IN THE COURT OF THE 2ND MOTOR ACCIDENT CLAIMS TRIBUNAL

(S.D.), BERHAMPUR, DIST. GANJAM

M.A.C. 267 / 2011 (312 / 08 GDC)

Amulu Swain and Others …… Applicants

Versus

Divisional Manager,
Oriental Insurance Co. Ltd. and another …… Opp. Parties

WRITTEN ARGUMENT filed by the applicants most respectfully showeth :-

1. That the present case has been initiated by the Petitioners claiming
compensation on account of death of the deceased Kangress Swain who is the
husband of Petitioner No.1, father of the Petitioner Nos.2 and 3 and the son of the
Petitioner Nos.4 and 5.
2. That the facts of the accident and the resultant death of the deceased
is not a matter of dispute nor any rebuttal evidence to that effect is on record and as
such the Petitioners are entitled for compensation under the act.
3. That however under abandoned caution the Petitioner have examined
the informant in the connected police case and has well proved the fact of accident.
4. That the occupation and income of the deceased is also well
established through the P.W.3, the employer of the deceased, who categorically
depose the fact, that the deceased was a driver by occupation under him engaged
with his Truck bearing Regd. No.OR-07K-1765 and that he was being paid
Rs.9,000/- per month such averment having remain unchallenged and having well
prove by competent evidence, the income of the deceased is to be accepted as per
the evidence on record i.e. at Rs.9,000/- per month and since the deceased was
having more number of dependents, the deduction towards his personal expenses
need be taken at the rate of 1/5th of his income while assessing the compensation.
5. That as regard the age of the deceased is concerned it is submitted
that the deceased was 40 years old at the time of his sad-demise, which is well
recorded and reflected by the Govt. authority while granting the driving licence to the
deceased. Under the circumstances, despite the fact that the postmortem report
disclose the deceased to be 46 years old, the same should not be and can not be
Contd……P/2
taken into consideration while there is otherwise authentic evidence in proof of the
age / date of birth of the deceased. Accordingly since the deceased was 40 years at
the time of death, the schedule multiplier of 16 need be applied while computing the
amount of compensation.
6. That in view of the premature death of the deceased who was the lone
bread earner of the family the Petitioners entitled for loss of estate, love and
affection, consortium of Rs.50,000/-. Further the Petitioners are entitled a sum of
Rs.20,000/- towards funeral expenses and a sum of Rs.10,000/- towards
transportation of dead body of the deceased. That had the deceased would have
been alive his income would have been increase with time and as such the
unfortunate and premature death since has resulted substantial pecuniary loss to the
Petitioners in future, the entitlement of the Petitioners towards future prospects can
not be ignored or overlooked. As such it being the settle position of law set by the
Hon’ble Apex Court in the case of Sarala Verma and Others versus Delhi
Transport Corporation and another reported in TAC 2009 (2) at Page 677, the
Petitioners are entitled for loss of future prospects at 40% of the income of the
deceased. That as regard to the liability of the Respondents it is submitted that
though the Respondent No.1 is vicariously liable, since the offending vehicle was
covered under valid policy of Insurance with Respondent No.2, the Respondent No.2
is liable to indemnify the Respondent No.1 and pay the compensation to the
Petitioners.
PRAYER
Hence it is prayed that the Hon’ble Tribunal may be pleased to pass an award
directing the Opp. Parties to pay the amount of the compensation claimed and may
further be pleased to award such further compensation as is entitled to the
Petitioners beyond and above the amount claimed together with interest from the
date of filing of the case as well as cost of the litigation, in the best interest of Justice.

Advocate for the Applicants

IN THE COURT OF THE ADD- DISTRICT JUDGE-CUM- 3RD M.A.C.T, BHANJANAGAR,
GANJAM.

M.A.C. No. 116 /2016

Anusaya Gouda and Others …. Applicants

Versus

Sunil Kumar Pattnaik and another …. Opp.Parties

WRITTEN NOTE OF ARGUMENT filed by the applicant most respectfully showeth :-

1.That the above case stands posted to today for argument.

2.That, in support of their case/claim, the petitioners prefers to submit its Argument
in Writing to facilitate a proper and judicious appreciation and finding of the matter by
this Hon’ble court.

3.That the present claim has been advanced by the petitioners claiming a sum of
Rs.14,00,000/- (Rupees Fourteen Lakhs) as compensation to be paid by the
respondents, on account of the accidental death of the deceased Baruna Gouda the
late earning son of the petitioner No.1&2 and younger brother of the petitioner No.
3&4 under 166 of the M.V. Act,1988.

4.That the deceased having met with the unfortunate accident who died, due to sole
rash and negligent driving of the driver of the truck bearing Reg,No-OR-07K –0057 i
e the offending vehicle( Oil Tanker) is vicariously liable for the tortuous act of his
driver/employee while the respondent No.2 being the insurer of the vehicle covering
the date of the accident and the risk is liable to indemnify the insured/owner, the
respondent No. 1 towards the entire amount of compensation claimed/awarded.

