Gauhati High Court
United India Insurance Company Lt vs Smt Kusum Rajkhowa And Anr on 2 February, 2021
Author: Sanjay Kumar Medhi
Bench: Sanjay Kumar Medhi
Page No.# 1/9
GAHC010171592017
THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : MACApp./135/2018
UNITED INDIA INSURANCE COMPANY LT
HAVING ITS REGISTERED OFFICE AT 24 WHITES ROAD, CHENNAI-600014
AND REPRESENTED BY ITS REGIONAL OFFICE, G.S. ROAD ROAD,
GUWAHATI-5
VERSUS
SMT KUSUM RAJKHOWA and ANR
W/O LATE BHABA RAJHOWA, PERMANENT R/O VILL. KHUTIKATIA,
KALONGPAR, P.S. SADAR, P.O. HAIBORGAON, DIST. NAGAON, ASSAM, PIN
PRESENT ADDRESS - C/O DILIP CHANDRA BORAH, HOUSE NO. 5, SWAHID
PRAFULLA BORO PATH, BYE LANE NO. 2, RUPNAGAR, GUWAHATI-32
2:SRI SANKUMONI GOSWAMI
SON OF LATE MANIK CHANDRA GOSWAMI RESIDENT OF VILLAGE
-KHUTIKATIA
KALONGPAR P.S. SADAR
DIST. NAGAON
ASSAM
Advocate for the Petitioner : MR S S SHARMA
Advocate for the Respondent : MR. D C BORAH
Linked Case : MACApp./249/2018
SMTI KUSUM RAJKHOWA
W/O LATE BHABA RJKHOWA
Page No.# 2/9
R/O VILL. KHUTIKATIA
KAKONGPAR
P.O. HAIBORGAON
P.S. SADAR
DIST. NAGAON
ASSAM.
VERSUS
SRI SANKUMONI GOSWAMI and ANR
S/O LATE MANIK CH. GOSWAMI
R/O VILL. KHUTIKATIA
KALONGPAR
P.S. SADAR
P.O. HAIBORGAON
DIST. NAGAON
ASSAM
PIN 782001
2:THE CHIEF REGIONAL MANAGER
THE UNITED INDIA INSURANCE CO. LTD.
G.S. ROAD
OLD POST OFFICE
BHANGAGARH
GUWAHATI-781005
------------
Advocate for : MR. D C BORAH
Advocate for : MR G ALAM appearing for SRI SANKUMONI GOSWAMI and ANR
BEFORE
HONOURABLE MR. JUSTICE SANJAY KUMAR MEDHI
ORDER
Date : 02-02-2021
1) Both these appeals having arisen out of the same judgment and award dated 15.03.2017 passed by the learned Motor Accident Claims Tribunal No. 3, Kamrup (M) at Guwahati in MAC Case No. 2236/2014, the same are taken up for disposal together.
Page No.# 3/9
2) While MAC Appeal No. 135/2018 has been preferred by the Insurance Company questioning the quantum of the award on various grounds, the MAC Appeal 249/2018 has been preferred by the claimants praying for enhancement of the award dated 15.03.2017.
3) Before going to the respective cases, of the parties before this Court, it would be convenient to narrate the facts of the case which have culminated into the judgment and award dated 15.03.2017
4) The instant appeal pertains to death in a motor accident claim. The deceased Shri Girindra Rajkhowa was accompanying his friend Sankumoni Goswami in an Innova car which met with an accident on 25.06.2014 at 9.40 pm. In the said accident, Shri Girindra Rajkhowa suffered multiple injuries and died on the spot. Accordingly, the claimant who is the mother of the deceased had filed the instant claim petition before the learned Tribunal which was registered as MAC Case No. 2236/2014. The vehicle in question being insured with the United India Insurance Company, the same was made the opposite party No. 2, whereas the owner/driver of the vehicle was made the opposite party no.1.
5) After exchange of pleadings the learned Tribunal framed the following issues:
(i) Whether the deceased Girindra Rajkhowa died in a vehicular accident occurred on 25.06.2014 at about 11.40 pm, at Khutikatia under Nagaon police station due to rash and negligent driving of the driver of an Innova car baring Engine No. 2KDU512153 and chassis No. MBJIIJV40074693930614?
(ii) Whether the claimant is entitled to get compensation and if so, to what would be the amount.
