THE ORIENTAL INSURANCE CO. LTD. vs TORU SAIKIA AND ORS

1)Heard Mr. S. K. Goswami, learned counsel for the appellant. Also heard Mr. K. R. Bora, learned counsel for the respondents No.1 and 2.

2) The name of respondent No.3 has been striked out by order dated 12.01.2018. None appears on call for the respondent No.4.

3) By this appeal under section 173 of the Motor Vehicles Act, the appellant has challenged the judgment and award dated 14.06.2011 passed by the

learned Member, MACT, Kamrup, Guwahati in MAC Case No.731/06, thereby awarding a compensation of Rs.12,29,000/- in favor of the respondent

Nos. 1 and 2, to be paid along with the interest at 6% per annum from the date of filing of the claim petition till payment.

4) In the claim petition it was projected that Late Kiran Saikia, the husband of the respondent No.1, who was employed as Technician/ mason in IIT,

Guwahati was riding his motorcycle on 09.02.2006 from Kamalpur towards IIT and at about 6:30 p.m. at NH-31, Changsari, his motorcycle bearing

registration No.AS-01/T-0923 was hit from back side by a Tata Spacio vehicle bearing registration No.AS-01-V-2342, which being driven by the

respondent No.4 in a rash and negligent manner and in a very high speed. As a result of the accident, the deceased had sustained grievous injuries and

died on the way to hospital. The respondents No.1, 2 and 3/ claimants had prayed for compensation of Rs.20,00,000/-

5) The appellant had contested the claim case by filing its written statement, denying the claim as excessive and without any basis and denied the

liability. The respondents No.1, 2 and 3/ claimants were put to strict proof to their claim.

6) On the basis of the pleading the following issues were framed by the learned Tribunal:-

(i)Â Whether on 09.02.06 at about 6:30 PM at 31 National Highway, Changsari PS Kamalpur, Guwahati, Dist. Kamrup, Assam the deceased, Late

Kiran Saikia, had died in a Motor Vehicle Accident due to rash and negligent driving of the vehicle bearing Registration No. AS/01-V-2342 (Tata

Spacio) by driver of the said vehicle?

(ii) Whether the claimants are entitled to get any compensation? If so, from whom and to what extent?

7) The respondents No.1, 2 and 3/ claimants examined 2 (two) witnesses including the respondent No.1 (PW-1) and one Prakash Hazarika (PW-2).

In respect of issue No.1, the learned Tribunal had held that the offending vehicle hit the deceased in a rash and negligent manner coming from the

opposite direction and the death of the victim was proved on the basis of the Accident Information Report (Ext.1), Post Mortem Report (Ext.2),

Certified copy of the FIR (Ext.3), and Certified copy of the Charge sheet (Ext.4). Taking note of the absence of rebuttal evidence from the appellant,

it was held that the accident took place solely due to rash and negligent driving of the offending vehicle. Hence, the issue No.1 was decided in favor of

appellant.

8) In respect of issue No.2, by taking note of the HSLC Admit Card (Ext.7) and the Salary Slip (Ext.6), the gross salary of the deceased was taken to

be Rs.7,209/-, and the learned Tribunal had held that the net income of the deceased stood at Rs.6,350/-.

9) The learned counsel for the appellant by relying on the case of United India Insurance Co. Ltd. Vs. H. Lalhmingliana & Anr., 2006 (2) GLT 538,

has submitted that this Court had held, inter-alia, that proof of negligence is a condition precedent for grant of compensation in a case a claim was filed

under section 166 of the Motor Vehicles Act, 1988. It is submitted that in the present case although 2 witnesses were examined by the respondents

No.1 and 2, but no eye witness was examined to prove that the offending vehicle was being driven in a rash and negligent manner. It is further

submitted that the original plea of the respondents No.1, 2 and 3 (claimants) was that the offending vehicle (Tata Spacio) had hit the motorcycle being

driven by the deceased from behind and he died on spot. However, it was from the contents of the FIR dated 10.02.2006 (Ext.3) and charge- sheet

No. 04/07 dated 30.01.2007 in connection with Kamalpur P.S. Case No. 38/2006, that it was revealed that the accident was a head-on collusion. In

this regard, the learned Counsel for the appellant has placed reliance on the case of case of Bijoy Kumar Dugar Vs. Bidyadhar Dutta & Ors., (2006)

3 SCC 242, wherein the Hon’ble Supreme Court of India had held that in case of head-on collusion, some amount of contributory negligence must

be attributed to both the vehicles, which may not necessarily be in the ratio of 50: 50.

