Allowed

National Insurance Co. Ltd. v. Anjana Jha and 6 Ors.

Gauhati HC15 May 2019MACApp./156/2014

Case brief

AI extract

What is this about?

The High Court allowed the insurance company's appeal against the Tribunal's award. It recalculated the compensation for harassment, death, and dependency based on statutory principles, reducing the total by adjusting future prospects and conventional heads. The court mandated a specific distribution ratio for the surviving family members and directed the deposit of the revised surplus amount.

What did the court decide?

The compensation was recalculated to Rs. 28,78,750 and distributed among claimants; restrictive deposit directions were issued for the widow and minor children.

National Insurance Co. Ltd. Vs Anjana Jha and 6 Ors. — Motor Accident Claims | Gauhati HC (2019)

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GAHC010010982014

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

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Case No. : MACApp. 156/2014

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1:NATIONAL INSURANCE CO. LTD.

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HAVING ITS REGISTERED OFFICE AT MIDDLETON STREET, KOLKATA AND ONE OF THE REGIONAL OFFICES KNOWN AS GUWAHATI REGIONAL OFFICE, AT G.S. ROAD, BHANGAGARH, GUWAHATI-5

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VERSUS

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1:ANJANA JHA and 6 ORS. W/O LATE RATAN KUMAR JHA

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2:MISS JAHNABI JHA S/O LATE RATAN KUMAR JHA

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3:ARMAAN JHA S/O LATE RATAN KUMAR JHA

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4:JOGENDRA JHA

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S/O LATE RATAN KUMAR JHA

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5:KALPANA JHA S/O LATE RATAN KUMAR JHA ALL 1 TO 5 ARE R/O HIJUGURI BASHBARI P.S. TINSUKIA DIST. TINSUKIA ASSAM.

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6:MRS. KANAK LATA GOGOI W/O MR. PHANIDHAR DUTTA R/O KAKOPATHAR PHC P.S. KAKOPATHAR DIST. TINSUKIA ASSAM.

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7:DIGANTA HAZARIKA S/O LATE KESHAB HAZARIKA R/O BORHAPJAN P.S. DOOMDOOMA DIST. TINSUKIA ASSAM

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Advocate for the Petitioner : MR A SAIKIA

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Advocate for the Respondent :

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BEFORE HONOURABLE MR. JUSTICE NELSON SAILO

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JUDGMENT

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Date : 15-05-2019

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Heard Mr. R.K. Bhatra, the learned counsel for the appellant and Mr. N. Debnath, the learned counsel for the respondent Nos. 1 to 5/claimants. None appears for the respondent Nos. 6 & 7.

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2. Office note dated 01.10.2015 indicates that notice was received by the respondent Nos. 6 & 7. In view thereof, the appeal is being disposed of after hearing the learned counsel for the appellant as well as the respondent Nos. 1 to 5.

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3. This is an appeal filed by the appellant Insurance Company against the Judgment & Award dated 20.02.2014 passed by the learned Member, Motor Accident Claims Tribunal (the Tribunal) - 2, Kamrup, Guwahati in MAC Case No. 845/2012, awarding compensation to the tune of Rs. 32,38,000/- to the respondents/claimants for the death of one Sh. Ratan Kr. Jha, who is the husband of the respondent No. 1 and the father of the respondent Nos. 2 to 4 and the son of the respondent No. 5 in a motor accident, which occurred on 08.03.2012. The Tribunal has also awarded interest @ 6% per annum on the awarded amount from the date of filing the claim till final realization.

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4. Brief facts of the case is that on 08.03.2012, Sh. Ratan Kr. Jha was proceeding towards his residence from Tinsukia Bazar by riding his Motor Cycle. When he was reaching Siding Bazar, the offending vehicle bearing Registration No. AS-23-H-3912 (Ritz VXI Car) knocked him down from the back side. As a result, he sustained grievous injuries on his person and he was taken to Aditya Hospital, Dibrugarh. However, he succumbed to his injuries on the next day on 09.03.2012. According to the respondents/claimants, the deceased was aged about 40 years at the time of the accident and he was an employee of Khangkio Tea Industries with a monthly salary of Rs. 18,333/-. Due to the accident, Tinsukia P.S. Case No. 188/2012 under Section 279/304(A)/427 of the Indian Penal Code (IPC) was registered and investigation was conducted. Pursuant to the investigation, charge-sheet No. 51/2013 was submitted on 24.03.2013 against the driver of the offending vehicle under Section 279/304(A) of the IPC.

