High Court · 2012

MACApp. 22/2009 BEFORE THE HON’BLE MR. JUSTICE S. TALAPATRA Heard Mr. S. Dasgupta, learned counsel appearing for the appellant as well as Mr . S. S. Sharma, learned senior counsel appearing for the respondent No.3. None appears for the respondent Nos. 1 and 2 despite receipt of the notice from this Court. BY this appeal filed under Section 173 of the Motor Vehicles Act 2. , 1988, the judgment and award dated 02.06.2008 passed by the learned Member, Mo tor Accident Claims Tribunal, Sivsagar in MACT Case No. 33 of 2005 has been chal lenged. 3. challenge, can be encapsulated thus: On 14.12.2004 one Harendra Buragohain while proceeding along the National High W ay No.37 and reached at Betbari Alimur, he was knocked down by a Maruti Van bear ing No. AS-23 B-5973 which was found driven in the rash and negligent manner and the said deceased, who was a scooterist, suffered multiple grievous injuries. He was immediately shifted to D.H.L. hospital and therefrom to Astha Hospital at Dibrugarh, where he succumbed to his injuries. The deceased was an assistant t eacher in Desang Dhai Ali Higher Secondary School, which is a Government School, and at the time of his death, the deceased was survived by his wife, claimant-a ppellant and three daughters, who were impleaded as the proforma opposite partie s in the claim petition. 4. On report of the accident as stated, Sivsagar P.S. Case No. 420/ 2004 under Section 279/304(A) of IPC was registered against the respondent No.2, driver of the Maruti Van. Even an accident information report was also filed i n the concerned Claims Tribunal under Section 158 of the M.V.Act, 1988. Thereaf ter the charge sheet was filed against the respondent No.2 under Section 279/304 (A) of the IPC and the trial commenced as per law. 5. After notices from the Claims Tribunal were received by the resp ondents herein, the respondent Nos. 1 and 2 filed a joint written statement stat ing, inter alia, that the accident was not due to rash and negligent driving of the motor vehicle, but it occurred due to rash and negligent driving of the scoo ter by the deceased, who came from the roadside in a high speed and hit the left side of the Maruti Van which was going along the National High Way towards Sivs agar. The O.P. No.2 took all possible step, precaution and care to avert the ac cident. 6. Similarly, the respondent No.3-New India Assurance Co. Ltd. by f iling the written statement also took the same plea by stating that the proof of negligence is to be essentially borne in the records so that the owner of the v ehicle or the Insurance Company could be held liable for payment of compensation in the motor accident. The proof of negligence remains lynch pin to recover co mpensation. Here, there is no proof of negligent driving by the driver of the M aruti Van. Hence, the claimant is not entitled to get any compensation from the Insurance Company. It was further asserted that the accident took place due to negligence on the part of the deceased, who at the relevant time of accident wa s driving the scooter with rashness and negligently without observing the norms and violating the Motor Vehicles Act and Traffic Rules, the respondent No.3 asse rted. The learned Tribunal after consideration of the rival pleadings 7. formulated the issues, such as, (i) Whether the case is maintainable in the pres ent form; (ii) Whether the accident took place due to rash and negligent driving of the vehicle by opposite party No.2 in which husband of the claimant expired; and (iii) whether the claimant is entitled to get compensation, and if so, to w hat extent and by whom payable? It is interesting to note that no issue was fra med whether the accident took place for the rash and negligent driving of the sc ooteriest or not? It appears from the record that only the claimant adduced eviden 8. ce in support of her claim and none of the respondents adduced any further evide nce except the written statement that had been filed in response to the notices those were received from the Tribunal below. The claimant-appellant adduced a h uge number of documents in support of her claim including the service book, sala ry certificate as issued by the employer, medical records, the proof of age etc.

