Gauhati High Court
Page No.# 1/2 vs The New India Assurance Co. Ltd. And Anr on 13 October, 2025
Page No.# 1/21
GAHC010020952020
2025:GAU-AS:13618
THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : MACApp./91/2020
SMTI BINA DEVI
W/O LATE OM PRAKASH SAH, R/O SOLAGAON, P.O.-GOROIMARI, P.S.-
TEZPUR, DIST-SONITPUR, ASSAM
VERSUS
THE NEW INDIA ASSURANCE CO. LTD. AND ANR.
DHEKIAJULI BRANCH, DHEKIAJULI, P.S.-DHEKIAJULI, DIST-SONITPUR,
ASSAM
2:THE UNITED INDIA INSURANCE CO. LTD.
TEZPUR DIVISIONAL OFFICE
P.O. AND P.S.-TEZPUR
DIST-SONITPUR
ASSA
Advocate for the Petitioner : MR. S BANIK, A N HUSSAIN,MS S BORA
Advocate for the Respondent : MR. R. C. PAUL (R-2), MR. A ACHARYA (R-1),MR. R C PAUL (R-
2)
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- B e f o r e-
Hon'ble Mr. Justice ROBIN Phukan
Advocate for the petitioner : Mr. S. Banik.
Advocate for the respondents : Mr. R. C. Paul.
Date of hearing : 28.07.2025.
Date of judgment : 13.10.2025
JUDGMENT & ORDER (CAV)
Heard Mr. S. Banik, leaned counsel for the appellant, and Mr. R. C. Paul, learned
standing counsel for the respondent No.2. None appears for the respondent No.1.
2. In this appeal, under Section 173 of the Motor Vehicles Act, 1988, the appellant
has challenged the judgment and award dated 30.10.2019, passed by the learned
Member, Motor Accident Claims Tribunal, Sonitpur at Tezpur (learned Tribunal, for
short), in MAC Case No. 11/2018(D).
3. It is to be noted here that vide the impugned judgment and award dated
30.10.2019, the learned Tribunal has allowed the claim petition filed by the petitioner,
directing the opposite party No. 5, i.e., the United India Insurance Co. Ltd.; to pay the
sum of Rs. 10,00,150/- with interest @ 6% per annum, from the date of filing of the
claim petition, i.e., on 31.03.2018; till full and final realization.
4. Being highly aggrieved by the said judgment and award dated 30.10.2019,
passed by the Learned Member, Motor Accidents Claims Tribunal, Sonitpur, Tezpur the
appellant has preferred the present appeal on the following grounds:-
(i) That the Learned Tribunal erred in law in directing the respondent No.5 to
discharge the liability of the award and in not directing the opposite party No.3
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to discharge the liability of the award and as such, the judgment dated
30/10/2019 is liable to be modified.
(ii) That the evidence of DW-2, i.e. the Administrative Officer of the opposite party
No.5 Insurance Company having made it crystal clear that the police had
submitted charge sheet (Exhibit -3) against the offending truck. However, the
learned Tribunal failed to appreciate the matter in its entirety by sifting the
evidence and as such, the learned Tribunal erred in law in settling the liability
of the award on the opposite party No. 5 and not on the opposite party No. 3
and as such, the award dated 30/10/2019, is liable to be modified.
(iii) That the learned Tribunal having placed reliance on the report of the Motor
Vehicle Inspector of the truck outweighing the conclusion reached by the Police
Authorities, committed manifest error of law as also of facts in concluding the
accident occurred due to rash and negligent driving by the driver of the
WagonR and as such, the Judgment dated 30/10/2019 is liable to be modified.
4.1. Under the given facts and circumstances it is prayed for modifying and directing
the opposite party No.3 to discharge the liability of the award, dated 30.10.2019 and
to allow the present appeal.
5. Mr. Banik, leaned counsel for the appellant submits that the accident in
question took place on 28.11.2017, wherein, two vehicles; bearing registration Nos.
DL-03-CR/6768 (Wagon R) and AS-14C/0806 (truck) were involved and there was
head-on-collision between the Wagon-R and the truck; and after investigation of
the case, police submitted the charge-sheet (exhibit-3) against the driver of the
offending truck. But, the learned Tribunal has saddled the responsibility in releasing
the award upon the opposite party No. 5 and not on the opposite party No. 3; in
spite of the driver of the truck being charge sheeted in the Police case, which was
registered after the offence; and as such, the learned Tribunal erred in law in
settling the liability upon the opposite party No. 5 and on such ground, the
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impugned award is liable to be interfered with and the matter may be remanded to
the learned Tribunal to decide the matter afresh, after affording an opportunity of
being heard to both the parties.
