Gauhati High Court
MACApp./86/2017 on 10 December, 2021
Author: Malasri Nandi
Bench: Malasri Nandi
Page No.# 1/12
GAHC010267472017
THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : MACApp./86/2017
Cholamandalam MS General Insurance Company Ltd. Having its
Registered Office and Head Office at Dare House, 2 nd Floor, No. 2
N.S.C. Bose Road, Chennai-600001 and its Branch Office at Aastha
Plaza, 4th Floor, Opposite to S.B. Deorah College, G.S. Road,
Guwahati.
......Appellant.
-Versus-
1. Smt. Kalpana Kumari Deka
W/o Late Ramen Deka
2. Miss Dixita Deka
D/o Late Ramen Deka
3. Master R.K. Seemran Deka
D/o Late Ramen Deka
4. Smti. Kamala Deka
W/o Sri Nagen Deka
All are residents of:
Village-Baikunthapur
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Behind Games Village
P.S.-Basistha, Guwahati-29
Dist. Kamrup(M), Assam.
Respondent Nos. 2 & 3 being minors is represented by their legal
guardian mother i.e. Respondent No. 1.
(Claimants)
5. Smti. Jaya Das
W/o Sri Rajani Chandra Das
R/o Fatasil Ambari, Segunbari, Guwahati
P.S.-Fatasil
District-Kamrup(M), Assam.
[Owner of the vehicle No. AS-01/EC-5334(Winger)]
6. Sri Kamal Deka
S/o Sri Prafulla Deka
R/o Village-Khudra Sankara
P.O.-Gopalthan
Dist.-Nalbari, Assam.
[Driver of the vehicle No. AS-01/EC-5334(Winger)]
......Respondents.
Before
HON'BLE MRS. JUSTICE MALASRI NANDI
Advocates for the Appellant: 1. Mr. S.Bhuyan.
2. Mr. R. Goswami.
3. Ms. P. Borthakur.
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Advocates for the Caveators: 1. Mr. S.M. Sarma.
2. Mr. K. Gogoi.
3. Mr. A. Baishya.
Date of Hearing : 15.11.2021.
Date of Judgment : 10.12.2021
JUDGMENT AND ORDER
1. This appeal has been preferred by the appellant Insurance
Company challenging the judgment and order dated 10.09.2015
passed by learned Additional District Judge No.2, Kamrup(M), in
MAC Case No. 608/2014 awarding compensation of Rs.
55,97,500.00/-(Rupees fifty-five lakh ninty-seven thousand and
five hundred) only in favour of the claimant/respondent Nos. 1 to
4.
2. The fact of accident has not been disputed herein this case
dated 12.01.2014 at Lalmati near Nidhi Bhawan, Guwahati under
Basistha Police Station involving the vehicle bearing No. AS-01AZ-
5251 causing the death of Ramen Deka, husband /father/ son of
the respondent Nos. 1 to 4.
Being highly aggrieved and dissatisfied with the impugned
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judgment and award dated 10.09.2015 passed by learned
Additional District Judge No. 2, Kamrup(M) in MAC Case No.
608/2014 the appellant has preferred this appeal.
3. Learned counsel for the appellant has argued that the
learned Additional District Judge-cum-Member MACT has
arbitrarily considered the income of the deceased as Rs. 3,
00,000/- (Rupees three lakh) p.a. which is not based on records
and is at best a presumption only. The learned Member MACT
ought to have appreciated that the income of the deceased as per
unproved exhibits was Rs. 2,14,928.00/- (Rupees two lakh
fourteen thousand nine hundred twenty-eight) only in the
assessment year 2010-11 and if the claimant failed to bring on
record the income-tax returns for the subsequent years then the
claimant ought not to be rewarded for his default with a hefty
increase of 40% equivalent to Rs. 85,000/- approximately over
the last known figure as regards the income of the deceased.
4. It is further argued that the judgment and award dated
10.09.2015 has only added to the uncertainty and lack of
reasonable uniformity in the matter of determination of just
compensation being in case of road accident of victims and prayed
to award just and reasonable compensation as per provisions of
law.
5. On the other hand, learned counsel for the respondents/
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claimants has submitted that in case of accident claim under Motor
Vehicles Act the strict principles of proof in criminal case, not
attracted, standard to be followed in such claims is one
preponderance of probability rather than one of proof beyond
reasonable doubt.
