Smt. Binita Kalita and 3 Ors v. The Regional Manager, the Oriental Insurance Co. Ltd

ORDER Date : 20-03-2024

¶1Heard Mr. Y.S. Mannan, learned counsel for the appellant and Mr. S. Dutta, learned counsel for the respondent No.3.

¶2This is an appeal under Section 173 of the Motor Vehicle Act, 1988 filed against the impugned judgment dated 11.11.2009 passed by the Addl. District & Sessions Judge (FTC) No.2; Member of MACT, Kamrup at Guwahati in MAC Case No.1146/06 (Old MAC No.2906/06) whereby the respondent Insurance Company has been directed to pay compensation amount of Rs.16,42,288/- to the claimants along with interest there on @6% per annum w.e.f from the date of filing the claim petition till its realization.

¶3This case has arisen out of the motor accident claim petition filed by the claimants before the Additional District & Sessions Judge seeking grant of compensation for the death of her deceased husband lateBhumidhar Kalita who died due to the hit of the offending vehicle in motor vehicle accident took place on 21.10.2006 at about 10.20 PM at Kamalabari road near Oil new bus stand, Dhuliajan. The accident occurred due to rash and negligent driving of the driver of the vehicle bearing registration no.AS-06/E-2779.

¶4The case was contested. And on completion of the trial, the learned Tribunalby itsjudgment dated 11.11.2009 has awarded a compensation amount of Rs.16,42,288/-in favour of the claimant /appellant. And the Opposite party No.3 Oriental Insurance Company Page No.# 5/8 Ltd has been directed to pay the awarded compensation amount along with the interest @6% per annum. Being aggrieved, the appellant filed this appeal foe enhancement of the compensation amounts.

¶5However, at the vary outset of hearing, the learned counsel for the appellanthas made it clear that the factum of the case is not disputed. He further made it clear that the appellant has a limited prayer specifically on thefollowing heads of the award for modification. They are: -

(i) Multiplier given should be 13 instead of 11.

(ii) Deduction for the 4 dependent members should be ¼ the instead of 1/3rd .

(iii) The future prospect has not been calculated whereas it has been given as 30% on future prospect.

(iv) Loss of estate be given at Rs.15,000/-instead of Rs.5000/-

(v) Funeral expense should be Rs.15,000/-instead of Rs.5000/-

(vi) Loss of consortium should be Rs.40,000/-instead of Rs.5000/-

¶6The learned counsel for the respondents/Insurance Company submits that he has agreed and accepted the above proposal made by the appellant. However, he further submits thatthe claimant is not entitled for any interest on the future prospect; hence, no interest beaccruing against the above income on future prospect as granted in the original award. The learned counsel for the appellant/claimant Page No.# 6/8 acceded to the said proposal of the respondent/Insurance company.

¶7It is submitted that both the parties have mutually settled the matter and agreed for certain modification and addition of some heads on the original award as proposed above.Themutually agreed terms are as follows:

(i) Multiplier be 13 instead of 11;

(ii) Deduction for the 4 dependent members shall be ¼ instead of 1/3rd.

(iii) The future prospect which was not calculated shall be at 30%.However, there shall be no interest accrued on future prospect.

(iv) Loss of estate shall be given at Rs.15,000/-instead of Rs.5000/-

(v) Funeral expense shall be at Rs.15,000/-instead of Rs.5000/-

(vi) Loss of consortium shall be at Rs.40,000/- instead of Rs.5000/-; and

¶6The learned counsel for the parties further submits that they have worked out the proposed modified amount of award in the original award and the same has been placed before this court for consideration which is taken on record.

¶7On careful consideration of the submissions made by the learned counsel for the parties and having examined the records and also the proposed modification of the awarded amountsin the original awardwhich Page No.# 7/8 has been mutually agreed upon to and submitted by both the learned counsel for the parties, this Court is satisfied that the parties have reached on consensus for modification of the quantum and addition of some heads in the original award.

¶8Having taken into account the aforementioned proposed modifications, this Court hereby approves the mutually agreed terms for modification and addition on the quantum of compensation calculated by the parties. The detail of the modified compensation amount and its distribution are as follows: - Salary - Rs.18,256

Deduction towards 1/4th (18,256 x ¼)=4,564 personal expenses Rs.18,256-4564(Deduction 1/4th)=Rs.13962

Annual income Rs.13962 x 12 =Rs.1,64,304x(13)Multiplier =Rs.21,35,952/-

Future prospect Rs.21,35,952 x 30/100=6,40,785+21,35,952 (30%) =Rs.27,76,738

Future prospect amount =Rs.6,40,785

Conventional heads =70,000 =27,76,738+70,000 =28,46,738(Enhanced amount) =16,42,288(Paid earlier) =12,04,450(Difference balance amount)

Rs,12,04,450 (Difference balance amount) Out of Rs,12,04,450 Page No.# 8/8 An amount of Rs.6,40,785 (Future prospect amount) will not carry interest. And Rs.5,63,665/- (will carry 6% interest)

¶9Accordingly, the respondent oriental Insurance Co. Ltd is directed to pay a sum of Rs.12,04,450/-(balance amount) out of which the claimant shall be to 6% interest of Rs.5,63,665/- from the date of filing the claim petition till its realization. The payment shall be made within six weeks from the date of receipt of this order.

