National Insurance Co. Ltd. vs Deepa Rani Kalita And 2 Ors.

Heard Mr. R.K. Bhatra , leaned counsel for the appellant and Mr. K.R. Bora, learned counsel for the Respondent/Claimant.

This appeal is filed by the Insurance Company against the judgment and award dated 12.11.2013 passed by the learned MACT No. 2, Kamrup,

Guwahati in MAC Case No. 1356/2011.

One Chandra Ram Kalita died in a motor vehicle accident on 19.06.2011 involving the vehicle bearing registration No. AS-06-C-4184, owned by the

respondent No. 4 and insured with the appellant. The legal heirs of the deceased Chandra Ram Kalita filed a petition before the learned MACT

seeking compensation and the learned Tribunal by the impugned award granted a compensation of Rs. 54,74,000/-.

Aggrieved by the said award, the Insurance Company preferred the instant appeal basically on the following two grounds.

(i) The learned Tribunal erroneously applied the multiplier 11, whereas in view of the age of the deceased, the appropriate multiplier should have been

9.

(ii) No independent witness was examined to prove, that the accident occurred due to rash & negligent driving of the driver of the offending vehicle

insured with the appellant Insurance Company.

It is admitted that the age of the deceased at the relevant point of time was 56 years and as such the appropriate multiplier should have been 9 and

in fact, learned counsel for the claimant has also fairly agreed that multiplier should have been 9. However, learned counsel for the claimant submits

that while determining the loss of dependency and contribution of income to the family, learned Tribunal assumed the income of the deceased

erroneously deducting the contribution to GPF of Rs. 20,000/- per month, which ought to have been added in the net income of the deceased and

therefore, the learned counsel prayed for enhancing the award by taking the actual income as per salary slip. This argument is countered by Mr. R.K.

Bhatra, learned counsel for the appellant that in absence of any cross objection or appeal in the instant appeal filed by the Insurance Company for

reduction of the quantum of award, no enhancement can be granted.

With regard to fault of the offending vehicle in the accident, the claimant, wife of the deceased examining herself as PW-1 stated that the accident

took place due to rash & negligent driving of the offending vehicle. However, during cross examination she admitted that she was not an eye witness

of the accident. The claimant, however, proved the Ext. 4(8) the charge sheet and the Accident Information Report (Ext.1) as well as Ext.4(1), the

FIR lodged in respect of the accident. In the FIR, Ext.4(1), it was stated that at about 3 O’clock, when the deceased Chandra Kalita was

proceeding towards home by riding bicycle the vehicle bearing registration No. AS-06-C-4184, which was also coming from the same direction and

was driving in a very rash & negligent manner hit the deceased and consequently he sustained serious injury and died instaneously. On the basis of the

said FIR, police registered a case and after thorough investigation submitted against the driver of the offending vehicle, which has been marked as

Ext.4(8). In the charge sheet, Ext.4(8), the Investigating Agency has clearly mentioned that after investigation, it was found that the accident occurred

due to rash & negligent driving of the driver of the vehicle, which caused death of the deceased. It is no doubt true, that no eye witness was examined

to prove the accident. In a motor vehicle accident, it may so happen that there may not be any eye witness and therefore, non-examination eye

witness cannot be a ground for rejecting the claim, if the claim is established otherwise.

In the present case, the FIR lodged immediately after the occurrence clearly narrated the incident. The FIR disclosed the fact as to how the

accident occurred. Keeping in view the beneficial objection of the legislation, even in absence of any direct evidence, Tribunal can invoke the doctrine

of res ipsa loquitur, which means facts itself ascertain as to the cause for accident. In the instant case, apparently the victim was proceeding by riding

a bicycle. The offending vehicle hitting a cyclist on a road itself, suggested lack of care and caution on the part of the driver of the vehicle. It is the

duty of the driver driving vehicle on public road to take care of the safety of the pedestrian or so. Failure of the driver to take proper care and

attention itself amounted to negligence on the part of the driver. In a proceeding before the MACT, claimant is not required to prove the accident or

fault of the respondent by the standard of prove beyond reasonable doubt. It is sufficient, if the case of the claimant is established in the touchstone of

preponderance of probability. When the FIR discloses that the vehicle hit the deceased, while he was riding bicycle and such allegation was supported

by charge sheet submitted by a statutory authority after thorough investigation, with a finding that the driver of the vehicle was responsible for the

accident, in my considered view, liability of the claimant to prove, that accident occurred due to fault of the driver of the offending vehicle stood

discharged. In the above view of the matter, I do not find any force in the submission of the learned counsel for the Insurance Company that the claim

should be rejected only because no eye witness was examined.

So far the question of multiplier is concerned, admittedly the Tribunal took a multiplier on the higher side, which certainly inflated the quantum of the

award. Though cross objection or appeal was not filed, it is evident, that while determining the compensation, learned Tribunal committed error by

taking an income lesser than the actual income, by deducting Rs. 20,000/- being the contribution to GPF, which ought to have been included in net

income of the deceased. If that income of Rs. 20,000/- is added to the income, which the learned Tribunal did not take into consideration, while

passing the award, even by applying multiplier 9, there will be no change in the quantum of compensation granted by the learned Tribunal. Thus,

having considered the facts, that the Tribunal committed an error in assessing the award by taking a lesser income, and the award would have

remained almost same, even with multiplier 9, had the Tribunal taken the actual income, I am not inclined to interfere with the impugned award, even if

no appeal or cross objection is filed. Though, the claimant cannot seek for enhancement of the award in an appeal filed by the Insurance Company for

reduction, claimant certainly can defend the award, made by the Tribunal on other grounds without filing cross objection or appeal (See Ranjana

Prakash Vs. Divisional Manager & Anr. reported in (2011) 14 SCC 639).

It is also submitted by Mr. R.K. Bhatra, learned counsel, that while assessing the award, learned Tribunal granted exorbitant amount towards

conventional heads and also interest on future prospect and urged for reduction of those amounts by awarding appropriate amount towards

conventional heads as per the decision of the Apex Court in National Insurance Co. Ltd. Vs. Pranay Sethi, reported in AIR 2017 SC 5157, learned

counsel for the respondent has not resisted such submission of Mr. Bhatra. Keeping in view the fact that the learned Tribunal granted an exorbitant

amount towards conventional heads and also interest on future prospect, the award is modified to the effect that the amount of future prospect added

to the actual income shall not carry any interest, and the amount towards conventional heads shall be - Rs. 40,000/- for loss of consortium, Rs.

15,000/- for loss of estate and Rs. 15,000/- for funeral expenses. The Tribunal granted an aggregate amount of Rs. 2,30,000/- on the said conventional

heads. Therefore, the award is reduced by (Rs. 2,30,000-70,000/) =1,60,000/-.

With the above modification and reduction in the award, the appeal is partly allowed.

The statutory deposit made by the Insurance Company at the time of preferring the appeal be returned.

The appeal accordingly stands disposed of.

Send back the LCR.