High Court
Case Details
MACApp. 92/2003 BEFORE THE HON’BLE MR. JUSTICE B.P. KATAKEY These appeals are directed against the common award dated 20.1.2003 passed by th e learned Member, Motor Accident Claims Tribunal, Kamrup at Guwahati in MAC Case No. 693/1996 and MAC Case No. 694/1996, whereby and whereunder an amount of Rs. 3,07,000/- and Rs. 3,56,000/- have been awarded for the death of Nirmal Das and Dhiraj Nath, respectively.
Facts
The respondent Nos. 1 to 5 in MAC Appeal No. 91/2003 (arising ou 2. t of MAC Case No. 693/1996) and the respondent Nos. 1 to 3 in MAC Case No. 92/20 03 (arising out of MAC Case No. 694/1996) filed applications under Section 166 o f the Motor Vehicles Act, 1988 claiming compensation for the death of Nirmal Das and Dhiraj Nath respectively, in a motor accident occurred on 23.9.1996 at abou t 6.30 P.M. involving the motor vehicle bearing registration no. AS-01A-0427 (Bu s), of which Sri Prabitra Kanta Sarma was the owner, contending inter alia that while both the deceased were travelling by scooter bearing registration No. AS-0 1D-2186, the aforesaid bus driven in a rash and negligent manner, knocked the sc ooter, as a result of which both Dhiraj and Nirmal sustained injuries on their p erson and eventually died. It has also been contended that on the basis of the i nformation received Boko PS case No. 105/1996 registered under Section 279/304A/ 427 IPC was registered against the driver of the offending vehicle i.e. the bus. 3. The claim of the claimants has been contested by the Insurance C ompany, the insurer of the bus, denying the claim and putting the claimants to t he strictest proof thereof. It has also been contended that there was contributo ry negligence on the part of Dhiraj Nath, who drove the scooter, apart from the plea that the driver of the offending vehicle did not have a valid license. The New India Assurance Company, who was also a party to the aforesaid proceeding an d who is the insurer in respect of the scooter, filed written statement contendi ng inter alia that since there was no negligence on the part of the driver of th e scooter no award can be passed against the owner of the scooter, consequently, New India Assurance Company cannot be made liable for satisfying the award. The owner and the driver of the offending vehicle, however, did not contest the pro ceedings.
Legal Reasoning
16. In the instant case, there is no dispute relating to the age of the victims, who were 27 (Dhiraj) and 22 (Nirmal). There is no dispute relating to the monthly income of the both the deceased which was found to be Rs. 3000/-. MAC case No. 693/1996 has been filed by five claimants, who are all dependants on the income of the deceased namely Nirmal. MAC Case No. 694/1996 has been file d by three claimants, who are the dependants on the income of the deceased, name ly, Dhiraj. The Apex Court in Rajesh (supra) has held that even in case of s 17. elf employed or person with fixed wage there must be an additional to the actual income of the deceased while computing the future prospect and in these cases a s the deceased were below 40 years, there must be an addition of 50% to the actu al income of the deceased. The relevant portion of Para 11 is reproduced below:- (cid:28)11. Since, the Court in Santosh Devi’s case (supra) actually in tended to follow the principle in the case of salaried persons as laid in Sarla Verma’s case (supra) and to make it applicable also to the self-employed and per sons on fixed wages, it is clarified that the increase in the case of those grou ps is not 30% always, it will also have a reference to the age. In other words, in the case of self employed or persons with fixed wages, in case, the deceased victim was below 40 years, there must be an addition of 50% to the actual income of the deceased while computing future prospects. Needless to say that the actu al income should be income after paying the tax, if any. Addition should be 30% in case the deceased was in the age group of 40 to 50 years. (cid:29) 18. In view of the aforesaid pronouncement of the Apex Court, and si nce both the deceased were below 40 years 50% i.e. Rs. 1500 is to be added to th e monthly income of the deceased, which was found to be Rs. 3000/-, for the purp ose of computing the future prospect. The monthly income of both the deceased th erefore is to be taken as Rs. 4500/-. 