6. It is also argued that the legal representatives of the
deceased are entitled to the compensation as mentioned under
the heads as future prospects, loss of consortium, loss of care and
guidance, minor children, funeral expenses, pain, loss and
sufferings, medical expenses, attended charges and transportation
etc. Learned counsel also contended that the assessment of
income of the deceased as per income tax return is proper.
In support of his submissions learned counsel has referred
the following case laws:-
a) 2013 AIR SCW 5800, Sanobanu Nazirbhai Mirza
and Ors v. Ahmedabad Municipal Transport Service.
b) AIR 2018 SC 3107, United India Insurance Co. Ltd.
v. Indiro Devi and others.
c) 2009 AIR SCW 6999 SCW 6999, Reshma Kumari
and Ors. v. Madan Mohan and Anr.
d) 2014 AIR SCW 2973 SC, V. Mekala v. M. Malathi
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and Anr.
e) AIR 2019 SC 994, Sunita and others v. Rajasthan
State Road Transport Corporation and another.
7. I have gone through the judgment of the learned Trial Court
wherein, the income of the deceased was assessed as per income-
tax return i.e., Rs. 2, 14,928.00/- (Rupees two lakh fourteen
thousand nine hundred twenty-eight) only for the assessment year
2010-11.
As the deceased died in the month of January, 2014 the
income of the deceased was assessed around 25,000/- p.m.
8. In MAC Case No. 608/2014 the respondent/claimant No. 1
Kalpana Kumari Deka was examined as P.W. 1 and she exhibited
some documents in support of her case. Exhibit VI is the PAN Card
of her deceased husband, Exhibit VII is the return of income for
the assessment year 2009-10 filed by her deceased husband
before the income-tax department, Exhibit VIII is the return of
income for the assessment year 2010-11 and Exhibit IX is the
return of income-tax for the assessment year 2011-12. It is seen
that the deceased Ramen Deka was dealing with the business of
goods transport agency in the name of Kamala Roadlines situated
at Nalapana, Guwahati. P.W. 1 has exhibited the certificate of
registration of Kamala Road lines Vide exhibit X (i) and exhibit X
(ii).
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9. Though the Insurance Company i.e. the appellant has
preferred an appeal only on the ground for income of the
deceased based on Income-tax return for the assessment year
2010-11, but it is evident to note that no objection regarding the
mode of proof was raised by the counsel for the Insurance
Company at the time P.W. 1 has tendered those documents in
evidence.
10. Learned counsel for the respondent/claimant submitted that
the deceased Ramen Deka was having a regular source of income
which was increasing as evident from the income-tax returns of
the deceased.
11. Per Contra learned counsel for the appellant has submitted
that the said income-tax returns could not be taken to be proved
as the claimant had not summoned the records from the income-
tax department.
As stated above, no objection as to the mode of proof was
raised by the learned counsel for the appellant when they were
tendered in evidence by P.W. 1.
12. In the case of R.Ve.Venkatachala Gounder v. Arulmigu
Viswesaraswami reported in 2003 (8) SCC 752 Hon'ble
Supreme Court was pleased to hold that ordinarily an objection to
the admissibility of evidence should be taken when it is tendered.
It was held that the objection should be taken when the evidence
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is tendered and once the document has been admitted in evidence
and marked as an exhibit, the objection that it should not have
been admitted in evidence or that the mode adopted for proving
the document is irregular cannot be allowed to be raised at any
stage subsequent to the marking of the document as an exhibit. It
was held that this proposition is a rule of fair play and the crucial
test is whether such objection would have enabled the party
tendering the evidence to cure the defect and resort to such mode
of proof as would be regular. It was further observed that the
omission to object becomes fatal because by his failure the party
entitled to object allows the party tendering the evidence to act on
an assumption that the opposite party is not serious about the
mode of proof.
13. In the aforesaid case, it was further held that a prompt
objection does not prejudice the party tendering the evidence as
in the event of finding of the Court on the mode of proof sought to
be adopted going against the party tendering the evidence, the
opportunity of seeking indulgence of the Court for permitting a
regular mode or method of proof and thereby removing the
objection raised by the opposite party, is available to the party
leading the evidence. Such practice and procedure is fair to both
the parties. Failure to raise a prompt and timely objection amounts
to waiver of the necessity for insisting on formal proof of a
document, the document itself which is sought to be proved being
admissible in evidence.
