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2017 Supreme(Gau) 113
IN THE HIGH COURT OF GAUHATI, ASSAM, NAGALAND, ARUNACHAL PRADESH AND MIZORAM
KALYAN RAI SURANA, J.
Indrani Boruah Bhuiyan – Appellant
Versus
M/s National Insurance Company Limited and others - Respondents
M.A.C. APPEAL NO. 249, 256 of 2010
Decided On : 09-02-2017
For the Appellant : Mr. SC Keyal, Mr. SK Ghosh, Mr. SP Choudhury, Advs.
For the Respondent: Mr. RK Bhatra, Standing Counsel
The main legal point established in the judgment is the application of legal principles from relevant case laws to calculate compensation for loss of income, future prospects, and other conventional heads.
Headnote:
Motor Vehicle Act - Enhancement of compensation - Section 173 of the Motor Vehicle Act, 1988 - Smt. Sarla Verma vs. Delhi Transport Corporation & Another (2009) 6 SCC 121, Rajesh and others vs. Rajbir Singh and others (2013) 9 SCC 54 - The court discussed the evidence of the accident, contributory negligence, loss of income, future prospects, funeral expenses, loss of estate, and loss of consortium. The court applied the legal principles from Smt. Sarla Verma case to calculate future prospects and deductions for personal expenses. The court also referred to the case of Rajesh and others vs. Rajbir Singh and others to determine the entitlement to funeral expenses, loss of estate, and loss of consortium. The court modified the award and directed the respondent to deposit the awarded sum.
Fact of the Case:
The appellant filed an appeal under Section 173 of the Motor Vehicle Act, 1988, seeking enhancement of the award passed by the learned Member, MACT, Biswanath Chariali, Sonitpur, Tezpur in a motor accident case. The accident resulted in the death of the appellant's husband and elder sister.
Finding of the Court:
The court found that the evidence conclusively proved the rash and negligent driving of the offending vehicle, and the contributory negligence deduction was not sustainable. The court also determined the incorrect assessment of the deceased's income and modified the award accordingly.
Issues: The issues included the assessment of contributory negligence, loss of income, future prospects, funeral expenses, loss of estate, and loss of consortium.
Ratio Decidendi: The court applied the legal principles from Smt. Sarla Verma case to calculate future prospects and deductions for personal expenses. The court also referred to the case of Rajesh and others vs. Rajbir Singh and others to determine the entitlement to funeral expenses, loss of estate, and loss of consortium.
Final Decision: MAC Appeal No.249/2010 was allowed with the modification of the award, and MAC Appeal No. 256/2010 was partially allowed with modifications and directions.
1. The appeal i.e. MAC Appeal No. 249/2010 is being analogously taken up along with MAC Appeal No. 256/2010, which has been preferred by the respondent No.1/M/s National Insurance Company Limited of MAC Appeal No.249/2010.
2. Heard Mr. SP Choudhury, learned counsel for the appellant in MAC Appeal No. 249/2010 and Mr. RK Bhatra, learned standing counsel for the respondent No.1/Insurance Company. None appears for the respondent No.2, on call.
3. By filing this appeal under Section 173 of the Motor Vehicle Act, 1988, the appellant/claimant has prayed for enhancement of the award passed by the learned Member, MACT, Biswanath Chariali, Sonitpur, Tezpur in MAC Case No.366/2007 by the judgment and award dated 14.7.2009.
4. Mr. SP Choudhury, learned counsel for the appellant submits that as per the evidence of C.W.1, namely, Indrani Boruah, she stated that on the ill fated day i.e. on 15.9.2007, her husband was travelling from Kalabari to Tezpur driving his Maruti Car bearing Registration No.DL-4C-4177 along with her elder sister, Mira Boruah. While they reached near Patgaon in N.H. No.52 at about 10:00 AM, a Mini Bus bearing Registration No.AS-12-C/2519 coming from the opposite direction in a tremendous speed and in a rash and negligent manner, crossing over the divider of the road from the eastern part of N.F. No.52 collided with the vehicle driven by her husband. As a result of the accident, her husband succumbed to his injuries on the spot while her elder sister succumbed to her injuries at Kanaklata Civil Hospital, Tezpur, later on.
5. The manner of rash and negligent driving, in which the accident was occurred, was also proved by the C.W.2, Nabin Ch. Nath as well as by C.W.3, Raktim Boruah. While C.W.2 was travelling the same road by his bicycle, the C.W.3 was the eye-witness travelling in the offending vehicle which caused the accident. Both of them deposed that the offending vehicle was driven in a very high speed and in a rash and negligent manner and it had hit the car being driven by the husband of C.W.1 after crossing the divider on the road. They stated that the offending vehicle had hit the car on the wrong side and crushed the car in the impact of the accident. Both the said witnesses deposed that the car of the deceased was thrown and dragged on the road for about 15 meters back on the impact of the accident with a big bang. During trial, the Investigating Officer of the connected Tezpur PS. Case No.682/2007 was examined as C.W.4, who deposed to the effect that the offending vehicle was came from the wrong side and he proved the FIR in the case. As per Exht.8, which is the sketch map of the accident site prepared by police, it appears that the offending vehicle had collided with the vehicle driven by the deceased in the wrong side. The claimant also examined C.W.5, Jarina Khatun, who was the Accountant-cum-UDA of the Urban Development Department proved the pay certificate (Exht.1) of the deceased. She verbally deposed that the last pay drawn by the deceased was Rs.30,481/- per month.
6. However, Mr. RK Bhatra, learned counsel for the respondent No.1 submits that there is no document to prove the last pay drawn by the deceased was Rs.30,481/- per month and as per Exht.1, salary drawn by the deceased was Rs.24,332/-. At the time of the accident, the deceased was working as Deputy Director in the Town and County Planning Department, Tezpur.
7. The limited ground urged in MAC Appeal No. 249/2010 by the claimant is that learned Tribunal had not considered future prospects and incorrectly determined contributory negligence of the deceased as 25% although in the present case in hand, the evidence had conclusively proved that the deceased was driving the car in his own lane and the offending vehicle crossing over the divider of the N.H.-52 road and hit the car of the deceased and, as such, deduction of compensa
