Gauhati High Court
MACApp./221/2020 on 25 October, 2024
GAHC010126472020
THE GAUHATI HIGH COURT AT GUWAHATI
(The High Court of Assam, Nagaland, Mizoram and Arunachal Pradesh)
Principal Seat at Guwahati
MAC Appeal No. 221/2020.
Miss. Samina Kalita,
D/o Bhabataran Kalita,
R/o New Dudhnoi,
P.O. - Dudhnoi,
P.S. - Dudhnoi,
Dist. - Goalpara.
...... Appellant.
-Versus-
The Branch Manager,
National Insurance Company Limited, Goalpara Branch,
P.O. - Goalpara,
P.S. - Goalpara,
Dist. - Goalpara,
PIN - 783103.
...... Respondent.
BEFORE
HON'BLE MR. JUSTICE ROBIN PHUKAN
Advocate for the appellant :- Mr. H. Das.
Page 1 of 21
Advocate for the respondent No. 1 :- Ms. S. Roy.
Date of Hearing :- 03.10.2024.
Date of Judgment & Order :- 25.10.2024.
JUDGEMENT & ORDER (CAV)
Heard Mr. H. Das, learned counsel for the appellant and Ms. S. Roy,
learned counsel for the respondent No. 1.
2. In this appeal, under Section 173 of the M.V. Act, 1988, the
appellant, Samina Kalita has put to challenge the correctness or otherwise
of the Judgment and Award dated 23.03.2020, passed by the learned
Member, M.A.C.T., Goalpara, in M.A.C. Case No. 269/2017.
3. It is to be noted here that vide impugned Judgment and Award
dated 23.03.2020, the learned Member, M.A.C.T., Goalpara has awarded a
sum of Rs. 50,000/- only, being the compensation (no fault liability) on
account of death of the father of the appellant, in a motor vehicle
accident.
Background Facts:-
4. The background facts, leading to filing of the present appeal, are
adumbrated herein below:-
“On 10.11.2014, at about 5:20 pm, Bhabataran Kalita, the father
of the appellant, was travelling in a TATA Nano vehicle, driven by
one Mahendra Kalita (owner/driver of the vehicle) bearing
registration No. AS-18-B-4173, from Dudhnoi to Goalpara. On thePage 2 of 21
way, at Solmari, the vehicle met with an accident at NH 37, as
one cow suddenly ran towards the road. As a result of the
accident, Bhabataran Kalita sustained severe injuries on the
backside of his head and he was taken to Solace Hospital,
Goalpara and from there, he was referred to GNRC, Guwahati and
during the course of treatment, after 5 days of the accident, on
15.11.2014, Bhabataran Kalita succumbed in his injuries at GNRC,
Guwahati.
Thereafter, the present appellant had preferred one claim
petition before the learned Member, M.A.C.T., Goalpara, claiming
compensation on account of death of her father.
Thereafter, the learned Tribunal after hearing both the parties
had disposed of the said claim petition, vide impugned judgment
and award, directed the respondent No. 1, the National Insurance
Company Limited, to pay a sum of Rs. 50,000/- only, being no
fault liability, with interest @ 9% per annum, from the date of
filing of the claim petition, till realization.”
Grounds:-
5. Being highly aggrieved and dissatisfied, the present appellant has
preferred the present appeal, under Section 173 of the M.V. Act, 1988 for
quashing and setting aside the impugned judgment and award dated
23.03.2020, on the following grounds :-
(I) That, the learned counsel for the claimant had conducted
mistakenly by bringing the A.S.I. (P.W. No.2) to the witness
box on the plea that the driver had committed no fault in
driving the vehicle and that he had failed to bring on record
the actual plea that the said car was driven in rash andPage 3 of 21
negligent manner by the driver as a result of which the
father of the claimant had sustained injury and ultimately
suffered demise.
(II) That, there was clear and specific plea of the claimant that
her father was expired due to the accident caused by Opp.
party No.3 i.e. the driver of the offending vehicle because of
his rash & negligent driving of the vehicle AS 18 B-4173
(Tata Nano). But, the learned Tribunal had wrongly held that
there was no rashness or negligence on the part of the said
opposite party No.3.