6. Mr. Paul, learned Standing Counsel for the respondent No. 2 herein, submits that
he has no objection in the event of remanding the matter to the learned Tribunal for a
fresh decision.
7. Having heard the submissions, so advanced by the learned counsel for both the
parties, I have carefully gone through the memo of appeal and also the grounds
mentioned therein; and also gone through the impugned Judgment and Award dated
30.10.2019, passed by the learned Tribunal.
8. Indisputedly, the two vehicles bearing registration Nos. DL-03-CR/6768 (Wagon
R) and AS-14C/0806 (Truck) were involved in the said accident. And it also appears
that in connection with the said accident, Dolgaon P.S. Case No. 765/2017, under
Sections 279/338/304(A)/427 IPC has been registered and undisputedly, charge sheet
(exhibit-3) has been submitted by the Investigating Officer against the driver of the
Truck bearing registration No. AS-14C-0806.
9. A careful perusal of the impugned judgment and award dated 30.10.2019, and the
record of the Tribunal reveals that upon the pleadings of the parties, the learned
Tribunal had framed following issues:-
(i) Whether the accident took place on 28-11-2017 at about 9:00 P.M.
due to rash and negligent driving by the driver of both the vehicles bearing
no. AS-14C/0806 (truck) and DL-03CR/6768 (Wagon R) and whether the
victim Om Prakash Sah died due to the alleged accident?
(ii) Whether the claimant is/are entitled for any compensation as
prayed for and if so, from whom and to what extent?
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9.1. It also appears that thereafter, the learned Tribunal had discussed the evidence
on record. Firstly, it had discussed the evidence adduced by the claimant as under:-
"8. The claimant Bina Devi was examined in the case as CW-1 who
deposed in her evidence that she has filed this claim case
claiming compensation for the death of her husband arising out of
a road traffic accident which occurred on 28-11-2017 caused by
rash and negligent driving by the driver of the vehicle bearing
No.AS-14C/0806(truck). As a result her husband died on the spot.
9. CW-1 has exhibited the following documents -
(i) Ext. 1 accident information report (Form 54)
(ii)Ext 2 Post mortem report.
10. In her cross-examination CW-1 has replied that she had not
been to attend the marriage ceremony on the date of accident. She
has not filed the birth certificate or voter ID of her husband to
ascertain the actual date of birth of her husband. She has not
filed any document to ascertain that her husband was a Mason at
the time of accident. The owner of the Wagon R was one
Krishnanand Choudhury who was also driving the car. She has not
witnessed the accident but she has heard about it.
11. CW-2 is Riajuddin who deposed in his evidence that on 28-11-
2017 he went to Guwahati along with his friend by a four wheeler
and on that day itself they were returning back to Tezpur via
Mongoldoi. At about 9-00 P.M. when they reached near Batabari
under Dalgaon P.S. one heavy truck bearing No.AS-14C/0806 after
crossing their vehicle with high speed moving in a rash and
negligent manner knocked down another car from the front side
which was proceeding from Dhekiajuli side towards Kharupetia and
the said accident took place just few mtrs., ahead of him before
his own eyes. After parking their car by the side of the road
immediately he rushed near place of occurrence and found all the
persons travelling in the vehicle sustained grievous injuries
with severe bleeding and after observation he found that one of
the injured was known to him and he was Usman Ansari and later
on, he came to know that all the injured occupants including
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Krishna Nand Choudhury travelling in the said Wagon R were
declared dead at the hospital.
12. In his cross-examination CW-2 has replied that at Batamari,
Dalgaon there was a traffic jam. Other than the truck and Wagon R
there was no any vehicle had collided in the said accident. He
could not say the colour of the Wagon R. He had not found any
person in the said truck. Both the vehicles had collided head on.
In the Wagon R there were 5 persons. Osman Ansari is his friend
who died in the said accident.
