Compensation under the Motor Vehicles Act should not deduct benefits like family pension, which are separate from statutory compensation, and contributory negligence was established based on available evidence.

JUDGEMENT AND ORDER :

SUSMITA PHUKAN KHAUND, J.

1. Heard learned counsel Mr. S. Dutta for the insurer and learned counsel Mr. S. P. Sharma and learned counsel Mr. H. Ali for the Claimants.

2. The claimants Rahima Khatun, Rakibul Hassan and Rashidul Hassan have filed a claim petition registered as MAC Case No. 1831/ 2016. The New India Insurance Company Limited, Sri Pannalal Jain, Sri Misri Lal Ray and Rabiul Hussain were arrayed as respondent nos.1, 2, 3 and 4 respectively. Two appeals have been filed against the Judgment and Order dated 29.03.2022 passed by the learned Member, MACT No.1, Kamrup (M), Guwahati registered as MAC Appeal No. 509/ 2022 preferred by the appellants New India Assurance Company Ltd. against Rahima Khatun, Rakibul Hassan and Rashidul Hassan (hereinafter referred to as the ‘claimants’), whereas the other appeal i.e. MAC Appeal No. 286/ 2022 has been preferred by Rahima Khatun and 2 others against the New India Insurance Company and proforma respondent Rabiul Hussain (who is one of the claimants). Both these appeals will be disposed of by this common judgment.

Argument on behalf of the original claimants.

3. The claimants are aggrieved by the impugned judgment and order as they are aggrieved by the quantum of compensation. It is submitted by the appellants that the award is required to be modified by giving full and final relief to the claimants. The learned Tribunal erred in holding the deceased to be liable for negligence and claimants were awarded only 50% of the compensation owing to contributory negligence by the deceased. The learned Tribunal has erred in holding both the vehicles responsible for the accident solely because of a collision between both the vehicles, in absence of concrete and clinching evidence. The evidence in a case under the Motor Vehicles Act has to be considered liberally and the strict rules of evidence are not required to be adhered to in such cases. A case of this nature can be proved on the touchstone of preponderance of probabilities.

4. It is contended that both the insurance Companies exhibited the GD entry as Exhibit-D, but the same was not substantiated and proved to hold the deceased liable for contributory negligence.

Argument for the Insurance Company:

5. On the contrary, it is averred by the insurance company that the learned member without application of mind assessed the loss of dependency by taking into consideration, the entire pensionary amount of the deceased, which is bad in law. On death of the deceased, his legal heirs will receive family pension which will be much lesser than Rs.22,128/- and the learned Member ought to have assessed the compensation on the basis of net loss incurred by the legal heirs in receiving the family pension. It is further contended that the learned member, mechanically awarded the sum of Rs. 40,000/- towards parental consortium which is contrary to the decision of the Honorable Supreme Court in the case of National Insurance Company Limited vs Pranay Sethi and others reported in 2017 (16) SCC 680 .

6. It is contended by the learned counsel for the Insurance Company that from the evidence adduced by the claimants and the materials brought on record, particularly the Accident Information Report on Form 54 (Exhibit 1), coupled with the certified copies of GD entry nos. 982 and 983 dated 25.03.2016 of Howly P.S., seizure list marked as Exhibit 2, 3 and 4, death summary certificate (Exhibit 5 to 11), post- mortem report of the deceased Sikandar Ali (Exhibit 12), FIR (Exhibit 16) and charge sheet (Exhibit 17), it is amply clear th