THE GAUHATI HIGH COURT

(THE HIGH COURT OF ASSAM, NAGALAND, MIZORAM & ARUNACHAL PRADESH)

MAC APPEAL NO. 29 OF 2014

Mrs. Marami Mahanta

… Appellant
-Versus-

The Branch Manager, Universal Sampo General

Insurance Company Limited.

..Respondents

BEFORE
HON’BLE MR. JUSTICE KALYAN RAI SURANA

For the appellant : Mr. AK Purkayastha,

Mr MK Sarma,
Mr. SK Das,
Mr. SB Choudhury, Advs.

For the respondent : Mr. R. Goswami,

Ms. M. Saikia, Advs

Date of hearing &

judgment : 16.11.2017.

JUDGMENT AND ORDER (ORAL)

Heard Mr. AK Purkayastha, the learned counsel for the

appellant as well as Mr. R. Goswami, the learned counsel for the sole
respondent.

2. By this appeal under Section 173(1) of the Motor Vehicles Act,

1988, the appellant has prayed for enhancement of the award
passed in the judgment and order dated 26.09.2013 passed by the

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learned Member, MACT, Darrang, Mangaldoi in MAC Case No.
241/2011. By the said judgment, an compensation of Rs. 4,24,367/-
was awarded in favour of the appellant/claimant with interest @6%
per annum from the date of filing of the claim petition.

3. The brief facts of the case is that on 05.05.2011, while one

Dorothey Mahanta was proceeding from Christianbasti towards
Dispur by city bus bearing Registration No. AS-01-AC/4884, due to
rash and negligent driving, she fell down from the bus in front of
SBI, Dispur Branch. As a result of the accident, she suffered
grievous head injuries and thereafter she was admitted in a private
hospital and later on she was referred to another private hospital for
better treatment. However, she died on 10.05.2011. On the basis of
the ejahar, Dispur PS Case No.1229/2011 under Section
279/338/304(A) IPC was registered. The appellant/claimant, who is
the mother of the deceased, claimed for a compensation of Rs.31.00
Lakh on account of the death of her daughter.

4. The owner of the vehicle, who was arrayed as opposite party

No.1 in the claim petition, did not contest the case. However, the
name of the driver/ opposite party No.2 in the claim petition was
striked off on the basis of the Petition No.227/2012 dated
21.03.2012 filed by the claimant.

5. The respondent herein, who was arrayed as the opposite

party No.3 in the claim petition contested the claim by filing written
statement and they took the plea of denial and onus of proving the
case was passed on the claimant to prove the same. On the basis of
the pleadings following issue were framed by the learned Tribunal:

“i) Whether the deceased dies out of the alleged

accident and due to the rash and negligent driving of
the offending vehicle Na. AS-01-AC/4884 (Bus)?

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 ii) Whether the vehicle was covered by Insurance Policy
at the time of accident?
iii) Whether the accident and subsequent injury
sustained by the deceased is the direct and proximate
cause of the death of the deceased?
iv) To what relief/reliefs, if any, parties are entitled?”

6. The claimant/appellant herein examined two witnesses and

had exhibited 11 documents. Appreciating the evidence on record,
issues No.1 & 3, which were taken up together, were answered in
affirmative by holding that the deceased had died due to the
accident involving the offending vehicle and the injuries sustained by
the victim was the cause of the death of the deceased. In respect of
issue No.2, it was held that the offending vehicle was covered by the
insurance policy of the respondent herein. In respect of issue No.4,
in the absence of any evidence to prove the monthly income of the
deceased claimed at Rs.15,000/- per month, on the basis of the
Income Certificate (Ext.33) by which the Prasar Bharati has paid
remuneration of Rs.600/-, the notional income of the deceased was
assessed as Rs.3,000/- per month. The total compensation was
computed as under:

“Loss of dependency – 18000 x 18 = Rs.3,24.000/-

Funeral Expenses = Rs. 20,000/-
Medical expenses = Rs. 75,387/-
Attendant charges = Rs. 5,000/-
---------------------
Total = Rs.4,24,387/-“

7. The learned counsel for the appellant has referred to the

evidence on record, it is submitted that the deceased had a
promising career as she was a professional singer and even while
she was a student, her collection of songs were marketed by
publishing two C.D. Albums. It is submitted that she was a final
Mac Appeal No.29 of 2014 Page 3 of 8
year student in Law in a reputed Law College at Guwahati and
therefore, based on her activities as well as her capability as an
upcoming singer, she had a income of Rs.15,000/- per month and
there were immense future prospects also.

8. Relying on the Albums (CDs) produced as proof of evidence, it

is submitted that the Court may take judicial notice of the
achievement of the deceased and for enhancing compensation by
treating her income as projected in the claim petition. It is further
submitted that in addition to the compensation award, the appellant
is entitled to additional compensation on the ground of future
prospects and on other conventional heads such as loss of estate
and funeral expenses. It is submitted that the same may be granted
as per the ratio laid down by the Hon’ble Apex Court in the case of
Sarla Verma Vs. Delhi Transport Authority (2009) 6 SCC 121.