13. Ext. 1 is the accident information report which reveals that
an accident occurred on 28-11-2017 at about 9-00 P.M. at Batamari
NH-15 and Krishna Nand Choudhury died in the said accident. The
vehicle bearing No.AS-14C/0806(truck) was shown to be the
offending vehicle. The ejahar, lodged by one Asik Ansari stating
that on 28-11-2017 at about 9-00 p.m. his son Nadim Ansari,
Krishna Nand Choudhury, Osman Ansari, Imam Ansari and Om Prakash
Sah while travelling in a vehicle bearing No.DL/03CR/6768 (Wagon
R) from Tezpur Goroimari towards Kharupetia, another vehicle
bearing No.AS-14C/0806(truck) coming in a rash and negligent from
the opposite direction knocked down the Wagon R vehicle. As a
result Krishna Nand Choudhury and Osman Ansari died on the spot
and Nadim Ansari, Imam Ansari and Om Prakash Sah died in the
Mongaldoi hospital during treatment. On receipt of the ejahar,
one case was registered vide Dalgaon P.S. case No. 765/17 u/s-
279/338/ 304(A)/427 IPC. It is seen that charge sheet was
submitted against the driver of the vehicle bearing No.AS-
14C/0806(truck) Prahlad Barman u/s-279/338/ 304(A)/427 IPC.
Seizure list of seizing the vehicle bearing No.AS-14C/0806(truck)
and its documents and the seizure list of seizing the vehicle
bearing No.DL-03CR/6768 (Wagon R) and its documents are available
in the record.
9.2. Thereafter, the learned Tribunal had discussed the evidence adduced by the
opposite parties/respondents as under:-
"15. DW-1 Pulak Narayan Goswami who deposed in his evidence that
he is holding post of Administrative Officer of O.P. NO. 3 i.e.
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New India Assurance Co. Ltd. having its Divisional office at
Tezpur and he used to look after the motor vehicle accident
claims cases of their company at their said Divisional office at
Tezpur was appointed private investigator had submitted its
investigation report in connection with the alleged accident and
from the said investigators report it has been revealed that on
the date of accident i.e. on 28-11-2017 an accident took place at
Batamari on NH-15 at 9-00 p.m. and the Wagon R bearing No.DL-
03CR/6768(Wagon R) which was going towards Kharupetia side from
Goroimari and when it reached near the place of accident the said
vehicle had at first dashed on the rear back side of a motorcycle
bearing No.AS-13B/1646 and thereafter it again had dashed another
vehicle on the rear and back side of a running truck bearing
No.AS-14C/0806 which was going on the same direction and as a
result of which the back side basket of the said motor cycle was
damaged and the back side of the said truck was dented and its
back side light was broken but the front side of said Wagon R
vehicle was completely damaged. In fact the accident occurred due
to rash and negligent driving by the said Wagon R vehicle.
16. DW-1 has exhibited three documents. Ext. A is the MVI report
of the vehicle bearing No.AS-14C/0806(truck). Ext. B is MVI
report of the motor cycle bearing No.AS-13B/1646. Ext. C is MVI
report of the vehicle bearing No.DL-03CR/6768(Wagon R). From Ext.
A i.e. MVI report of the truck bearing No.AS-14C/0806(truck)
which shows following damages backside pressed/dented/miscalling
and back side light broken. From Ext. B i.e. MVI report of the
motor cycle bearing No.AS-13B/1646 having damages- backside
basket broken. Ext. C is the MVI report of Wagon R bearing No.DL-
03CR/6768 which shows the following damages- Body
pressed/dented/miscalling, engine out of order, Chassis bent,
both side front and rear door pressed/dented/miscalling, steering
as out of order and glass broken and head light broken.
17. DW-2 is Biswajit Dey, who deposed in his evidence that he is
serving in United India Insurance Company, Tezpur Division in
capacity of Administrative Officer. The claimant has not claimed
any compensation from the Wagon R vehicle bearing No. DL-
03CR/6768 from their company. In the claim petition itself the
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claimant has stated that the accident took place due to rash and
negligent driving of the offending vehicle bearing No.AS-14C/0806
(truck). Their company after receiving of summons collected the
charge sheet, seizure list of the criminal case from the Court of
Chief Judicial Magistrate, Darrang. The claimant has exhibited
the charge sheet vide Ext. 3 in this case. The police after
investigation submitted charge sheet against the driver of the
offending truck. He has brought the seizure list which is
collected by their company and from the seizure list it is seen
that the Wagon R vehicle bearing No. DL-03CR/6768 Road Tax was
valid upto 31-07-2016 whereas the date of accident was on 28-11-
2017.
