National Insurance Company Limited vs Haliman Nessa & Ors.

[1] Heard Mr. R. Goswami, the learned counsel for the appellant. Also heard Mr. A. Hussain, the learned counsel for the respondent Nos. 1/claimant as well as Mr. M. Khan, the learned counsel for the respondent Nos. 3 and 4.

[2] This appeal under Section 173 of the Motor Vehicles Act, 1988 has been filed by the appellant/National Insurance Company Limited impugning the judgment and award dated 13.06.2018, passed in the MAC Case No. 1054/2015 by the Motor Accident Claims Tribunal No. 1, Kamrup, whereby the appellant/insurance company was directed to pay a compensation amount of Rs. 24,49,500/- along with an interest @ 7 percent per annum from the date of examination of PW-2, i.e., from 21.02.2017 till the payment.

[3] The facts relevant for adjudication of this appeal, in brief, are that the husband/father of the present claimants, namely, Anu Ullah Sk, met with an accident on 15.04.2015, at about 9:30 AM, while he was proceeding towards Lakhimpur on his motor cycle. At that time the Truck bearing Registration No. AS-01/G-5931 which was coming from the same direction knocked him down from the back side. As a result of which he sustained serious injuries on his person and died on the spot. The claimants who are the widow and son of the deceased approached the Motor Accident Claims Tribunal No. 1, Kamrup, by filing an application under Section 166 of the Motor Vehicles Act, 1988 claiming compensation for death of Late Anu Ullah Sk in motor vehicular accident. The said claim case was registered as MAC Case No. 1054/2015.

[4] In the aforesaid MAC Case, the driver and owner of the offending vehicle did not appear and the enquiry proceeded ex-parte against them. However, the present appellant contested the claim of the claimants by filing written statement. On the basis of the pleadings of the parties, the Motor Accident Claims Tribunal framed following issues:-

[5] In support of their claim, the claimants examined the claimant No. 1 as PW-1 as well as one another witness as PW-2 and exhibited certain documents. The insurance company did not adduce any evidence to counter the claim of the claimants. Ultimately, by the judgment and award dated 13.06.2018, passed in MAC Case No. 1054/2015, the Motor Accident Claims Tribunal allowed the claim of the claimants by awarding them a compensation amount of Rs. 24,49,500/-along with an interest @ 7 percent per annum from 21.02.2017. The aforesaid judgment and award has been impugned in this appeal.

[6] Mr. R. Goswami, the learned counsel for the appellant has submitted that in this appeal the main contention of the appellant is that while assessing the age of the deceased, the Tribunal erred in not asking the claimants to produce the best evidence regarding the age of the deceased and accepting the age which is mentioned in the PAN Card as well as the Elector’s Photo Identity Card, wherein the death of birth of the deceased was mentioned as 01.01.1970. He submits that for the purpose of choosing the multiplier while assessing the quantum of compensation, the Tribunal took the multiplier of 13 by taking the age of the deceased within the age group of 46-50 years on the basis of age mentioned in the Elector’s Photo Identity Card and PAN Card, which indicates that he was above the age of 45 years on the date of accident.

[7] The learned counsel for the appellant has submitted that the age of the deceased ascertained by the Tribunal appears to be incorrect when taken in contrast with the age of the present claimants as mentioned in Exhibit-6, which is the next of kin certificate which was issued after 33 days of the date of the death of the husband of the claimant No. 1. He submits that though the age of the deceased was taken to be above 45 years, however, the age of his wife, i.e., claimant No. 1 is stated to be 50 years and age of his elder son is stated to be 32 years, which is not believable and as such, he submits that the age mentioned in the PAN Card and Elector’s Photo Identity appears to be incorrect age.

[8] The learned counsel for the appellant further submits that though the Motor Vehicles Act, 1988 is a beneficial legislation, however, the Motor Accident Claims Tribunal, being trained in law ought to have asked the claimants to produce the best evidence regarding the age of the deceased, which was not done in the instant case. He submits that since the deceased was a Grade-IV employee in the PWD Department of the Government, his service records would have been the best evidence regarding his age at the time of his death. He submits that considering the age of the son of the deceased shown in the next of kin certificate which was exhibited as Exhibit-6, the age of the deceased ought to have been assessed as more than 50 years and not within the age group of 46 years to 50 years as done by the Tribunal. In support of his submissions, the learned counsel for the appellant has cited a ruling of the Apex Court in the case of “The Oriental Insurance Company Limited Vs. Meena Variyal & Ors.” reported in “AIR 2007 SC 1609.”

[9] On the other hand, Mr. A. Hussain, the learned counsel for the claimants/respondents has submitted that the Tribunal has rightly assessed the age of the deceased within the age group of 46-50 years on the basis of evidence on record and has rightly applied the multiplier “13” to assess the loss of dependency of the claimants.

[10] He submits that in a claim case under Section 166 of the Motor Vehicles Act, 1988 the claimants are required to establish their case on the touchstone of preponderance of probabilities. He submits that in the instant case, the Elector’s Photo Identity Card, and PAN Card show his death of birth as 01.01.1970. He further submits that apart from that the post-mortem examination report of the deceased indicates the age of deceased as 48 years. He also submits that even the school certificate which is exhibited as Exhibit-8, the date of birth of the deceased has been shown as 01.01.1970, as such, he submits that the Tribunal has not erred in assessing the age of the deceased within the age group of 46-50 years. He submits that, in view of his submissions, the appeal filed by the appellant/insurance company is liable to be dismissed.

[11] I have considered the submissions made by the learned counsel for both sides and have gone through the materials available on record. I have also gone through the rulings cited by the learned counsel for both sides in support of their respective submissions.

[12] The limited question for determination in this appeal is as to whether the Motor Accident Claims Tribunal has erred in assessing the age of the deceased within the age group of 46-50 years on the basis of materials available before it, or it should have asked for the claimants to produce the service records of the deceased for verifying the age of the deceased.

[13] There is no dispute regarding the legal proposition that in a Motor Accident Claims Case under Section 166 of the Motor Vehicle’s Act, 1988, the claimant is required to prove his case on the touchstone of the preponderance of probabilities. Though this court does not dispute about the power of the Tribunal to ask the claimants to produce specific evidence, if same is available, however, same does not in any manner changes the basic principle of proving the case of the claimants on the touchstone of preponderance of probabilities, in a Motor Accident Claims Case. If sufficient materials are available before the Tribunal to come to a finding on the basis of the touchstone of preponderance of probabilities, it would not be wrong on the part of the Tribunal to follow that path.

[14] In the instant case, apart from the photo ID Card and PAN Card, the school certificate (Exhibit-8) and the post-mortem examination report were considered by the Tribunal to come to the finding that the age of the deceased at the time of his death was in between 46-50 years. No counter-evidence was adduced by the Insurance Company before the Motor Accident Claims Tribunal to suggest a different point of view. Moreover, Exhibit-6, i.e., the next of kin certificate issued by the Circle Officer is mainly for establishing the relationship of the claimants with the deceased. It cannot be considered as a conclusive prove of age of the relatives of the deceased mentioned therein. As such, this court is of the considered opinion that the Motor Accident Claims Tribunal has not erred in assessing the age of the deceased in the age group of 46-50 years on the basis of the materials available before it.

[15] In view of the discussions made and reasons stated in the foregoing paragraphs, this court is of the considered opinion that this appeal lacks merit and does not warrant any interference by this court in this appeal.

[16] Accordingly, this appeal is dismissed.

[17] Send back the records of MAC Case No. 1054/2015 to the concerned Tribunal, along with a copy of this judgment immediately.