(III) That, the Learned Member erred in law and the facts on
determining the quantum of compensation on correct
Principle/standard and the same is based on speculation
only.
(IV) That, the evidence on record was misread by the learned
Tribunal below and came to a perverse finding being based
on no evidence or against the evidence on record.
(V) That, it is well settled that the claimant need not to establish
her case beyond doubt that there was any negligence of the
driver of the vehicle. Hence the learned Member ought not to
discard this legal aspect of the case.
(VI) That, the deceased had sustained injuries sustained due to
blunt force impact, as is evident from the PM report (Ext.-6)
the learned member had failed to consider the said relevant
aspect.
(VII) That, in view of clear and specific plea in respect of the rash
and negligent driving on the part of the driver that caused
Page 4 of 21
the death of the deceased and there being no denial, the
learned Member ought to have accepted the said contention
of the case of the appellant. But, the learned member had
misinterpreted the judgments of the Hon’ble Supreme Court
and of this Court and has perfunctorily passed the judgment
and award.
(VIII) That, the learned Member contrary to the evidence on the
record of the case and based on the wrong statement of
P.W. No. 2 in the cross-examination had passed the
judgment and award and directed the Insurance Company to
pay only no fault liability.
(IX) That, admittedly when the driver of the vehicle (opposite
party No. 3) specifically quoted in the Ejahar that he wanted
to save a stray cow on the road, which caused accidental
death to the deceased which is a clear case of negligence,
and therefore, the Insurance Company is liable to pay all
kinds of compensation payable to the appellant due to the
said accidental death.
(X) That, the learned Member wrongly held that the claimant is
entitled to receive only just compensation of no fault.
Submissions:-
6. Mr. Das, learned counsel for the appellant submits that the learned
Tribunal has committed manifest illegality in rejecting the claim petition,
filed by the appellant, on the ground that there was no rash and
negligent driving on the part of the driver. Mr. Das further submits that in
fact there was rash and negligent driving on the part of the
respondent/opposite party No. 3, the driver of the vehicle and thePage 5 of 21
learned member had discussed and relied upon the evidence of P.W.2,
who is a police official, who in his evidence deposed that there was no
rash and negligent driving on the part of the driver of the vehicle and
that in fact P.W.2 had not investigated the case also. Mr. Das further
submits that in the said accident, though one F.I.R. was lodged by the
respondent/opposite party No. 3, before the Agia Police Station, on
26.11.2014, yet, the I.O. has not registered regular case instead
registered one unnatural death case, being U.D. Case No. 11/2014 and
endorsed S.I. Ali Hussain to investigate the same. Mr. Das further
submits that the learned Tribunal has failed to consider the pleading and
the evidence of P.W.1, who had categorically stated that the accident
took place on account of rash and negligent driving on the part of the
respondent/opposite party No. 3, and on such count the claim petition
was filed under Section 166 of the M.V. Act. But, the learned Tribunal has
failed to assess the compensation which the claimant is entitled to, on
account of death of her father. Therefore, Mr. Das has contended to
allow this appeal.
6.1. Mr. Das has referred following case laws in support of her
submission :-
(i) New India Assurance Company Limited vs. Yadu
Sambhaji More and Others, reported in (2011) 2 SCC
416;
(ii) National Insurance Company Limited vs. Tarulata
Gogoi, reported in (2022) 4 GLR 555;
(iii) Bimla Devi and Others vs. Himachal Road Transport
Corporation and Others, reported in (2009) 13 SCC 530;
Page 6 of 21
(iv) Sunita and Others vs. Rajasthan State Road Transport
Corporation and Another, reported in AIR 2019 SC 994;
(v) Shivaji Dayanu Patil and Another vs. Smt. Vatschala
Uttam More, reported in 1991 (3) SCC 530; and
(vi) Anita Sharma and Others, vs. New India Assurance
Company Limited and Another, reported in (2021) 1
SCC 171.
