Dismissed

M/S. Bazaz Allianz General Insurance Co. Ltd. v. Josiran Bibi and Anr.

Gauhati HC17 Jun 2019MACApp./146/2015

Case brief

AI extract

What is this about?

The Gauhati High Court dismissed a statutory appeal against a Motor Accident Claims Tribunal award. Rejecting the appellant insurer's claims, the court upheld the multiplier based on the deceased's age and affirmed the insurer's joint and several liability despite allegations of composite negligence lacking independent evidence.

What did the court decide?

The interim order dated 17-07-2015 was recalled and the appellant directed to deposit the compensation within three months.

M/S. Bazaz Allianz General Insurance Co. Ltd. Vs Josiran Bibi and… — Insurance | Gauhati HC (2019)

¶1

Page No.# 1/6

¶2

GAHC010017052015

¶3

THE GAUHATI HIGH COURT

¶4

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

¶5

Case No. : MACApp. 146/2015

¶6

1:M/S. BAZAZ ALLIANZ GENERAL INSURANCE CO. LTD.

¶7

HAVING ITS REGISTERED OFFICE AT G.E. PLAZA, AIRPORT ROAD, YERWADA PUNE 411006 AND A BRANCH OFFICE AT B. BAROOAH ROAD, ULUBARI, GUWAHATI.

¶8

VERSUS

¶9

1:JOSIRAN BIBI and ANR.

¶10

W/O MD. NAUSAD ALI, R/O VILL. KACHUYA KHAS PT-II, P.S. DHUBRI, DIST. DHUBRI, ASSAM.

¶11

2:MD RAFIUDDIN AHMED S/O LATE DR RIYAZUDDIN AHMED R/O DHING TOWN IV NO. P.S. DHING DIST. NAGAON ASSAM

¶12

Advocate for the Petitioner : MR.A TALUKDAR

¶13

Advocate for the Respondent : MR. M DEKA

¶14

BEFORE HONOURABLE MR. JUSTICE MANISH CHOUDHURY

¶15

JUDGMENT AND ORDER (Oral)

¶16

Date : 17-06-2019

¶17

This statutory appeal under section 173, Motor Vehicles Act, 1988, as amended (the Act, in short), is directed against the judgment and award dated 04.09.2013 passed by the learned Member, Motor Accident Claims Tribunal, Dhubri (the Claims Tribunal, in short) in

¶18

Page No.# 2/6

¶19

MAC Case No. 318/2010. By the said judgment and award dated 04.09.2013, the learned Claims Tribunal had awarded an amount of Rs. 3,27,000/- only as compensation, to be paid by the opposite party No. 2, the appellant herein, to the claimant therein along with interest @ 8% per annum from the date of filing of the claim application i.e. 14.12.2010 with the further direction to pay the same within a period of 90 days, failing which the appellant shall be liable to pay future interest at the same rate from 14.12.2010 till realization.

¶20

Heard Mr. K. K. Bhatta, learned counsel for the appellant as well as Mr. S. Hoque, learned counsel for the respondent No. 2. The notice on the respondent No. 1, who was the claimant in MAC Case No. 318/2010, was accepted as complete by order dated 22.03.2018. The name of the respondent No. 3, who was the driver of the offending vehicle, was ordered to be striked off by order dated 21.06.2018. None has appeared on behalf of respondent No. 1 when this appeal is taken up for hearing today.

¶21

A narration of the necessary and relevant facts, in brief, is necessary. On 05.08.2009, at about 2-00 a.m., the son of the respondent No. 1-claimant i.e. Shohidur Ali was coming from Nagaon towards Dhubri by a vehicle (Winger) bearing Registration No. AS-02/E-1515, herein after referred to as subject-vehicle, as a passenger. When the subject-vehicle reached Agia Soulmari under Police Station – Goalpara, it hit one standing vehicle, a truck, from behind and as a result of the said accident, Shohidur Ali died instantaneously at the place of occurrence. In the said accident, the driver of the subject-vehicle also expired at the place of occurrence. The post-mortem of the deceased son of the respondent No. 1-claimant was done at the Goalpara Civil Hospital. In respect of the said accident, a case being Goalpara Police Station Case No. 307/2009 under Sections 279/304A/427, Indian Penal Code was registered. The subject-vehicle was insured with the appellant vide a policy of insurance bearing No. OG-102437-1812-00000020 with validity upto 25.05.2010.

