Judgement & Order (Cav)

1. Heard learned counsel Ms. R.D. Mozumdar for the National Insurance Company and learned counsel Mr. M. Mahanta, for the claimants, Rima Koushik Sarma, Surangana Kashyap and Mrs. Bhanu Sarmah.

2. Both this appeal and cross objection are taken up together as both the cases arise out of the same original case which is registered as MAC Case No.86/2014. In the appeal Smti Bhanu Sarma was earlier not arrayed as a respondent, but by the order of this Court dated 14.10.2020, Smt Bhanu Sarma, who was also a claimant in the original case has been arrayed as respondent No.6 in the appeal. Smt Bhanu Sarma has not been arrayed as an appellant in the cross-objection.

Arguments for the Appellant

3. Learned counsel for the insurer is aggrieved by the calculation which is alleged to be erroneous. The income of the asessee/ deceased was Rs. 33,728/- per month but income tax was not deducted while calculating the compensation. It is further submitted that the mother of the deceased, Smt Bhanu Sarma is residing with another son and cannot be arrayed as a party. The deduction of 1/3rd as personal expenses instead of 1/4th would be correct as the mother of the deceased has been continuously residing with another son and not with the deceased. It is further contended by the learned counsel for the insurer that the wife was not an eyewitness and an FIR was lodged against Dipak Kumar Sarmah with allegation that he was responsible for rash and negligent act which led to the accident. The MVI report shows head-on collision between both vehicles and front part of both the vehicles have been damaged. The exhibits submitted by the claimants are all photocopies and thus cannot be accepted as valid evidence. The deceased was an employee under the Assam Police and he may have received his medical expenses and thus Exhibits- 2 to 6 and Exhibits- 9, 11 and 13 are all photocopies. The house rent and medical expenses are personal to the deceased, but this has not been deducted in this case.

4. The learned counsel for the insurer has laid stress in her argument that 12% interest which the claimants have stressed is in context to Workmen's Compensation Act and the claimants in their prayer have prayed for only 7.5% of interest to be added to the compensation.

Arguments for the Claimants;

5. On the contrary, the learned counsel for the claimants laid stress in his argument that Tax was deducted from the monthly income of the deceased, contrary to the submission of the learned counsel for the insurer. After calculation of the gross amount, tax was deducted. Mother may be residing with another son, but mother is naturally a dependent of her kin. The testimonies of the witnesses have remained unrebutted. The evidence of eyewitnesses could not be rebutted. Charge Sheet was filed against the driver of the offending vehicle and not against the deceased. It has been correctly held by the learned Tribunal that PW-2 Chandra Kr. Ray was an eyewitness and his evidence could not be rebutted by strenuous cross-examination on behalf of the insurance company. The judgment of the learned Tribunal clearly reflects that tax of Rs.208/- was deducted from the net salary of the deceased. The learned counsel for the insurer, on the other hand has refuted and stated that the deduction of Rs. 208/- was deduction towards professional tax and not income tax.

6. It is further argued on behalf of the claimants that contributory negligence could not be ascertained. The learned counsel for the claimants has prayed for interest to be accrued from the date of filing of the petition. It is submitted that there was no delay or laches on the part of the claimants and the proceeding was not procrastinated by the claimants and the claimants have thus prayed for accrual of interest from the date of filing of the petition. They have also prayed to enhance the rate of interest to 12%.

7. The deceased was an income tax assessee and tax ought to have been deducted. The medical expenses amounting to Rs. 5,80,000/- is challenged because photocopies were submitted instead of the originals. Even refund vouchers reveal double calculation of medical bills. As Exhibit -12 reveals only three legal heirs, 1/3rd ought to have been deducted against personal expenses. A careful scrutiny of the medical expenditure reveals that the expenditure amounts to Rs. 2,90,450/- as the advance paid for the medical bills was also included in the final calculation.

8. I have considered the submissions at the Bar with circumspection.

Point for determination:-

9. Now the point for determination to decide both the appeal and cross – objection is whether the compensation awarded is a just compensation.