7. On the other hand, Ms. Roy, learned counsel for the respondent No.
1 submits that the learned Tribunal has not committed any illegality in
awarding only the no fault liability. Ms. Roy referring to the evidence of
P.W.2 submits that there was no rash and negligent driving on the part of
the respondent/opposite party No. 3, who was driving the TATA Nano
vehicle and in order to maintain a claim under Section 166 of the M.V.
Act, the claimant has to establish rash and negligent driving on the part
of the driver of the offending vehicle, but, in the case in hand, the
claimant had failed to establish the rash and negligent driving on the part
of the driver of the vehicle and on such count the learned Tribunal has
rightly rejected the claim. Ms. Roy further submits that the case ought to
have been filed under Section 163(A) of the M.V. Act. But, having not
done so, the claimant has opted to prefer the claim petition under Section
166 of the M.V. Act, which is not at all maintainable and therefore, Ms.
Roy has contended to dismiss the petition.
7.1. Ms. Roy has referred following case laws in support of her
submission :-
(i) Oriental Insurance Company Limited vs. Meena
Veriyal and Others, reported in (2007) 5 SCC 428.
Page 7 of 21
(ii) Surender Kumar Arora and Another vs. Manoj Bisla and
Others, reported in (2012) 4 SCC 552 and
8. Having heard the submissions of learned counsel for both the
parties, I have carefully gone through the memo of appeal as well as the
grounds mentioned therein and also gone through the impugned
judgment and award dated 23.03.2020, passed by the learned Member,
M.A.C.T., Goalpara, in M.A.C. Case No. 269/2017, and case record of the
same also gone through the case laws referred by learned counsel for
both the parties.
9. In view of the pleading of the parties and the submissions of
learned Advocates of both sides the issue that has to be addressed by
this court are :-
(i) Whether the evidence on the record are sufficient
to establish rash and negligent driving on the
part of the driver of the offending vehicle that
caused the accident that caused death of the
father of the claimant?
(ii) If so, whether the learned Tribunal is justified
in rejecting the claim of the appellant on the
basis of the final report submitted by police ?
10. There is no quarrel at the bar that in order to sustain a claim
petition, under Section 166 of the M.V. Act, the claimant has to establish
the rash and negligent driving on the part of the driver of the offending
vehicle. It is well settled in catena of decision of Hon’ble Supreme Court.
Ms. Roy, the learned counsel for the respondent No.1 has rightly pointed
this out at the time of hearing. It is also well settled that the standard of
proof is not beyond all reasonable doubt, but preponderance of
probability only. Reference, in this context, can be made to the decision
Page 8 of 21
of Hon’ble Supreme Court in Mathew Alexander vs. Mohammed
Shafi and Anr., reported in 2023 LiveLaw (SC) 531.
11. In order to address the aforesaid issues, this court deems it
necessary to have a look at the claim petition and also to peruse the
evidence of P.W.1 and P.W.2 and the other documents, so exhibited by
the claimant.
12. That a careful perusal of the claim petition, i.e. the Form No. 54
indicates that on 10.11.2014, at about 5.20 pm, the deceased, namely
Bhabataran Kalita was travelling from Dudhnoi towards Goalpara, in a
Tata Nano vehicle, bearing registration No. AS-18-B-4173. The vehicle
was driven by Shri Mahendra Kalita, the respondent/opposite party No.3.
It is also stated that on the way, the vehicle met with an accident on N.H.
37, near Solmari by hitting a cow. As a result of the said accident, her
father Bhabataran Kalita sustained severe injuries on the backside of neck
and he was taken to Solace Hospital, Goalpara and from there he was
referred to GNRC, Guwahati and after five days of treatment, her father
succumbed to his injuries at GNRC, Guwahati, on 15.11.2014.