¶10The appeal is allowed to the extend as indicated above, and the judgment and award of the Tribunal dated 11.11.2009 is modified accordingly.

¶11With the above observation, the appeal is disposed of.

¶12The records be sent back.

JUDGE Comparing Assistant

PageoNo.#o1/8 GAHC010199362010 ooooooo ooooooooooooooo ooooooooooooooooTHEoGAUHATIoHIGHoCOURTo (HIGHoCOURToOFoASSAM,oNAGALAND,oMIZORAMoANDoARUNACHALoPRADESH)o CaseoNo.o:oMACApp./206/2010o SMT.oBINITAoKALITAoando3oORSo W/OoLATEoBHUMIDHARoKALITA,oR/OoKAMALABARI,oDA-HUKUTAo GAON,oP.O.oandoP.S.oDULIAJAN,oPIN-786602oINoTHEoDIST.oOFo DIBRUGARH,oASSAM. 2:oNIRANJANoKALITA oAGEDoABOUTo16oYEARS oS/OoKAMALABARI oDA-HUKUTAoGAON oP.O.oandoP.S.oDULIAJAN oPIN-786602oINoTHEoDIST.oOFoDIBRUGARH oASSAM. 3:oMISSoDIPAMONIoKALITA oAGEDoABOUTo14oYEARS oD/OoTHEoDECEASED oROoKAMALABARI oDA-HUKUTAoGAON oP.O.oandoP.S.oDULIAJAN oPIN-786602oINoTHEoDIST.oOFoDIBRUGARH oASSAM. 4:oPARANoJYOTIoKALITA oAGEDoABOUTo12oYEARS oS/OoTHEoDECEASEDo oR/OoKAMALABARI oDA-HUKUTAoGAON oP.O.oandoP.S.oDULIAJAN oPIN-786602oINoTHEoDIST.oOFoDIBRUGARH oASSAM.oTHEoCLAIMANToNO.o2 3oando4oWHOoAREoREPRESENTEDoBYoTHEIRoLEGALo Page No.# 2/8 GUARDIAN/MOTHER SMT. BINITA KALITA ALL ARE R/O KAMALABARI DA-HUKUTA GAON P.O. and P.S. DULIAJAN PIN-786602 IN THE DIST. OF DIBRUGARH ASSAM VERSUS THE REGIONAL MANAGER, THE ORIENTAL INSURANCE CO. LTD REGIONAL OFFICE , G. S . ROAD, ULUBARI, GODREJ BUILDING GUWAHATI-7 (INSURER OF THE VEHICLE BEARING NO AS06/E-2779 VIDE POLICY NO 1954 VALID UP TO 22.08.2007) Advocate for the Petitioner : MR.A PHUKAN Advocate for the Respondent : MR.S DUTTA Linked Case : I.A.(Civil)/336/2023 SMT. BINITA KALITA AND 3 ORS W/O LATE BHUMIDHAR KALITA R/O KAMALABARI DA-HUKUTAGAON P.O. AND P.S. DULIAJAN PIN-786602 IN THE DIST. OF DIBRUGARH ASSAM. 2: NIRANJAN KALITA AGED ABOUT 16 YEARS S/O KAMALABARI DA-HUKUTA GAON P.O. and P.S. DULIAJAN PIN-786602 IN THE DIST. OF DIBRUGARH ASSAM. 3: MISS DIPAMONI KALITA Page No.# 3/8 AGED ABOUT 14 YEARS D/O THE DECEASED RO KAMALABARI DA-HUKUTA GAON P.O. and P.S. DULIAJAN PIN-786602 IN THE DIST. OF DIBRUGARH ASSAM. 4: PARAN JYOTI KALITA AGED ABOUT 12 YEARS S/O THE DECEASED R/O KAMALABARI DA-HUKUTA GAON P.O. and P.S. DULIAJAN PIN-786602 IN THE DIST. OF DIBRUGARH ASSAM. THE CLAIMANT NO. 2 3 and 4 WHO ARE REPRESENTED BY THEIR LEGAL GUARDIAN/MOTHER SMT. BINITA KALITA ALL ARE R/O KAMALABARI DA-HUKUTA GAON P.O. and P.S. DULIAJAN PIN-786602 IN THE DIST. OF DIBRUGARH ASSAM. VERSUS PRABIN CH. DUTTA S/O LATE NABIN CH. DUTTA R/O OIL COLONY QTR. NO. SAP/1850 DULIAJAN IN THE DIST. OF DIBRUGARH ASSAM (OWNER OF THE VEHICLE BEARING NO. AS-06/A-2779) ------------ Advocate for : MR. T BAIDYA Advocate for : MR S DUTTA appearing for PRABIN CH. DUTTA Page No.# 4/8 BEFORE HONOURABLE MR. JUSTICE BUDI HABUNG