Marami Mahanta vs The B.M, Universal Sempo General ... on 16 November, 2018

Marami Mahanta vs The B.M, Universal Sempo General … on 16 November, 2018

Gauhati-High-Court
Bench: Kalyan Rai Surana
                     THE GAUHATI HIGH COURT
 (THE HIGH COURT OF ASSAM, NAGALAND, MIZORAM & ARUNACHAL PRADESH)



                     MAC APPEAL NO. 29 OF 2014


                      Mrs. Marami Mahanta
                                                            ... Appellant
                           -Versus-

                      The Branch Manager, Universal Sampo General
                      Insurance Company Limited.

                                                            ..Respondents

                                 BEFORE
           HON'BLE MR. JUSTICE KALYAN RAI SURANA



For the appellant            :        Mr. AK Purkayastha,
                                      Mr MK Sarma,
                                      Mr. SK Das,
                                      Mr. SB Choudhury, Advs.

For the respondent           :        Mr. R. Goswami,
                                      Ms. M. Saikia, Advs

Date of hearing &
judgment                     :        16.11.2017.


                     JUDGMENT AND ORDER (ORAL)



        Heard Mr. AK Purkayastha, the learned counsel for the
appellant as well as Mr. R. Goswami, the learned counsel for the sole
respondent.

2.      By this appeal under Section 173(1) of the Motor Vehicles Act,
1988, the appellant has prayed for enhancement of the award
passed in the judgment and order dated 26.09.2013 passed by the

Mac Appeal No.29 of 2014                                        Page 1 of 8
 learned Member, MACT, Darrang, Mangaldoi in MAC Case No.
241/2011. By the said judgment, an compensation of Rs. 4,24,367/-
was awarded in favour of the appellant/claimant with interest @6%
per annum from the date of filing of the claim petition.

3.     The brief facts of the case is that on 05.05.2011, while one
Dorothey Mahanta was proceeding from Christianbasti towards
Dispur by city bus bearing Registration No. AS-01-AC/4884, due to
rash and negligent driving, she fell down from the bus in front of
SBI, Dispur Branch.        As a result of the accident, she suffered
grievous head injuries and thereafter she was admitted in a private
hospital and later on she was referred to another private hospital for
better treatment. However, she died on 10.05.2011. On the basis of
the   ejahar,    Dispur    PS   Case   No.1229/2011    under   Section
279/338/304(A) IPC was registered. The appellant/claimant, who is
the mother of the deceased, claimed for a compensation of Rs.31.00
Lakh on account of the death of her daughter.

4.     The owner of the vehicle, who was arrayed as opposite party
No.1 in the claim petition, did not contest the case. However, the
name of the driver/ opposite party No.2 in the claim petition was
striked off on the basis of the Petition No.227/2012 dated
21.03.2012 filed by the claimant.

5.     The respondent herein, who was arrayed as the opposite
party No.3 in the claim petition contested the claim by filing written
statement and they took the plea of denial and onus of proving the
case was passed on the claimant to prove the same. On the basis of
the pleadings following issue were framed by the learned Tribunal:

                "i) Whether the deceased dies out of the alleged
                accident and due to the rash and negligent driving of
                the offending vehicle Na. AS-01-AC/4884 (Bus)?

Mac Appeal No.29 of 2014                                   Page 2 of 8
               ii) Whether the vehicle was covered by Insurance Policy
              at the time of accident?
              iii) Whether the accident and subsequent injury
              sustained by the deceased is the direct and proximate
              cause of the death of the deceased?
              iv) To what relief/reliefs, if any, parties are entitled?"


6.     The claimant/appellant herein examined two witnesses and
had exhibited 11 documents. Appreciating the evidence on record,
issues No.1 & 3, which were taken up together, were answered in
affirmative by holding that the deceased had died due to the
accident involving the offending vehicle and the injuries sustained by
the victim was the cause of the death of the deceased. In respect of
issue No.2, it was held that the offending vehicle was covered by the
insurance policy of the respondent herein. In respect of issue No.4,
in the absence of any evidence to prove the monthly income of the
deceased claimed at Rs.15,000/- per month, on the basis of the
Income Certificate (Ext.33) by which the Prasar Bharati has paid
remuneration of Rs.600/-, the notional income of the deceased was
assessed as Rs.3,000/- per month.           The total compensation was
computed as under:

       "Loss of dependency - 18000 x 18            = Rs.3,24.000/-
       Funeral Expenses                            = Rs. 20,000/-
       Medical expenses                            = Rs. 75,387/-
       Attendant charges                           = Rs. 5,000/-
                                                   ---------------------

Total = Rs.4,24,387/-“

7. The learned counsel for the appellant has referred to the evidence on record, it is submitted that the deceased had a promising career as she was a professional singer and even while she was a student, her collection of songs were marketed by publishing two C.D. Albums. It is submitted that she was a finalyear student in Law in a reputed Law College at Guwahati and therefore, based on her activities as well as her capability as an upcoming singer, she had a income of Rs.15,000/- per month and there were immense future prospects also.

8. Relying on the Albums (CDs) produced as proof of evidence, it is submitted that the Court may take judicial notice of the achievement of the deceased and for enhancing compensation by treating her income as projected in the claim petition. It is further submitted that in addition to the compensation award, the appellant is entitled to additional compensation on the ground of future prospects and on other conventional heads such as loss of estate and funeral expenses. It is submitted that the same may be granted as per the ratio laid down by the Hon’ble Apex Court in the case of Sarla Verma Vs. Delhi Transport Authority (2009) 6 SCC 121.