Analysis, reasons and decision:-

10. The genesis of the case was that on 05.12.2013, at about 11.30 am, Dipak Kumar Sarmah (hereinafter referred to as the ‘deceased’ or the ‘victim’) went out of his house riding his motorcycle bearing registration No. AS-30/5974 and was proceeding on the correct i.e. left side of the road. His speed was normal and slow and he was proceeding to his place of work when suddenly, another vehicle bearing registration No.AS/02-G/7160 approaching from the opposite direction in a rash and negligent manner, and on the wrong side of the road collided against the motorcycle driven by Dipak Kumar Sarmah. The rider of the motorcycle registration No.AS/02-G/7160 was using his mobile phone while riding and on noticing the negligent act of the rider, Dipak Kumar Sarmah almost stopped his motorcycle on the extreme left side of the road, but unfortunately, collision occurred. The deceased sustained grievous injuries on his head, chest and other parts of his body and was brought to Kapili Hospital and then he was shifted to B.P Civil Hospital, Nagaon. The deceased was thereafter taken to Dispur Civil Hospital at Guwahati. He was kept in the hospital from 05.12.2013 to 03.01.2014 in ICU and he finally succumbed to his injuries on 03.01.2014 at about 11 am. The motorcycle bearing registration No.AS/02- G/7160 will hereinafter be referred to as the offending vehicle.

11. Both the insurer and the claimants are before this Court with their respective cases in MAC Appeal No.547/ 2017 and CO/4/2019. The learned Tribunal has held that pleadings and evidence of the claimant Smti Rima Koushik Sarma as PW-1 clearly reflects that the person riding the offending vehicle was using his mobile phone while he was still riding the offending vehicle. The evidence of the claimant has been substantiated by the evidence of eyewitness, Chandrakumar Ray, who deposed as P.W-2 that on 05.12.2013 at about 11:30 a.m., while he was at Amtol Path, Dimoruguri, he noticed a vehicle bearing registration No.AS/02-G/7160 motorcycle being driven in a rash and negligent manner. The rider of the offending vehicle namely, Raju Moni Bora was using his mobile phone and he collided against the motorcycle which was driven by Dipak Kumar Sarmah. The deceased Dipak Kumar Sarmah was riding his motorcycle on the correct side of the road and his pace was slow. The rider of the offending vehicle, Raju Moni Bora was therefore held liable for the accident. It was held by the learned Tribunal that the cross-examination could not refute the evidence of the eyewitness, PW-2.

12. The claimant, PW-1 has exhibited the Form 54, AIR (Accident Information Report), which clearly reveals that the driver of the offending vehicle was Raju Moni Bora and Nagaon PS Case No. 2027/2013 under Section 279/304 of the IPC was registered against him. It has been held by the learned Tribunal that Charge Sheet was laid against Raju Moni Bora. As the offending vehicle was duly insured at the time of the accident and the driver was holding a valid driving license which was valid at the time of the accident, the insurer was directed to pay the compensation.

13. Now the appellant is aggrieved by the decision of the Tribunal as there is no explanation, how the vehicle was identified to be involved in the accident when the vehicle driven by the deceased was seized in connection with this case. The offending vehicle was seized on 21.12.2013 whereas the accident occurred on 05.12.2013. It is alleged that the court below has failed to consider that the vehicle may be a planted vehicle . The doctrine res-ipsa loquitor was applicable in this case as the accident was a result of head-on collision between two motorcycles. It would be apt to reiterate that the appellant/ insurer is also aggrieved by the calculation of the compensation awarded to the claimants after inclusion of taxes and certain allowances. The deduction towards personal expenses is submitted to be erroneous. It is averred that PW-2 is not a listed witness in the charge sheet and out of the blue, an eyewitness has been produced.

14. It has also been contended by the claimants that the compensation awarded to them is inadequate. The Tribunal has erred in debarring the minor children from being compensated for loss of love and affection. Loss of estate was not included. It is averred that the learned Tribunal has erred in not granting the awarded amount from the date of filing of the application till realization, and the interest ought to have been 12% per annum. The claimants through the cross-objection have prayed for a just and fair compensation by enhancing the amount by including the conventional heads.

