AI Structured Summary
Not yet generated for this judgment
Judgment
Heard Mr. A. J. Saikia, leaned counsel for the appellant/Insurance Company and Mr. M. Choudhury, learned Sr. Counsel for the
Respondent/Claimant.
This appeal is filed by the Insurance Company against the judgment and award dated 20.03.2015 passed by the MACT, No. 2, Kamrup, Guwahati
in MAC Case No. 1797/2012.
One Partha Nunisa @ Nanisa died in a motor vehicle accident on 25.06.2011 involving the vehicle bearing registration No. AS-01-AC-9229, owned
by the respondent No. 6 and insured with the appellant, ICICI Lombard General Insurance Co. Ltd. On application made by the legal representative
of the deceased, learned Tribunal by the impugned judgment, awarded a compensation of Rs. 9,42,300/- with interest @ 6% per annum from the date
of filing of the claim petition, which was as follows:
Loss of dependency : Rs. 8,07,300/-
Funeral expenses : Rs. 25,000/-
Consortium : Rs. 1,00,000/-
Loss of estate : Rs. 5,000/-
Transportation of Body
of the deceased : Rs. 5,000/-
Aggrieved by the said award, the Insurance Company preferred the instant appeal.
Learned counsel Mr. A.J. Saikia for the Insurance Company, submits that the claimants have not been able to establish, that the accident took place
due to fault of the alleged offending vehicle, and as such, the claimants were not entitled to compensation in the instant case filed under Section 166 of
the M.V. Act. Further contention of Mr. Saikia is that the deceased left three dependants and as such, deduction towards personal expenses ought to
have been 1/3rd, but learned Tribunal erroneously deducted 1/4th and thereby granted an exorbitant and unjust compensation. It is also contended that
the quantum of award on account of consortium and funeral expenses were exorbitant and not in consonance with the guidelines and principles laid
down by the Apex Court in National Insurance C. Vs. Pranay Sethi reported in AIR 2017 SC 5157. Further contention of the learned counsel is that
the learned Tribunal assumed the income as Rs. 6000/- on higher side without any evidence being adduced by the claimant to prove the income of the
deceased.
Learned Sr. Counsel, Mr. M. Choudhury, while fairly conceding to the contention raised by Mr. Saikia, that deduction towards personal expenses
should have been 1/3rd contends, that the learned Tribunal added only 15% of the income as future prospect, which ought to have been 25% in view
of the age of the deceased being within the age group of 40 to 50 year.
It is no doubt true that in a claim petition under Section 166 M.V. Act, which is governed by common law of tort, the claimant is required to prove
the fault or negligence on the part of the defendant, inasmuch as, according to the scheme of the Motor Vehicle Act, as clarified in Section 141 of the
Act, except the claim under Section 140 and 163-A all other claims are based on the principle of fault liability. The claimant in the instant case
examined one eye witness of the accident as witness No. 2, besides, the claimant himself. The claimant also proved certain documents including the
accident information report, FIR and the charge sheet submitted against the driver of the offending vehicle. The lone eye witness, who was present at
the place of occurrence stated that at the time of occurrence, he was proceeding in a Tata Sumo vehicle from Lanka to Haflong and when they
reached Thaijupang, suddenly a Mahindra Bolero Pickup Van, bearing registration No. AS-01-AC-9229 came from Haflong side, which was driven in
a very high speed knocked down a pedestrian on his left side of the road. The claimant also stated that, his father was proceeding as pedestrian, when
he was knocked by the offending vehicle. The witness No. 2 further stated that the accident occurred in front of his eyes. During cross examination, it
was elicited that the vehicle, he was travelling in, was driven in a normal speed. It is also elicited that there was a curve at the place of accident.
During cross examination, this witness stated that he could not say, as to for whose fault the accident occurred. He also stated that he heard sound
and noticed the accident. Referring to the cross examination of this witness, learned counsel for the Insurance Company submits that this witness
cannot be believed as he did not notice the accident properly.
From the overall evidence of witness No. 2, it appears that though he said to have seen the occurrence from another vehicle, he failed to gave a
detailed account and stated that he noticed the accident after hearing the sound. It is difficult to expect a person, travelling in another vehicle to
observe an accident minutely, which takes place at the spur of the moment, and to narrate the same as to how it happened. One cannot be expected
to know in advance that an accident would take place. An accident naturally attracts the attention when it takes place. The evidence of this witness
that the victim at the time of occurrence was walking on road through left side, which is also finds support from PW-1 appears to have remain
unshaken. Even if PW-2 did not notice minutely as to how the accident occurred or for whose fault, when a pedestrian moving through his left side is
hit by a moving vehicle, the pedestrian cannot be held responsible for such accident, unless there is any specific evidence that he had attempted to kill
himself. Apparently, no such evidence was brought on record. A driver driving a motor vehicle on a public road is under obligation to take proper care
and caution for the safety of the pedestrian or any other using the public road. Failure of the driver to take proper care and attention, itself amounted
to negligence on the part of the driver. In addition to the oral evidence, the claimant also proved Ext.4, charge sheet submitted against the driver of the
offending vehicle, after thorough investigation of the case, wherein it was mentioned, clearly that the offence of rash & negligence driving on the part
of the driver of offending vehicle was clearly established, which led to filing of the charge sheet. The averment in the FIR also supports the version of
the eye witness.