18. In his cross-examination DW-2 has replied that he had not
seen the actual damage caused to the vehicles which were involved
in the said accident. As he had not been to the accident site his
evidence is based on the record and documents which he got from
his office. In the said accident the vehicle bearing No. AS-
14C/0806(truck) wherein damages has been shown as backside
pressed and dented and back side light broken. In the MVI report
of Wagon R, the damage has been shown as steering out of order
and engine out of order, chassis bent, head light glass broken,
front windshield broken, body pressed and dented. One motor cycle
bearing No.AS-13B/1646 damages have been shown as backside basket
broken."
9.3. Thereafter, the learned Tribunal had arrived at the following finding in respect of
both the issues:-
"19. From the MVI report of the truck bearing No.AS-14C/0806 and
the Wagon R bearing No. DL-03CR/6768 it is crystal clear that
there cannot be any head on collision between the vehicles. If
the accident occurred due to head on collision, the damages of
the truck definitely would have been caused on its front side but
not on the backside of the vehicle. Under such backdrop it can be
said that whatever stated by DW-1 regarding accident that, the
Wagon R vehicle has dashed against the backside of the truck has
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some value in the eye of law. It is not in dispute that an
accident occurred on 28-11-2017 and the passengers travelling in
the Wagon R vehicle including the driver died in connection with
the said accident. But the story narrated by the claimant as well
as the evidence of the claimant and her witnesses and MVI reports
are contradicted to each other. Though charge sheet was submitted
against the truck driver due to rash and negligent driving but it
is unexplained how the MVI found damages on the back side of the
truck. There was no cross-examination of DW-1 on the point by the
claimant. Situated thus, there is no hesitation to hold that the
accident occurred due to rash and negligent driving by the driver
of the Wagon R vehicle bearing No.DL-03CR/6768 and insurer of the
vehicle i.e. United India Insurance Co. Ltd. is liable to pay
compensation."
9.4. Thereafter, the learned Tribunal had proceeded to determine the compensation,
which the claimant/appellant is entitled to and determined the same at Rs. 10,00,150/
and directed the respondent No.2 herein (opposite party No. 5 in the claim petition) to
pay the aforesaid amount of compensation.
10. A careful examination of the record and the findings recorded by the learned
Tribunal, this Court finds sufficient merit in the submission of Mr. Banik, learned
counsel for the appellant. It appears that the claimant/appellant case is based upon
the evidence of C.W.1 and C.W.2 and on two documents, being (i) Ext. 1 accident
information report (Form 54) and (ii) Ext 2 Post mortem report. The
claimant/appellant had examined herself as CW-1. Admittedly, she is not the eye
witness to the accident. But, she heard about the same that on account of rash and
negligent driving on the part of the driver of the Truck bearing registration No. AS-
14C/0806(Truck) the accident took place on 28.11.2017, wherein her husband
suffered demise. C.W.2 is the eye witness of the accident and he deposed in no
uncertain terms that due to rash and negligent driving on the part of the driver of the
Truck, bearing registration No. AS-14C/0806(Truck) the accident took place. Both
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respondent No.1 and 2 herein, had cross-examined CW-2 and it is elicited by
respondent No. 1(New India Assurance Co. Ltd.) that both the vehicle had collided
head on. The factum that the Truck was driven in rash and negligent manner
remained un-rebutted. It also appears that respondent No.2, during cross-examination
of CW-2, has elicited that the accident took place due to sole negligence on the part of
the driver of the Truck and it was driven in very rash and negligent manner and that
the Truck hit on the front side of the WagonR.
11. Further, from the Ext. 1, the accident information report, reveals that an accident
occurred on 28-11-2017 at about 9-00 P.M. at Batamari NH-15 and Krishna Nand
Choudhury died in the said accident and the Truck, bearing No.AS-14C/0806 was
shown as the offending vehicle therein. The ejahar, lodged by one Asik Ansari also
indicates that the vehicle bearing No.AS-14C/0806 (Truck), which was coming in a
rash and negligent from the opposite direction knocked down the Wagon R vehicle,
bearing No. DL/03CR/6768, as a result Krishna Nand Choudhury and Osman Ansari
died on the spot and Nadim Ansari, Imam Ansari and Om Prakash Sah died in the
Mongaldoi Hospital during treatment. Upon the said ejahar, Dalgaon P.S. case No.
765/17, u/s- 279/338/ 304(A)/427 IPC, was registered and investigation was carried
out and thereafter, charge sheet was submitted against the driver of the vehicle
bearing No.AS-14C/0806 (Truck), namely, Prahlad Barman, to stand trial u/s-
279/338/304(A)/427 IPC.