12.1. In support of the aforesaid averments in the claim petition, the
claimant, as P.W.1, by submitting her evidence- -in-affidavit. A careful
perusal of the same reveals that on 10.11.2014, at about 5.20 pm, her
father, Bhabataran Kalita was travelling from Dudhnoi towards Goalpara,
in a Tata Nano vehicle, bearing registration No. AS-18-B-4173. The
vehicle was driven by one person namely, Mahendra Kalita at a very high
speed and in negligent manner. Then on reaching Solmari Sutradharpara,
at N.H. 37, suddenly one cow ran towards the road and then Mahendra
Kalita could not control the vehicle and suddenly applied the brake and
stopped the vehicle at the left side of the road. As a result, her father
could not control himself and dashed against the dash board of the
Page 9 of 21
vehicle and sustained severe injuries on the back side of his neck and
became unconscious. Thereafter, her father was sent to Solace Hospital,
Goalpara and from there he was referred to GNRC, Guwahati. After five
days of treatment, her father suffered demise at GNRC, Guwahati, on
15.11.2014.
12.2. Her evidence further reveals that in connection with the said
accident, Mahendra Kalita, the driver of the offending vehicle, lodged an
F.I.R. with Agia Police Station on 26.11.2014, and upon the said FIR one
U.D. Case, No. 11/2014, was registered and subsequently, Final Report
was submitted in the same.
12.3. The evidence of P.W.1 also reveals that she had spent at-least
Rs. 2,00,000/- in treatment of her father and also in performing last
rights. Her father was a business man and he dealt with rubber business
and other businesses also and his monthly income was Rs. 12,000/-.
12.4. It also appears that P.W.1 has exhibited the Accident Information
Report as Exhibit – 1; certified copy of F.I.R. as Exhibit – 2; certified copy
of extract copy of F.I.R. as Exhibit – 3; certified copy of Agia Police
Station U.D. case No. 11/2014 as Exhibit – 4; certified copy of Final
Report as Exhibit – 5; certified copy of Post-mortem Report as Exhibit –
6; certificate of Chamber of Commerce, Dudhnoi as Exhibits – 7 to 9;
prescriptions and reports as Exhibits – 10 to 38; cash memos as Exhibits –
39 to 83; and x-ray plate as Exhibits – 84 to 87. Her evidence also reveals
that she claimed a sum of Rs. 15,00,000/-, being the compensation of
death of her father.
12.5. The respondent Insurance Company had cross-examined the P.W.
1, but, nothing tangible could be elicited in her cross-examination. The
factum of rash and negligent driving on the part of the driver of the
vehicle, namely, Mahendra Kalita, remained un-rebutted throughout her
Page 10 of 21
cross-examination. The age, income and the avocation of her father also
remained un-disputed throughout her cross-examination.
13. The evidence of P.W.2, namely, Kabir Uddin Ahmed, reveals that on
26.11.2014, he was serving as A.S.I. at Agia Police Station. On that day,
one Mahendra Kalita had lodged an F.I.R. regarding an accident that took
place on 10.11.2014, at about 05:20 pm, involving one Tata Nano,
bearing registration No. AS-18-B-4173, wherein it was stated that one
Bhabataran Kalita had died in an accident. Upon the said F.I.R. a case,
being Agia Police Station U.D. Case No. 11/2014, was registered. The
said case was investigated by S.I. Ali Hussain, who had already retired
from service. His evidence also reveals that during investigation, the I.O.
had collected the Post Mortem Report from G.M.C.H., Guwahati. His
evidence also reveals that he had produced the Register of Agia P.S. U.D.
and also the General Diary. Exhibit No. 88 is the U.D. Case Register,
wherein the entry of the Case No. 11/2014, has been made at Sl. No.
11/2014 and Exhibit No. 89 is the General Diary Entry. His evidence also
reveals that as per the facts of the case, the then Officer In-Charge
should have registered a G.R. case instead of registering an U.D. case.
His evidence further reveals that the informant, Mahendra Kalita was the
driver of the offending vehicle.
13.1. The respondent Insurance Company had cross-examined this
witness and it is elicited that in the Final Report, the I.O. has opined that
the driver had no fault in driving the vehicle at the time of the accident.
However, he denied the suggestion that the driver had not driven the
vehicle at a high speed.
14. Thus, a careful perusal of the evidence of the claimant/P.W.1, as
well as the claim petition reveals that the accident took place on account
of rash and negligent driving on the part of the driver of the vehicle. The
evidence of P.W.1 remained un-rebutted throughout her cross-
Page 11 of 21
examination and the averments made in the claim petition also fully
corroborated her evidence, that the accident took place on account of
rush and negligent driving on the part of the driver of the vehicle,
namely, Mahendra Kalita.
