Gauhati High Court
United India Insurance Co. Ltd vs Girish Keot & Ors on 30 October, 2018
Author: Kalyan Rai Surana
Bench: Kalyan Rai Surana
THE GAUHATI HIGH COURT
(THE HIGH COURT OF ASSAM, NAGALAND, MIZORAM & ARUNACHAL PRADESH)
MAC APPEAL NO. 48 OF 2012
United India Insurance Company Limited
... Appellant
-Versus-
Sri Girish Keot and 4 others
..Respondents
BEFORE
HON'BLE MR. JUSTICE KALYAN RAI SURANA
For the appellant : Mr. SK Singh,
Mr. B. Pushilal, Adv.
For the respondents : None appears
Date of hearing &
judgment : 30.10.2017.
JUDGMENT AND ORDER
Heard Mr. SK Singh, the learned counsel for the appellant. None
appears for the respondents No.1,2 & 3 although the names of their
learned counsels are duly appeared in the cause-list.
2. This appeal under Section 173 of the Motor Vehicles Act, 1988, is
directed against the judgment and award dated 17.03.2010 passed by the
learned Member, MACT, Sonitpur, Tezpur in MAC Case No.222/2002.
3. The case in brief is that on 31.07.2002 at 9:00 PM, while the
deceased Poona Keot, who was the brother of the respondents No.1,2 & 3,
was coming from Mission Chariali to his residence towards Bamparbatia, he
MAC Appeal No.48 of 2012 Page 1 of 7
was knocked down by a scooter bearing Registration No. BR-16-D/2128,
near Vartak Tiniali on NH-52, which was coming from the opposite
direction. The scooter was being driven by the driver (opposite party No.2
in the claim case) in a rash and negligent manner. As a result of the
accident, deceased suffered grievous injuries on his person. He was shifted
to the Kanaklata Civil Hospital, Tezpur, for treatment wherein he
succumbed to his injuries. After the accident, the Tezpur PS Case
No.493/2002 under Section 279/304 IPC was registered, corresponding to
GR Case No.1070/2002.
4. In their claim petition, the respondents No.1,2 & 3 had stated that
the income of the deceased was Rs.4,500/- per month by doing business
and he was aged 27 years. It was stated that the deceased was the only
earning member of the family and on his death the family members are
facing acute financial hardships. The opposite parties had contested the
case by filing their respective written statement.
5. On the basis of the pleadings, the learned Tribunal had framed the
following two issues:
"1) Whether the alleged accident took place due to rash and
negligent driving by the driver of vehicle No. BR-16-D/2128?
2) Whether the claimant is entitled to compensation, and if
yes, what will be the quantum of compensation and by
which of the respondents, this amount shall be paid?"
6. The respondents No.1(i), 1(ii) and (iii) i.e. the claimants had
examined four witnesses and exhibited the following documents:
1) Exhibit-1 is the certified copy of the ejahar; and
2) Exhibit -2 is the post-mortem report of the deceased.
7. The present appellant (i.e. Opposite Party No.3 in claim petition)
had exhibited three documents viz., (i) Exhibit. A - the Written statement of
the Dr. Prabin Sarma, who was the Driver of the scooter (opposite party
MAC Appeal No.48 of 2012 Page 2 of 7
No.2 in the claim petition); (ii) Exhibit. D- the insurance policy; and (iii)
Exhibit. C- the record of GR Case No.1070/2002.
8. It may be pertinent to mention here that the records of G.R. Case
No.1070/2002 marked as Exhibit-C is not found on record. However, at
this stage, the learned counsel for the appellant submits that in view of the
issues raised by him, the record of Exhibit-C is not required as his
arguments is not based on Exhibit-C for the time being. In view of the said
submission of the learned counsel for the appellant, this Court has
proceeded with the hearing of the matter.
9. In respect of issue No.1, the learned Tribunal had held that Dr.
Prabin Sarma (Opposite Party No.2 in the claim petition) was driving the
offending scooter at the relevant time and due to his rash and negligent
driving the accident had taken place resulting in death of the victim. In
arriving at the said finding, the learned Tribunal had relied on the evidence
of claimant's witnesses. In respect of issue No.2, it was held that the
deceased was unmarried at the time of accident and in absence of any
evidence of income of the deceased, the learned Tribunal had assessed the
monthly income of the deceased as Rs.3,000/- per month and after
calculating the annual loss of dependency, etc., the total compensation was
assessed as Rs.3,95,000/-. On the basis of the age of the respondent No.1
(Sri Girish Keot) as 40 years, the learned Tribunal has applied the multiplier
of 16. The learned Tribunal had computed the compensation as follows:
"Annual Loss of dependency Rs. 24,000/- X 16 =Rs3,84,000/-
Funeral expenses =Rs.2,000/-
Loss of love and affection =Rs.6,000/-
Loss of estate =Rs.3,000/-
--------------------------------------
Total =Rs.3,95,000/-"
10. Challenging the findings as well as the judgment impugned herein, it is submitted by the learned counsel for the appellant that as per the MAC Appeal No.48 of 2012 Page 3 of 7 evidence of the claimant's witnesses No. 1, 2 & 3, the deceased did not have a regular income and had casual income as 'hazira' or daily wage worker. As per the evidence of claimant's witnesses No.1,2 & 3, it was they who were looking after the deceased. It is further submitted that the respondents No.1 & 2, were the elder brothers of the deceased and the respondent No.3 was the younger brother of the deceased and all of them were married and had independent source of income. Therefore, none of the respondents No.1, 2 & 3 should be termed as "dependent" on the income of the deceased. It is further submitted that the deceased himself did not have any fixed income and was employed as daily wage earner. It is submitted that this was not a case where the learned Tribunal could have award any compensation to the respondents No.1, 2 & 3 on the ground of loss of dependency.