12. But, the learned Tribunal had misread the evidence of eye witness i.e. CW 2 and
the Accident Information Report, the Ejahar and the Charge Sheet (Exhibit-I of
respondent No. 2). Instead, primarily based upon the evidence of DW-1, the
Administrative Officer of respondent No.1 herein, and the documents exhibited by him
i.e. Exhibit-A, (MVI- Report of the Truck), Exhibit-B, (MVI Report of the Motor Cycle
bearing No. AS-13/B-1646, and Exhibit-C, (MVI Report of Wagon-R), had arrived at
the finding that the accident occurred due to rash and negligent driving by the
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driver of the WagonR vehicle bearing No.DL-03CR/6768 and insurer of the vehicle i.e.
United India Insurance Co. Ltd., respondent No. 2 herein, is liable to pay
compensation.
13. Indisputably, the evidence of DW-1 is based upon report of investigator, namely,
Pradip Kumar Nath, who was asked to investigate about the accident. But, the said
investigator had not entered into the witness box. Moreover, the MVI, who had
examined and submitted report in respect of the three vehicles, also not been
examined as witness to prove the report and the contents thereof. Thus, the finding,
so arrived at by the learned Tribunal, in respect of the vehicle, responsible for the
accident, solely relying upon the hearsay evidence of DW-1 and the MVI Reports,
without examining and proving the same through the concerned MVI, appears to be
ex-facie illegal and arbitrary.
14. This Court is not oblivious of the proposition that in motor accident cases the
Tribunals are to make an enquiry and strict rule of evidence is often not followed in
such an enquiry. Reference in this context can be made to decisions of Hon'ble
Supreme Court in the case of Bimla Devi & Ors vs. Himachal Road Transport
Corporation & ors, reported in (2009) 13 SC 530, in Kaushnumma Begum and
others vs. New India Assurance Company Limited, reported in 2001 ACJ
421 SC, and in National Insurance Co. Ltd. vs. Pushpa Rana, cited as
2009 ACJ 287, wherein it has been held that the negligence has to be decided on the
touchstone of preponderance of probabilities and a holistic view is to be taken. It has
been further held that the proceedings under the Motor Vehicles Act are not akin to
the proceedings in a Civil Suit and hence, strict rules of evidence are not applicable.
Again in the case of Rajwati @ Rajjo vs. United India Insurance Company
Limited, reported in (2022) SCC OnLine SC 1699, the Supreme Court has held
as under:-
"In a case relating to motor accident claims, the claimants are
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not required to prove the case as it is required to be done in a
criminal trial. The Court must keep this distinction in mind. It
is well settled that Motor Vehicles Act, 1988 is a beneficial
piece of legislation and as such, while dealing with compensation
cases, once the actual occurrence of the accident has been
established, the Tribunal's role would be to award just and fair
compensation. As held by this court in Sunita (supra) and Kusum
Lata (supra), strict rules of evidence as applicable in a
criminal trial, are not applicable in motor accident compensation
cases, i.e. to say, 'the standard of proof to be borne in mind
must be preponderance of probability and not the strict standard
of proof beyond reasonable doubt which is followed in criminal
cases."
15. Under the given facts and circumstances and also in view of the evidence placed
on record, the finding of the learned Tribunal that the accident occurred due to rash
and negligent driving by the driver of the WagonR vehicle bearing No.DL-03CR/6768
and insurer of the vehicle i.e. United India Insurance Co. Ltd., respondent No. 2
herein, has to pay compensation, is liable to be interfered with.
16. In view of the fact, that was elicited by respondent No.2 in cross-examination of
CW-2, who is the eye witness of the accident that both vehicles had collided head on,
and also in view of his evidence that the accident took place due to sole negligence on
the part of the driver of the Truck and it was driven in very rash and negligent manner
and that the Truck hit on the front side of the WagonR and also in view of the fact
that in the police case, charge sheet was filed by police against the driver of the Truck
to stand trial under Section 279/338/304(A)/427 IPC, and more specifically the
evidence of head on collision between the Truck and the WagonR and that the Truck
hit on the front side of the WagonR, this Court is of the view that insurer of both the
vehicles are liable for the accident and on such count liability to pay compensation has
to be saddled, both upon the Truck and WagonR vehicle.
