AI Structured Summary
Not yet generated for this judgment
Judgment
Heard Mr. S.K. Goswami, learned counsel for the claimant and Mr. A.J. Saikia, learned counsel for the Insurance Co.
Both these appeals being against the judgment and award dated 14/02/2013 passed by MACT No. 2, Kamrup, Guwahati in MAC Case No.
2372/2008, are taken up together for hearing and disposal.
One Manik Ch. Das (since deceased) died in a motor vehicle accident on 27/03/2007 involving the vehicle bearing registration No. AS-01-Y/4019,
owned by the respondent No. 1, Basar Ali and insured with the respondent appellant New India Insurance Co. Ltd. (in MAC App. 152/2013). On
application filed by the legal representatives of the victim praying for compensation, learned tribunal by the impugned judgment, awarded a
compensation of Rs. 10,94,592/- with interest @ 6% per annum from the date of filing of the claim petition. The New India Assurance Co. Ltd.
arrayed as respondent No. 3 in the claim petition was saddled with the responsibility to satisfy the award. That the deceased was 43 years of age and
a Govt. employee and that the accident occurred due to fault of driver of the vehicle bearing registration No. AS-01-Y/4019 were not in dispute.
Aggrieved by the above award, the Insurance Co. filed an appeal being MAC Appeal No. 152/2013 on the sole ground that the driver of the vehicle
did not have valid driving license on the relevant date and as such, the Insurance Co. could not have been saddled with the responsibility to satisfy the
award. The claimant filed MAC App. No. 196 of 2013 for enhancement of the award being unsatisfied with the quantum of compensation granted by
the tribunal.
The contention of the learned counsel for the Insurance Co. is that the offending vehicle was driven by the driver Moinul Hoque, who did not have
valid driving license at the time of accident and in support of such plea examined a witness from the office of the District Transport office, Nalbari and
also proved the relevant register (Ex. A). The claimants in support of the claim proved the accident information report marked as Ex. 1, wherein, in
column 7, it was mentioned that at the relevant time, the driver of the offending vehicle was one Moinul Hoque and he had a professional driving
license valid upto 17/8/2008. The number of the driving license was mentioned as 1276/NB/2005/professional. The driver and owner of the vehicle did
not contest the claim.
When the claimant proved that there was a valid driving license on the date of accident, and the Insurance Co. sought to avoid the liability to satisfy
the award, on the ground of absence of valid driving license and for that matter, violation of the condition of the policy, the burden certainly lies with
the Insurance Co. to prove its plea. The Ex. 1, accident information report shows that the driver of the vehicle had a valid driving license. The witness
examined by the Insurance Co. proved the driving license register stating that the driving license No. AS-01Y/4019 stood in the name of one Ramen
Kalita and the relevant entry in the register was proved as Ex. A. During cross-examination the said witness, employee of the District Transport
Officer (DW 1) stated that for professional and non-professional driving license, separate registers were maintained. He further deposed that the
register containing Ex. A entry was the register for private lincense. He however deposed that the driving license recorded in Ex. A was initially
issued in 2001.
Later on it was again recorded in 2005. Though initially he stated that the Ex. A was not the register for the professional driving license and there was
separate register maintained for professional license, which was not produced in the court, after cross examination, this witness was again re-
examined and he then stated that Ex. A entry relates to professional driving license. He, however, admitted in cross examination that the word
professional was not mentioned in Ex. A register. He also stated that he had no idea whether the Ex. A driving license was renewed or not. Though
the DW 1 stated that the concerned driving license was professional driving license, it appears from his testimony that separate registers for different
category of driving license i.e. for professional and non-professional driving license were maintained and he did not bring the register of professional
driving license.
The driving license mentioned in Ex. 1, was apparently the professional driving license. Therefore in absence of proving of the relevant register
maintained in the office of the District Transport Officer for issuing professional driving license, it is difficult to hold that the entry made in Ex. A, in
fact, related to the driving license mentioned in Ex. 1, the accident information report. No endeavour was made by the insurance co. to produce the
relevant register maintained for professional driving license. This being the position, from the above evidence, it cannot be held with certainty, that the
driving license which was stated to be valid in the accident information report was not valid or was a fake one. In the above facts and circumstances,
I am constraint to hold that the Insurance Co. has failed to discharge its burden to prove that the driving license mentioned in Ex. 1, accident
information report, was a fake driving license. Thus the plea raised by the Insurance Co. that the driver did not have the valid driving license or the
driving license was a fake one, appears to have fallen flat. The sole ground, taken by the Insurance Co. in its appeal having remained unsubstantiated,
the appeal filed by the Insurance Co. appears to be without merit and deserves to be dismissed.
