Gauhati High Court
National Insurance Co. Ltd vs Smt.Anita Rani Chanda & Ors on 4 December, 2015
Author: N. Chaudhury
Bench: N. Chaudhury
IN THE GAUHATI HIGH COURT
(THE HIGH COURT OF ASSAM, NAGALAND, MIOZRAM AND
ARUNACHAL PRADESH)
MAC APPEAL 304/2010
National Insurance Company Ltd, Tezpur
branch.
Appellant.
-Versus-
1) Smt. Anitarani Chanda, wife of Sri
Putul Mohan Chanda, Khanamukh,
Nonkepatgaon post office, Rangapara
police station, Sonitpur district.
2) Sri Budheswar Ravi Das, son of Sri
Babai Ravi Das, Nabil(Towbhanda),
Towbhanga post office, Jamugurihat
police station, Sonitpur district.
3) Sri Durga Prasad, son of late Dulal
Prasad, Khanamukh, Khanamukh post
office, Rangapara police station,
Sonitpur district.
Respondent.
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PRESENT
HON'BLE MR. JUSTICE N. CHAUDHURY
For the appellant : Shri S.S.Sarma
Sr. Advocate
Shri BJ Mukherjee
Advocate.
For the respondent 1 : Shri G.P. Bhowmik
Sr. Advocate
Smt. M. Kalita
Advocate.
For the respondent 2 : Shri NN Upadhaya
Advocate
For the respondent 3 : None.
Date of hearing and judgment : 4.12.2015
JUDGMENT AND ORDER
This appeal under Section 173 of the Motor Vehicles Act, 1988
is filed by National Insurance Company(NIC) challenging the judgment
and award dated 29th May, 2007 passed by the learned Motor
Accident Claims Tribunal at Sonitpur in MAC case 334/2001 directing
the insurance company to pay Rs 1,77,000/- towards compensation
to the claimant with interest at the rate of 6 per cent per annum from
the date of filing the claim petition till realisation.
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2) One Anita Rani Chanda as claimant filed a claim petition before
the jurisdictional Tribunal at Tezpur stating that when her 17-year-old
son Uddhab Chanda and his cousin Madhumala Dey were coming to
her house on a bicycle along the left side of a PWD road they were
knocked down from behind by a truck(AS-12/6397) plying in a very
rash and negligent manner and they received serious injuries as a
result and when they were taken to nearby Kanaklota Civil Hospital in
a very critical condition Madhumala died on the way and her son died
after 2 hours of hospitalisation. It is stated in the claim petition that
the opposite party 1 and 2(the owner and the driver of the offending
vehicle, respectively) were duly insured with the opposite party no: 3.
The claimant prayed that a compensation of Rs 8 lakh be paid to her.
3) Though notified, the opposite parties 1 and 2 did not turn up.
The opposite party 3 appeared and submitted written statement
denying the claims, specifically at para 15 therein that the vehicle
involved in the accident was not insured with the answering opposite
party, at all. It is further pleaded that the opposite party 3 is not liable
to make ad interim payment under Section 140 of the Motor Vehicle
Act, 1988. The opposite party 3, therefore, prayed that the NIC be
exonerated of the liability to pay compensation, whatsoever.
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4) Upon consideration of the aforesaid pleadings of the parties the
learned Tribunal framed the following issues.
(i) Whether the alleged accident took place due to rasn and
negligent driving by the driver of the vehicle No.AS-
12/6397?
(ii) Whether there was contributory negligence on the part of
the deceased leading to the accident in question?
(iii) Whether the claimant is entitled to any compensation as
prayed for, and if yes, from whom and to what extent?
5) Claimant examined herself as PW1 and one Omar Ali as PW2 by
filing evidence in the form of an affidavit. None of the opposite parties
were cross-examined by the contesting opposite parties i.e. NIC, owner
and driver; against whom the proceeding was held ex parte.
6) In course of deposition PW1 stated that on 18.4.2001 around 6
AM when Uddhab and Madhumala were coming from the Khanamukh
Centre on a bicycle towards their home along a PWD road they were
knocked down from behind by a truck(AS-12/6397) plying in a very
rash and negligent manner and they received serious injuries as a
result and when they were taken to nearby Kanaklota Civil Hospital in
a very critical condition Madhumala died on the way and her son died
after 2 hours of hospitalisation and the bicycle was totally damaged. It
is disclosed that Uddhab was 17 years of age at the time of accident
and that the vehicle was insured with the NIC. Claimant, however, did
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not, and could not, disclose policy number. The insurance company
on the other hand specifically denied in paragraph 15 of the written
statement to having any insurance cover of the vehicle. Under such
circumstances there was no question of furnishing policy number by
NIC. The NIC, however, did not lead evidence. Whereas the owner and
the driver of the offending vehicle appears to have not contested the
proceeding from the beginning.
7) After considering the material available on record the learned
Tribunal arrived at the finding that the accident has taken place due
to rash and negligent driving of the mini truck(AS-12/6397) and that
there is no evidence on record suggesting any contributory negligence
on the part of the deceased. Issue no. 2 was accordingly decided in
favour of the claimant.