The narration of the accident in the FIR, Ext.2, that the vehicle ran over the deceased and the charge sheet filed by the statutory authority after
thorough investigation of the case, appears to have reinforced the allegation brought by the claimant that the vehicle was driven by the driver in a rash
& negligent manner. It is to be born in mind that in a proceeding before Tribunal under the Motor Vehicle Act, one is not required to prove a fact by
the standard of proof ‘beyond reasonable doubt’. Standard of proof in such proceeding cannot be higher than the preponderance of probability.
Therefore, it is sufficient, if the victim of the accident can establish his case in the touchstone of preponderance of probability. The evidence of the
claimant as well as PW-2 and also the documentary evidence, when examined in the touchstone of preponderance of probability, it clearly establishes
that the accident occurred due to fault or negligence on the part of the driver of the offending vehicle. Therefore, I do not find any reason to hold in
the instant case that the clamant has not been able to discharge their burden of prove that the accident occurred due to fault of the driver of the
offending vehicle.
The claimant No. 2 examining himself on oath deposed, that the deceased was a cultivator by profession and he was earning Rs. 9000/- per
month. During cross examination of this witness, though it was elicited that no income certificate was produced, the testimony of this witness on oath
with regard to occupation of the deceased remained uncontroverted. It is now established by catena of decisions of the Apex Court, that when a
person engaged in an unorganized sector, he cannot be expected to produce any documentary evidence with regard to income. Though, any document
was not produced, the learned Tribunal having taken into consideration the occupation of the deceased and the ground realities assumed the income of
the deceased as Rs. 6000/-. The Apex Court in Sayed Sadiq Vs. Divisional Manager, United India Insurance Co. Ltd. reported in (2014) 2 SCC 735
while considering the income of a vegetable vendor, who did not produce any document with regard to income, assumed the monthly income as Rs.
6500/- and observed that “It is difficult for us to convince ourselves as to how a labour involved in an unorganized sector doing his own business is
expected to produce documents to prove his monthly incomeâ€. The Apex also referring to an earlier decision in Ramchandrappa v. Manager, Royal
Sundaram Alliance Company Limited reported in (2011) 13 SCC 236 held as under:
“13. In the instant case, it is not in dispute that the Appellant was aged about 35 years and was working as a Coolie and was earning Rs. 4500/-
per month at the time of accident. This claim is reduced by the Tribunal to a sum of Rs. 3000/- only on the assumption that wages of the labourer
during the relevant period viz. in the year 2004, was Rs.100/- per day. This assumption in our view has no basis. Before the Tribunal, though
Insurance Company was served, it did not choose to appear before the Court nor did it repudiated the claim of the claimant. Therefore, there was no
reason for the Tribunal to have reduced the claim of the claimant and determined the monthly earning a sum of Rs. 3000/- p.m. Secondly, the
Appellant was working as a Coolie and therefore, we cannot expect him to produce any documentary evidence to substantiate his claim. In the
absence of any other evidence contrary to the claim made by the claimant, in our view, in the facts of the present case, the Tribunal should have
accepted the claim of the claimant.
We hasten to add that in all cases and in all circumstances, the Tribunal need not accept the claim of the claimant in the absence of supporting
material. It depends on the facts of each case. In a given case, if the claim made is so exorbitant or if the claim made is contrary to ground realities,
the Tribunal may not accept the claim and may proceed to determine the possible income by resorting to some guess work, which may include the
ground realities prevailing at the relevant point of time. In the present case, Appellant was working as a Coolie and in and around the date of the
accident, the wage of the labourer was between Rs. 100/- to Rs. 150/- per day or Rs. 4500/- per month. In our view, the claim was honest and
bonafide and, therefore, there was no reason for the Tribunal to have reduced the monthly earning of the Appellant from Rs. 4500/- to Rs. 3000/- per
month. We, therefore, accept his statement that his monthly earning was Rs. 4500/-.â€
What therefore follows from the above ratio is that when a person engaged in an unorganized sector, the Tribunal is required to assess the income
on the basis of the occupation and other ground realities or should accept the claim of the claimant, in absence of contrary evidence, unless the claim
with regard to income is found absurd and unreasonable. In the instant case, the accident occurred in the year 2011. Having considered the point of
time when the accident occurred and the occupation of the deceased, the income assumed by the learned Tribunal as Rs. 6000/- can by no stretch of
imagination be held to be unreasonable or absurd and as such, I do not find any irregularity having been committed by the learned Tribunal by
assuming the income of the deceased as Rs. 6000/- considering all the relevant factors brought on record.