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14. In the case at hand, since no objection was raised by the
counsel for the appellant/Insurance Company at the time of
tendering of the said documents in evidence the appellant cannot
raise any objection in respect of the same at this stage. It is also
to be kept in mind that the appellant had given a suggestion to
P.W. 1 that the income-tax returns were manufactured. If this was
so nothing prevented the appellant from leading evidence and
summoning the record from the income-tax department about the
genuiness of those returns, i.e. whether the same were filed or
not. However, the appellant/insurance company has not laid any
evidence in this matter. These returns were filed much prior to the
death of the victim. It does not lie in any person's mouth to
contend that the deceased in the anticipation of his death in a
road traffic accident filed those returns in order to ensure the
substantial compensation in proceedings under the Act. Hence, the
learned Tribunal has rightly assess the income of the deceased on
the basis of the income-tax returns for the assessment year 2010-
11 showing the monthly income of the deceased around Rs.
25,000/- in a month.
15. According to the claimant, the age of her husband was 36
years at the time of accident. To prove the age of the deceased
the claimant has exhibited admit card and PAN card of her
deceased husband, wherein the age of her husband was shown as
01.01.1978. The accident occurred on 12.01.2014. It transpires
that age of the deceased was 36 years when the accident took
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place.
As per the case of Sarla Verma and others v. DTC and
others reported in AIR (2009) 6 SCC 121 the multiplier would be
15.
16. In the instant case, the deceased left behind his wife, two
minor daughters and his mother. As such the standard deduction
towards personal and living expenses of deceased is applicable as
stated in the case of Sarla Verma (supra). Considering the
aforesaid mandate in the instant case since there is four numbers
of dependants ¼th of the income of the deceased is required to be
deducted with a presumption that had the deceased been alive, he
could have spent ¼th for his personal and living expenses.
17. In the case of National Insurance Co. Ltd. Vs. Pranay
Sethi and Ors. reported in SLP (Civil) No. 25590 /2014 it was
observed that while determining the income of the deceased in
case of 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.
18. In the case in hand, age of the deceased was 36 years when
the accident occurred. So 40 % should be added along with his
established income of Rs. 25,000/-. Hence monthly income of the
deceased be considered as Rs. 25,000/- + 10,000=35,000/-.
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19. As per the case of Pranay Sethi (supra) the Hon'ble Supreme
Court has fixed compensation in case of death, reasonable figures
on conventional heads, namely, loss of consortium, loss of estate
and funeral expenses should be Rs. 40,000+ Rs. 15,000+ Rs.
15,000 respectively.
20. Hence, in view of the aforesaid discussion in the instant
case, the computation of compensation is awarded as follows:-
1. Annual income of the deceased
Rs. 35,000X12= 4,20,000/-
2. After deducting ¼th of the annual income of the
deceased, amount comes to = Rs. 3,15,000/-
3. After multiplied with multiplier, amount comes to
= 3,15,000X15= 47,25,000/-
4. Funeral expenses- =Rs.15, 000/-
5. Loss of Estate- =Rs.15, 000/-
6. Loss of Consortium- =Rs. 40,000/-
=Rs.47,95,000/- (Rupees forty-
seven lakhs and ninty-five thousand)
ORDER
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21. In the result, appeal is partly allowed with aforesaid modification, awarding Rs. 47,95,000/- (Rupees forty-seven lakhs and ninty-five thousand) only with interest thereon @ 6% per annum from the date of filing of the case. The Cholamandalam MS General Insurance Company Ltd. is directed to make payment of the aforesaid amount within a period of 30 days from the date of receipt of the order in the savings account of the claimant No.1 Smti. Kalpana Kumari Deka through NEFT. Claimant No. 1 is directed to furnish her bank details of any Nationalized Bank to the Cholamandalam MS General Insurance Company Ltd. for the necessary payment. It is made clear that Rs. 2,00,000/- (Rupees two lakhs) only be awarded for mother of the deceased.
22. The amount already paid be adjusted accordingly.
23. LCR's be returned.
24. Statutory amount in deposit be returned accordingly.
JUDGE Comparing Assistant