vehicle in driving the vehicle but however, since the claim application was dismissed for want of proof of the income of the deceased person, the Insurance Company has not filed any appeal. Referring to the findings of the Tribunal with regard to the evidence of the appellant on the income of the deceased person, the learned counsel submits that since no documents to substantiate the claim about the earning of the deceased was produced and exhibited by the appellant before the Tribunal, the Tribunal rightly rejected the claim application and dismissed the same. He therefore submits that under the circumstance, the impugned Judgment and Award requires no interference and the appeal should be dismissed. He also submits that in the event this Court is of the considered view that the matter should be remanded back to the Tribunal, the Insurance Company should be given adequate opportunity to project their case and rebut the claim of the appellant. 7. I have heard the submissions made by the learned counsels for the rival parties and I have perused the materials available on record. The only issue to be decided in the considered opinion of this Court is as to whether the Tribunal was justified in dismissing the claim application solely on the ground that the appellant failed to prove the income of the deceased person. In this connection, one may recall the fact that under the un-amended M.V. Act, there was a provision for calculating notional income of the injured or deceased person in the Second Schedule under Section 163A. After amendment, the Second Schedule under Section 163A has been done away with. However, the fact remains that the accident occurred on 17.10.2016 and the claim application was filed on 01.12.2016 i.e. prior to the amendment. After amendment, the Second Schedule under Section 163A has been done away with. However, the fact remains that the accident occurred on 17.10.2016 and the claim application was filed on 01.12.2016 i.e. prior to the amendment. Therefore, in the considered opinion of this Court, the learned Tribunal ought to have taken the notional income to make assessment towards compensation payable to the appellant. In the result, the matter stands remanded back to the learned Tribunal for determining the amount of compensation by fixing appropriate notional income of the deceased person. The parties will be at liberty to make their respective submissions to enable the learned Tribunal come to an appropriate notional income of the deceased person and to bring the claim to its logical conclusion. In so far as the submission of the learned counsel for the respondent No. 2 Insurance Company for granting liberty to agitate or re-agitate on the finding of fault by the Tribunal on the part of the driver of the offending vehicle is concerned, I have noticed that the Insurance Company has not challenged the finding of the Tribunal in this regard by a separate appeal or even a cross appeal. Therefore, I am not inclined to give liberty as prayed for. The learned Tribunal should dispose of the claim application as earliest possible and preferably within a period of two (2) months from the date of receipt of a copy of this Order and the LCR. 8. Appeal stands accordingly disposed of. Office to send back the LCR.