¶22

The respondent No. 1-claimant instituted a claim application under Section 166 of the Act before the Claims Tribunal seeking compensation for the death of her son in the motor vehicular accident occurred on 05.08.2009. In the claim application, the claimant had sought an amount of Rs. 10 lacs as compensation from the owner and the insurer of the subjectvehicle jointly and severally. The said claim application was registered as MAC Case No. 318/2010.

¶23

Page No.# 3/6

¶24

The owner as the opposite party No. 1, contested the claim application by filing written statement wherein he stated that at the time of accident, the subject-vehicle was insured with the opposite party No. 2, who is the appellant herein and as such, he was entitled to be indemnified being the insured. The appellant herein as the opposite party No. 2, also contested the claim application by filing written statement contending, inter-alia, that the claim was excessive and putting the claimant to the strict proof thereof to establish the act of rash and negligent driving on the part of the driver of the alleged offending subject-vehicle.

¶25

The Claims Tribunal, on the basis of the pleadings of the parties, framed four issues. During the proceedings before the Claims Tribunal, the claimant examined herself as P.W.1. The claimant as P.W.1 exhibited 3 (three) documents i.e. Ext.1 – Post-Mortem Examination Report; Ext.2 – First Information Report; & Ext.3 – Seizure List. Besides cross-examining P.W.1, the appellant as opposite party No. 2, also adduced evidence of one witness as D.W.1, who apart from other documents, exhibited the Final Report dated 29.07.2008, submitted in connection with Goalpara Police Station Case No. 307/2009, as Ext.-B.

¶26

The Claims Tribunal after appreciation of the evidence led by the parties, had arrived at the finding that the accident had occurred due to rash and negligent act of driving on the part of the driver of the subject-vehicle as a result of which, the death of the son of the respondent No. 1-claimant had occurred. The Claims Tribunal had held that at the relevant time of accident, the subject-vehicle was insured with the appellant-insurer by a policy of insurance with validity upto 25.05.2010. The Claims Tribunal had also arrived at the finding that the deceased was a bachelor, aged about 22 years, and had, in view of the failure on the part of the respondent No. 1-claimant to establish the income of Rs.10,000/- per month as claimed in the claim application, taken the income of the deceased as Rs. 3,000/- per month. Deducting 50% towards personal and living expenses of the deceased, a bachelor, the Claims Tribunal assessed the annual dependency at Rs. 18,000/-. Applying the multiplier of 18, the Claims Tribunal assessed the total loss of dependency at Rs. 3,24,000/- (=Rs.18,000 x 18). Adding Rs. 3,000/- towards funeral expenses, the Claims Tribunal awarded an amount of Rs. 3,27,000/- as compensation to the respondent No. 1-claimant.

¶27

Mr. Bhatta, learned counsel for the appellant has raised two points, firstly, the Claims Tribunal had adopted a wrong multiplier in that the multiplier adopted ought to have been on

¶28

Page No.# 4/6

¶29

the basis of either the age of the deceased or the age of the parents, whichever was lower; and secondly, the Claims Tribunal had saddled the entire liability on the subject-vehicle whereas from Ext.-B, it was clearly established that there was indication of rash and negligent act on the part of drivers of two other vehicles. In support of his submission on the second point, Mr. Bhatta has referred to the contents of Ext.-B, which was exhibited by D.W.1. Mr. Hoque, learned counsel has submitted that no dispute was raised by the appellant-insurer either in respect of the insurance policy of the subject-vehicle or in respect of the driving license of the deceased driver of the subject-vehicle before the Claims Tribunal and in the instant appeal. Therefore, the respondent No. 2-owner is entitled to be indemnified by the appellant, notwithstanding the issues raised in the instant appeal.

¶30

I have duly considered the submissions made by the learned counsels for the parties. I have also perused the materials available on record.

¶31

The Claims Tribunal in the absence of any other evidence as regards the age of the deceased, considered the Post-Mortem Examination Report (Ext.-1) wherein the age of the deceased was recorded as 22 years. In Sarla Verma (Smt.) and others vs. Delhi Transport Corporation and another, reported in (2009) 6 SCC 121, it is observed that only three facts need to be established by the claimant for assessing compensation in the case of death : (a) the age of the deceased; (b) the income of the deceased; & (c) the number of dependents. Having regard to several imponderables in life and economic factors, a table of multipliers with reference to the age has been identified by the Apex Court and it is observed that the multiplier should be chosen from the said table with reference to the age of the deceased. In the table given in Sarla Verma (supra), the multiplier indicated for a deceased, aged between 21 to 25 years, is 18. No reference is made to the effect that in adopting the multiplier in case of a death, the age of the parents of the deceased is also to be considered and the multiplier, whichever is less, is to be adopted. Thus, I do not find any justification to accept the submission made by the learned counsel for the appellant as regards about adoption of wrong multiplier by the Claims Tribunal.