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5. The respondents/claimants therefore submitted a claim application before the Motor Accident Claims Tribunal (MACT)-2, Kamrup, Guwahati, which was registered as MAC Case No. 845/2012 claiming compensation from the opposite parties arrayed therein. The opposite party No. 1 is the insurer of the offending vehicle and he is the appellant in the instant case. The opposite party No. 2 is the owner of the vehicle involved while the opposite party No. 3 is the driver of the vehicle. The claimants/respondents initially submitted the claim for compensation to the tune of Rs. 21 Lakhs but subsequently, they sought an amendment to the prayer, which accordingly was allowed by the Tribunal. With the amendment, the claim of the claimants/respondent Nos. 1 to 5 was modified to Rs. 35 Lakhs.

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6. The claim was contested by the opposite parties including the appellant, who was arrayed as opposite party No. 1 denying their liability to compensate the claimants. The claimants to establish their claim examined three witnesses including the claimant No. 1/respondent No. 1, the representative of Khangkio Tea Industries where the deceased was employed Sh. Kaliam Bora and the lone

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eye witness to the accident Sri. Pramod Jyoti Hazarika. The appellant on the other hand did not lead any defence witness and also the other opposite parties. The Tribunal consequently upon deciding the two issues framed in favour of the claimants/respondents awarded compensation as already mentioned herein above.

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7. Appearing for the appellant, Mr. R.K. Bhatra, the learned counsel submits that two vehicles were involved in the accident. One was the alleged offending vehicle and the other was the Motor Cycle, which the deceased was driving as can be seen from the evidence led before the Tribunal. However, the Tribunal misread the evidence on record and came to the erroneous finding that the vehicle insured with the appellant Insurance Company was solely negligent and therefore, awarded compensation to the claimants to be paid by the appellant Insurance Company. On the other hand, in view of the involvement of the two vehicles, the learned counsel submits that it was clearly a case for apportionment at least in the ratio of 50:50, since the deceased was also at fault.

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8. The learned counsel further submits that the monthly income of the deceased without being fully established by the claimants came to be accepted and relied upon by the Tribunal for working out the compensation and which is only erroneous inasmuch as the job of the deceased was on contractual basis. Moreover, no income tax payable was deducted from his monthly income while computing the total compensation payable and therefore, the monthly income projected by the claimants could not have been accepted in total. Besides these grounds, the learned counsel submits that there was delay in filing the FIR and the same was sufficient to cast serious doubt upon the alleged accident more particularly, to make the Insurance Company liable to pay compensation.

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9. The learned counsel final submits that the calculation of the learned Tribunal while assessing the amount of compensation to be awarded to the

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claimants is contrary to the law holding the field more particularly in respect of future prospects of the deceased, the conventional heads, award of interest etc. Therefore, by following the law laid down by the Apex Court in this regard, the amount awarded by the Tribunal is highly exorbitant requiring suitable interference of this Court.

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10. Mr. R.K. Bhatra, the learned counsel for the appellant in support of his submission relies upon the following authorities:-

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(i) Judgment & Order dated 18.01.2017 passed in MAC.App. No. 9/2017 (New India Assurance Company Ltd. Vs. Smt. Bolo Bala Boro & 2 Ors.) rendered by this High Court.

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(ii) National Insurance Company Ltd. Vs. Pranay Sethi & Ors reported in (2017) 16 SCC 680

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(iii) Sarla Verma & Ors. Vs. Delhi Transport Corporation & Anr. reported in (2009) 6 SCC 121.

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(iv) Shyamwati Sharma and Ors. Vs. Karam Singh and Ors. reported in (2010) 12 SCC 378.