15. No flaw is discernible in the decision of the learned Tribunal wherein it has been held that the insurer is liable to exonerate the owner of the offending vehicle. It is pertinent to mention that the driver and owner of the offending vehicle are not before this court. The contentions in this case will be taken up one by one. On the touchstone of preponderance of probability, it has clearly been established that the rider of the offending vehicle is liable for the accident and thus this is not a case of contributory negligence. The deceased Dipak Kumar Sarmah was a Stenographer Grade-3-cum-Confidential Assistant in the office of the Superintendent of Police, Nagaon and his monthly salary was Rs. 33,728/-. The salary register was also proved by Indra Mohan Kalita. Indra Mohan Kalita was working as a Junior Assistant in the Accounts Branch of the same office of the Superintendent of Police at Nagaon. He has distinctly proved that Exhibit - 151 (3) is the pay entry of December 2013 of the deceased Dipak Kumar Sarmah in the salary register.

                   Basic pay Rs.16,400/-

                   DA Rs. 14,760/-

                   HRA Rs.1960/-

                   MA-Rs. 600/- GPF-Rs. 2000/-

                   GIS- Rs.200/-

                   P. Tax-Rs.208/-

                   Gross salary –Rs.33,728/-

                   Total deduction- Rs. 2408/-

                   Net salary =-Rs. 31,320.

16. The professional tax of Rs. 208/- was deducted from the gross salary while calculating the compensation. The arguments of the learned counsel for the insurance company is that the MA identified as Mess Allowance is not a part of the take-home salary and this ought to have been deducted. This argument of the learned counsel for the insurer holds no water as it has not been affirmed that the MA could be identified as Mess Allowance. Moreover, the argument that 30% ought to have been deducted from the income also cannot be accepted as the gross salary was Rs. 33,728/- per month and the entire slab of 30% is never deducted from the gross income subject to benefits on investments, children education and other deductions. Mess Allowance is also incidental to service.

17. On the contrary, the argument of the learned counsel for the claimants that loss of love and affection has not been apportioned holds no water as loss of care and guidance for minor children have already been included in the calculation of the compensation. Mere argument that mother is not a dependent as the mother of the deceased resides with another son cannot be considered without sufficient evidence. This contention that 1/4th towards deduction against personal expenses from the income of the deceased is erroneous, cannot be accepted. The learned Tribunal has recorded sound reasonings while quantifying the compensation. The allowances which are incidental to service like provident funds etc are not to be deducted.

18. I have also scrutinized the discharge certificate of Dispur Hospitals Pvt. Limited marked as Exhibit-15, and the other documents relating to treatment of the deceased, cash memos, money receipts, marked as Exhibit-16 to Exhibit- 205 and have come to a decision that this discharge certificate does not include all the medical expenses marked from Exhibit-16 to Exhibit- 205. The discharge certificate clearly shows the doctor's charges including some extra charges, the amount of Rs. 2,19,415/- has been calculated after deduction of discount and money refundable. The deceased was under treatment since 05.12.2013 up to 03.01.2014 and finally he has succumbed to his injuries. Most of the bills are computer generated bills and cash memos with the seal of the hospital affixed on it. The argument of the learned counsel for the insurance company that the calculation of the medical expenses rounded off to Rs. 5,80,000/- is erroneous as there was double calculation of bills, cannot be accepted. The evidence of the investigator for the insurance company Abdullah Ahmed Borbhuiya that the claimant Smt Bhanu Sharma was residing with her younger son is also taken into consideration. Smt Bhanu Sharma has also appeared as a claimant and the deceased is survived by his wife, two minor children as well as his mother who also falls in the category of class-1 legal heirs. The deduction towards personal expenses has been correctly calculated by the learned Tribunal.

19. In view of my foregoing discussions, it is held that the learned Tribunal has recorded sound reasonings while arriving at a just decision and there appears to be no infirmity. This decision was passed way back on 29thApril, 2016. There appears to be no justified ground to interfere with the decision of the learned Tribunal. Thereby appeal is dismissed as the appeal is bereft of merits.

20. The judgment and order of the learned Tribunal dated 29thApril, 2016 in connection with MAC Case No.86/2014 is hereby upheld.

21. Send back the original records of the Tribunal.

22. No order as to costs.