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2012 Supreme(Gau) 703
IN THE HIGH COURT OF GAUHATI (AGARTALA BENCH)
Subhasis Talapatra, J.
Laxmi Rani Biswas – Appellants
Vs.
Nani Gopal Banik – Respondent
MAC App. No. 72 of 2000
Decided On: 06.06.2012
For Appellant/Petitioner/Plaintiff:Mr. S.K. Datta, Advocate
For Respondents/Defendant:Mr. P. Gautam, Advocate
The main legal point established in the judgment is the application of principles for calculating compensation for loss of dependency and the liability of the insurer to pay the compensation.
Headnote:
Motor Vehicles Act - Motor Accident Claims - Section 173, Section 166, Section 53 - The judgment discusses the claim filed under Section 166 of the MV Act read with Section 53 of the Motor Vehicles (Amendment) Act, 1994. It also refers to the principles outlined in Sarala Verma & other vs. Delhi Transport Corporation & another regarding the calculation of compensation for loss of dependency.
Fact of the Case:
The appeal is filed against the judgment and award passed by the Motor Accident Claims Tribunal in a case where the deceased, a police constable, died in a motor vehicle accident. The claimants, the widow and mother of the deceased, sought compensation for the death of the sole breadwinner of the family.
Finding of the Court:
The court re-examined the mode of calculation of the compensation and enhanced the amount to Rs. 4,95,000 with interest at 9% per annum. The entire amount of the compensation has to be paid by the respondent No. 2.
Issues: The issues revolved around the calculation of compensation for loss of dependency and the liability of the insurer.
Ratio Decidendi: The court applied the principles outlined in Sarala Verma & other vs. Delhi Transport Corporation & another to calculate the compensation for loss of dependency. It also emphasized the liability of the insurer to pay the compensation.
Final Decision: The appeal is allowed to the extent indicated above. The entire amount of the compensation has to be paid by the respondent No. 2.
Subhasis Talapatra, J.
1. This appeal filed under Section 173 of the Motor Vehicles Act, 1988 is directed against the judgment and award dated 20.12.1999 as passed by the learned Motor Accident Claims Tribunal, West Tripura, Agartala in T.S. (MAC) No. 249 of 1995 whereby the appellants had awarded a sum of 2 MAC App. No. 72 of 2000 Page 2 of 6 Rs. 2,00,000/- along with interest @ 12% per annum w.e.f. 08.08.1995, the date of filing of the claim petition. In the fateful event, on 16.09.1994 at about 12.30 p.m. at Baramura, Dinesh Ch. Biswas aged about 35 years met an accident from the use of a motor vehicle bearing registration No. TR-01-2561 (Commander Jeep) and succumbed to the injuries on the same day.
2. The claimants who filed the petition under Section 166 of the MV Act read with Section 53 of the Motor Vehicles (Amendment) Act, 1994 are the widow and the mother of the deceased. The deceased was a police constable and at the time of accident he was drawing salary of Rs. 2,500/- per month.
3. From the records, it transpires that when the said commander jeep bearing No. TR-01-2561 were proceeding towards No. 10 ONGC Drill Site, the deceased and other constables who were deputed in the escort duty was requested the driver of the vehicle Not to drive with high speed. But the driver of the said vehicle did not obey their instruction and plied the same with extreme speed and negligently keeping the rear escort party much behind them. As a result, a group of extremists got opportunity to strike at them by showering bullets endlessly. Consequence of that the deceased along with other constables died inside the vehicle on the spot and when their body was brought to the IGM Hospital, Agartala, they were declared dead and thereafter post-mortem examination was conducted.
4. The claimants, the appellants herein stated that the accident could take place for the high speed and negligence arising out of use of the said vehicle and as such they are entitled to get compensation to the extent of Rs. 11,40,000/- for the death of the deceased who was the sole bread winner of the family.
5. The respondent No. 1, the owner of the vehicle filed the written statement and stated that his vehicle was insured with the Oriental Insurance Co. Ltd., Divisional Office at Central Road, Agartala. Even the claimants in their claim petition at Column No. 16 described the name and address of the insurer of the vehicle as the Oriental Insurance Co. Ltd., Divisional Office at Central Road, Agartala, District West Tripura and made the said insurer the Opposite Party No. 2 in the proceeding. The said insurer also appeared in the Tribunal and filed the written objection wherein they have not denied that the vehicle was not insured with them. On the contrary, they avoided a reply to the said Column No. 16 of the claim petition as filed by the appellants herein. In Para-20 of the said written objection, the respondent No. 2 has stated "The opposite party submits that due observance and fulfillment of the terms, condition and endorsement of the policy in so far as it relates to anything to be seen or complied with by the insured and the truth of the statement and answers in proposal are the conditions precedent to any liability of the company to make any payment under the policy." But No. where in the entire written objection it is denied that the insurance policy as indicated in the claim petition has not been issued by the said insurer, the respondent No. 2.
6. The claimants, the appellants herein, adduced one witness i.e. the Appellant No. 1, namely, Smti. Laxmi Rani Biswas who stated that her husband was a police constable and on 16.09.1994 at around 12.30 p.m. when he was deputed in an escort party he was going in a jeep with another jeep of the escort party towards No. 10 ONGC Drilling Site along the Assam-Agartala Road. The driver of the vehicle was driving at an excessive speed and it moved alone without any protection. A group of extremists opened fire at