The claimant urged for enhancement of the compensation on the following grounds :-
(i) contribution of the income of the deceased to the family
(ii) the award on account of consortium, funeral expenses and loss of estate were inadequate and insufficient.
Admittedly the deceased in the instant case was a Govt. employee working as an Asstt. Sub Inspector of Police and in support of the income of the
deceased, the salary certificate issued by the competent authority was duly proved and marked as Ex. 3, which is not in dispute. The pay structure of
the deceased as per Ex. 3 (5) was as under :-
D/P =5080/-
D/P = 2540/-
D/P =2210/-
C/A =254/-
R/A =200/-
N/A =350/-
R/A = 90/-
City = 65/-
Cly= 40/-
H/R=
Spl.=
Deduction
G.I.S. = 30/-
G.P.F. = 2000/-
P/Tax =208/-
-------------------------
2238/-
-------------
Gross = 10829/-
Loss = 2238/-
Net Total = 8591/-
From the above salary slip, it appears that the gross pay of the deceased was Rs. 10,829/- and there was deduction of Rs. 2238/- on account of
GPF, GIS and professional tax. While determining the loss of dependency and contribution to the family, from the income of the deceased, learned
tribunal took the “take home pay†or net pay of Rs. 8,591/- after deducting the amount of GPF, GIS and professional tax.
The contention of the learned counsel for the appellant is that except statutory deduction of the professional tax, no other amount, more particularly,
the contribution towards GPF and GIS ought not to have been deducted from the net income, as the deduction towards GPF and GIS were not, in fact,
reduction of income. The deductions towards GPF and GIS are made under the welfare scheme for the employee, which are rather, savings of the
employee to be paid on retirement or death of the employee. Such amounts would ultimately go to the employee or to his legal heirs, and as such, the
amount deducted on account of GPF and GIS could not be considered as statutory deduction from the salary. The contention of the learned counsel
appears to be preponderous, reason being that the contribution to GPF or GIS are in fact savings of the employee and therefore, such amount should
be included in the net income of the deceased. Learned tribunal, in my considered view, fell in error, while taking only the “take home pay†for
determining loss of dependency, without taking into consideration the amount deducted towards GPF and GIS. Therefore, the net income of the
deceased in the instant case ought to have been taken as Rs. 10,829/--Rs. 208= 10,621/-.
Evidently there was no dispute with regard to the age of the deceased being 43 years at the relevant time. Learned tribunal did not add any
amount towards future prospects, which the claimants were entitled. In view of the age of the deceased, an amount equal to 30% needs to be added
to the actual income of the deceased as future prospects. The quantum of award made on account of funeral expenses, loss of estate and consortium
are also required to be enhanced in view of the guidelines laid down by the Apex Court in National Insurance Co. Ltd. â€"VS- Pronoy Setty and Ors.
reported in (2017) 14 SCC 663.
Thus taking the net income of the deceased as 10,621/- adding 30% thereto, deducting 1/3 towards personal expenses of the deceased and
applying undisputed multiplier 14 as per the age of the deceased, the enhanced compensation, to which the claimants shall be entitled in the instant
case is assessed as under : -
Funeral Expenses = Rs. 15,000/-
Loss of Estate = Rs 15,000/-
Loss of consortium = Rs.40,000/-
-------------------
Total Rs.16,16,440/-
The New India Assurance Co. being the insurer of the offending vehicle, shall satisfy the award of Rs. 16,16,440/- with interest fixed by the
learned tribunal from the date of filing of the claim petition by depositing the same with the tribunal within six weeks. It is made clear that the quantum
of future prospects shall not carry any interest. The tribunal shall ensure that 40% of the awarded amount including interest be fixed deposited in a
nationalized bank in the name of the minors till they attain majority. 20 % shall be fixed deposited in the name of the wife of the deceased in a
nationalized bank for a period of 2 years and 10% be fixed deposited in the name of the wife of the deceased in a nationalized bank for a period of six
months. Rest of the amount be released in favour of the wife of the deceased by account payee cheque.
The statutory deposit made by the Insurance Co. at the time of filing of the appeal be returned. Accordingly the appeal of the Insurance Co. is
dismissed and the appeal filed by the claimants is allowed.
Send back the LCR.