Gauhati High Court
CIVIL APPEAL 1749/2015 on 22 December 2017
GAHC010055142018
THE GAUHATI HIGH COURT(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : MACApp. 320/2018
1:THE NATIONAL INSURANCE CO. LTD HAVING ITS REGISTERED AND HEAD OFFICE AT 3 MIDDLETON STREET, KOLKATA 700071 AND ONE OF THE REGIONAL OFFICES AT G.S. ROAD, BHANGAGARH, GUWAHATI-781005
VERSUS
1:SMTI. DIPIKA KALITA AND 3 ORS W/O LATE ANANTA KALITA @ ANANTA DAS RESIDENT OF VILLAGE .SARUTEZPUR P.O.ANDP.S. PALASHBARI DIST. KAMRUP (R), ASSAM PIN 781122
2:SHRI DIPKANKAR KALITA S/O LATE ANANTA KALITA @ ANANTA DAS RESIDENT OF VILLAGE SARUTEZPUR P.O. AND P.S. PALASHBARI DIST. KAMRUP (R) ASSAM PIN 781122
3:SMTI JAYSHREE KALITA D/O LATE ANANTA KALITA @ ANANTA DAS RESIDENT OF VILLAGE .SARUTEZPUR P.O. AND P.S. PALASHBARI DIST. KAMRUP (R) ASSAM PIN. 781128 ( THE APPELLANT NO. 1 WILL REPRESENT THE APPELLANTS NO. 2 AND 3 )
4:NURUL ISLAM S/O GOLAP HUSSAIN RESIDENT OF VILLAGE CHAURDIA P.O. MAHTOLI.P.S. BOKO NEAR CHAURDIA MASZID DIST. KAMRUP (R) ASSAM PIN 78113
Advocate for the Petitioner : MR. A J SAIKIA
Advocate for the Respondent : MR. S K GOSWAMI
Linked Case : I.A.(Civil) 1420/2018
1:THE NATIONAL INSURANCE CO LTD HAVING ITS REGISTERED AND HEAD OFFICE AT 3 MIDDLETON STREET KOLKATA 700071 AND ONE OF THE REGIONAL OFFICES AT G.S. ROAD BHANGAGARH GUWAHATI-781005
VERSUS
1:SMTI DIPIKA KALITA AND 4 ORS W/O LATE ANANTA KALITA @ ANANTA DAS RESIDENT OF VILLAGE .SARUTEZPUR P.O.AND P.S. PALASHBARI DIST. KAMRUP (R) ASSAM PIN .781122
2:SHRI DIPKANKAR KALITA S/O LATE ANANTA KALITA @ ANANTA DAS RESIDENT OF VILLAGE SARUTEZPUR P.O. AND P.S. PALASHBARI DIST. KAMRUP (R) ASSAM PIN 781122
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3:SMTI JAYSHREE KALITA D/O LATE ANANTA KALITA @ ANANTA DAS RESIDENT OF VILLAGE .SARUTEZPUR P.O. AND P.S. PALASHBARI DIST. KAMRUP (R) ASSAM PIN. 781128 ( THE APPELLANT NO. 1 WILL REPRESENT THE APPELLANTS NO. 2 AND 3 )
4:NURUL ISLAM S/O GOLAP HUSSAIN RESIDENT OF VILLAGE CHAURDIA P.O. MAHTOLI.P.S.BOKO NEAR CHAURDIA MASZID DIST. KAMRUP (R) ASSAM PIN 781136
5:FULCHAN ALI S/O ABUSHAMA RESIDENT OF VILLAGE RANGAPANI P.O.AND P.S. BOKO DIST KAMRUP (R) ASSAM PIN 781136
Advocate for the Petitioner : MR. A J SAIKIA Advocate for the Respondent :
BEFOREHONOURABLE MR. JUSTICE NELSON SAILO
Date : 16-08-2019
ORDER
Heard Mr. A.J. Saikia, learned counsel for the appellant as well as Mr. S.K. Goswami, learned counsel for the respondent No. 1.
This is an appeal filed by the Insurance Company against the Judgment dated 22.12.2017 passed by the learned Member, Motor Accident ClaimsTribunal No. 3, Kamrup (Metro), Guwahati in MAC Case No. 1749/2015, on theground amongst others that the Tribunal wrongly calculated 40% of the incomeof the deceased towards loss of future prospect, while assessing the loss ofdependency in terms of the Constitution Bench decision of the Apex Court inNational Insurance Co. Ltd. Vs. Pranay Sethi & Ors., reported in (2017) 16 SCC680.
Mr. A.J. Saikia, learned counsel submits that the learned Tribunal in viewof the Apex Court decision in Pranay Sethy & Ors. (Supra) could not haveenhanced the monthly income and dependency to 40%, as the date of birth ofthe deceased being 05.07.1967, he would be in the age group of 46 to 50 years.
Considering the limited ground taken by the appellant and on perusal ofthe Apex Court decision in Pranay Sethi & Ors. (Supra), the deceased admittedlybeing in the age group of 46 to 50 years, loss of future prospect should havebeen 25% instead of 40%. Consequently, by taking 25% as loss of future prospect, loss of dependency will have to be suitably modified.
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In view of above, the compensation entitled to the claimant will be as follows:-
Conclusion
In the result, the amount awarded by the Tribunal is modified to Rs.11,13,441/-. The same shall carry interest @ 7.5% per annum from the date offiling of the claim petition. It is seen that the appellant Insurance Company haddeposited a sum of Rs. 13,40,000/- before the Registry of this Court and thisCourt vide Order dated 13.08.2018, directed release of the said amount byordering the deposit of Rs. 5 lakhs in a fixed deposit in the name of the twominor children of the deceased in a Nationalized Bank till they attain majorityand for release of the remaining amount in favour of the respondent No. 1 onproper identification.
Pursuant to the said order, the amount has been released to theclaimant/ respondent No. 1 on 21.12.2018. Office note dated 08.01.2019indicates that the claimant/respondent No. 1 has not yet submitted FixedDeposit Receipt (FDR) opened in the name of the two minor children of thedeceased. In view of the modification of the award, if there is any balanceamount to be paid by the Insurance Company, the same shall be deposit by theRegistry of this Court, within a period of 6 (six) weeks from the date of receiptof a certified copy of this order. On such deposit, Registry shall disburse thesame to the claimant/respondent No. 1 subject to the claimant/respondent No.1 producing FDR in the name of the two minor children in original andsubmitting photo copies of the same before the Registry.
The appellant Insurance Company is also permitted to withdraw thestatutory deposit of Rs. 25,000/- made with the Registry at the time of filing ofthe appeal with interest, if any. The amount of compensation paid by theappellant Insurance Company will be recoverable from the owner of the vehicleconcerned in terms of the direction passed by the Tribunal.
Appeal stands disposed of accordingly.
The LCR be sent back to the Tribunal forthwith.
JUDGE
Comparing Assistant
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