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11. Mr. N. Debnath, the learned counsel for the respondent Nos. 1 to 5/claimants on the other hand submits that the learned Tribunal has not committed any error in passing the impugned Judgment and awarding compensation to the claimants/respondents. He submits that the claimants/respondents in support of their claim had submitted all the requisite documents, which includes the Police report, the charge-sheet, the postmortem report of the deceased etc. He submits that all the vital documents were duly accepted by the claimants without any objection of the opposite party. Furthermore, the claimants also examined three claimant witnesses including the claimant No. 1 herself, to proof the rash and negligent driving of the driver of the offending vehicle and also the monthly income of the deceased. The evidence of the claimants witnesses were neither falsified nor did the opposite

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parties lead their own evidence to disprove the claim.

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12. Under the circumstance, the Tribunal was right in holding the opposite party No. 1/appellant to be liable since the offending vehicle was duly insured with it. Having regard to the age and income of the deceased, the quantum of compensation awarded by the Tribunal is only just and requires no interference. He thus submits that the appeal being without merit, the same should be dismissed.

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13. I have heard the submissions advanced by the learned counsels for the rival parties and I have perused the materials available on record including the record requisitioned from the Tribunal.

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14. As may be noticed, the claim application filed by the claimants/respondent Nos. 1 to 5 is under Section 166 of the MV Act. The basic ingredient for proving a case under Section 166 of the MV Act is that the claimants has to establish that the accident occurred due to the rash and negligent driving of the offending vehicle. In order to compute the amount of compensation payable, the claimant is also required to establish the monthly income of the injured or the deceased.

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15. In the present case, the respondent No. 1 as the claimant No. 1 in the Tribunal and who is also the wife of the deceased examined herself as CW-1. In her examination-in-chief, she deposed that her husband while proceeding home on 08.03.2012, on reaching near Siding Bazar, was knocked down from behind by the offending vehicle, which was insured with the appellant Insurance Company. As a result, her husband suffered grievous injuries. Although he was taken to Aditya Hospital at Dibrugarh, he succumbed to his injuries on the next day i.e., 09.03.2012. Similarly, the claimants witness No. 3, Sri Pramod Jyoti Hazarika in his examination-in-chief deposed that he was an eye witness to the accident. On that fateful day, he saw the offending vehicle hit the deceased,

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who was riding a Motor Cycle from behind. After the accident, the Police seized the Motor Cycle and he also subscribed his signature in the seizure memo as a seizure witness.

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16. It is seen that the deposition of both these two witness have not been discredited by the opposite parties/appellant during the cross examination. In so far as the income of the deceased is concerned, Sri Kalyan Borah, who appeared as CW-2 on being authorized by the proprietor of M/S Khangkio Tea Industries deposed on oath that the deceased at the relevant time earned a gross salary of Rs. 18,333/- per month and he has good prospect for being promote in the near future. Therefore, having regard to the fact that the MV Act being a beneficial legislation and keeping in mind the evidence led by the claimants before the Tribunal, I am of the considered view that the claimants/respondent Nos. 1 to 5 were able to make out a case for being awarded compensation in a claim under Section 166 of the MV Act. There is also no dispute regarding validity of the insurance of the offending vehicle at the time of the accident, which was with the appellant Insurance Company. The question therefore, which requires to be looked into is as to whether the calculation of the award and the ultimate compensation awarded is in conformity with the law laid down by the Apex Court. A Constitution Bench of the Apex Court in Pranay Sethi & Ors (Supra) has held that when the deceased was self employed and on a fixed salary, there should be an addition of 25% as future prospects where the deceased was between 40 to 50 years.

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17. Coming to the present case, the Tribunal awarded 30% as future prospects although the deceased was found to be more than 40 years of age. Furthermore, the amount of compensation under the conventional heads as fixed by the Apex Court is Rs. 15,000/-, Rs. 40,000/- & Rs. 15,000/- in respect of loss of estate, loss of consortium and funeral expenses respectively. The Tribunal on the other hand awarded a sum of Rs. 25,000/- towards funeral expenses, Rs. 1 Lakh towards loss of consortium and Rs. 1 Lakh for loss of care

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and guidance for minor.

