National Insurance Co. Ltd. vs Nirama Saikia And 3 Ors

,,

Heard Ms. S. Roy, the learned counsel for the appellant and Mr. Kush Ram Bora, the learned counsel appearing for the respondents/claimants.",,

None appeared on behalf of the respondent Nos. 3 and 4.,,

This appeal is directed against the award dated 19/3/2015 passed in MAC Case No. 642/2013 by the Member, Motor Accident Claims Tribunal,",,

Kamrup, Guwahati whereby an amount of Rs. 36,32,500/-along with interest @ 6% per annum from the date of filing of the claim petition i.e.",,

23/4/2013 till payment was awarded in favor of the respondent Nos. 1, 2 and 3 herein.",,

The brief facts of the instant case is that the claim petition was filed by the respondent Nos. 1, 2 and 3 herein as claimants stating inter ali that on",,

13/03/2013 at around 12 noon one Sunil Saikia (since deceased) was proceeding towards Charing by his Motorcycle bearing Registration No. AS,,

03G/9643 when a Tata Magic vehicle bearing registration No. AS 04/AC- 3604 coming from the same direction in a very rash and negligent manner,,

knocked the deceased from behind besides the house of Sri Boba Phukan at Bahmara Khanikar Gaon. In view of his injuries, the deceased was",,

immediately taken to Sivsagar Civil Hospital but later shifted to Sanjeevini Diagnostic Hospital, Dibrugarh on the same day for better treatment but",,

unfortunately he succumbed to his injuries on 18/3/2013. Pursuant thereto his post mortem was conducted on 18/3/2013 wherein the cause of death,,

was mentioned in the said post mortem report dated 25/3/2013 to be “Death was due to coma following the head injuries sustained. All injuries,,

were antemortem caused by blunt impact and 5 â€"7 days old. Time since death (approx.) : 3 - 6 hrs.â€​,,

Subsequent thereto on 1/4/2013 an FIR was lodged before the Amguri Police station and the said FIR was registered and numbered as Amguri P.S.,,

Case No. 38/2013 under Sections 279/304(A) IPC. On the basis that the deceased had a monthly income of Rs.22,604/- and the expenditure incurred",,

by the claimants towards the treatment of the deceased, a claim petition was filed before the Motor Accident Claims Tribunal, Kamrup at Guwahati.",,

claiming an amount of Rs. 40 lakhs along with interest @12 % per annum from the date of filing of the application till realization. The said claim,,

petition was registered and numbered as MAC Case No.642/2013. The driver as well as the owner of the vehicle bearing registration No. AS-04/AC-,,

3604 were arrayed as the respondent Nos.1 and 2. The appellant herein was arrayed as the respondent No. 3.,,

The respondent Nos. 1 and 2 in the claim proceedings filed a joint written statement stating inter alia that at the time of the alleged accident the said,,

vehicle was driven by the respondent No. 1 who had a valid driving license No. F-18280-SIV-Prof. valid upto 15/2/2014. It was also mentioned that,,

the said vehicle was insured with the respondent No. 3 (the appellant herein) on the date of the alleged incident vide Policy No.,,

25331131126320002691 valid upto the mid night of 3/6/2013 and the other relating documents with the vehicle i.e. the certificate of fitness, road permit",,

were also valid during the time of the alleged accident and as such pleaded that if there is any liability the same has to be satisfied by the respondent,,

No.3/the appellant. There is no denial to the accident in the said written statement. What was denied was that the accident did not occur due to the,,

rash and negligent driving of the driver of the respondent No. 1 but the deceased himself in person due to his contributory negligence.,,

The Appellant as the Respondent No. 3 filed its written statement. It was not denied that the deceased did not meet with an accident with Tata,,