8) As regards issue 3 the learned Tribunal considered a notional
income of Rs 15,000/- and by deducting one-third therefrom annual
dependency was fixed at Rs 10,000/- and then by considering the age
of the deceased multiplier 15 was chosen and thereupon the total loss
of dependency was calculated at Rs 1,50,000/-. The learned Tribunal
assessed the loss of expectation at Rs 25,000/- and funeral expenses
at Rs 2000/-. Thus total compensation was calculated at Rs ,77,000/-
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with interest at the rate of 6 per cent per annum from the date of filing
the claim petition till payment to be made by the opposite party 3,
without however recording any finding whether the offending vehicle
was covered by any insurance policy whatsoever and, if so, whether
such insurance policy pertains to the opposite party 3. The fact
remains that the claimant did not disclose any policy number and the
insurance company denied to having any insurance policy. The owner,
who is the real person to be held liable for compensation, preferred to
stay away from the proceeding and did not take any plea that he is
indemnified by insurance policy. Under such circumstances in the
absence of any material whatsoever it was not possible on the part of
the learned Tribunal to arrive at a finding that the vehicle was under
any insurance policy of the opposite party no:3 but without arriving at
any such finding the opposite party no:3 was saddled with the liability
and it is this part of the judgment and award dated 29th May, 2007
that is challenged by the insurance company not only on the point of
liability but also the quantum.
9) I have heard Shri SS Sarma, learned senior counsel assisted by
Mr BJ Mukherjee for the appellant and Shri GP Bhowmik, learned
senior counsel assisted by Smt. M Kalita for the claimant and Mr NN
Upadhaya, learned counsel for the owner. The name of the driver was
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struck off and so nobody has entered appearance on his behalf. Also
perused the lower court records.
10) A bare perusal of the impugned judgment and award would
show that nowhere the learned Tribunal arrived at the finding that the
insurance company is liable to pay compensation because of existence
of insurance policy. No insurance policy is mentioned. No insurance
policy is also brought on record. The insurance company specifically
denied in paragraph 15 of the written statement as to the existence of
any insurance policy and so production of any document by it cannot
arise. Under such circumstances it is the owner of the vehicle who
could have showed any insurance policy and that it was in force on
the relevant date and time. As the owner preferred to stay away from
the proceeding the learned Tribunal was not in a position to arrive at a
finding that there was an insurance policy, as alleged in paragraph 17
of the claim petition. Even in paragraph 17 of the claim petition policy
number is not disclosed and it is vaguely stated that the vehicle was
covered by insurance of National Insurance Company Ltd. The learned
Tribunal having not arrived at a finding that there was an insurance
policy in force on the relevant date and time the direction to insurance
company to make payment of compensation has become virtually
untenable and accordingly this part of the impugned award cannot be
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sustained. In the absence of any material to show that there was a
valid insurance on the date and time of accident the insurance
company cannot be held liable to make payment of any compensation.
As the learned Tribunal is vested with the duty and jurisdiction to
assess a just compensation under the provisions of the Motor Vehicles
Act, 1988 it is necessary to examine whether the quantum of
compensation assessed by the learned Tribunal is correct.
11) Sri BJ Mukherjee, learned counsel for the insurance company,
pointed out that the multiplier was chosen by the Tribunal keeping in
view the age of the deceased(17 years at the time of accident) and the
educational status(a student). Claimant is the mother of the deceased
and she was 46 years of age on the relevant date and so the learned
Tribunal ought to have chosen a multiplier with reference to the age of
the claimant and not with reference to the age of the deceased. In this
connection, Sri Mukherjee has placed reliance on the judgment of the
Supreme Court in Munna Lal Jain v. Vipin Kr. Sharma and another in
Civil Appeal 4497/2015 dated 15th May, 2015.
12) I have perused the examination-in-chief to find out the age of
the claimant at the relevant time and found no cross-examination in
that regard and so what has been stated in the examination-in-chief
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has gone on unrebutted in the evidence. The claimant has described
herself to be aged about 46 years on the date of her deposition. In that
view of the matter if her age 46 years is considered to be the reference
age for the purpose of choosing the multiplier, the multiplier ought to
have been 13 in terms of the judgment of the Hon'ble Supreme Court
in Sarla Verma v. Delhi Transport Corporatioin reported in (2009) 6
SCC 121, wherein the guidelines for choosing multipliers are laid
down and according to which multiplier 13 should be appropriate in
this case.
13) Accordingly the compensation of Rs 1,77,000/- is modified to
the following extent without interfering in the other part of the award
like funeral expenses etc.
(i) Loss of dependency(10,000x13) = Rs 1,30,000.00
(ii) Loss of care and affection = Rs 1,00,000.00
(iii) Loss of expectation = Rs 25,000.00
(iv) Funeral expense = Rs 2,000.00
............................
Total = Rs 2,57,000.00 (Rupees two lakh, and fifty-seven thousand). 10
14) The compensation amount of Rs 2,57,000/- will carry interest at the rate of 6 per cent per annum from the date of filing the claim petition till realisation, to be deposited with the jurisdictional Tribunal within a period of three months from today and upon such deposit the amount to be disbursed to the claimant on due identification. Accordingly the appeal is partly allowed. LCR be sent to the Tribunal at once.
JUDGE na/ 11