Page No.# 4/9
6) Two witnesses were produced from the side of the claimant including the claimant herself and various documents were also proved. Neither the Insurance Company, nor the owner choose to adduce any evidence in defense.
7) The claimant as PW-1 narrated that she being the mother of the deceased was present when her son had boarded the vehicle of the opposite party no. 1 on the ill fated day i.e. on 25.06.2014, after which the accident had occurred. She stated that the deceased son was aged 33 years and was earning about Rs. 17,000/- per month. The insurance cover of the vehicle by the Insurance Company was also duly stated. In support of her claim, the claimant had submitted copy of the FIR, Accident Information Report, Post Mortem Report, School Certificate and Income Tax Return. The version of PW-1 was also supported by PW-2 who was a witness to the occurrence.
8) The learned Tribunal after consideration of the matter assumed the monthly income of the deceased to be Rs. 10,000/- on the ground that no officials from the Income Tax Department had come to prove the Income Tax Return of the deceased. So far as the multiplier is concerned, the learned Tribunal took the age of the claimant into consideration and not the age of the deceased. Accordingly, after making the statutory adjustments an award of Rs. 11,90,000/- has been passed.
9) I have heard Shri S. S. Sharma, learned senior counsel for the Insurance company which is the appellant in MAC 135/2018 and respondent in MAC Appeal No. 249/2018. I have heard Shri A. J. Sharma, learned counsel for the claimant who is the respondent in MAC 135/2018 and the appellant in MAC Appeal No. 249/2018. Shri G. Alam, learned counsel is present in both the appeals representing the owner/driver.
10) Let us first deal with the contention of the Insurance Company which has questioned the quantum of the award.
Page No.# 5/9
11) At the outset, it is submitted that there is no challenge on the ground of any violation of the policy conditions and the challenge is only limited to the quantum. Shri Sharma, learned senior counsel submits that when the Income Tax Return were held to be not properly proved, the basis of assuming the monthly income of the deceased as Rs. 10,000/- is erroneous. The senior counsel submits that at most an amount of Rs. 7,000/- may be assumed to be the monthly income of the deceased in absence of any other proof. The senior counsel submits that if income of the deceased is taken to be Rs. 7,000/- there would be a substantial reduction in the award which, after all is public money.
12) Per contra, Shri A. J. Sarma, learned counsel for the claimant submits that in view of the settled law that production of the Income Tax Return itself would be an admissible piece of evidence, the requirement of proving the same by calling Income Tax Officials is not conceived under the scheme of the Act. The objective of the Act which is the beneficial piece of legislation is to afford an avenue for a distressed family to get compensation as per the Act, technicalities in the form of the present nature should not come into way.
13) The learned counsel further submits that when the Income Tax Returns were not doubted, assuming the income to be Rs. 10,000/- itself is an error, and in that view of the matter, the submission made by the Insurance Company to assume the monthly income to be Rs. 7,000/- is absolutely without any grounds.
14) Coming to the appeal preferred by the claimants Shri A. J. Sarma, learned counsel submits that while the income of the deceased has been taken on the lower side, there is gross error in terms of the multiplier applied in the instant case. The learned Tribunal had applied the multiplier of 11 which appears to be the basis of age of the claimant who is the mother of the deceased.
Page No.# 6/9
15) It is submitted that it is no longer res integra that it is the age of the deceased which has to be taken up for consideration and the same position has been explained by the Hon'ble Supreme Court including in the case of National Insurance Co. Ltd. v. Pranay Sethi & Ors. reported in 2017 16 SCC 680.
16) Shri Alam, who appears for the owner/driver submits that since the vehicle was duly covered by a policy, liability, if any would be saddled only by the Insurance Company.
17) In his rejoinder, the learned senior counsel for the Insurance Company fairly submits that so far as the proposition of law is concerned regarding the age for which the multiplier is to be applied there is no dispute that it is the age of the deceased which should be taken into consideration. However, the learned senior counsel reiterates that monthly income of the deceased was not properly substantiated in the Tribunal and therefore that aspect of the matter cannot be taken into consideration for considering the monthly income to be more than what has already been assumed by the learned Tribunal.
18) After due application of mind to the considering rival submission of the parties, this Court is of the view that considering the scheme of the act which is a beneficial piece of legislation, the requirement of proving the Income Tax Return by officials from the Income Tax Department may not be a mandatory one.