Magic No. AS 04/AC-3604. The specific stand taken by the appellant in paragraph No. 4 of the written statement was that the accident took place,,

due to involvement of two vehicles where the motorcycle No. AS-03/G-9643 collided with Tata Magic No. AS-04/AC-3604. From a perusal of the,,

said paragraph it reveals that the specific stand taken by the appellant before the tribunal below was of contributory negligence.,,

On the basis of the said pleadings two issues were framed which is quoted herein below :,,

“1. Whether deceased, Sunil Saikia, died as a result of the injuries sustained by him in the alleged road accident dated 13.03.2013",,

involving vehicle No. AS-04/AC-3604(Tata Magic) and whether the said accident took place due to rash and negligent driving by the driver,,

of the offending vehicle ?,,

2.Whether the Claimants are entitled to receive any compensation and if yes, to what extent and by whom amongst the opposite parties, the",,

said compensation amount is payable ?â€​,,

The Claimants adduced the evidence of three witnesses. Smt. Nirama Saikia who was the wife of the deceased was the Claimant witness No. 1,,

who apart from adducing evidence also exhibited various documents marked from Exhibit 1 to Exhibit129 . What is relevant to take note of is Exhibit-2,,

and Exhibit 2 (i) is the order sheet of G.R. Case no.517/2013. Exhibit 2 (ii) 2 (iii) and 2 (iv) is the FIR on the basis of which Amguri PS Case No.,,

38/2103 under Section 279/304A of the IPC was registered and Exhibit 2(v) is the charge sheet bearing No. 49/2013 in respect to Amguri PS Case,,

No. 38/2013. Exhibit- 3 is the post mortem report and Exhibit 4 is the medical certificate of the cause of death. Exhibit 5 to Exhibit 125 are the various,,

medical reports, bills and receipts relating to the deceased. Exhibit -126 is the death certificate. The Claimant witness No. 2 was one Shri Ujjal",,

Hazarika who was the eye witness to the accident who stated that he was travelling in the offending vehicle bearing registration no. AS04/AC-3604,,

which hit the motorcycle from behind due to rash and negligent driving of the driver of the offending vehicle. He has also stated in his evidence on,,

affidavit that due to fault of the driver of the offending vehicle the accident occurred. During his cross examination he corroborated to the statement,,

made by him in his evidence on affidavit. The claimant witness No. 3 was one Pran Krishna Borah who was the Postmaster of the Sivasagar Head,,

Office. He exhibited the salary statement i.e Exhibit - 129. The service book of the deceased exhibited as Ext.-132 wherein the date of birth of the,,

deceased was recorded as 10/9/1965. The Respondents in the claim proceedings including the Appellant did not adduce any evidence in support of,,

their case.,,

The learned Tribunal vide an award dated 19/3/2015 awarded an amount of Rs. 36,32,500/- with interest at the rate of 6 percent from the date of",,

filling of the claim petition i.e. 23/4/2013 till payment of compensation. In doing so, the learned Tribunal while deciding the issue No. 1 came to the",,

finding that the deceased Lt. Sunil Saikia died as a result of injuries sustained by him in a road accident dated 13/92013 involving AS04/AC-3604 (Tata,,

Magic) due to the rash and negligent driving of the offending vehicle. While deciding the issue No. 2 as regards to the extent of compensation, the",,

learned Tribunal came to a finding that an amount of Rs. 36,32,500/- was the just and fair compensation.",,

It is against this award dated 19/3/2015, the appellant is before this Court challenging the said award primarily on two grounds. The first ground is",,

that the learned Tribunal did not take into consideration that the late filing of the FIR on 1/4/2013 i.e. after 18 days of the accident and non-exhibiting,,

the charge-sheet creates a doubt as to whether the deceased expired on account of the accident. The second ground of objection is that the quantum,,

which awarded was exorbitant and inflated.,,

Before further proceeding to decide on the question of the legality and validity of the award dated 19/3/2015 it would be relevant to take note of,,

that the Appellant have filed an application under Order XLI Rule 27 of the Code of Civil Procedure, 1908 for adducing additional evidence at the",,

appellate stage. The said application was registered and numbered as I.A (C) No. 391/2021. A perusal of the said application goes to show that the,,