10) Thus, the point of determination which arises in this appeal are â€

(i) Whether the proof of negligence against the offending vehicle is a sine qua non for deciding claim under Section 166 of the Motor Vehicles Act?

(ii) Whether the deceased can be said to have contributed to the accident on 09.02.2006, leading to the death of the deceased?

(iii) Whether the award passed by the learned tribunal in this case warrants any interference?

11) On the point of determination No. (i), it is seen that the respondent No.1, the wife of the deceased had appeared as PW-1. Although she had

deposed in her evidence- on-affidavit that the offending vehicle was driven in a rash and negligent manner and had hit the motor-cycle driven by the

deceased, but in her cross examination, she had admitted that she did not see the accident. However, PW-1 had emphatically denied a suggestion that

her husband was responsible for the accident. Therefore, in the opinion of this Court, in the present case in hand, the principles of res ipsa loquitor

would apply because in this case, the accident speaks for itself. This court is of the view that at the relevant time when the news of death of a sole

earning member of the family reaches the helpless widow, who has to now look after her aged mother-in â€" law and her minor son, must take care

of immediate requirements of the family and to arrange for funeral and performance of other religious last rites and shradh ceremonies, and it would

be impossible to envisage that at such a stage, the wife of the ceased would venture out to search for an eye witness to make out a foundation for

making claim before the Motor Accident Claims Tribunal. From the nature of cross examination by the appellant, it appears that the accidental death

of the deceased in road accident on 09.02.2006 is not at all disputed. The driver of the offending vehicle did not contest the claim and did not come

forward to give his evidence. Hence, the learned tribunal appears to have rightly held that the offending vehicle was being driven in a rash and

negligent manner. No contradictory materials are available on record to upset the said finding. Hence, while following the ratio laid down in the case

of H. Lalhmingliana (supra), it is held that in the present case, the respondent No.1 (PW-1) had made a statement in her evidence-on â€" affidavit that

the offending vehicle was being driven in a rash and negligent manner, in motor accident cases, when it is not possible for a claimant to search and

find out any eye witness, the principles of res ipsa loquitor would apply and it would be the onus of the driver of the offending vehicle and/or the

insurer of the offending vehicle, i.e. the appellant in this case, to give evidence of rebuttal. The point of determination No.(i) is answered accordingly.

12) On the point of determination No. (ii), it is seen from the record that the appellant did not give any rebuttal evidence to prove contributory

negligence on part of the deceased. Therefore, there is nothing on record to show that the deceased was guilty of contributory negligence. However,

the Hon’ble Supreme Court in the case of Bijoy Kumar Dugar (supra) had held that in the cases of head-on collusion, the drivers of both the

vehicles involved in the accident are guilty of contributory negligence. Hence, bound by the said ratio, the deceased is held to have contributed to the

accident. However, in the absence of any evidence to show that the deceased was actually negligently driving his motor-cycle, the ratio of his

contribution to the accident is assessed at 25% only. The point of determination No. (ii) is answered accordingly.

13) In connection with the point of determination No. (iii), it is seen that the learned tribunal had incorrectly appreciated the contents of the salary slip.