9. Mr. Dasgupta, learned counsel appearing for the claimant-appella nt pointed out that the finding as returned by the Tribunal below is absolutely perverse inasmuch as those are the out come of non-consideration of the evidence as led by the claimant-appellant. The learned counsel, in particular, attacked the finding as returned against the issue No.2, where it had been held that the claimant-appellant had failed to establish by evidence that the accident in que stion occurred due to rash and negligent driving of the Maruti Van. After return ing such finding against the issue No.2, the entire claim was dismissed without awarding any amount of compensation. 10. Mr. S. S. Sharma, learned senior counsel appearing for the respo ndent No.3 in his usual fairness submits that though the quality of evidence as led by the claimant-appellant is not satisfactory, but at the same time the find ing of the learned Tribunal is also shocking in view of the settled position of law. This Court appreciates the role of the learned senior counsel for making s uch statement for upholding the position of law. This Court has scrutinized the evidence and found that the claimant has brought into the evidence the certifie d copy of the FIR, Death Certificate, Injury Report etc. 11. C.W.1, the claimant-appellant herein, stated in the beginning of her deposition, which was filed supported by an affidavit under Order 18 Rule 4 of the CPC that (cid:28)on 14.12.2004 at about 01-00 pm while my husband was coming fr om petrol pump at Betbari to his residence at Delehi Gohain Gaon, on the way at Betbari Aslimur on 37 N.H.Way one Maruti Van No. AS-23/B-5973 coming from Dibrug arh to Sivasagar at high speed and driven rashly and negligently by its driver ( i.e. the O.P. No.2 in my claim) knocked my husband’s scooter from the backside a t right hand side of the mudguard. As a result my husband felt down and sustaine d grievous multiple injuries and he was immediately shifted to D.H.L. Hospital, Sivasagar. But looking into the critical condition of my husband he was immedia tely referred to Astha Hospital, at Dibrugarh. But till he reached the Hospital, he succumbed to his injuries and doctor of Astha Hospital, Dibrugarh declared h im to be dead. (cid:29) She admitted the Death Certificate as Exbt.-1, Injury Report da ted 14.12.2004 as issued by Astha Hospital, Dibrugarh as Exbt.-2, Postmortem Rep ort as Exbt.-3, Certified copy of the FIR dated 14.12.2004 as Exbt.-4, summon is sued from SDJM, Sivasagar in G.R. Case No. 1017/2004 to Rajen Buragohain as Exbt .4(a), the Accident Information Report as Exbt.-5 etc. In addition thereto the Higher Secondary School Leaving Certificate as a proof of age was also admitted in the evidence as Exbt.-6, whereas the salary certificate as on December, 2004 issued by the Headmaster, Desang Dhaiali High School was also admitted as Exbt.- 7. She had categorically stated that only for rash and negligent driving of the Maruti Van, her husband was knocked down and subsequently died and there was no negligence on the part of her husband. In the cross-examination on the point o f negligence the respondents projected a question whether the deceased husband o f the claimant-appellant was having the driving licence or not. 12. One Rajen Buragohain, who appeared in the Tribunal as C.W.2, is the eyewitness to the occurrence. He categorically stated at the relevant point of time the offending Maruti vehicle coming from Dibrugarh side at a high speed and driven recklessly and negligently knocked his elder brother’s scooter from the back at right hand side of the mudguard. At the relevant point of time his b rother was not plying the scooter. He after coming out from a nearby shop was pr oceeding by pushing his scooter forward and the offending Maruti Van knocked dow n him. Having so knocked down, he fell down on the road and he sustained grievo us multiple injuries. C.W.2 at the relevant point of time was at a distance of about 100 feet from the actual place of occurrence and witnessed the accident fr om very close distance. He also stated that the deceased was an assistant teach er in the Desang Dhai Ali High School, Askhoiphutia, Sivasagar. He further stat ed that at the time of death, his brother had three unmarried daughters besides wife and all are dependent on his income.

13. Another witness, namely, Sri Tileswar Das, was also examined as C.W.3, who exhibited the Salary Certificate, Acquaintance Register etc. of the s aid School. It is surprising that despite the overwhelming evidence led by the appellant, the learned Tribunal answered the issue No.2 in the negative and aga inst the claimant-appellant. 14. No other alternative is left but to interfere those findings as returned by the learned Tribunal as those are absolutely perverse for non-consid eration of the legal evidence as brought on record by the claimant-appellant and , hence, those findings are set aside. 15. From appreciation of the evidence, the claimant-appellant had es tablished the Issue Nos. 1 and 2. The claim petition under Section 166 of the M .V.Act is maintainable as the death occurred for the rash and negligent driving of the said Maruti Van and without even any contributory negligence on the part of the deceased husband of the claimant-appellant. It has been also well establ ished by evidence that the accident took place due to rash and negligent driving of the respondent No.2 and the said vehicle was covered by the insurance policy of the respondent No.3. Since the learned Tribunal returned a nil award, this Court is under obligation to assess the proper compensation for the death of the husband of the claimant-appellant. It is even on record that the deceased was an assistant teacher working in a Government School. It is stated that the dece ased was getting gross salary @ Rs.14,763/- per month and he used to get net emo luments Rs.13,988/- after statutory deduction. 16. However, as the principles as laid down in Sarla Verma(Smt.) V. Delhi Transport Corporation & anr., reported in (2009) 6 SCC 121, certain compon ents of the emolument cannot be considered as the income of the deceased. In vi ew of this, the house rent allowance and other statutory allowance at Rs.500/-, other deduction Rs.350/-, professional tax Rs.195/- and income tax Rs.30/- would be excluded from the said income. As such the monthly income of the deceased is assessed at Rs.13,988/-. As the deceased is more than 50 years of age, no fu ture prospect is added to the said income. This Court finds that on the income of the deceased there were four dependents. Thus 1/4th from the said income be deducted, i.e., Rs.3,422/- from the said income. So, a sum of Rs.10,566/- would be multiplied by 12 for arriving at the annual loss of dependency. Thus, it com es to Rs.1,23,192/-. 17. Considering all aspects of the matter, a multiplier of 8 would a ppropriate for calculating the loss of dependency. Thus, it comes to Rs.9,85,53 6/-. With the said amount Rs.10,000/- for loss of consortium ( only for claiman t-appellant), Rs.5,000/- for educational expenses and another Rs.10,000/- for lo ss of estate be added. Thus, the total compensation comes to Rs.10,10,536/-. Th is amount shall carry interest @ 6% per annum from the date of filing of the app lication till the payment is made. It is made clear that except the compensation as granted as loss of consortium, the remaining of the award would be equally d ivided among the claimant-appellants and three daughters, i.e., the proforma res pondent Nos. 4, 5 and 6 and if any one of the daughters is found to be minor, he r share shall be kept in a fixed deposit term of a nationalized bank till she at tains the majority. The respondent No.3 is directed to pay the entire compensati on with interest in the Tribunal within two months from today. 18. rt records forthwith. This appeal accordingly stands allowed. Send down the lower cou