Allowed

Nasima Begum v. Keramat Ali and 3 Ors.

Gauhati HC9 Apr 2019MACApp./100/2014

Case brief

AI extract

What is this about?

The High Court allowed a motor accident appeal, finding the Tribunal erred in attributing contributory negligence. It upheld the deceased's age as 42 years but maintained the notional monthly income at Rs. 3,000 due to lack of proof, awarding total compensation of Rs. 5,42,584 with 6% interest.

What did the court decide?

Compensation of Rs. 5,42,584 awarded; Rule 41 CPC applied; Respondent directed to deposit.

Nasima Begum Vs Keramat Ali and 3 Ors. — Motor Accident Claims | Gauhati HC (2019)

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Page No.# 1/6

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GAHC010123902014

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THE GAUHATI HIGH COURT (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)

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Case No. : MACApp. 100/2014

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1:NASIMA BEGUM

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W/O LT. ABDUL MATIN, R/O VILL. SINGGAON, PO. PHULTOLI BAAR, PS. LANKA, DIST. NAGAON, ASSAM.

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VERSUS

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1:KERAMAT ALI and 3 ORS. S/O LT. HURMOT ALI, R/O VILL/PO. SATLUNGA, PS. NAGAON, DIST. NAGAON, ASSAM.

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2:MAINUL HUSSAIN S/O LT. MAINA MIYA R/O DOBOKA TOWN WARD NO.10 PO/PS. DOBOKA DIST. NAGAON ASSAM

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3:ICICI LOMBARD GENERAL INSURANCE CO. LTD ICICI LOMBARD HOUSE 414 VEER SARARLAR MARG NEAR SIDDHI VINAYAK TEMPLE PRABHADEVI MUMBAI-400025

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4:UNITED INDIA INSURANCE CO. LTD D.O.III GUWAHATI PANBAZAR GUWAHATI-781001 ASSA

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Advocate for the Petitioner : MR.R K DEY

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Page No.# 2/6

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Advocate for the Respondent : MR.N N BHUYANR-3

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BEFORE

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HONOURABLE MR. JUSTICE NELSON SAILO

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JUDGMENT

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Date : 09-04-2019

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Heard Mr. R. Dev, the learned counsel for the appellant. Also heard Mr. A.J. Saikia, the learned counsel for the respondent No. 3 and Mr. B.K. Purkayastha, the learned counsel for the respondent No. 4. None appears for the remaining respondents.

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2. The appellant before this Court was also the claimant before the Tribunal. Being aggrieved with the Judgment & Order dated 09.12.2013, passed by the Addl. District & Session Judge - cum – Member, Motor Accident Claims Tribunal (the Tribunal), Hojai, Sankardev Nagar in MAC Case No. 181 (N)/2012, he has filed the present appeal.

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3. Grounds taken in the appeal is that although the appellant/claimant led evidence that the deceased was earning a sum of Rs. 18,000/- per month and also giving private tuition, the learned Tribunal arbitrarily fixed a notional income of Rs. 3,000/- per month. The deceased was aged 42 years at the time of his death and which was supported by his Driving License but the learned Tribunal accepted 48 years as the age of the deceased on the basis of the post mortem report. Further, despite the fact that the appellant through PW-3 was able to establish about the fault on the part of the offending vehicle, the learned Tribunal held that there was contributory negligence. The appellant thus is in appeal before this Court.

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4. Mr. R. Dev, the learned counsel for the appellant submits that as per exhibit- 9, which is the Driving License of the deceased, his date of birth is 24.05.1969. Likewise, as per the Identity Card of the deceased issued by his employer, the date of birth of the deceased was shown as 24.05.1969. Therefore, the learned Tribunal could not have accepted 48 years as the date of birth of the deceased based on the wrong entry made in the post mortem report. The fact that a wrong entry was made in the post mortem report has also clearly been stated by the appellant herself in her examination-in-chief before the learned Tribunal. Under the circumstance, the age of the deceased on the basis of the Driving License would be 42 years

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Page No.# 3/6

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at the relevant time. Mr. R. Dev, the learned counsel by referring to the case of Sarla Verma & Ors. Vs. Delhi Transport Corporation & Anr. reported in (2009) 6 SCC 121 submits that if the deceased was aged 42 years, the relevant multiplier would be 14 as per the said decision of the Apex Court.

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5. Mr. R. Dev, the learned counsel further submits that one Md. Abdul Manaf was examined as the PW-3 by the appellant before the learned Tribunal. In his examination-inchief, he clearly deposed that the deceased was travelling in a motor cycle at moderate speed and coming from Doboka on the left hand side of the four lane road. At that moment, the said witness saw the offending Tata Mobile bearing Regd. No. AS 02E 5667 also coming from Doboka and driven in high speed hit the motor cycle of the deceased from behind. This deposition of PW-3 was neither shaken nor falsified during his cross examination. Therefore, the finding of the learned Tribunal that there was contributory negligence is only misconceived. He therefore submits that the appellant is liable to be awarded the entire amount as well as an enhanced of compensation.