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17. Though Mr. Banik, the learned counsel for the appellant submits that the matter
may be remanded to the learned Tribunal, yet this Court is left unimpressed by the
said submission. While determining the legality and propriety of the order of remand
made by the High Court, in the case of P. Purushottam Reddy v. Pratap Steels
Ltd. [Appeal (civil) 679-680 of 2002], Hon'ble Supreme Court has held as
under:-
"Prior to the insertion of Rule 23A in Order 41 of the Code of
Civil Procedure by CPC Amendment Act 1976, there were only two
provisions contemplating remand by a court of appeal in Order 41 of
CPC. Rule 23 applies when the trial court disposes of the entire
suit by recording its findings on a preliminary issue without
deciding other issues and the finding on preliminary issue is
reversed in appeal. Rule 25 applies when the appellate court
notices an omission on the part of the trial court to frame or try
any issue or to determine any question of fact which in the opinion
of the appellate court was essential to the right decision of the
suit upon the merits.
However, the remand contemplated by Rule 25 is a limited remand
in as much as the subordinate court can try only such issues as are
referred to it for trial and having done so, the evidence recorded,
together with findings and reasons therefore of the trial court,
are required to be returned to the appellate court. However, still
it was a settled position of law before 1976 Amendment that the
court, in a appropriate case could exercise its inherent
jurisdiction under Section 151 of the CPC to order a remand if such
a remand was considered pre-eminently necessary ex debito
justitiate, though not covered by any specific provision of Order
41 of the CPC.
In cases where additional evidence is required to be taken in
the event of any one of the clauses of sub-rule (1) of Rule 27
being attracted, such additional evidence oral or documentary, is
allowed to be produced either before the appellate court itself or
by directing any court subordinate to the appellate court to
receive such evidence and send it to the appellate court. In 1976,
Rule 23 A has been inserted in Order 41 which provides for a remand
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by an appellate court hearing an appeal against a decree if (i) the
trial court disposed of the case otherwise than on a preliminary
point, and (ii) the decree is reversed in appeal and a retrial is
considered necessary.
On twin conditions being satisfied, the appellate court can
exercise the same power of remand under Rule 23A as it is under
Rule 23. After the amendment, all the cases of wholesale remand are
covered by Rule 23 and 23 A. In view of the express provision of
these rules, the High Court cannot have recourse to its inherent
powers to make a remand because, as held in Mahendra v. Sushila,
AIR (1965) SC 365, at p. 399), it is well settled that inherent
powers can be availed of ex debito justiatiate only in the absence
of express provisions in the Code. It is only in exceptional cases
where the court may now exercise the power of remand de hors the
Rules 23 and 23A.
To wit, the superior court, if it finds that the judgment under
appeal has not disposed of the case satisfactorily in the manner
required by Order 20 Rule 3 or Order 41 Rule 31 of the CPC and
hence it is no judgment in the eye of law, it may set aside the
same and send the matter back for re-writing the judgment so as to
protect valuable rights of the parties,. An appellate court should
be circumspect in ordering a remand when the case is not covered
either by Rule 23 or Rule 23A or Rule 25 of the CPC. An unwarranted
order of remand gives the litigation an undeserved lease of life
and, therefore, must be avoided."
18. As none of the conditions being satisfied here in this case by Mr. Banik, the
learned counsel for the appellant herein, this Court is not in a position to exercise the
power of remand under Order 41 Rule 23A or under Rule 23 CPC. The contention of
Mr. Banik, therefore, stands repudiated. Instead, this Court is inclined to assess the
compensation which the claimants are entitled to.
19. It appears that the learned Tribunal has assessed the compensation,
which the claimant is entitled to as under:-
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"20. According to the claimant, her deceased husband was working
as Mason and doing business prior to the accident and his monthly
income was Rs. 9,000/-to 10,000/-, But no any document has been
furnished by the claimant regarding occupation and income of the
deceased. Under such circumstances, income of the deceased be
considered under minimum rates of wages of the State of Assam. As
per Govt. notification, the present minimum rates of wages of the
State of unskilled worker as Rs. 7,950/-which be taken into
consideration in this case.
21. Regarding age of the deceased, as per claim petition deceased
was 48 years of age when the accident took place. Except P.M.
report the claimant has not submitted any document to ascertain
the age of her deceased husband. It is a settled position of law
that if any age proof document is not available, the age
mentioned in P.M. report can be taken into consideration. As per
P.M. Report, age of the deceased was 48 years, which can be taken
into consideration in this case.
22. As per the case of Sarla Verma -vs. DTC, [AIR 2009(6) SC 121]
the multiplier would be 13.
23. In the instant case, the deceased left behind his wife, three
sons and one daughter. As such, the standardized deduction
towards personal and living expense of deceased is applicable as
stated in the case of Sarala Verma. Considering the aforesaid
mandate in the instant case since there are five Nos. of
dependants, so, 1/4th of the income is required to be deducted
with a presumption that had the deceased been alive, he could
have spent 1/4th for his personal and living expenses.