Appellant wishes to make a complete somersault from the stand the Appellant had taken before the Tribunal below. What is now contended as per,,

the said application to produce additional evidence is that the deceased Late Sunil Saikia did not meet with an accident but he fell from his motorcycle,,

near his home due to stroke and there was no involvement of the insured vehicle in the said accident. Now the question therefore, arises as to whether",,

such evidence can be permitted at the Appellate stage which are completely contrary to the pleadings and that too without seeking an amendment to,,

the written statement. It is no longer res integra that there cannot be evidence led beyond the pleadings. As already stated hereinabove, in paragraph 4",,

of the written statement there is a clear cut admission to the effect that the deceased Lt. Sunil Saikia had met with an accident with the insured,,

vehicle and the case pleaded in the written statement was a case pertaining to contributory negligence.,,

On a specific query being made to the learned counsel appearing for the appellant as to whether from Exhibit-11 which is the CT brain and the,,

post mortem report (Ext.-3) can it be said that the deceased had a stroke and consequently died. The counsel for the appellant in spite of an,,

opportunity being given to examine the said issue on 25/11/2021 could not place on record anything which would go to show that the deceased died,,

due to a stroke without any accident. At this stage it may also be relevant to take note of the provisions of Order XLI Rule 27 of the CPC which is,,

quoted herein below :-,,

“27. Production of Additional Evidence in Appellate Court.,,

(1) The parties to an appeal shall not be entitled to produce additional evidence, whether oral or documentary, in the Appellate Court, But",,

if-,,

(a) the Court from whose decree the appeal is preferred has refused to admit evidence which ought to have been admitted, or",,

(aa) the party seeking to produce additional evidence, establishes that notwithstanding the exercise of due diligence, such evidence was not",,

within his knowledge or could not, after the exercise of due diligence, be produced by him at the time when the decree appealed against was",,

passed, or",,

(b) the Appellate Court requires any document to be produced or any witness to be examined to enable it to pronounce judgment, or for any",,

other substantial cause, the Appellate Court may allow such evidence or document to be produced, or witness to be examined.",,

(2) Wherever additional evidence is allowed to be produced by an Appellate Court, the Court shall record the reason for its admission.â€​",,

The general principle is that the Appellate Court should not travel outside the record of the lower court and cannot take any evidence in appeal.,,

However, as an exception, Order XLI Rule 27 CPC enables the Appellate Court to take additional evidence in exceptional circumstances. The",,

Appellate Court may permit additional evidence only and only if the conditions laid down in Order XLI Rule 27 CPC are found to exist. The parties,,

are not entitled, as of right, to the admission of such evidence. Thus, the provisions does not apply, when on the basis of evidence on record, the",,

Appellate Court can pronounce a satisfactory judgment. The matter is entirely within the discretion of the Appellate Court and is to be used sparingly.,,

Such a discretion is only a judicial discretion circumscribed by the limitation specified in the Rule itself.,,

In the judgment of the Supreme Court rendered in the case of Union of India Vs. Ibrahim Uddin & Anr. reported in (2012) 8 SCC 148 at,,

paragraphs 37 to 42, the Supreme Court observes the contours of the powers of the Appellate Court under Order XLI Rule 27 which is quoted herein",,

below :-,,

“37. The Appellate Court should not, ordinarily allow new evidence to be adduced in order to enable a party to raise a new point in appeal.",,

Similarly, where a party on whom the onus of proving a certain point lies fails to discharge the onus, he is not entitled to a fresh opportunity to produce",,

evidence, as the Court can, in such a case, pronounce judgment against him and does not require any additional evidence to enable it to pronounce",,

judgment. (Vide: Haji Mohammed Ishaq Wd. S. K. Mohammed & Ors. v. Mohamed Iqbal and Mohamed Ali and Co.).,,