19. In MAC case No. 693/1996 the deceased being a bachelor 50% from the monthly income of the deceased is to be deducted towards his personal expens es and hence the loss of dependency in the said case is Rs. 2250/-. The annual l oss of dependency thus comes to Rs. 27,000/- which is to be multiplied by approp riate multiplier i.e. 17, by following the pronouncement of the Apex Court in Sa rala Verma & Ors. vs. Delhi Transport Corporation & anr. reported in (2009) 6 SC C 121. The amount of compensation to which the claimants in MAC Case No. 693/199 6 are entitled to, therefore, comes to Rs. 4,59,000, to which Rs. 10,000/- is ad ded for funeral expense. Thus the total amount of compensation to which the clai mants are entitled is Rs. 4,69,000/-, which will carry interest at the rate of 6 % from the date of filing of the claim petition till the date of realization. 20. In MAC Case No, 694/1996 one of the claimants being the wife of the deceased and all the claimants being dependants on the income of the decease d, 1/3 i.e. Rs. 1500/-, from the monthly income, i.e., Rs. 4,500/-, is to be ded ucted. The monthly loss of dependency therefore comes to Rs. 3000/- and annual l oss of income comes to Rs. 36,000/- which is to be multiplied by appropriate multiplier 17. The claimants would, therefore, be entitled to Rs. 6,12,000/- to which Rs. 10,000/- for loss of consortium and Rs. 10,000/- for fu neral expenses are to be added. Hence the claimants would be entitled to Rs. 6,3 2,000/-, which amount will carry interest at the 6% per annum from the date of f iling of the claim petition till realization. 21. There being no dispute relating to the contract of Insurance bet ween the appellant and the owner of the offending vehicle (bus), the appellant I nsurance Company is directed to satisfy the award by depositing the same before the Tribunal within 45 days from today, less the amount, if any, already deposit ed. On such deposit amounts shall be released in favour of the claimants by acco unt payee cheques, in equal proportion and on being identified to the satisfacti on of the learned member. 22. The award passed by the Tribunal stands accordingly modified. 23. - in each appeals. The appeals stand dismissed with cost of Rs. 5000/ The Registry is directed to refund Rs. 20,000/-, out of the stat 23. utory deposit, made in each of the appeals to the appellant. The cost to be real ized shall be credited in the account of the High Court Mediation Centre for pro per utilization. 24. The Registry is directed to send down the records forthwith.
Arguments
4. The claimants in support of their claim have examined three witn esses, namely, Sri Jibeswar Das (Witness No. 1), Smti Pekhan Bala Das (witness N o. 2) and Sri Manik Sinha (witness No. 3). Jibeswar Das and Manik Sinha were wit nesses to the occurrence. These witnesses were cross examined by the Insurance C ompany, who, however, did not lead any evidence in support of their contention i n the written statement. 5. The learned Member upon appreciation of the evidence on record h as passed the award, as noticed above, by holding that the accident occurred due to rash and negligent driving of the offending vehicle i.e. the bus, that the d river of the offending vehicle had a valid driving license at the relevant point of time and that there was no contributory negligence on the part of Dhiraj, wh o drove the scooter. The insurer of the offending vehicle i.e. the bus, the appe llant herein, has been directed to satisfy the award there being no dispute rela tion to the contract of insurance between the owner of the offending vehicle and the Insurance Company. Hence the present appeal. 6. I have heard Mr. SK Goswami, learned counsel appearing for the a ppellant in both the appeals, Mr. Das, learned counsel appearing for the claiman ts and Mr. Sarma, learned counsel appearing for the respondent New India Assuran ce Company in both the appeals. 7. Mr. Goswami, learned counsel appearing for the appellant, referr ing to the deposition of the witnesses examined, has submitted that since there was contributory negligence on the part of the Dhiraj, who drove the scooter, th e learned Member ought not to have awarded the compensation against the owner of the bus only and directed the Insurance Company to satisfy the same and instead ought to have apportioned the amount of compensation between both the insurance companies. It has also been submitted that as it appears from the record that t he accident occurred due to head on collusion of the two motor vehicles, it is a pparent that the deceased Dhiraj Nath has also contributed to some extent to the accident. The learned counsel further submits that with regard to MAC Appeal No . 