24. As per SLP (Civil) No. 25590 of 2014( National Insurance Co.
Ltd. Vs-Pranay Shethi & Ors.) the Hon'ble Supreme Court has fixed
compensation in case of death 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.
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25. So, in view of the aforesaid discussion, in the instant case
the computation of compensation is awarded as follows:-
A) Annual income of the deceased Rs. 7,950/-X 12 = Rs.
5.95,400/-
B) After deducting 1/4th of the annual income of the
deceased, amount comes to = Rs.71,550/
C) After multiplied with multiplier, amount comes to Rs.
71,550/-X 13 = Rs.9,30,150/-
D) Funeral expenses = Rs.15,000/-
E) Loss of consortium = Rs. 40,000/-
F) Loss of estate = Rs . 15,000/-
TOTAL = Rs.10,00,150/-(Rupees ten lakhs one
hundred fifty)only.
O R D E R
In the result, the claim petition is allowed, awarding Rs. 10,00,150/-(Rupees ten lakhs one hundred fifty) only with interest thereon @ 6% per annum from the date of filing of the case i.e. on 31-03-2018 till full and realization.
O.P. No. 5 i.e. United India Insurance Co. Ltd. is directed to discharge liability of the award within a period of 30(thirty) days from the date of receipt of the order."
20. The finding of the learned Tribunal in respect of the age, profession and income of the deceased has not been disputed by any of the parties in this appeal. However, it appears that while determining the loss of dependency the learned Tribunal has not added the future prospect. In view of the decision of Hon'ble Supreme Court in the Page No.# 17/21 case of National Insurance Co. Ltd. v. Pranay Sethi, reported in (2017) 16 SCC 680.
21. Thus, having accepted the income of the deceased at Rs. 7950/ per month, and as self employed (Mason) and his age was 48 years and the same was between the age of 40 to 50 years, 25% of the same has to be added as future prospect, in view of the decision of Hon'ble Supreme Court in the case of National Insurance Co. Ltd. v. Pranay Sethi, reported in (2017) 16 SCC 680. After addition of 25% to Rs. 7950/ the amount would be Rs. 9938/. (Rs.7950/+Rs.1987.5) = Rs.9937.5 (rounded off at Rs. 9938/).
22. Thereafter, in view of the decision of Hon'ble Supreme Court in the case of Sarla Verma (SMT) & Ors. vs. Delhi Transport Corporation & Ors., reported in (2009) 6 SCC 121, 1/4th of the aforesaid amount has to be deducted as personal expenses, since he left behind four dependants at the time of accident. After deducting ¼th of the above, the amount would be Rs. 7454/- [Rs. 9938- 2484.5] = Rs. 7453.5(rounded off at Rs. 7454/). Since the age of the deceased at the time of his death was 48 years, the applicable multiplier, as per decision of Sarala Verma (supra) would be 13. After application of multiplier, the amount would be Rs.11,62,824/- (Rs.7454 x 12 x 13 = Rs.11,62,824/-
23. It is to be noted here that under the conventional heads, a sum of Rs. 40,000/- towards each of the member, with 10% increase in every three years has to be awarded under the head - filial consortium, has to be paid in view of the decision of Hon'ble Supreme Court in the case of Magma General Insurance Co. Ltd. v. Nanu Ram, reported in (2018) 18 SCC 130. This aspect has, however, eschewed consideration of the learned Tribunal. It is to be noted here that the deceased herein this case, had left behind his wife and three sons and one daughter. Observation of the Hon'ble Supreme Court in para No. 24 of the said decision, quoted Page No.# 18/21 below:-
"24. The amount of compensation to be awarded as consortium will be governed by the principles of awarding compensation under "loss of consortium" as laid down in Pranay Sethi [National Insurance Co. Ltd. v. Pranay Sethi, (2017) 16 SCC 680]. In the present case, we deem it appropriate to award the father and the sister of the deceased, an amount of Rs 40,000, each, for loss of filial consortium."
24. Further, the claimant and her four children shall be paid a sum of Rs. 15,000/- under head - funeral expenses, and the aforesaid amounts should be enhanced by 10% in every 3 years, and a sum of Rs. 15,000/- under head - loss of estate, and the aforesaid amounts should be enhanced by 10% in every 3 years in view of the decision of Hon'ble Supreme Court in the case of Pranay Sethi (supra). It is to be noted here that after the accident, almost 8 years elapsed. That being so, the aforesaid amounts have to be enhanced by twice.