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6. Mr. R. Dev further submits that the amount of compensation awarded by the learned Tribunal towards the conventional heads such as funeral expenses, loss of estate and loss of consortium will also have to be awarded to the claimant/appellant as per the decision of the Constitution Bench of the Apex Court in the case of National Insurance Company Ltd. Vs. Pranay Sethi & Ors reported in (2017) 16 SCC 680 i.e. Rs. 15,000/- each towards funeral expenses and loss of estate and a sum of Rs. 40,000/- towards loss of consortium, since the deceased was the husband of the appellant. Besides this, the appellant will also be entitled to an addition of 25% on his monthly income towards future prospect as held by the Apex Court in the referred case.

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7. Mr. A.J. Saikia, the learned counsel for the respondent No. 3 submits that the appellant did not lead any evidence with supporting documents to establish the monthly earning of the deceased to be Rs. 18,000/- and therefore, the learned Tribunal rightly adopted a monthly notional income of Rs. 3,000/-. In so far as the age of the deceased is concerned, the learned Tribunal cannot be faulted with inasmuch as the post mortem report clearly provided that the age of the deceased was 48 years at the time of his death.

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Page No.# 4/6

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8. In so far as contributory negligence is concerned, the learned Tribunal came to a finding that there was no evidence that the Tata Mobile hit the motor cycle which the deceased was riding not because of the fault on the part of the deceased. Therefore, the learned Tribunal is justified in coming to a finding that it was not a case of composite negligence but a case of contributory negligence. The learned counsel lastly submits that in so far as the conventional heads are concerned, Pranay Sethi & Ors (Supra) is the authority holding the field.

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9. Mr. B.K. Purkayastha, the learned counsel for the respondent No. 4 submits that the respondent No. 4 was absolved from any liability by the learned Tribunal and for that reason, the respondent No. 4 is only a formal party. He also submits that as on the date of the accident, the motor cycle was in fact not insured with the respondent No. 4 and therefore, the respondent No. 4 will have no liability at any rate.

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10. I have heard the submissions made by the learned counsels for the rival parties and I have perused the materials available on record including the Lower Court Record.

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11. The issue to be considered is as to whether there was indeed contributory negligence on the part of the driver of the two vehicles involved. In order to find a solution to this issue, it would be apt to look into the evidence led by PW-3. PW-3 Md. Abdul Manaf in his examination-in-chief clearly deposed that the deceased was driving at moderate speed and was coming from Doboka and he saw the offending vehicle i.e., Tata Mobile coming from behind the motor cycle and hit the two wheeler which the deceased was riding. The motor cycle was even dragged across the road to some extent. This narration has not been falsified during the cross examination. Therefore, on the absence of any evidence to the contrary, the finding of contributory negligence by the Tribunal is only misconceived. The learned Tribunal therefore, committed an error in coming to its finding that there was a contributory negligence.

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12. The next issue to be considered from the projection made by the appellant is about the age of the deceased. The learned Tribunal took into consideration the age recorded in the post mortem report wherein, the deceased was said to be 48 years. However, the fact remains that in two exhibits i.e., Exhibit - 9 & 11, there is an entry made that the deceased

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Page No.# 5/6

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was born on 24.05.1969. This fact again was testified by the appellant herself in her examination-in-chief. She further clarified that the age of her husband in the post mortem report was wrongly mentioned. In that view of the matter, the aged of the deceased will only have to be accepted as 42 years and not 48 years.

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13. In so far as the amount of compensation towards the conventional head loss of estate, funeral expenses and loss of consortium is concerned, the same is settled by the Apex Court in Pranay Sethi & Ors.(Supra) and therefore will have to be applied. In so far as the claim, that the monthly income of the deceased was Rs. 18,000/-, since the appellant did not lead any material evidence besides only making a statement in this regard, the notional income of Rs. 3,000/- per month, in my considered opinion will have to be maintained.

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14. In the result, the compensation entitled to the appellant will be as follows:-

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(i)	Monthly income = Rs. 3,000/-
(ii)	25% future prospect = Rs. 750/-
(iii)	Total monthly income = Rs. 3,750/-
(iv)	After ¼ deduction for self expense = Rs. 2,813/-
(v)	2813 X 12 X 14 = Rs. 4,72,584/-
(vi)	Funeral expense = Rs. 15,000/-
(vii)	Loss of estate = Rs. 15,000/-
(viii)	Loss of consortium = Rs. 40,000/-
	Total compensation = Rs. 5,42,584/-

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(Rupees Five Lakhs Forty Two Thousand Five Hundred Eighty Four) only

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15. The appellant is thus entitled to a sum of Rs. 5,42,584/- (Rupees Five Lakhs Forty Two Thousand Five Hundred Eighty Four) only as compensation, which shall carry interest @ 6% per annum w.e.f. the date of filing the claim i.e., 27.04.2012.

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Page No.# 6/6

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16. It is made clear that the appellant will not be entitled to interest on the addition of 25% in his monthly income in respect of future prospect. The respondent No. 3 is thus directed to deposit the entire amount of compensation as awarded herein above before the Registry before this Court within a period of 6 (six) weeks from the date of receipt of the certified copy of this Order. Any amount which may have been already paid to the appellant/claimant may be deducted by the respondent No. 3.

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17. The appellant/claimant on such deposit will be permitted to withdraw the deposited amount after proper identification and as per usual formalities.

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18. The appeal accordingly stands disposed of.

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19. Registry shall send back the LCR to the learned Tribunal concerned.

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JUDGE

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Comparing Assistant

Nasima Begum v. Keramat Ali and 3 Ors.

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Nasima Begum v. Keramat Ali and 3 Ors.

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