AI Structured Summary
Not yet generated for this judgment
Judgment
The instant appeal under 173 of the Motor Vehicles Act, 1988 has been preferred by the Oriental Insurance Company against the judgment and order 22.11.2019 passed by the learned MACT No.1 Kamrupp in MAC Case 2144/2015.
Heard learned counsel Mr. S.K. Goswami for the appellant/Insurance Company. Also heard Mr. D.K. Kalita, learned counsel for the respondent nos.1 and 2.
The brief fact of the case is that the respondent nos. 1 and 2 had filed MAC Case No.2144/2015 as claimants before the MACT No.1, Kamrup Guwahati claiming compensation for the death of Late Naba Krishna Mahanta in a motor vehicle accident on 22.05.2015 at Amguri on NH 37 under the Jaklabanda Police station in the district of Nagaon, Assam. After hearing the parties, the learned Tribunal passed the impugned judgment and award on 22.11.2019 directing the present appellant company to pay the awarded amount of Rs. 45,00,160 with interest @ 7% per annum from the date of filing the claim petition.
After the judgment and award was passed on 22.11.2019, a Review petition No.5971/2019 was filed on behalf of the claimants under section 152 of the CPC for correction of the award on the point of future prospect which should have been 30% instead of 15%. Moreover, there was an error in paragraph 19 of the judgment as the age of the deceased was mentioned as 50 years 2 months and 21 days which should have been 46 years 4 months and 24 days. Therefore in Review the percentage to be added towards future prospects was enhanced to 30% as the deceased was between 40 to 50 years at the time of his death. Accordingly, the awarded compensation amount was modified to Rs.49,61,688/- instead of Rs.45,00,160/- and the same was corrected in the judgment.
Being aggrieved, the appellant Insurance company has preferred this appeal on the following grounds:-
As per the evidence on record, the deceased was driving a Maruti Alto Car at the time of the accident bearing registration No.AS-03/H-8076 and there was a head on collision with another truck bearing registration No.AS-08/CC-3071 which was insured with the appellant company but the claimants did not implead the driver or owner of the Alto Car nor the insurer of the Alto Car as party respondent in the claim petition.
That even though the FIR showed that there was a head on collision between the Maruti Alto and the truck, the Tribunal did not consider the contributory negligence of the deceased while assessing the compensation.
Though it is admitted that the deceased was a Government servant working as Forester Grade-I, drawing a salary of Rs.31,388/- per month, the Tribunal did not consider any deduction under the head of income tax. Before the learned Tribunal the income tax certificate was exhibited as Exhibit 423 wherein it is shown that a sum of Rs.3393/- is deducted at source as income tax. However, this certificate was not taken into consideration by the learned Tribunal.
The law is well settled principle that no interest should be awarded under the head of future prospect. But the learned Tribunal has awarded interest on the total awarded amount without considering this settled principle.
Learned counsel Mr. S.K. Goswami for the appellant has relied on the following authorities:-
National Insurance Company Limited vs Pranay Sethi (2017) 16 SCC 680
R.D.Hattanjadi vs M/S Pest Control (India) Private Limited and others, (1995) 1 SCC 551
Bijoy Kumar Gudar vs Bidyadhar Dutta and Ors, (2006) 3 SCC 242
United India Insurance Company Limited vs H.Lalhmingliana, (2006) 2 GLT 538
Kamlesh and others vs Attar Singh and others, (2015) SCC 364.
In view of the submissions made above and the authorities relied upon, learned counsel prays that the impugned judgment and award may be interfered with by this Court and some deduction be made towards contributory negligence as it was not the truck alone which was at fault and the FIR had proved that there was head on collision between the truck and the Maruti Alto. Learned counsel also prays that the income tax which was deducted at source should be also deducted from the awarded amount. And further, there should be no interest on the future prospect.
The learned counsel for the respondent claimants on the other hand submits that the oral evidence has clearly proved that it was the truck bearing registration No.AS-01-CC-3071 insured with the appellant company which was at fault and not the Maruti Alto. Referring to the evidence on affidavit of the PW-1, learned counsel states that it is clearly reflected at paragraph 2 that the accident occurred due to rash and negligent driving of the driver of the truck. There was no fault on the part of the Maruti Alto as the Maruti was driving on its own side at a normal speed. However, the truck came on the wrong side with high speed and hit the Maruti Alto on the ‘rear right side’ and as a result the Maruti Alto was badly damaged and all the occupants of the Maruti Alto sustained injuries including the PW-1. Learned counsel submits that PW-1 was in the car at the time of the accident and she is the eye witness. Even in her cross-examination, the deposition of PW-1 could not be rebutted by the appellant Insurance Company as she reiterated that the offending truck hit the door of the driver of the Maruti Alto. It is therefore submitted that the evidence has proved that accident was not a head on collision but the Maruti Alto was hit on the rear right side by the truck. The appellant company also examined the investigator as DW-1. However, in his cross-examination he deposed that he had not seen the accident. Learned counsel further submits that the FIR was lodged against the offending truck only and the charge-sheet has also been submitted against the driver of the offending truck.