15. However, a careful perusal of the impugned judgment and award
indicates that the learned Tribunal had failed to consider the evidence of
P.W.1/the claimant in its proper perspective, which is sufficient to
establish the rash and negligent driving on the part of the driver of the
Tata Nano vehicle. Instead it had misdirected and placed reliance upon
the evidence of P.W. 2 who had even not investigated the case. He had
appeared on behalf of the actual I.O. namely S.I. Ali Hussain, who had
already retired from service, and exhibited the U.D. Case Register and the
General Diary of Agia P.S. That being so, the learned Tribunal ought not
to have place reliance upon the evidence of P.W.2, to negate the claim of
the claimant, ignoring the object and reason behind enacting the M.V.
Act. The approach, so adopted by the learned Tribunal had frustrated the
legislative intent behind enacting such a benevolent piece of legislation.
16. What would be the bearing of Final Report in the criminal
investigation connected to the accident in the claim petition was dealt
with by Hon’ble Supreme Court in the case of Mathew Alexander
(supra), wherein it has been held as under:-
“9. Insofar as the claim petition filed by the
Appellant herein is concerned, alleged negligence on
the part of the driver of the tanker lorry and
pickup van in causing the accident has to be proved.
That is a matter which has to be considered on the
basis of preponderance of the possibilities and not
on the basis of proof beyond reasonable doubt. It is
left to the parties in the claim petitions filed by
the Appellant herein or other claimants to let in
their respective evidence and the burden is on themPage 12 of 21
to prove negligence on the part of the driver of the
Alto car, the tanker lorry or pickup van, as the
case may be, in causing the accident. In such an
event, the claim petition would be considered on its
own merits. It is needless to observe that if the
proof of negligence on the part of the drivers of
the three vehicles is not established then, in that
event, the claim petition will be disposed of
accordingly.
In this context, we could refer to judgments
of this Court in the case of N.K.V. Bros. (P) Ltd.
vs. M. Karumai Anmal reported in AIR 1980 SC 1354,
wherein the plea that the criminal case had ended in
acquittal and that, therefore, the civil suit must
follow suit, was rejected. It was observed that
culpable rashness under Section 304-A of IPC is more
drastic than negligence under the law of torts to
create liability. Similarly, in (2009) 13 SCC 530,
in the case of Bimla Devi vs. Himachal Road
Transport Corporation (“Bimla Devi”), it was
observed that in a claim petition filed
under Section 166 of the Motor Vehicles Act, 1988,
the Tribunal has to determine the amount of fair
compensation to be granted in the event an accident
has taken place by reason of negligence of a driver
of a motor vehicle. A holistic view of the evidence
has to be taken into consideration by the Tribunal
and strict proof of an accident caused by a
particular vehicle in a particular manner need not
be established by the claimants. The claimants have
to establish their case on the touchstone of
preponderance of probabilities. The standard of
proof beyond reasonable doubt cannot be applied
while considering the petition seeking compensation
on account of death or injury in a road traffic
accident. To the same effect is the observation made
by this Court in Dulcina Fernandes vs. Joaquim
Xavier Cruz, (2013) 10 SCC 646 which has referred to
the aforesaid judgment in Bimla Devi.
10. In that view of the matter, it is for the
Appellant herein to establish negligence on the part
of the driver of the tanker lorry in the petition
filed by him seeking compensation on account ofPage 13 of 21
death of his son in the said accident. Thus, the
opinion in the final report would not have a bearing
on the claim petition for the aforesaid reasons.
This is because the Appellant herein is seeking
compensation for the death of his son in the
accident which occurred on account of the negligence
on the part of the driver of the tanker lorry,
causing the accident on the said date. It is further
observed that in the claim petitions filed by the
dependents, in respect of the other passengers in
the car who died in the accident, they have to
similarly establish the negligence in accordance
with law.”
