Judgment & Order (Cav)

1. Heard Mr. S. Dutta, learned counsel for the appellant. Also heard Mr. A. Kakati, learned counsel for the respondents.

2. This is an appeal under Section 173 of the Motor Vehicle Act, 1988, against the Judgment and Award dated 01.08.2016, passed by the learned Member, Motor Accident Claims Tribunal, Nalbari in MAC Case No. 144 of 2015.

3. The appellant, a Government of India undertaking was impleaded as Opposite Party No. 1, insurer of the offending vehicle bearing Registration No. AS-25/AC-9040 (Tractor), in the claim petition filed at Nalbari in MAC Case No. 144 of 2015, by the claimants, seeking compensation in connection with the death of Ramani Das in a motor vehicle accident that took place on 03.03.2015.

4. The facts of the instant case is that on 03.03.2015 at about 11:20 am, while the deceased was going from his house towards Barama chowk for shopping on the left side of NH-31 and when he reached the road connecting Barama Chowk of NH-31, at that time a tractor bearing registration No. AS-25/AC-9040 driven in a rash and negligent manner knocked him down. As a result of the accident the deceased sustained serious injuries on different part of his body. He was immediately taken to Barama PHC and from there he was shifted to Gauhati Medical College and Hospital (GMCH), Finally he was shifted to GNRC Hospital, Guwahati where he succumbed to his injuries on 04.03.2015 at about 3.10 pm. As per the claimants the deceased was a retired Superintendent in the Office of the DGP, Assam, Guwahati aged about 62 years and earning Rs.30,000/- per month.

5. On receipt of notices, the opposite parties No. 1 and 2 appeared by filing their respective written statement and denying its liabilities. The claimants adduced four witnesses and also proved several documents in support of their claim. On the other hand the opposite party no. 1 adduced one witness in their favour.

6. The learned Member, Motor Accident Claims Tribunal, Nalbari after going through the facts and circumstances of the case and after scrutiny of materials on record disposed off the MAC Case No. 144 of 2015 vide Judgment & Order dated 01.08.2016 by awarding a sum of Rs. 11,94,545/- (Rupees eleven lakhs ninety four thousand five hundred forty five) only to the claimants considering the monthly income of the deceased as Rs. 13,445/- and applying multiplier of '7' on his age group. The learned Member further added Rs. 20,000/- for funeral expenses, Rs. 10,000/- for pain and suffering of the claimants, Rs.1500/- for convenience allowance and Rs.33,665/- for medical expenses. The Insurance Company was directed to satisfy the award within 60 days from the date of judgment failing which interest will be calculated @ 6% per annum on the awarded amount from the date of order till realization. The Insurance Company was further directed to recover the awarded amount from opposite party no. 2 by way of proceeding. Hence, this appeal.

7. Learned counsel appearing for the appellant submitted that the claimants/private respondent Nos. 1 and 2, who are the unmarried sister and son of the deceased Ramani Das are not entitled to any compensation on account of loss of dependency, which was awarded by the learned Trial Court to the tune of Rs. 11,29,380/- in as much as, it is an admitted fact that the respondent No.1/sister was the President of the Congress Women Forum, Boroma Unit and it is also an admitted fact that the son of the deceased was also a businessman. However, the learned Trial Court disregarded this vital aspect and held that merely because the sister of the deceased was the President of the Congress Woman Forum of Boroma and the son was a businessman by profession, it cannot be said that they are not entitled to get compensation due to the death of their elder brother/father who died on account of a vehicular accident submits learned counsel.

8. On the other hand, learned counsel for the claimants/respondent Nos. 1 and 2 submitted that the sister of the deceased was unmarried and was living with a deceased and had no source of income and merely because she was President of a Forum of a Political Party does not prove that she was having any income and rather she was fully dependent on the deceased. Further, taking the Court to the evidence on record, it is pointed out that CW-1 was duly cross-examined and there was no suggestion that she is not a dependent of the deceased. Similarly, CW-2, the claimant No. 2 was also duly cross-examined and in his case also there was no suggestion regarding lack of dependency.

9. It has also come in the evidence of CW-4 that the claimants lived together with the deceased which was not rebutted in cross-examination. Learned counsel for the respondents has relied upon a decision of the Hon’ble Apex Court in National Insurance Company Limited Vs. Birender and Others reported in (2020) 11 SCC 356, wherein the Insurance Company had contested the claim of the claimants to compensation on account of the death of the deceased as they were majors and not dependent upon the deceased and as such, not entitled to any compensation.

10. The said contention was rebutted by the Apex Court in the said decision of National Insurance Company Limited Vs. Birender and Others (Supra) by holding as follows:-

                   “14. The legal representatives of the deceased could move application for compensation by virtue of Clause (c) of Section 166(1). The major married son who is also earning and not fully dependant on the deceased, would be still covered by the expression "legal representative of the deceased. This Court in Manjuri Bera (supra) had expounded that liability to pay compensation under the Act does not cease because of absence of dependency of the concerned legal representative. Notably, the expression "legal representative" has not been defined in the Act…..

                   15. It is thus settled by now that the legal representatives of the deceased have a right to apply for compensation. Having said that, it must necessarily follow that even the major married and earning sons of the deceased being legal representatives have a right to apply for compensation and it would be the bounden duty of the Tribunal to consider the application irrespective of the fact whether the concerned legal representative was fully dependant on the deceased and not to limit the claim towards conventional heads only. The evidence on record in the present case would suggest that the claimants were working as agricultural labourers on contract basis and were earning meagre income between Rs. 1,00,000/- and Rs. 1,50,000/- per annum. In that sense, they were largely dependant on the earning of their mother and in fact, were staying with her, who met with an accident at the young age of 48 years.”

11. Another decision of the Hon’ble Apex Court relied upon by the learned counsel for the respondent is Magma General Insurance Company Ltd. Vs. Nanuram and Others reported in MANU/SC/1012/2018. In the said case, the father, brother and sister of the deceased filed a claim petition praying for compensation along with interest from the date of the accident till the date of realization. It was held in paragraph 8.4 as of the said decision as follows:-

                   “8.4 The Insurance Company has submitted that the father and the sister of the deceased could not be treated as dependents, and it is only a mother who can be dependent of her son. This contention deserves to be repelled. The deceased was a bachelor, whose mother had pre-deceased him. The deceased's father was about 65 years old, and an unmarried sister. The deceased was contributing a part of his meagre income to the family for their sustenance and survival. Hence, they would be entitled to compensation as his dependents.”

12. The aforesaid two decisions squarely cover the facts of the present case and the said position of law could not be refuted by the appellant.

13. In view of the above, I do not find any merit in the instant appeal and accordingly, the same stands dismissed.

14. Any statutory amount if deposited with the Registry of this Court shall be refunded to the depositor/appellant.

15. Send back the TCR.