Usha Rajkhowa & Ors vs M/S Paramout Industries & Ors

2. The appellants herein challenges the judgment passed by the High Court, confirming the judgment of the Motor Accidents Claim Tribunal (hereinafter referred to as `the Tribunal' for short), whereby, the Tribunal limited the appellants' entitlement to 50% of assessed claim amount and granted compensation of Rs.6,56,300/- on the ground that there was contributory negligence on the part of the driver of the Car, who lost his life in accident. He was the husband of appellant No. 1 and the father of appellant No. 2. The Car was insured by respondent No. 3 Oriental Insurance Company Ltd.

3. One Jadhav Rajkhowa died in a motor vehicle accident on 5.12.1998 at about 7 pm, when he had gone to Dergaon market from his house at Dadhara in his Maruti Car bearing Registration No. WB/12/6287. On the way of Dergaon, one truck bearing Registration No. NLA-241, coming from Jorhat side towards Bokakhat in a rash and negligent manner, hit the Maruti Car causing the instant death of said Jadhav Rajkhowa. Therefore, the claim petition was filed by his legal representatives (the appellants herein). The Car was insured with Oriental Insurance Company Ltd., while the offending truck belonged to M/s. Paramount Industries, Jorhat (respondent No. 1 herein), which was insured with United India Insurance Company Ltd., Golaghat Branch (respondent No. 2 herein).

5. In support of the claim, appellant/claimant Usha Rajkhowa appeared as PW-1 and stated that her husband was the driver of the Maruti Car at the time of its accident and he was an employee of Oil India Ltd. She further stated that her husband was 30 years old at the time of accident and he had two children at that time. She claimed the monthly pay of her husband to be Rs.10,536/-. PW-2 Sarbeswar Bora was an employee of Oil India Ltd. He stated that deceased Jadhav Rajkhowa was Safety Inspector at the time of accident. The other witness examined was Madhuriya Rajkhowa PW-3, who stated that he was travelling along with one Dhiren Hazarika in Maruti Car and that the offending truck No. NLA-241 was coming from the opposite direction in high speed and hit the car. It was claimed by the witness that both Dhiren Hazarika, as also Jadhav Rajkhowa had died on the spot, while he escaped the death with certain grievous injuries. In his Cross Examination, PW-3 stated that:-

On the basis of this evidence, the Tribunal, firstly returned a finding that the Oriental Insurance Company Ltd. was not liable to pay any compensation, since the policy covering the owner of the Maruti Car, was not a comprehensive policy, but only an Act Policy. Insofar as the assessment of compensation is concerned on the basis of monthly salary and applying the multiplier formula, the amount was assessed at Rs.13,05,600/-. Adding the funeral expenditure of Rs.2,000/- and loss of consortium of Rs.5,000/-, the total amount was arrived at Rs.13,12,600/-. The Tribunal then came to the finding that this amount was payable by United India Insurance Company Ltd., which was the insurer of the truck No. NLA-241 to the extent of 50% only, while the balance amount is to be borne by the owner himself. The Tribunal, ultimately held that the claimant would be entitled to compensation of Rs.6,56,300/- from United India Insurance Company Ltd. with the accrued interest @ 9% p.a. from the date of filing of the claim petition.

11. Under the circumstances, there would be no question of restricting the claim to the 50% of the assessed amount of compensation.

12. The Learned Counsel for the respondents did not address us on the question of quantum. We hold that the compensation was correctly assessed. We, however, would not confirm the theory that the accident took place because of the contributory negligence and would choose to award full compensation to the appellants. The appeal is allowed. The award of the Tribunal and appellate judgment of the High Court are modified to the extent we have indicated. The appeal stands allowed with costs.

February 17, 2009.