It is therefore submitted that the offending truck bearing registration No.AS-08/CC-3071 was the only vehicle which was at fault. In such circumstances, no contributory negligence could be attributed to the claimants/respondents. Moreover, the appellant company did not contend before the Tribunal that there was contributory negligence on the part of the deceased and there was no mention about the same even in the written statement.
Learned counsel however has fairly admitted that the Tribunal failed to deduct the income tax from the total annual income.
Learned counsel relies on the following cases in support of his submissions:-
Dinesh Kumar J.@ Dinesh J vs National Insurance Company Limited, (2018) 1 SCC 750
Usha Rajkhowa and others vs Paramount Industries and others, (2009) 14 SCC 7
Pramodkumar Rasikbhai Jhaveri vs Karmasey Kumvargi Tak and others, (2002) 6 SCC 455
I have heard the learned counsel for the parties and perused the Trial Court records as well as the authorities relied upon.
In the case of Pranay Sethi (supra) the Apex Court has held that, when the deceased was holding a permanent salaried job, 30% of the income should be calculated towards future prospects when the deceased was 40 to 50 years old. In the present case, the deceased being 46 years, and being a permanent Government employee, the learned Tribunal should have added 30% toward future prospect instead of 15%, which was later corrected in the Review Petition 5179/2019.
With regard to the allegation of contributory negligence, this Court finds that the claimants have been able to prove on the touchstone of preponderance of probability that it was the truck bearing registration No.AS-08/CC-3071 which had caused the accident due to the rash and negligent driving of its driver. The PW-1/claimant No.1 was the only eye witness of the accident and she has deposed in her examination-in-chief that the Maruti Alto was on its own side at normal speed, however, the truck came on the wrong side with high speed and hit the Maruti Alto on the ‘rear right side’. Even in her cross-examination by the Insurance company the PW-1 stated that the offending truck hit the door of the Maruti Alto on the driver’s side. The manner of the accident as deposed by the PW1 who is the eye witness indicates that it was not a head on collision but the truck had hit the Maruti Alto on the on the driver’s side/rear right side. This Court is therefore of the view that evidence in this case does not show that the deceased was negligent in causing the accident and therefore there was no contributory negligence on his part.
With regard to the deduction of the income tax from the net annual income this Court has observed that the income tax certificate showing the deduction as Rs.3393/- per month was exhibited as exhibit 423, however, the Tribunal failed to deduct the same from the awarded amount.
Keeping in view the fact that the learned Tribunal had committed an error with regard to deduction of the income tax, the compensation payable to the claimant/respondent is modified and will be as follows:-
| Particulars | Calculation | Amount |
|---|---|---|
| Income of the deceased | Monthly income | 31,388 |
| Less: Professional Tax | 31,388.208 | 31,180 |
| Annual Income | 31,180 x 12 | 3,74,160 |
| Less: Income Tax | 3,393 | |
| Net Annual Income | 3,74,160 minus 3,393 3,70,767 | |
Less: 1/3 deduction towards personal expenses | 1/3 of 3,70,767= 1,23,589 | 3,70,767 minus 1,23,589= 2,47,178 |
| Loss of Dependency (Multiplier 13) | 2,47,178 x 13 | 32,13,314 |
| Add: 30% Future Prospects | 30% of 32,13,314 | 9,63,994 |
| Loss of Dependency | 32,13,314 +9,63,994 | 41,77,308 |
| Add: Conventional Heads | 70,000 | |
| Total Compensation | 42,47,308 | |
| Add: Medical Expenses | 6,76,152 | |
| Grand Total | 49,23,460 | |
The appellant Insurance company is accordingly directed to pay the above modified compensation amount of Rs.49,23,460/- (forty nine lakhs twenty three thousand four hundred sixty) only along with the interest at 7.5% per annum from the date of the claim petition till final realization. However, there shall be no interest payable on the future prospect.
The appellant company shall deposit the above amount, before the learned Tribunal, after deducting the 50% already deposited and withdrawn and also after deducting the Rs.15,000/- which was deposited as “no fault award”, within a period of 6 (six) weeks from the date of receipt of a certified copy of this order,
The Registry shall allow the appellant Insurance company to withdraw the statutory deposit of Rs.25,000/-.
The impugned judgment and award dated 22.11.2019 in MAC Case No.2144/2014 is modified as directed above and the appeal stands disposed
Registry shall send back the TCR forthwith.