Under Order XLI , Rule 27 CPC, the appellate Court has the power to allow a document to be produced and a witness to be examined. But the",,

requirement of the said Court must be limited to those cases where it found it necessary to obtain such evidence for enabling it to pronounce judgment.,,

This provision does not entitle the appellate Court to let in fresh evidence at the appellate stage where even without such evidence it can pronounce,,

judgment in a case. It does not entitle the appellate Court to let in fresh evidence only for the purpose of pronouncing judgment in a particular way. In,,

other words, it is only for removing a lacuna in the evidence that the appellate Court is empowered to admit additional evidence. [Vide: Lala",,

Pancham].,,

It is not the business of the Appellate Court to supplement the evidence adduced by one party or the other in the lower Court. Hence, in the",,

absence of satisfactory reasons for the non- production of the evidence in the trial court, additional evidence should not be admitted in appeal as a",,

party guilty of remissness in the lower court is not entitled to the indulgence of being allowed to give further evidence under this rule. So a party who,,

had ample opportunity to produce certain evidence in the lower court but failed to do so or elected not to do so, cannot have it admitted in appeal.",,

(Vide: State of U.P. v. Manbodhan Lal Srivastava, and S. Rajagopal v. C.M. Armugam & Ors.,).",,

The inadvertence of the party or his inability to understand the legal issues involved or the wrong advice of a pleader or the negligence of a pleader,,

or that the party did not realise the importance of a document does not constitute a ""substantial cause"" within the meaning of this rule. The mere fact",,

that certain evidence is important, is not in itself a sufficient ground for admitting that evidence in appeal.",,

The words ""for any other substantial cause"" must be read with the word ""requires"" in the beginning of sentence, so that it is only where, for any",,

other substantial cause, the Appellate Court requires additional evidence, that this rule will apply, e.g., when evidence has been taken by the lower",,

Court so imperfectly that the Appellate Court cannot pass a satisfactory judgment.,,

Whenever the appellate Court admits additional evidence it should record its reasons for doing so. (Sub-rule 2). It is a salutary provision which,,

operates as a check against a too easy reception of evidence at a late stage of litigation and the statement of reasons may inspire confidence and,,

disarm objection. Another reason of this requirement is that, where a further appeal lies from the decision, the record of reasons will be useful and",,

necessary for the Court of further appeal to see, if the discretion under this rule has been properly exercised by the Court below. The omission to",,

record the reasons must, therefore, be treated as a serious defect. But this provision is only directory and not mandatory, if the reception of such",,

evidence can be justified under the rule.â€​,,

From a perusal of the said statement of law quoted hereinabove, it would be apparent that the Appellate Court should not ordinarily allow new",,

evidence to be adduced in order to enable a party to raise a new point in appeal and in the similar manner where a party to whom the onus of proving,,

a certain points lies, fails to discharge the onus he is not entitled to a fresh opportunity to produce evidence, as the Court can, in such a case,",,

pronounce judgment against him and does not require any additional evidence to enable it to pronounce judgment. In the instant case, as already noted",,

herein above the stand of the Appellant was categorical and clear that the deceased met with an accident with the insured offending vehicle. The,,

Appellant did not adduce any evidence before the Tribunal below. Now by way of this application under Order XLI Rule 27 of CPC, the Appellant",,

wishes to bring on record certain evidence which are completely contrary to the case of the Appellant before the Tribunal. Apart from that, it is also",,

relevant to take note of that the written statement filed by the Opposite party Nos. 1 & 2 before the Tribunal, the evidence of the Claimant witness",,