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18. It is further noticed that the Tribunal while taking into account the monthly income of the deceased, did not deduct the income tax payable by him at the relevant time. The authority in this regard is Shyamwati Sharma & Ors. (Supra) as pointed out by the learned counsel for the appellant. Besides these, no interest would also be admissible from the future prospects added to the amount quantified as future prospects in view of Smt. Bolo Bala Boro & 2 Ors. (Supra). It is otherwise seen that the Tribunal has rightly determined the multiplier of 14 in terms of Sarla Verma & Ors. (Supra) and also a deduction of ¼ towards the personal expenses of the deceased. Thus, while upholding the basic findings of the Tribunal, the amount of compensation requires to be recalculated in terms of the law laid down by the Apex Court as already mentioned herein above.

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

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(i) Annual Income = Rs. 2,19,996/-

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(ii) Less Income Tax 10%= Rs. 5,996/-(Rounded) = Rs. 2,14,000/-

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(iii) Addition of 25% towards future prospects = Rs. 2,67,500/-

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(iv) Deduction of ¼ towards personal expenses = Rs. 66,875/i.e. 2,67,500 – 66,875 = Rs. 2,00,625/-

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(v) Loss of dependency= 14 x 2,00,625/- = Rs. 28,08,750/-

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In addition to above, the following amount of compensation shall be payable under the conventional heads:-

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(i) Loss of consortium = Rs. 40,000/-

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(ii) Loss of estate = Rs. 15,000/-

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(iii) Funeral expense = Rs. 15,000/-

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Total = Rs. 70,000/-

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Thus, the claimants/respondent Nos. 1 to 5 will be entitled to a sum of Rs. 28,78,750/-(Rupees Twenty Eight Lakhs Seventy Eight Thousand Seven Hundred Fifty) only as compensation.

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20. At this stage, it is submitted at the bar that during the pendency of the appeal, the appellant deposited 50% of the awarded amount before the Registry of this Court i.e., Rs. 16,19,000/- (Rupees Sixteen Lakhs Nineteen Thousand) only, which was also withdrawn by the claimants/respondent Nos. 1 to 5.

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21. The Apex Court in the case of T.N. State Transport Corporation Ltd. Vs. S. Rajapriya & Ors. (2005) 6 SCC 236 has held that the amount of compensation that may be apportioned between the wife, children and mother of the deceased should be in the ratio of 35:40:15. Considering the said decision, the balance amount of money payable to the claimants/respondent Nos. 1 to 5 will be divided in similar proportions. In short, the respondent No. 1 shall get 35%, the respondent Nos. 2, 3 and 4 as children of the deceased will be entitled to an equal share of the 40% and the remaining 15% should be given to the mother of the deceased i.e., the respondent No. 5. The remaining amount of 10% of the compensation should be equally divided and paid to the respondent No. 1 and 5. The share of compensation of the respondent Nos. 1 and 5 i.e., 35% and 15% should be kept in a fixed deposit for a minimum period of 5 (five) years.

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22. In so far as the share of the respondent Nos. 2, 3 and 4 are concerned, the same shall be kept in a fixed deposit and maintained till they attain the age of majority. The interest payable to the claimants shall be calculated from the date of filing of the claim application till the date of final payment on the balance amount due. Interest however shall not be calculated on the amount which has already been paid by the appellant Insurance Company.

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23. The amount of compensation payable to the claimants as directed herein above be deposited by the appellant Insurance Company within a period of 6 (six) weeks from the date of receipt of the certified copy of this Order before the Registry of this Court. It is also made clear that the amount shall be disbursed to the claimants/respondents only on proper identification and as per usual formalities.

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24. The appeal stands disposed of accordingly.

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25. The statutory deposited amount of Rs. 25,000/- made by the appellant Insurance Company be adjusted on the amount to be paid to the claimants/respondents.

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26. Registry to return back the LCR forthwith.

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JUDGE

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Comparing Assistant

National Insurance Co. Ltd. v. Anjana Jha and 6 Ors.

Case brief

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National Insurance Co. Ltd. v. Anjana Jha and 6 Ors.

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