So far deduction of 1/4th towards personal expenses of the deceased is concerned, learned Sr. Counsel, Mr. M. Choudhury while conceding to the
submission of the learned counsel for the Insurance Company, contends that the learned Tribunal committed error while assessing the loss of
dependency by adding only 15% of the income as future prospect, which ought to have been 25% and urged for enhancement of future prospect upto
25% of the income. This contention of Mr. Choudhury is refuted by Mr. Saikia and submits that that in the instant appeal filed by the Insurance
Company for reduction of the claim, there cannot be any enhancement of award in absence of any appeal or cross objection filed by the claimant.
Mr. Choudhury, relying on a decision of the Apex Court in Ranjana Prakash And Ors vs The Divisional Manager And Anr reported in (2011) 14
SCC 639 submits that though the claimant cannot pray for enhancement of the compensation in an appeal filed by the Insurance Company, the
claimant can always defend the award given by the learned Tribunal by pointing in any irregularity or illegality committed by the learned Tribunal while
making the award. The Apex Court in paragraph-6 of the judgment held as under:
We are of the view that High Court committed an error in ignoring the contention of the claimants. It is true that the claimants had not challenged
the award of the Tribunal on the ground that the Tribunal had failed to take note of future prospects and add 30% to the annual income of the
deceased. But the claimants were not aggrieved by Rs.23,134/- being taken as the monthly income. There was therefore no need for them to
challenge the award of the Tribunal. But where in an appeal filed by the owner/insurer, if the High Court proposes to reduce the compensation
awarded by the Tribunal, the claimants can certainly defend the quantum of compensation awarded by the Tribunal, by pointing out other errors or
omissions in the award, which if taken note of, would show that there was no need to reduce the amount awarded as compensation. Therefore, in an
appeal by the owner/insurer, the appellant can certainly put forth a contention that if 30% is to be deducted from the income for whatsoever reason,
30% should also be added towards future prospects, so that the compensation awarded is not reduced. The fact that claimants did not independently
challenge the award will not therefore come in the way of their defending the compensation awarded, on other grounds. It would only mean that in an
appeal by the owner/insurer, the claimants will not be entitled to seek enhancement of the compensation by urging any new ground, in the absence of
any cross-appeal or cross-objections.â€
The learned Tribunal in the instant case, apparently fell in error while adding future prospect, inasmuch as, considering the age of the deceased,
future prospect ought to have been 25%, whereas, learned Tribunal took it only 15%. Even if, it is assumed for the sake of argument that the learned
Tribunal have deducted 1/4th of the income, considering the fact that the Tribunal did not add the future prospect to which, the claimant was entitled, I
am not inclined to interfere with the determination of loss of dependency by the Tribunal, reasons being that had the Tribunal added 25% of the
income as future prospect, to which the claimant was entitled, even after deduction of 1/3rd, the amount would have been more than what the Tribunal
determined as loss of dependency. So far as the award on conventional heads are concerned, Mr. Choudhury, learned Sr. Counsel fairly concedes
that the award on the conventional heads as granted by the learned Tribunal were on higher side. It is agreed by both the sides that the quantum of
such award towards conventional heads on account of loss of consortium, funeral expenses and loss of estate should be Rs. 70,000/- in aggregate.
Thus, reducing the quantum on conventional heads as per the principle in National Insurance Co. Vs. Pranay Sethi (supra), the award is re-assessed
as under:
Loss of dependency : Rs. 8,07,300/-
Funeral expenses : Rs. 15,000/-
Loss of estate : Rs. 15,000/-
Loss of consortium : Rs. 40,000/-
Total Rs. 8,77,300/-
With the above modification/reduction, the appeal filed by the Insurance Company is partly allowed.
The appellant/ICICI Lombard Insurance Co. Ltd. shall satisfy the above award with interest as fixed by the learned Tribunal by depositing the
same with the jurisdictional Tribunal within 6 weeks. Any payment made in the meantime towards satisfaction of the award shall be adjusted. It is
made clear that the future prospect added to the actual income shall not carry any interest.
The Tribunal shall ensure that 40% of the awarded amount with interest be fixed deposited in the name of the wife and daughter of the deceased
for a period of 2 years and 30% in the name of the wife of the deceased for a period of one year in a nationalized bank. Rest of the amount shall be
released to the claimants by A/C payee cheque.
The statutory deposit made by the Insurance Company at the time of preferring the appeal be returned.
Send back the LCR.