9. Per contra, the learned counsel for the respondent has

submitted that the Hon’ble Supreme Court in the case of National
Insurance Company Ltd. Vs. Pranay Sethi and others,
Manu/SC/1366/2017 has held that the future prospects is required to
be calculated on the basis of proven income of the person and the
same would depend on the basis of evidence adduced by the parties.
It is submitted that while judgment in the case of Sarla Verma
(supra) was upheld insofar it related to paragraphs -30 to 32 and 42,
the compensation on account of conventional heads, namely, loss of
estate, loss of consortium and funeral expenses was scaled down to
Rs.15,000/-, Rs.40,000/- and Rs.15,000/- respectively. It is
submitted as the case of Pranay Sethi (supra) was decided by a
larger Bench, the ratio as laid down in the case of Sarla Verma
(supra), insofar it related to the compensation on account of

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conventional heads as such, loss of estate, loss of consortium and
funeral expenses, was no longer a good law.

10. Considered the submissions made by the learned counsel for

the parties and perused the materials on record. Insofar the
evidence in respect of issues No.1,2 & 3 is concerned, it is not
disputed at the bar by the respondents herein that the victim
namely, Dorothey Mahanta had died in the road-traffic accident on
05.05.2011 and that the offending vehicle involved in the accident
was duly insured with the respondent. The FIR (Ext.1), the Police
Report (Ext.2) and the Accident Information Report (Ext.3)
establishes the accidental death of the deceased as well as the fact
that the vehicle involved was duly insured. There is no rebuttal
evidence by the respondent to dispute those facts. Therefore, the
decision of the learned Tribunal in respect of issues No.1,2 & 3 being
not in challenge in this appeal are not disputed by the respondent,
the liability of the respondent is hereby up-held.

11. The present appeal is limited to the point of quantum of the

award and the appellant has prayed for enhancement of the same.
On a perusal of the examination-in-chief of the PWs No.1 & 2, there
is no statement by any of the witnesses that the deceased was
earning any regular monthly income by pursuing music as her
career. Although the PW.1 has proved a payment voucher (Ext.33)
issued by the Doordarshan Kendra, Guwahati, by which a sum of
Rs.600/- was paid to the deceased by a cheque dated 18.12.2009, it
appears that the same was fees on account of telecast of her
programme on Television. On perusal of the same, this Court cannot
arrive at a conclusive finding that such payment were regularly
forthcoming to her so as to constitute her source of permanent
Mac Appeal No.29 of 2014 Page 5 of 8
earning. None of the claimant’s witnesses has deposed to the effect
that the deceased had a permanent or regular source of income.
There is no oral evidence that has been adduced to show that the
deceased had a regular monthly income. It is merely stated in
paragraph-8 of the evidence of PW.1 that against the irreparable loss
on account of death of her daughter, Dorothey Mahanta, the
claimant was claiming a sum of Rs.31.00 Lakh by filing the claim
petition. In the absence of any evidence of proof of regular monthly
income of the deceased, there is no material before this Court to
hold that the learned Tribunal had erred in holding notional income
of the deceased as Rs.3,000/- per month and to give a finding
contrary to one arrived at by the learned Tribunal. It is not in
dispute that the voucher showing medical expenditure for treatment
of the deceased was for Rs.75,387/-. In this regard also, the
claimant’s witnesses have not made any specific claim on account of
expenditure incurred in treatment of the deceased. Therefore, no
infirmity is found in the decision of the learned Tribunal in granting
compensation of medical expenses to the extent of Rs.75,387/- in
absence of any other proof of expenditure beyond the said amount.
Therefore, on the basis of evidence available on record, this Court is
inclined to uphold the findings recorded by the Tribunal on issue
No.4, assessing the compensation at Rs.4,24,387/-.

12. Nonetheless, as per the ratio laid down by the Hon’ble Apex
Court in Pranay Sethi (supra), the appellant is found entitled to a
sum of Rs.15,000/- on account of loss of estate in terms of
paragraph-61 (viii). Accordingly, the compensation payable to the
appellant/claimant stand enhanced by Rs.15,000/- on account of loss
of estate.

Mac Appeal No.29 of 2014 Page 6 of 8

13. At this juncture, the learned counsel for the appellant has
submitted that in view of the educational qualification and promising
career of the deceased, the compensation which was assessed by
the learned Tribunal was at a lower side, as such, the appellant may
be awarded interest at a higher rate and at least at the lending rate
of the nationalized banks. In the present case, there is no addition
of income on account of future prospects as there was no proof of
income generated by the deceased, which could have the effect of
an addition of 40% of the income towards future prospects, this
Court deems this to be a fit case, where this Court can exercise its
jurisdiction for awarding an enhanced interest rate by considering
the fact that the deceased was aged about 22 years and there was
no addition of future prospects. Therefore, the interest payable on
the award is enhanced to the rate of 9% instead of 6% awarded by
the learned Tribunal. The interest @ 9% shall be payable to the
claimant/appellant from the date of filing of the claim petition i.e.,
28.09.2011 till the entire award is realized by the
claimant/respondent No.1.

14. The learned counsel for the appellant submits that as per his
instruction, the respondent/insurance has not released any part of
compensation despite the award to the claimant. In this connection,
without issuing a direction from this Court, it is hoped that the
respondent shall release the re-calculated compensation taking into
account the enhancement of Rs.15,000/- on account of loss of estate
and re-calculated interest @ 9% per annum on the entire amount, to
the claimant may be released within a period of 1(one) month from
today. It is needless to mention that as there is no stay operating,
there is no impediment on the part of the appellant to enforce the

Mac Appeal No.29 of 2014 Page 7 of 8

award if such payment is not released within the above period of one
month.

15. Resultantly, this appeal stands partly allowed to the extent of

modification of the award as indicated above.

16 Parties are left to bear their own cost.

17. Return back the LCR forthwith.

JUDGE

MKS

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