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Judgment
,
Heard Mr. N. Deka, learned counsel appearing on behalf of the appellant and Mr. R. Goswami, learned counsel appearing on behalf of the",
respondent no.1. None appears on behalf of the respondent nos.2 and 3.,
This is an appeal arising out of Award dated 19.06.2012 passed by the Additional District & Sessions Judge (FTC) No.2, Member of M.A.C.T.,",
Kamrup at Guwahati in M.A.C. Case No.2135/2018, whereby a sum of Rs.12,92,676/- was adjudged as just and fair compensation to the claimants.",
The instant appeal has been filed challenging the quantum of compensation by the claimants on the ground that the Tribunal below had erroneously,
deducted 50% of the awarded compensation on the ground of contributory negligence and further that the Tribunal did not take into consideration the,
other benefits such as loss of Estate, loss of Consortium and Funeral Expenses in contrary to the judgment of the Constitution Bench of the Supreme",
Court in the case of National Insurance Company Limited vs. Pranay Sethi and Others, reported in (2017) 16 SCC 680.",
The brief facts of the instant case is that on 13.04.2008 Douglas Arthur Phookan (since deceased) on way back to his home from Jorhat to,
Guwahati met with an accident with a truck bearing registration no. WB 73-B-0696 and was killed on the spot. Pursuant thereto, a Raha Police",
Station Case Number was registered in P.S. Case No.27/2008 under Section 279/338/304A/427 IPC. Pursuant to the said death of the deceased the,
claimants who are the legal representatives of the deceased filed an application under Section 166 of the Motor Vehicles Act, 1988 before the Motor",
Accident Claims Tribunal, Kamrup at Guwahati, which was registered and numbered as MAC Case No.2135/2008. In the said claim petition, the age",
of the deceased was mentioned as 57 years; the salary of the deceased for the month of March, 2008 was mentioned at Rs.35,741.43 (Rupees thirty",
five thousand seven hundred forty one and forty three paisa) and an amount of Rs.39,81,000/- was claimed as just and fair compensation.",
The respondent no.1 filed their written statement denying their liability to make payment of compensation. It may however relevant to mention that,
the perusal of the said written statement do not in any manner show or suggests that the plea of contributory negligence was taken by the respondent,
no.1. The driver of the vehicle who is the respondent no.3 herein had also filed his written statement, wherein it was alleged that the accident took",
place on the ground that the deceased was driving his vehicle in a rash and negligent manner and there was no fault on the part of the said driver of,
the offending vehicle which resulted in the accident.,
On the basis of the said pleadings by the parties, two Issues were framed which were â€"",
(1) Whether there was a vehicular accident on 13.04.2008 at about 12:30 a.m. at Phulaguri Pub Salmara on the NH-37 in between the two vehicles,
bearing Registration No. WB 73-B-0696 (Truck) and No. ML-05-A-4329 (Maruti Car) and the deceased Douglas Arthur Phookan died due to the,
injuries sustained in the said accident?,
(2) Whether the claimant is entitled to get any compensation, if yes, to what extent and from whom?",
Pursuant to the said Issues being framed, the claimants’ side adduced the evidence of two witnesses; one was the claimant no.1 i.e. the",
appellant no.1 herein and the other is one Shri Hemanta Boro, the Officer, Personnel & Administration Department, UCO Bank, Zonal Office, Jorhat.",
The claimants had also adduced as many as 10 (ten) documents as Exhibits. From the evidence of the claimants it reveals that the offending truck,
bearing registration no. WB 73-B-0696 was being driven in a rash and negligent manner coming from the opposite direction and hit the vehicle of the,
deceased on the front door of the right side i.e. the driver’s side. Evidence was also adduced that the offending truck which was driven very,
negligently hit the Maruti car of the deceased by crossing over his side and coming to the side of the vehicle of the deceased and consequently as a,
result of the accident, the Maruti car of the deceased bearing registration no. ML-05-A-4329 was badly damaged and the deceased was killed on the",
spot. In that regard the claimants have adduced Exhibit-10 which is a sketch-map prepared by the police showing the sight of the accident and the,
deceased was driving his vehicle on the correct side of the road and it was the offending truck which caused the accident. The claimants had also,