91/2003, since there was negligence on the part of Dhiraj, who drove the scoot er and in respect of which Nirmal was the pillion rider, the New India Assurance Company is also liable to pay 50% of the compensation, the risk of the owner of the scooter being insured with New India Assurance Company. Mr. Das, learned counsel appearing for the claimants, referring 8. to the deposition of the witnesses examined and also the charge sheet, which has been filed, proved and marked as Ext. 5, has submitted that it is apparent ther efrom that Dhiraj Nath, who drove the scooter was not at all negligent and the a ccident occurred due to rash and negligent driving of the offending vehicle i.e. the bus and hence there cannot be any deduction towards contributory negligence , thereby no negligence on the part of Dhiraj. The learned counsel referring to the recent judgment in Rajesh and Ors. Vs. Rajbir Singh & ors., reported in (201 3) 3 TAC 697(SC), has submitted that the amount of compensation awarded in both the cases is required to be enhanced as though the Tribunal was required to asse ss the compensation by making addition of 50% of the actual income of the deceas ed towards the future enhancement of the income, the deceased being below the ag e of 30 years, the same has not been done. The learned counsel, therefore, submi ts that while rejecting the contention raised by the appellant, the amount of co mpensation may be enhanced, as it is the court’s duty to award just compensation under the provision of the aforesaid Act. 9. The learned counsel appearing for National Insurance Company sup porting the arguments advanced by Mr. Das, learned counsel appearing for the cla imants, have also submitted that it is apparent from the materials available on record, more particularly the evidence of witness Nos. 1 and 3 and also the char ge sheet (Ext. 5) that Dhiraj Nath who drove the scooter was not at all negligen t and the accident occurred due to negligence of the driver of the offending bus and hence there cannot be any deduction or the New India Assurance Company cann ot be made liable to satisfy the award, which insurance company is the insurer i n respect of the scooter. It has also been submitted that it is apparent from th e finding recorded by the learned Member as well as the evidence adduced that th e driver of the offending vehicle had a valid license. 10. I have considered the submissions advance by the learned counsel for the parties. I have also perused the award passed by the learned Member apa rt from the evidence, both oral and documentary, adduced before the Tribunal. 11. In the case in hand, the factum of accident, the death of Dhiraj Nath and Nirmal Das in such accident, their monthly income, which was found to be Rs. 3,000/-, their age being 27 and 22 years, respectively and insurance cove rage in respect of the bus as well as the scooter being not in dispute need not be gone into in the present appeals. 12. As noticed above, it is the contention of the appellants Insuran ce Company that Dhiraj Nath who drove the scooter having contributed to the acci dent there ought to have been deduction of certain percentage towards the contri butory negligence which, however, has been denied by the respondents. 13. To appreciate the said contention I have also perused the eviden ce. It is apparent from the deposition of the witness No. 1 and witness No. 3 th at the accident occurred due to rash and negligent driving by the driver of AS-0 1A-0427, (bus), who drove the said vehicle in a very high speed and in a neglige nt manner. The driver of the said vehicle i.e. the bus was also charge sheeted u nder Section 279/304A/427 IPC. These witnesses though were thoroughly cross exam ined by the appellant Insurance Company they, however, could not be discredited in their deposition that the accident occurred due to negligent driving by the d river of the bus. There is no evidence on record even to suggest that Dhiraj Nat h who drove the scooter had contributed to the accident. The Insurance Company t hough pleaded contributory negligence did not lead any evidence. Hence the conte ntion of the Insurance Company that Dhiraj Nath had contributed to the accident cannot be accepted. 14. Section 168 of the 1988 Act cast a duty on the Court to hold an enquiry into the claim and to determine the award of compensation which appears to be just. 15. In an application filed for compensation, the court is, therefor e, required to ascertain the just compensation payable depending upon the eviden ce adduced by the parties. The Court, therefore, can pass the award for compensa tion more than what has been claimed by the claimant in the claim application. T he court’s duty being to award just compensation, if the appellate court finds t hat the amount of compensation awarded by the Tribunal is not just it can enhanc e the same and award the just compensation, even in an appeal preferred by the o wner or the insurer and even in the absence of any cross appeal or cross objecti on by the claimants. Reference in this regard may be made of the observation of the Apex Court in Rajesh (supra).