No. 2 who was the eye witness and the FIR and the charge sheet exhibited as Ext. 2 (i) to Exhibit 2 (v) would clearly go to show that the deceased,,

met with an accident on account of the offending insured vehicle having hit the motorcycle of the deceased from the backside due to the rash and,,

negligent driving of the driver of the offending insured vehicle. In that view of the matter, the question of allowing the said application for adducing",,

additional evidence at the Appellate stage does not arise in the facts and circumstances of the instant case.,,

The finding so arrived at as regards Issue No. 1 by the Tribunal below is on the basis of the evidence of the Claimant witness No. 2, the exhibited",,

Ext.-2 (i) to 2 (v) which includes the charge-sheet that the accident took place due to rash and negligent driving by the driver of the offending insured,,

vehicle. The absence of evidence being adduced by the appellant or the other Opposite parties before the Tribunal below would only support the view,,

taken by the Tribunal that it was due to the rash and negligent driving of the driver of the offending insured vehicle (Tata Magic) which led to the,,

accident of the Late Sunil Saikia on 13/3/2013 and subsequently succumbing to the injuries on 18/3/2013 and accordingly it is the opinion of this Court,,

that the issue No. 1 has been rightly adjudicated upon.,,

In the backdrop of the decision rendered in Issue No. 1 this Court now takes the ground of objection as to whether the quantum of the award is,,

exorbitant and inflated. The Service Book of the Late Sunil Saikia was exhibited as Ext-132 wherein his date of birth was recorded as 10/9/1965.,,

Therefore, his age as on the date of his expiry i.e. 18/3/2013 was 47 years 6 months 8 days and his age of superannuation was 60 years and as per the",,

judgment of the Supreme Court rendered in the case of Sarla Verma Vs. Delhi Transport Corporation and Anr. reported in (2009) 6 SCC 121 as the,,

deceased age was between 46 to 50 at the time of his death, the multiplier to be applied is 13. A perusal of the impugned judgment would show that",,

the multiplier 13 was applied. Now the question which further arises as to what was the salary of the deceased. The salary slip exhibited as Ext. 129,,

shows that the gross salary of the deceased was Rs. 22,604/-In the case of Sarla Verma (supra) the Supreme Court held that the actual income of the",,

deceased less income tax should be starting point for calculating the compensation. However, in the case of Vimal Kanwar and Others Vs. Kishore",,

Dan reported in (2013) 7 SCC 476 it was observed that if the annual income comes within the taxable range the income tax is required to be deducted,,

for determination of the actual salary. But while deducting income tax from the salary, it is necessary to notice the nature of the income of the victim.",,

If the victim is receiving income chargeable under the head “salaries†one should keep in mind that under Section 192 (1) of the Income-tax Act,",,

1961 any person responsible for paying any income tax chargeable under the head “salaries†shall at the time of payment, deduct income-tax on",,

estimated income of the employee from “salaries†for that financial year. It was also observed that the presumption will be that the employer at,,

the time of payment of the salary deducted income tax on the estimated income of the deceased employee from the salary and in absence of any,,

evidence the last pay certificate should be accepted as the income of the deceased/victim.,,

From Ext.-129 it reveals that after making necessary deductions the net pay of the deceased was Rs. 16,291/-. The salary slip (Exhibit-129) shows",,

that various deductions were made. The learned counsel for the Appellant has not been able to show that the said deductions would be there even,,

after the death of the Late Sunil Saikia i.e. deductions towards GPF etc. In absence thereof, what can be concluded that the deduction shall not apply",,

and the last drawn salary is to be taken as the income of the deceased i.e. Rs. 22,604/- Therefore, the total annual income for the year would be",,

22,604/- X 12 = 2,71,248/-. The assessment year applicable in the instant case would be 2013-2014(financial year 2012 â€" 2013 and the income tax",,

slab at that relevant point of time was that annual income upto Rs. 1,80,000/ was Nil and the slab from Rs. 1,80,000/- to Rs. 5,00,000/- was 10% of the",,

amount exceeding Rs. 1,80,000/-. In the instant case taking into consideration the above slab, the income tax to be deducted is Rs. 9,124.80 p or say",,