19) The aforesaid observation is also based on the fact that no doubt, whatsoever was raised regarding the authenticity of the Income Tax Returns which were filed as Exhibit nos. 6 & 7. However, at the same time considering the nature of the evidence adduced more specifically the business of the deceased which is slightly vague, this Court is of the view that interest of justice would be served if the monthly income of the deceased is held at Rs. 11,000/-. So far as the multiplier is concerned, there is no dispute in the Bar that it is the age of the deceased, which has to be taken into consideration and the correct multiplier would be 16.
Page No.# 7/9
20) At this stage it would be beneficial to refer to the relevant extracts of the judgment rendered by the Hon'ble Supreme Court in the case of Pranay Sethi (Supra) :
59. In view of the aforesaid analysis, we proceed to record our conclusions:-
59.1 The two-Judge Bench in Santosh Devi should have been well advised to refer the matter to a larger Bench as it was taking a different view than what has been stated in Sarla Verma, a judgment by a coordinate Bench. It is because a coordinate Bench of the same strength cannot take a contrary view than what has been held by another coordinate Bench.
59.2 As Rajesh has not taken note of the decision in Reshma Kumari, which was delivered at earlier point of time, the decision in Rajesh is not a binding precedent.
59.3 While determining the income, an addition of 50% of actual salary to the income of the deceased towards future prospects, where the deceased had a permanent job and was below the age of 40 years, should be made. The addition should be 30%, if the age of the deceased was between 40 to 50 years. In case the deceased was between the age of 50 to 60 years, the addition should be 15%. Actual salary should be read as actual salary less tax. 59.4 In case the deceased was self-employed or on a fixed salary, an addition of 40% of the established income should be the warrant where the deceased was below the age of 40 years. An addition of 25% where the deceased was between the age of 40 to 50 years and 10% where the deceased was between the age of 50 to 60 years should be regarded as the necessary method of computation. The established income means the income minus the tax component.
59.5 For determination of the multiplicand, the deduction for personal and living expenses, the tribunals and the courts shall be guided by paragraphs 30 to 32 of Sarla Verma which we have reproduced hereinbefore. 59.6 The selection of multiplier shall be as indicated in the Table in Sarla Verma read with paragraph 42 of that judgment.
59.7 The age of the deceased should be the basis for applying the multiplier. 59.8 Reasonable figures on conventional heads, namely, loss of estate, loss of consortium and funeral expenses should be Rs. 15,000/-, Rs. 40,000/- and Rs. 15,000/- respectively. The aforesaid amounts should be enhanced at the rate of 10% in every three years.
Page No.# 8/9 It is seen that the Hon'ble Supreme Court in clear terms has held that the age of the deceased should be the basis for applying the multiplier and accordingly the multiplier in the instant case would be 16.
21) Taking the aforesaid parameters and figures into consideration, the award in question would require modification in the following manner:
i. Total loss of dependency is Rs. 11,000X12X16 = 21,12,000/-
ii. Deduction of 50% from the above as the deceased was a bachelor, the amount would be Rs. 10,56,000/-.
iii. The claimant would also be entitled to future prospect being 40% of the aforesaid amount i.e. Rs. 4,22,400/-
iv. The funeral expenses would be Rs. 25,000/-
v. Amount toward loss of Estate would be Rs. 10,000/-
The total Award therefore, would be Rs. 15,13,400/- (Rupees Fifteen Lakh Thirteen Thousand Four Hundred only) It is submitted that on 22.06.2018, an amount of Rs. 5,95,000/- has already been deposited and received by the claimant.
In that view of the matter the balance amount which is directed to be paid would be Rs. 9,18,400/- (Rupees Nine Lakh Eighteen Thousand Four Hundred only) which would carry interest at the rate of 6% from the date of filing of the claim petition till the date of payment.
22) The aforesaid amount may be paid to the Registry of this Court by the appellant Insurance Company within a period of 45 days from today and upon such deposit the same would be disbursed to the claimant on being properly identified.
Page No.# 9/9
23) It is needless to say that the amount of Rs. 25,000/- which was deposited by the Insurance Company at the time of filing the appeal would be released to the Insurance Company forthwith by the Registry.
24) Both the appeals are accordingly, disposed of.
25) The records be sent back forthwith.
JUDGE Comparing Assistant