¶32

Admittedly, the deceased, in the instant case, was a passenger in the subject-vehicle and the subject-vehicle is a public service vehicle. The deceased did not contribute to the accident in any manner. There is no necessity on the part of the respondent No. 1-claimant to implead

¶33

Page No.# 5/6

¶34

all joint torfeasors even if it is assumed that the accident in question was an act of composite negligence, as contended by the learned counsel for the appellant. Even if it is assumed that there was involvement of other vehicles apart from the subject-vehicle, the claim of the respondent No. 1-claimant cannot be defeated on that count and the respondent No. 1- claimant cannot be deprived from receiving just compensation.

¶35

It is held in Khenyei vs. New India Assurance Company Ltd. and others, reported in (2015) 9 SCC 273 that in case of composite negligence, the claimant is entitled to sue both or any one of the joint torfeasors and to recover the entire compensation as liability of joint torfeasors is joint and several. In the case of composite negligence, apportionment of compensation between two torfeasors vis-à-vis the claimant is not permissible and a claimant can recover at his/her option the whole damages from any one of them. In case all the joint torfeasors have been impleaded and evidence is sufficient, it is open to the Claims Tribunal to determine inter se extent of composite negligence of the drivers involved in the accident and determination of the extent of negligence between the joint torfeasors is only for the purpose of their inter se liability so that one may recover the sum from the other after making whole of the payment to the claimant to the extent it has satisfied the liability of other.

¶36

In the light of the aforesaid positions of law, as enunciated by the Apex Court, the submission made on behalf of the appellant, in the instant case, that the appellant should not be saddled with the entire liability of paying the compensation, awarded by the Claims Tribunal, to the respondent No. 1-claimant is not acceptable and the same stands rejected. The reliance placed on the Final Report, exhibited as Ext.-B, is also not tenable in so far as the present appeal is concerned. The Final Report (Ext.-B) was submitted after registering a case being Goalpara Police Station Case No. 307/2009 under Sections 279/304A/427, Indian Penal Code as the driver of the subject-vehicle i.e. the vehicle bearing registration No. AS02/E-1515(Winger) also died instantaneously in the accident at the place of occurrence. Though a reference was made in the Final Report that at the time of accident, there were two other vehicles who might have some causal connection with the accident but the police did not find any details about those vehicles. Further, there is no indication that there was any endeavour on the part of the appellant-insurer of the subject-vehicle to bring in any evidence as regards involvement of any other vehicle in the accident under reference so as to enable it

¶37

Page No.# 6/6

¶38

to make it a case of composite negligence, in order to apportion the liability to pay the compensation, with which it has been saddled. In view of the above fact situation obtaining in the present case, I find the instant appeal bereft of any merit and the same, accordingly, stands dismissed. The interim order dated 17.07.2015 stands recalled.

¶39

The appellant is directed to deposit the amount of compensation in terms of the judgment and award dated 04.09.2013 before the Claims Tribunal within a period of 3 (three) months from today. Pursuant to such deposit before the Claims Tribunal, the appellant-insurer shall be allowed to withdraw the statutory deposit made in connection with the instant appeal. In the facts and circumstances of the case, no order as to cost. After deposit of the awarded amount along with interest, the Claims Tribunal will notify the respondent No. 1- claimant and the same will be disbursed to her due identification.

¶40

Records are to be sent accordingly.

¶41

JUDGE

¶42

Comparing Assistant

M/S. Bazaz Allianz General Insurance Co. Ltd. v. Josiran Bibi and Anr.

Case brief

What is this about?

What did the court decide?

M/S. Bazaz Allianz General Insurance Co. Ltd. v. Josiran Bibi and Anr.

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

Cases cited

Statutes considered

Parties & counsel

Coram

Case details

Similar cases

Oriental Insurance Co. Ltd. Vs Arati Chik@Sik and 2 Ors.

Oriental Insurance Co. Ltd. Vs Arati Chik@Sik and 2 Ors.

National Insurance Co. Ltd. Vs Santana Goswami and Ors.

M/S Bajaj Allianz General Insurance Co. Ltd. Vs MD Nizam Uddin

Jagdish Pator Vs New India Assurance Co. Ltd.

The National Insurance Co. Ltd. Vs Fairun Nessa and 8 Ors.