17. This being the factual and legal position, the impugned judgment
and award, so passed by the learned Tribunal had failed to withstand the
legal scrutiny and on such count the same requires interference of this
court. Accordingly, the same is interfered with. Keeping in mind the
legislative intent and the evidence of P.W.1 and her exhibits, this court is
of the view that the claimant is entitled to compensation here in this case
on account of death of her father in a motor accident, that took place on
10.11.2014, at about 05:20 pm, on account of rash and negligent driving
of a Tata Nano, bearing registration No. AS-18-B-4173, on the part of the
driver, namely, Mahendra Kalita, respondent/opposite party No.3.
18. I have considered the submission of Ms. Roy, learned counsel for
the respondent No.1, and also gone through the decisions referred by
her. There is no quarrel at the bar about the proposition of laid down in
the case of Meena Veriyal (supra) and in Surender Kumar Arora
(supra). But, in view of the discussion and finding herein above, this
court is unable agree with her submission. In view of tell-tale evidence on
record, this court is of the considered view that the petition under section
166 M.V. Act is very much maintainable here in this case. That being so,
the decisions referred by Mr. Roy, would not advance her case.
Page 14 of 21
18.1. I have also considered the submissions of Mr. Das, the learned
counsel for the claimant, and also gone through the decisions referred by
him and I find substance in the same. And the decisions referred by him
also lend credence to the same. In the case of Sunita and Ors.
(supra), while dealing with a claim petition in terms of Section 166 of
the M.V. Act it has been held that the Tribunal in strictu sensu is not
bound by the pleadings of the parties, its function is to determine the
amount of fair compensation. In the given fact situation, reference to
other decisions, relied upon by Mr. Das, is found to be not necessary
herein this case.
19. In the case in hand, the accident took place in the year 2014 and
the impugned judgment and award was passed in the year 2020, in the
meantime almost ten years elapsed. Therefore, instead of remanding the
matter to the learned Tribunal, to assess the just compensation, which
the claimant will entitled to, deemed it appropriate to assess the same,
on the basis of the materials available on the record. Else, it would cause
further delay and also cause prejudice to the claimant and as a result the
entire scheme of the Act would be frustrated.
20. That, it appears from the record that at the relevant time of
accident the deceased, Late Bhabataran Kalita was 48 years old and the
same has categorically been stated by the P.W.1 in her evidence.
Besides, in the Post-mortem Report, Exhibit-6, also and in other medical
documents the age of the deceased has been mentioned as 48 years. It
is to be noted here that the respondent had not disputed the age of the
deceased. Therefore, the age of the deceased, at the time of accident
has to be accepted as 48 years, on the basis of the documents mentioned
herein above.
Page 15 of 21
21. It further appears from the claim petition that and also from the
evidence of P.W.1 and from the documents exhibited by her that the
deceased was a businessman and he had the rubber business and other
businesses also and his monthly income was about Rs. 12,000/- per
month. The factum of avocation of the deceased, is supported by the
Exhibit Nos. 7 – 9, issued by the Chambers of Commerce, Dudhnoi,
Goalpara, which indicates that the deceased had a rubber shop at
Dudhnoi Market and he was a member of Dudhnoi Chambers of
Commerce. Notably, the avocation and income of the deceased has not
been disputed by the respondent side. And as such, the income of the
deceased, at the time of the accident, has to be taken as Rs.12,000/ per
month.
22. Further, it appears from the evidence of the claimant/P.W.1, that
she had spent around Rs. 2,00,000/- in the treatment of her deceased
father. In support of such claim, she has also exhibited several medical
documents and vouchers as Exhibits 39 – 83. A careful perusal of the
same indicates that the claimant has submitted vouchers for a sum of Rs.
