Gauhati High Court
The New India Assurance Co. Ltd vs Smt Jahura Khatoon And 3 Ors on 28 April, 2022
Author: Parthivjyoti Saikia
Bench: Parthivjyoti Saikia
Page No.# 1/5
GAHC010047432017
THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : MACApp./526/2017
THE NEW INDIA ASSURANCE CO. LTD
HAVING ITS NORTH EASTERN REGIONAL OFFICE AT GUWAHATI, G.S.
ROAD, GUWAHATI 781005 REPRESENTED BY THE MANAGER OF NORTH
EAST EASTERN REGIONAL OFFICE
VERSUS
SMT JAHURA KHATOON and 3 ORS
W/O LATE ABBUS ALI
2:MD. NURUL ISLAM
S/O LATE ADDUS ALI
BOTH ARE R/O VILL. JOYPUR
P.O. and P.S. HOWLY
DIST. BARPETA
ASSAM
PIN 781316
3:AJIT CH. DAS
S/O PADMA RAM DAS
VILL. BILARTARIHATI
P.S.
P.O. and DIST. BARPETA
ASSAM DRIVER
PIN 78130
Advocate for the Petitioner : MS.R D MOZUMDAR
Advocate for the Respondent : MR.J U AHMED
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BEFORE
HONOURABLE MR. JUSTICE PARTHIVJYOTI SAIKIA
ORDER
IN THE GAUHATI HIGH COURT (The High Court of Assam, Nagaland and Arunachal Pradesh) MAC Appeal No. 526/2017 New India Assurance Company Ltd.
..... Appellant
-versus-
Smti. Jahura Khatun and Ors.
...Respondents PRESENT THE HON'BLE MR. JUSTICE PARTHIVJYOTI SAIKIA For the Appellant : Ms. R. D. Mozumder Advocate.
For the Respondents : Md. S. Islam
Advocate.
Date of Hearing : 29.03.2022
Date of Judgment : 28.04.2022
JUDGMENT AND ORDER
28.04.2022
Heard Ms. R. D. Mozumder, learned counsel representing the appellant as well as Md. S. Islam, learned counsel appearing for the respondents.
2. This is an appeal under Section 173 of the Motor Vehicles Act, 1988 against the Judgment and Award dated 01.04.2016 passed by the MACT, Barpeta in MAC Case No. 481/2014 Page No.# 3/5
3. On 12.04.2014, the deceased was travelling in a vehicle bearing registration No. AS-15/C/5004 Maximo Car. When the vehicle reached Amtal, another vehicle bearing registration No. As-14-1038 (Bus) coming from the opposite direction dashed against the Maximo car. As a result of the accident, the deceased sustained serious injuries and succumbed to his injuries while he was being taken to Guwahati for better treatment. The claim petition was filed under Section 166 of the M.V. Act seeking compensation of Rs.18,00,000/-. The owner and the driver of the bus bearing registration No. AS-14-1038 did not contest the claim petition.
4. The appellant/Insurance Company contested the case by filing written statement.
5. On the basis of the pleadings, the Tribunal framed the following issues:
(i) Whether the motor accident occurred on 12.04.2014 at Amtol, Howly due to rash and negligent manner of driving by the driver of the offending vehicle bearing registration No. AS-15/1038 (Bus) and consequently Abbass Ali died?
(ii) Whether the claimant is entitled to compensation as prayed for?
(iii) If he/she is entitled, by whom it is payable and to what extent.
6. The respondent examined herself only. The appellate/Insurance Company did not examine any witnesses.
7. On the basis of the evidence on record, the Tribunal awarded compensation of Rs.16,88,084/- along with interest @ 7% per annum from the date of filing of the claim petition.
8. I have given my anxious consideration to the submissions of the learned counsels for the both sides.
9. The appeal was filed on the ground that the deceased was 16 years old at the time of accident and, therefore, the multiplier should have been 7. The second ground of appeal is that the accident was a head on collision between two vehicles.
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10. The other vehicle in which the deceased was travelling was also contributed to the accident. But the Tribunal did not ascertain the quantum of contributory negligence.
11. I have gone through the evidence available in the record as well as the impugned judgment. The calculation made by the Tribunal is as under:
Sl. No. Heads Calculation (i) Income Rs.21,709/- per month (ii) 1/3 of (ii) deducted as Rs.21,709/- - Rs.7,236/- =
personal expenses of the Rs.14,473/- per month deceased
(iii) Compensation after Rs.14,473/- x 12 x 9 = multiplier of 9 is applied Rs.15,63,084/-.
(iv) For consortium Rs.1,00,000/- (v) Funeral expenses Rs.25,000/- Total compensation Rs.16,88,084/- awarded
(Rupees Sixteen Lakhs Eighty Eight Thousand and Eighty Four) only
12. Reverting to the case in hand and in the light of National Insurance Company Ltd. v. Pranay Sethi and Ors, 2017 (4) T.A.C. 673 (S.C.), on account of non-pecuniary damages the respondent shall be entitled to Rs.70,000/- only. The Tribunal committed error by awarding more than Rs.70,000/- in the non-pecuniary heads.
13. The Tribunal also committed an error by failing to decide about the contribution of the Maximo car in the said accident because the head on collision between the two vehicles took place in the middle of the road while both the vehicles were moving. Therefore, both the vehicles are equally liable for the accident. It means both the vehicles equally contributed to the accident and the liability of the vehicle bearing registration No. As-14-1038 (Bus) is 50%. Whatever would be the award the Page No.# 5/5 respondent would get only half of it.
14. I have found that the learned Tribunal has correctly held the multiplier to be 9 as per Sarla Verma, reported in (2009) 6 SCC 121. There is no doubt that the deceased was 60 years old at the time of death. Therefore, multiplier 7 would be incorrect because this multiplier would be applicable between 61 to 65 years.
15. Under the aforesaid premised reasons, this court is of the opinion that the impugned judgment is required to be modified accordingly-
Sl. No. Heads Calculation (i) Income Rs.21,709/- per month (ii) 1/3 of (ii) deducted as Rs.21,709/- - Rs.7,236/- =
personal expenses of the Rs.14,473/- per month deceased
(iii) Compensation after Rs.14,473/- x 12 x 9 = multiplier of 9 is applied Rs.15,63,084/-.
(iv) For consortium Rs.50,000/- (v) Funeral expenses Rs.20,000/- Total compensation Rs.16,33,084/- awarded
16. The appellant shall be entitled to get half of Rs.16,33,084/- i.e. Rs.8,16,542/-. The rate of interest will remain same as directed by the Tribunal.
17. The appeal is partly allowed.
18. Send back the LCR.
JUDGE Comparing Assistant