As per the pay slip, the total salary of the deceased was Rs.7,209/-. Out of such salary, the learned tribunal had considered the deductions of Rs.859/-

. On a perusal of the salary slip, it is seen that the items liable for deduction are â€" (i) Licence Fees - Rs.293/-, (ii) Professional tax â€" Rs.110/-, and

(iii) IITGNTEA â€" Rs.5/-, which comes to Rs.408/- only. Therefore, the net salary for the purpose of computing compensation would be Rs.6,800/-

(i.e. Rs.7209/- - Rs.408/- rounded up by deducting Re.1/-). In terms of the ratio laid down in the Delhi Transport Corporation Vs. Sarla Verma, (2009)

6 SCC 121, as upheld in the case of National Insurance Co. Ltd. Vs. Pranay Sethi, (2017) 16 SCC 680, as the deceased was having a permanent job,

for determining future prospects, enhancement would be by 50% of the salary of the deceased, which would be Rs.3,400/-. As the deceased had left

behind 3 dependants, i.e. his wife, minor son and mother, the deceased would have spent 1/3rd of the income towards personal living expenses, which

would be Rs.3,400/-. The deceased was 33 years of age when he had died, as such the applicable multiplier would be 16 as per the case of Sarla

Verma (supra). Thus, the multiplicand would be Rs.6,800/-, and total loss of dependency would be Rs.13,05,600/- (Rs.6,800/- X 12 X 16). As stated

above, following the ratio as laid down in the case of Bijoy Kumar Dugar Vs. Bidyadhar Dutta & Ors., (2006) 3 SCC 242, contributory negligence on

account of the deceased, who suffered head-on collusion with the offending vehicle is assessed at 25%, which comes to Rs.3,26,400/-. Moreover, as

per the ratio laid down in the case of Pranay Sethi (supra), compensation on account of Loss of Estate, Loss of consortium and funeral expenses

would be Rs.70,000/- (i.e. Rs.15,000/- + Rs.40,000/- and Rs.15,000/- respectively). The point of determination No. (iii) is answered accordingly.

14) Thus, the re-assessed compensation would be as under â€"    Â

(i)Â Â Salary: (Rs.7209/- less: admissible deductions - Rs.408/-) = Rs. 6,800/-

(ii)Â Â Add: Future prospects (50% salary = Rs. 3,400/-

(iii)Â Total of (i) + (ii) Rs.10,200/-

(iv) Less: Personal living expenses (1/3rd of income) Rs. 3,400/-   Â

(v)Â Monthly loss of dependency of multiplicand (iii) + (iv) Rs. 6,800/-

(vi) Total loss of dependency: (multiplicand X 12 X multiplier)Â i.e. (Rs.6,800/- X 12 X 16)Â Rs.13,05,600/-

(vii) Less: deduction made towards contributory negligence (25%) Rs. 3,26,400/-

(viii) Total (vi) â€" (vii) Rs. 9,79,200/-

(ix) Add: Loss of Estate [as per Pranay Sethi (supra)]:Â Rs. 15,000/-

(x)Â Loss of consortium [as per Pranay Sethi (supra)]:Â Rs. 40,000/-

(xi) Funeral expenses [as per Pranay Sethi (supra)]:Â Rs. 15,000/-

 ____________________________________________________________Â

Total: Rs.10,49,200/-

____________________________________________________________ (Rupees Ten lakh forty nine thousand two hundred only).

15) In view of the discussions above, this appeal partly succeeds. Resultantly, the judgment and award dated 14.06.2011 passed by the learned

Member, MACT, Kamrup, Guwahati in MAC Case No.731/06, stands partly interfered with, and the award of Rs.12,29,000/- as allowed by the

learned Tribunal stands scaled down to Rs.10,49,200/-. The insurer shall be entitled to adjustment of payments made under no fault liability or any

other payment made towards part satisfaction of the award. As directed by the learned Tribunal, the modified award of Rs.10,49,200/- shall continue

to carry interest @ 6% p.a. from the date of filing of the claim petition i.e. from 21.03.2006 till realization. It is provided that out of the awarded sum, a

sum of Rs.6,00,000/- shall be kept in 12 (twelve) fixed deposit accounts of Rs.50,000/- each in the name of the respondent No.1, namely Smt. Toru

Saikia for a period of 5 (five) years. A further sum of Rs.2,00,000/- shall be kept in 5 (five) fixed deposit account of Rs.40,000/- each in the name of

respondent No.2, namely, Tralukya Saikia having different maturity dates ranging between 2 to 5 years. The balance award and interest may be

released to the respondent No.1 by the Registry of this Court on being satisfied as to her identity.

16) Let the LCR be returned forthwith.