Rs 1,45,927/-. The amount so spent and the date and number of the
vouchers/receipts are shown in the table below:-
Sl. Receipt/Serial/Invoice/Memo/MR Amount
No. Number
1. PR/141110/001031 dated 10.11.2014 Rs. 4120/-
2. 228 dated 10.11.2014 Rs. 3300/-
3. 19204 dated 10.11.2014 Rs. 200/-
4. SH-40596 dated 10.11.2014 Rs. 1588/-
5. SH-40595 dated 10.11.2014 Rs. 496/-
6. IS/141111/000002 dated 11.11.2014 Rs. 9412/-
7. IS/141111/000047 dated 11.11.2014 Rs. 4948/-
8. IS/141111/000112 dated 11.11.2014 Rs. 506/-
Page 16 of 21
9. IS/141111/000193 dated 11.11.2014 Rs. 9656/-
10. PR/141111/000983 dated 11.11.2014 Rs. 1180/-
11. SB/A-01234 dated 11.11.2014 Rs. 2000/-
12. 21771 dated 12.11.2014 Rs. 690/-
13. IS/141111/000006 dated 11.11.2014 Rs. 159/-
14. PR/141111/000006 dated 11.11.2014 Rs. 1220/-
15. PR/141112/000944 dated 12.11.2014 Rs. 1460/-
16. PR/141112/000694 dated 12.11.2014 Rs. 6630/-
17. RI/141112/000051 dated 12.11.2014 Rs. 3660/-
18. RI/141112/000052 dated 12.11.2014 Rs. 185/-
19. 2963 dated 12.11.2014 Rs. 2377/-
20. IS/141112/000181 dated 12.11.2014 Rs. 185/-
21. IO/141112/000100 dated 12.11.2014 Rs. 3026/-
22. IS/141112/000237 dated 12.11.2014 Rs. 2858/-
23. PR/141113/000306 dated 13.11.2014 Rs. 390/-
24. PR/141113/001014 dated 13.11.2014 Rs. 390/-
25. 2967 dated 13.11.2014 Rs. 1320/-
26. 2966 dated 13.11.2014 Rs. 4369/-
27. PR/141113/000208 dated 13.11.2014 Rs. 480/-
28. IS/141113/000056 dated 13.11.2014 Rs. 1558/-
29. 2899 dated 14.11.2014 Rs. 1093/-
30. PR/141114/000013 dated 14.11.2014 Rs. 1180/-
31. PR/141114/000388 dated 14.11.2014 Rs. 260/-
32. IS/141114/000079 dated 14.11.2014 Rs. 1558/-
33. IS/141114/000126 dated 14.11.2014 Rs. 1710/-
34. PR/141115/000367 dated 15.11.2014 Rs. 260/-
35. 3159 dated 15.11.2014 Rs. 1544/-
36. RI/141115/000 dated 15.11.2014 Rs. 467/-
37. RI/141115/000034 dated 15.11.2014 Rs. 328/-
38. RI/141115/000031 dated 15.11.2014 Rs. 91/-
39. RI/141115/000035 dated 15.11.2014 Rs. 1096/-
40. RI/141115/000032 dated 15.11.2014 Rs. 503/-
41. IO/141115/000078 dated 15.11.2014 Rs. 443/-
Page 17 of 21
42. PR/141115/000597 dated 15.11.2014 Rs. 30,830/-
43. DS/141110/000079 dated 15.11.2014 Rs. 34,643/-
44. IS/141115/000077 dated 15.11.2014 Rs. 1558/-
Total Amount Rs 1,45,927/-
23. Though the respondent side has disputed that a sum of Rs.
2,00,000/- was not spent by the claimant, during the treatment of her
deceased father, yet, it appears that it had not disputed the vouchers,
exhibited by the P.W.1 that a sum of Rs 1,45,927/-were spent by the
claimant during the course of treatment of her deceased father. That
being so, she is entitled to the aforesaid amount.
24. Thus, having accepted the income of the deceased at Rs.12,000/-
per month, 25% of the same has to be added as future prospect, as at
the time of accident the deceased 48 years old and he was self-
employed, in view of decision of Hon’ble Supreme Court in National
Insurance Company Limited vs. Pranay Sethi and Others, reported
in (2017) 16 SCC 680. After addition of 25% to Rs. 12,000/ the
amount would be Rs. 15,000/ (Rs.12,000+Rs.3000=15,000).