25. The whole calculation, after application of the principle laid down in the case of Sarla Verma (supra) and also in the case of Pranay Sethi (Supra), and Nanu Ram (supra), would be as under:-
Page No.# 19/21 Sl. Heads Calculation No. I Monthly income Rs. 7950/-
II 25% of (i) to be added as future Rs.9938/-
prospect=Rs.9938/(Rs.7950/+Rs.1987.5)
=Rs.9937.5(rounded off at Rs. 9938/).
III 1/4th of the (ii) deducted as personal Rs. 7454/-
expenses of the deceased= [Rs.9938 -
2484.5] = Rs. 7453.5(rounded off at Rs.
7454/)
IV Compensation after multiplier of 13 is Rs.11,62,824/
applied (Rs.7454 x 12 x 13) =
Rs.11,62,824/-
V Loss of Estate Rs.15,000/- which has to Rs.15,000/-+
be increased by 10% in every three years Rs.3,000/-= (15,000 x 10/100) = 1500 x 2 = Rs.3,000/- Rs.18,000/-
VI Loss of filial Consortium =Rs.40,000/-, Rs. 40,000/- +
which has to be increased by 10% in each Rs.8,000/-=
three years 40,000 x 10/100 = 4000 x 2 = Rs. 48,000/-x
8,000. (Rs.40,000 + 8,000 = Rs.48,000/-x 5=
5 = 2,40,000/) Rs. 2,40,000/
VII Funeral expenses Rs.15,000/-, which has Rs.15,000/-+
to be increased by 10% in each three Rs.3,000/-=
years 15,000 x 10/100 = 1500 x 2 Rs.18,000/-
=Rs.3,000/-
Rs.14,56,216/-
26. Accordingly, the compensation, which the claimant/appellant is entitled to, is assessed at Rs. 14,56,216/-.
Page No.# 20/21 Finding:-
27. In the result, this Court finds this appeal devoid of merit and accordingly, the same stands dismissed. However, the impugned Judgment and Award, dated 30.10.2019, stands modified to the extent indicated above.
28. In view of the finding recorded in para No. 25 above, the liability to pay the aforesaid amount of compensation i.e. Rs.14,56,216/- has to be apportioned between the respondent No.1 and 2 i.e. the New India Assurance Company Limited, the insurer of Truck, bearing registration No. AS-14C/0806, and the United India Insurance Co. Ltd., the insurer of the WagonR vehicle, bearing registration No. DL-
03CR/6768, as there was head on collision between both the vehicles. The amount, if already paid to the claimant/appellant has to be deducted from the aforesaid amount.
29. It is further provided that the entire amount, including the future prospect, in view of the decision of the Hon'ble Supreme Court, in the case of The Oriental Insurance Co. Ltd. Vs. Niru @ Niharika & Ors., Special Leave Petition (C) No. 11340 of 2020; shall carry interest @ 9% per annum, from the date of filing of claim petition till realization of the amount in view of the decision of Hon'ble Supreme Court in the case of Municipal Corporation of Delhi vs. Uphaar Tragedy Victims Association and Others, reported in (2011) 14 SCC 481. In the said case, it has been held that the interest upon the compensation amount @ 9% per annum, would be justified. Same principle was followed in the case of Kalpanaraj vs. Tamil Nadu State Transport Corporation, reported in (2014) C.R. 693 (SC).
30. The respondent No.1 and 2 shall deposit their respective portion of the aforesaid amount, before the learned Tribunal within a period of 30 days from the date of receipt of the certified copy of this judgment and award.
31. Though the learned Tribunal had directed to keep some of the amount in fixed Page No.# 21/21 deposit in the bank, in the name of the daughter, who, at the time of accident on 28.11.2017, was 14 years old, yet in the meantime she might have attained majority. Even then this Court is inclined to direct the learned Tribunal to keep a sum of Rs. 10,00,000/ fixed deposit in a nationalized bank for a period of 5 years. On being deposited, the said amount of compensation, before it, in the name of the claimant, the said amount shall not be allowed to be withdrawn by the claimant from the bank; without the leave of the Tribunal.
32. In terms of above, this MAC Appeal stands disposed of. The Registry shall send down the record of the learned Tribunal with a copy of this judgment and order forthwith. The parties have to bear their own cost.
JUDGE Comparing Assistant