9. Per contra, the learned counsel for the respondent has submitted that the Hon’ble Supreme Court in the case of National Insurance Company Ltd. Vs. Pranay Sethi and others, Manu/SC/1366/2017 has held that the future prospects is required to be calculated on the basis of proven income of the person and the same would depend on the basis of evidence adduced by the parties. It is submitted that while judgment in the case of Sarla Verma (supra) was upheld insofar it related to paragraphs -30 to 32 and 42, the compensation on account of conventional heads, namely, loss of estate, loss of consortium and funeral expenses was scaled down to Rs.15,000/-, Rs.40,000/- and Rs.15,000/- respectively. It is submitted as the case of Pranay Sethi (supra) was decided by a larger Bench, the ratio as laid down in the case of Sarla Verma (supra), insofar it related to the compensation on account of conventional heads as such, loss of estate, loss of consortium and funeral expenses, was no longer a good law.

10. Considered the submissions made by the learned counsel for the parties and perused the materials on record. Insofar the evidence in respect of issues No.1,2 & 3 is concerned, it is not disputed at the bar by the respondents herein that the victim namely, Dorothey Mahanta had died in the road-traffic accident on 05.05.2011 and that the offending vehicle involved in the accident was duly insured with the respondent. The FIR (Ext.1), the Police Report (Ext.2) and the Accident Information Report (Ext.3) establishes the accidental death of the deceased as well as the fact that the vehicle involved was duly insured. There is no rebuttal evidence by the respondent to dispute those facts. Therefore, the decision of the learned Tribunal in respect of issues No.1,2 & 3 being not in challenge in this appeal are not disputed by the respondent, the liability of the respondent is hereby up-held.

11. The present appeal is limited to the point of quantum of the award and the appellant has prayed for enhancement of the same. On a perusal of the examination-in-chief of the PWs No.1 & 2, there is no statement by any of the witnesses that the deceased was earning any regular monthly income by pursuing music as her career. Although the PW.1 has proved a payment voucher (Ext.33) issued by the Doordarshan Kendra, Guwahati, by which a sum of Rs.600/- was paid to the deceased by a cheque dated 18.12.2009, it appears that the same was fees on account of telecast of her programme on Television. On perusal of the same, this Court cannot arrive at a conclusive finding that such payment were regularly forthcoming to her so as to constitute her source of permanent earning. None of the claimant’s witnesses has deposed to the effect that the deceased had a permanent or regular source of income. There is no oral evidence that has been adduced to show that the deceased had a regular monthly income. It is merely stated in paragraph-8 of the evidence of PW.1 that against the irreparable loss on account of death of her daughter, Dorothey Mahanta, the claimant was claiming a sum of Rs.31.00 Lakh by filing the claim petition. In the absence of any evidence of proof of regular monthly income of the deceased, there is no material before this Court to hold that the learned Tribunal had erred in holding notional income of the deceased as Rs.3,000/- per month and to give a finding contrary to one arrived at by the learned Tribunal. It is not in dispute that the voucher showing medical expenditure for treatment of the deceased was for Rs.75,387/-. In this regard also, the claimant’s witnesses have not made any specific claim on account of expenditure incurred in treatment of the deceased. Therefore, no infirmity is found in the decision of the learned Tribunal in granting compensation of medical expenses to the extent of Rs.75,387/- in absence of any other proof of expenditure beyond the said amount. Therefore, on the basis of evidence available on record, this Court is inclined to uphold the findings recorded by the Tribunal on issue No.4, assessing the compensation at Rs.4,24,387/-.

12. Nonetheless, as per the ratio laid down by the Hon’ble Apex Court in Pranay Sethi (supra), the appellant is found entitled to a sum of Rs.15,000/- on account of loss of estate in terms of paragraph-61 (viii). Accordingly, the compensation payable to the appellant/claimant stand enhanced by Rs.15,000/- on account of loss of estate.

13. At this juncture, the learned counsel for the appellant has submitted that in view of the educational qualification and promising career of the deceased, the compensation which was assessed by the learned Tribunal was at a lower side, as such, the appellant may be awarded interest at a higher rate and at least at the lending rate of the nationalized banks. In the present case, there is no addition of income on account of future prospects as there was no proof of income generated by the deceased, which could have the effect of an addition of 40% of the income towards future prospects, this Court deems this to be a fit case, where this Court can exercise its jurisdiction for awarding an enhanced interest rate by considering the fact that the deceased was aged about 22 years and there was no addition of future prospects. Therefore, the interest payable on the award is enhanced to the rate of 9% instead of 6% awarded by the learned Tribunal. The interest @ 9% shall be payable to the claimant/appellant from the date of filing of the claim petition i.e., 28.09.2011 till the entire award is realized by the claimant/respondent No.1.

14. The learned counsel for the appellant submits that as per his instruction, the respondent/insurance has not released any part of compensation despite the award to the claimant. In this connection, without issuing a direction from this Court, it is hoped that the respondent shall release the re-calculated compensation taking into account the enhancement of Rs.15,000/- on account of loss of estate and re-calculated interest @ 9% per annum on the entire amount, to the claimant may be released within a period of 1(one) month from today. It is needless to mention that as there is no stay operating, there is no impediment on the part of the appellant to enforce the award if such payment is not released within the above period of one month.

15. Resultantly, this appeal stands partly allowed to the extent of modification of the award as indicated above.

16     Parties are left to bear their own cost.

17.    Return back the LCR forthwith.

                                                      JUDGE




MKS

 

(1) Subject to the provisions of sub-section (2) any person aggrieved by an award of a Claims Tribunal may, within ninety days from the date of the award, prefer …

Section 173(1) in The Motor Vehicles Act, 1988 – Indian Kanoon


https://indiankanoon.org/doc/93665491/

Section 173(1) in The Motor Vehicles Act, 1988.

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