25. Thereafter, in view of the decision of Hon’ble Supreme Court in the
case of Sarla Verma and Others vs. Delhi Transport Corporation
and Another, reported in (2009) 6 SCC 121, 1/3 of the aforesaid
amount has to be deducted as personal expenses since he left behind his
wife and the present claimant as dependent family members. After
deducting 1/3 of the above, the amount would be Rs. 10,000/ (Rs.15,000
– Rs.5,000=10,000).
26. The multiplier applicable herein this would be 13, in view of decision
of Hon’ble Supreme Court in the case of Sarla Verma (supra) since the
age of the deceased, at the time of the accident was 48 years. After
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application of multiplier, the amount would be Rs.15,60,000/ (Rs.10,000
x 12 x 13= 15,60,000).
27. Besides, under the conventional heads, a sum of Rs. 15,000/- has to
be awarded under head loss of estate, a sum of Rs. 40,000/-, being the
loss of consortium, and a sum of Rs. 15,000/- under head funeral
expenses, and the aforesaid amounts should be enhanced by 10% in
every 3 years, in view of the decision of Hon’ble Supreme Court in the
case of Pranay Sethi (supra). It is to be noted here that after the
accident almost 10 years elapsed. That being so the aforesaid amounts
have to be increased three times.
28. The whole calculation, after application of the principle laid down in
the case of Sarla Verma (Supra) and also in the case of Pranay Sethi
(Supra), would be as under:-
Sl. Heads Calculation
No.
I Monthly income Rs.12,000/
II 25% of (i) to be added as future Rs. 15,000
prospect=(Rs.12,000+Rs.3000).
III 1/3rd of the (ii) deducted as Rs. 10,000/-
personal expenses of the
deceased=(Rs.15,000 - Rs.5000/).
IV Compensation after multiplier of Rs. 15,60,000/-
13 is applied=(Rs.10,000x12x 13).
V Loss Estate Rs.15,000/ which has Rs. 15,000/ +
to be increased by 10% in every Rs.4500/=
three years (15,000/100 x10=1500) 19,500/
x 3=4500/
VI Loss of Consortium =Rs.40,000/, Rs. 40,000/ +
which has to be increased by 10% Rs.12,000/ =
in each three years 52,000/-
VII Funeral expenses Rs.15,000/, Rs. 15,000/ +
which has to be increased by 10% Rs.4500/= 19,500
in each three years
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Sl. Heads Calculation
No.
VIII Expenses prior to death of the Rs.1,45,927/
deceased
Total compensation awarded = Rs. 18,21,927/-
29. Now, coming to the last point, I finds that at the relevant time, the
TATA Nano vehicle was insured with the respondent No. 1, herein this
appeal, vide Policy No. 55270031126100083568 and renewal Policy No.
55270031136100199348 and the same was valid up to 18.03.2015, and
the accident took place on 11.11.2014. It also appears that at the
relevant time of accident, the policy was in force.
30. It also appears that the driver of the vehicle had a valid driving
license, being DL No. 8839/GLP/PVT and the same was valid up to
31.01.2016.
30.1. Notably, these facts have never been disputed by the respondent
No. 1. That being so the respondent No. 1 is liable to pay the aforesaid
amount of compensation to the claimant.
31. In the result, I find sufficient merit in this appeal and accordingly
the same stands allowed. The impugned Judgment and Award, dated
23.03.2020, stands set aside and quashed.
32. The respondent No. 1, i.e. the National Insurance Company Limited
is directed to pay a sum of Rs. 18,21,927/- (Rupees eighteen lacs
twenty one thousand nine hundred and twenty seven) only, being
the compensation, which according to this court is just compensation,
here in this case. The amount, if already paid to the claimant has to be
deducted from the aforesaid amount.
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34. It is further provided that the amount will carry interest @ 9% per
annum, from the date of filing of the claim petition, i.e. 11.10.2017, till
realization of the amount. The respondent No. 1 shall deposit the
aforesaid amount before the learned Tribunal within a period of 30 days
from the date of the judgment and award.
33. In terms of above, this MAC appeal stands disposed of. The Registry
shall send down the record of the learned Tribunal with a copy of this
judgment and order forthwith. The parties have to bear their own cost.
JUDGE
Comparing Assistant
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