Rs. 9125/--. Therefore, the total income of the victim would be Rs. 2,62,123/- (Rs. 2,71,248/- - Rs. 9124/-= Rs.2,62,123/-.",,

As the deceased was between the age of 40 to 50, an addition of 30% i.e. Rs. 78,636.90 or say Rs. 78,637/- is required to be added on account of",,

future prospects. Accordingly, the total income along with future prospects comes to Rs. 3,40,760/-.",,

Taking into consideration that there were four dependents of the deceased 1/4th of the amount is required to be deducted in terms with paragraph,,

30 of the judgment of the Supreme Court in Sarla Verma (supra) which comes to Rs.85,190/-. Upon deducting the said amount of Rs. 85,190/- from",,

Rs. 3,40,760/-, the amount so arrived at is Rs. 2,55,570/-. Now as already observed above, the multiplier applicable is 13. Therefore, under the head of",,

loss of dependency, the claimants are entitled to Rs. 33,22,410/- (Rs.2,55,570/- X 13 =Rs.33,22,410/-).",,

As this stage, it may be relevant to take into consideration two judgments of the Supreme Court. First is the judgment of the Constitution Bench in",,

the case of National Insurance Co. Ltd Vs. Pranay Sethi (2017) 16 SCC 680 and more particularly paragraph 59 and the sub paragraphs of Paragraph,,

No. 59 which are quoted herein below :-,,

59.1 The two-Judge Bench in Santosh Devi should have been well advised to refer the matter to a larger Bench as it was taking a different view than,,

what has been stated in Sarla Verma, a judgment by a coordinate Bench. It is because a coordinate Bench of the same strength cannot take a",,

contrary view than what has been held by another coordinate Bench.,,

59.2 As Rajesh has not taken note of the decision in Reshma Kumari, which was delivered at earlier point of time, the decision in Rajesh is not a",,

binding precedent.,,

59.3 While determining the income, an addition of 50% of actual salary to the income of the deceased towards future prospects, where the deceased",,

had a permanent job and was below the age of 40 years, should be made. The addition should be 30%, if the age of the deceased was between 40 to",,

50 years. In case the deceased was between the age of 50 to 60 years, the addition should be 15%. Actual salary should be read as actual salary less",,

tax.,,

59.4 In case the deceased was self-employed or on a fixed salary, an addition of 40% of the established income should be the warrant where the",,

deceased was below the age of 40 years. An addition of 25% where the deceased was between the age of 40 to 50 years and 10% where the,,

deceased was between the age of 50 to 60 years should be regarded as the necessary method of computation. The established income means the,,

income minus the tax component.,,

59.5 For determination of the multiplicand, the deduction for personal and living expenses, the tribunals and the courts shall be guided by paragraphs 30",,

to 32 of Sarla Verma which we have reproduced hereinbefore.,,

59.6 The selection of multiplier shall be as indicated in the Table in Sarla Verma read with paragraph 42 of that judgment.,,

59.7 The age of the deceased should be the basis for applying the multiplier.,,

59.8 Reasonable figures on conventional heads, namely, loss of estate, loss of consortium and funeral expenses should be Rs. 15,000/-, Rs. 40,000/-",,

Sl. No.,Head of Compensation,Amount (in Rs.)

1.,Loss of Dependency,"Rs, 33,22,410/-

2.,"Loss of Spousal and Parental Consortium to the Claimants 1,

& 3","2Rs. 44,000/-

Rs. 44,000/-

Rs. 44,000/-

3.,Loss of Estate,"Rs. 16,500/-

4.,Funeral Expenses,"Rs. 16,500/-

5.,Medical Expenses,"Rs. 96,000/-

Total,,"Rs. 35,83,410/-

by the Claimants that there is a necessity that the Claimants require the amount or part thereof.,,

The appeal stands disposed off. No costs.,,