11. The learned counsel for the appellant by heavily relying on the case of Manjuri Bera Vs. Oriental Insurance Company Ltd. and another, AIR 2007 SC 1474, Ranjan Narzary Vs. United India Insurance Company Ltd. and others, 2014 (3) GLT 601, National Insurance Company Ltd. Vs. Harpreet Singh, 2015 ACJ 1922 and the Branch Manager, National Insurance Company Ltd. Vs. Nimai Chandra Paul and others, 2016 ACJ 861, has submitted that when the claimants were not dependent on the income of the deceased, the claimants would only be entitled to compensation on account of - (i) loss of estate and/or (ii) claim for no fault liability. It is further submitted by the learned counsel for the appellant that he has not been able to find any authority of any Court where law has been laid down as to how and what manner the claim with regard to loss of estate can be calculated. It is submitted that from the case of Ranjan Narzary (supra), as decided by this Court, the loss of estate was computed at ¼th of the monthly income of the deceased, which was taken as monthly savings of the deceased and based on that, the annual saving is determined and multiplied by the applicable multiplier. In the said case, by assessing the monthly income of the victim as Rs.4,000/- per month, the annual savings MAC Appeal No.48 of 2012 Page 4 of 7 was held to be as Rs.12,000/- i.e. the rate of Rs.1,000/- per month and by applying multiplier of 11, the loss of estate was calculated as Rs.1,32,000/-.
12. Having considered the submissions advanced by the learned counsel for the appellant. On the perusal of the cases relied on by the learned counsel for the appellant, it would be appropriate to quote pargarph-12 of the case of Manjuri Bera (supra) -
"12. Judged in that background where a legal representative who is not dependant files an application for compensation, the quantum cannot be less than the liability referable to Section 140 of the Act. Therefore, even if there is no loss of dependency the claimant if he or she is a legal representative will be entitled to compensation, the quantum of which shall be not less than the liability flowing from Section 140 of the Act. The appeal is allowed to the aforesaid extent."
13. In the case of Harpreet Singh (supra), the Hon'ble High Court of Jammu & Kashmir has also relied on the case of Manjura Bera (supra) and it was held that claimant was not entitled to get compensation under the head of "loss of dependency" for the reason that he was a Grade-IV employee under the Central Government and was not dependent upon the income of the deceased. In the case of Nimai Chandra Paul (supra), the Hon'ble High Court of Sikkim by relying on the case of Reshma Kumari and others Vs. Madan Mohan and another, (2013) 9 SCC 65, held that neither the father of the deceased nor her brother, as respondents No.1 and respondent No.3 respectively, can be considered as "dependents" of the deceased except the mother (respondent No.2). In all the above cases, the claimants were held to be entitled to compensation on account of loss of estate or of the no fault liability under Section 140 of the Motor Vehicles Act, 1988.
14. As per the evidence of claimant's witnesses No.1 & 3, namely, Munindra Keot and Mrinal Ch. Keot, the deceased was from time to time working as daily wage (hazira) worker. In their cross examination, the claimant's witnesses No.1,2 & 3 had categorically admitted that they were MAC Appeal No.48 of 2012 Page 5 of 7 looking after the deceased. Therefore, as this Court finds that deceased did not have any fixed income, this Court is inclined to take the help of 2nd Schedule of Motor Vehicles Act, 1988 to hold that as the deceased had no fixed income as monthly income, for the purpose of awarding compensation, it can be taken as Rs.15,000/- per annum as per Entry No.6 of the Second Schedule of the Act. Therefore, applying the calculation under the head of loss of dependency as formulated by this Court in the case of Ranjan Narzary (supra), ¼th of the notional annual income of Rs.15,000/- is taken to be the savings of the deceased and it comes to Rs.3,750/-. Taking the age of the respondent No.1 i.e. the elder brother of the deceased as the factor for multiplier being 40 years at the relevant time, the applicable multiplier would be 16 in terms of the decision of the Hon'ble Supreme Court in Sarla Verma Vs. Delhi Transport Corporation, (2009) 6 SCC 121. Therefore, the assessment of compensation is as follows- loss of estate @ Rs.3,750/- X 16 = Rs. 60,000/-.
15. However, as per the ratio laid down in the case of Manjuri Bera (supra), paragraph-12 of which is quoted above, the effect of it is that the compensation cannot be less than the liability flowing from Section 140 if the Motor Vehicles Act, 1988. So, following the case of Ranjan Narzary (supra), the compensation under the head of 'loss of estate', being greater than one flowing under Section 140 if the Motor Vehicles Act, 1988 must prevail, as such, the respondents No.1(i), 1(ii) and (iii) i.e. the claimants are entitled to compensation of Rs.60,000/- as calculated above.
16. In view of the aforesaid finding of this Court, this appeal stands allowed to the extent as indicated above.
17. The impugned judgment and award dated 17.03.2010 passed in MAC Case No.222 of 2002 is hereby set aside and modified to the extent as indicated above.
MAC Appeal No.48 of 2012 Page 6 of 718. The amount of compensation is restricted to the head of claim under loss of estate and total compensation is scaled down to Rs.60,000/-. The appellant is now directed to deposit the entire compensation of Rs.60,000/- before the jurisdictional Tribunal within a period of 1(one) month from today with interest @ 9% from the date of filing of the claim petition, failing which the said sum shall carry an interest @ 9% per annum from the expiry of 60 (sixty) days from the date of this order. The appellant is directed to furnish the proof of compliance of this order before this Court and on such proof being submitted, the appellant may be permitted to withdraw the statutory deposit of Rs.25,000/-.
19. Return back the LCR together with the note that the LCR does not contain the "Exhibit-C", being the records of G.R. Case No.1070/2002.
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