adduced Exhibits-7, 8 & 9 which were the Salary Certificate of the deceased, the Form-16 submitted in favour of the deceased and the Employment",
Certificate of the deceased respectively. These Exhibits-7, 8 & 9 were further proved through the claimants’ witness no.2 Sri Hemanta Boro, who",
was the Officer, Personnel & Administrative Department, UCO Bank, Zonal Office, Jorhat. The opposite parties in the said proceedings including the",
respondent nos.1 and 3 herein did not adduce any evidence.,
The Court below vide a judgment dated 19.06.2012 decided the Issue No.1 in favour of the claimants holding inter alia, that there was an accident",
which took place on 13.04.2008 on 12:30 a.m. between the two vehicles bearing registration nos. WB 73-B-0696 (Truck) and ML-05-A-4329 (Maruti,
Car) and the deceased Douglas Arthur Phookan died due to the injuries sustained in the said accident. However, in doing so on the ground that there",
was a head on collision held that there was a contributory negligence on the part of the drivers of both the vehicles.,
Consequently in deciding the Issue No.2 which pertains to what would be the just and fair compensation held that the claimants would be entitled to,
an amount of Rs.12,92,676/- being the 50% of the total amount of compensation along with interest @6% p.a, from the date of filing of the case in",
payment. In arriving at the said compensation, the Court below adjudged that the loss of total dependency would be Rs.25,73,352/-. On account of",
funeral expenses Rs.2,000/-, on account of loss of Estate Rs.5,000/- and on account of loss of Consortium Rs.5,000/- was awarded. In total, a total",
compensation was to which the claimant was entitled was held to be Rs.25,85,352/- and thereafter taking into consideration that there was a",
contributory negligence the Court below decided that the claimants would be entitled 50% of the said amount. It is against the said Award dated,
19.06.2012 that the claimants as appellants have approached this Court by filing the instant appeal.,
I have heard the learned counsels for the parties at length and have also perused the record including the evidence.,
From a perusal of the claim petition and the written statement so filed it does not appear that the respondent no.1 have alleged contributory,
negligence. There is also no evidence which have been placed on record on the basis of which the respondents have shown that there was,
contributory negligence on the part of the deceased which resulted in the accident. Merely on the ground that there was a head on collision which,
resulted in the death of the deceased, the Court below had come to a finding that there was a contributory negligence. In this regard it may be relevant",
to take note of to establish contributory negligence, some act or omission which materially contributed to the accident or the damage should be",
attributed to the person against whom it is alleged. In the case of Pramodkumar Rasikbhai Jhaveri vs. Karmasey Kunvargi Tak and Others reported in,
(2002) 6 SCC 455, it was held that following a judgment of the High Court of the Australia in the case of Astley vs. Austrust Ltd., reported in (1999)",
73 ALJR 403 that “where by his negligence, one party places another in a situation of danger, which compels that other to act quickly in order to",
extricate himself it does not amount to contributory negligence if that other acts in a way which, with the benefit of hindsight is shown not to have",
been the best way out of the difficultyâ€. Again in another case of Swadling vs. Cooper reported in 1931 AC 1, the House of Lords observed that",
mere failure to avoid collision by taking some extraordinary precaution does not in itself constitute negligence. These two judgments of the High Court,
of Australia as well as the House of Lords have been quoted with approval by the Supreme Court in the case of Pramodkumar Rasikbhai Jhaveri,
(supra) as well as in the recent judgment of the Supreme Court rendered in the case of Smt. K. Anusha and Others vs. Regional Manager, Shriram",
Salary of the deceased,"Rs. 35,741.43
Income Tax,"Rs. 7,691.00
Net Salary,"Rs.28,050.43
15% to be added as per paragraph 59.3 of (2017) 16 SCC
680","Rs. 4,207.56
,"Rs. 32,257.99
1/3rd deducted as personal expenses,"Rs. 10,752.66
Salary for the purpose of calculating the Compensation,"Rs. 21,505.33
Annual Salary,"Rs. 2,58,063.96
Multiplier,9
Compensation on loss of dependency,"Rs.23,22,575.60
Loss of Estate,"Rs. 16,500.00
Loss of Consortium,Rs. 44.000.00
Funeral Expenses,"Rs. 16,500.00
Total Compensation,"Rs.23,99,575.60