5.That as regard to the fact of the accident, involvement of the offending vehicle in
the accident the rash and negligent driving of the driver, the death being on account
of the absolute negligence of the driver is proved beyond any reasonable doubt in as
much as substantiated by sufficient material documental evidence and as such there
is no scope for the respondents to avoid or evade their liability to indemnify and pay
the compensation to the petitioner.

6.That so far as the dispute raised by the O.P NO-2 regarding the offending vehicle
is one of the insured vehicle as is disclosed in the policy scheduled relied upon by
the O.P No-2

7.That the very base of issuance of policy is the concerned vehicle and the duty of
noting the same heavily cast on the insurer while and before issuing a policy. In this
case the Policy of the offending vehicle bearing NO –OR -07K-0057 must have been
issued to the O.P.No- 1 on

Contd..P-2.

-2-

production of the R.C. book of the vehicle, therefore an act of wrong committed by
the O.P No-2 and as such the O.P no-2 cannot escape from his liability that the Reg.
No.OR-07K-0057 of the offending vehicle insured with O.P-.2 at the time of accident
covering the risk and as such the O.P-2 is liable for the present claim.

8.That in view of the submissions made herein above it is now substantially proved
from the evidence on depositions of the applicant P.W.No-1 and P.W. 2 as well as
investigating report of the police that vehicle bearing Reg. NO- OR -07K-0057 was
involved in the accident as well as insured with the O.P No-2 and that the rash and
negligent driving of the driver of the said vehicle is the sole cause of the death of the
deceased in this case.

9. There is no breach of the policy condition as the driver was having valid and
effective D.L to drive the offending vehicle and covered under a valid and effective
policy of the insurance with the respondent no.2 covering the date of accident and
the subject risk which is well proved and established and there is no whisper of any
contrary or rebuttal evidence to cast any doubt so far as the liability of the
respondents to pay the compensation vis-à-vis the entitlement of the petitioners for
the same.

10.That, under the circumstances, its humbly submitted that the major issues need
to be decided and given judicious thrust so as to arrive at an amount of
compensation that is “ just and proper” are ;

(a) Occupation of the deceased.

(b) Age of the deceased

(c) Income of the deceased & future prospects.

(d) Appropriate multiplier for computation of the amount of compensation.

(e) Deduction towards personal expenses of the deceased.

(f) Entitlement of the petitioners towards loss of love, affection, estate and towards
expenses incurred for funeral and obsequies.

(g) Interest over and above the amount of compensation, and

(h) Cost of the litigation.

11.That it is further stated by the applicants/ petitioners, that the P.W.-2 Kedar Nath
Gouda categorically stated in his deposition that he himself and the deceased
Baruna Gouda were working as helper cum Cleaner under the same company, here
in the O.P. No.1( Owner of the

Contd…
P-3.

-3-
Tanker) and getting salary a sum of Rs.9000/- per month from O.P.No.1 and case in
hand the deceased beyond any reasonable doubt have been proved to be working
job under O.P. No.1(Owner of the offending vehicle) as Helper Cum Cleaner and he
was aged about 20 years and getting salary a sum of Rs.9000/- per month from
O.P.No.1 at the time of his premature and unfortunate demise.

12.That the deceased at the time of his death was earning from the said professions
net income of Rs9,000/-per month as is well proved in the deposition of the P.W-
1&2 and well proved the documents filed by the applicants and under the
circumstances the applicants humbly beg to draw the kind attention of this Hon’ble
court of the guideline adhered to by His Lordship’s of Hon’ble Delhi High court so
far as assumption / calculation of the “ FUTURE PROSPECT “ in fatal accident
cases and it is observed in Col / Item No.3 under the Head “Settlement of Pending
Death cases according to the schedule accepted by the insurance companies” that
read as –

“FUTURE PROSPECTS”

1.Below 40 Years of age Actual income + 50% towards future

prospects.

2.Between 40-50 Years Actual income + 30% towards future

prospects.

3.More than 50 Years Actual Income only. No addition for

future income prospects.

4.Wages not sufficiently proved Minimum wages + 50% towards

inflation and price index.

13.That the afore noted observation needs judicious consideration and accordingly
while arriving at a just amount of compensation the income of the deceased need to
be accessed @ Rs.9,000/+ Rs 4,500/- (50% towards Future Prospects) = Rs
13,500/- Per month.So it is humbly submitted by the poor petitioners to grant
compensation as claimed along with future prospectsof the earning of the deceased
as per law.
14.The deceased having died at a young and even otherwise the evidence forth
coming from the documents Ext.- 3 to supported by evidence deposed by the P.W.1
remain unchallenged and need to be taken in to consideration for the purpose of
assessment of annual income vis-à-vis for the purpose of computation of the amount
the compensation as has been held by his Lordship of Hon’ble Apex court in the
case of Rajarani & others Vs. OIC and another,
Contd…P-4.

-4-
reported in TAC(4)2009,385(para-11). Though it has been strenuously pleaded all
though, and even very much forth coming in evidence adduced by the P.W-1 & 2 to
the effect that the
deceased was bound to get superannuated vis-à-vis a definite hike in the income of
his professions ,under abundant caution the petitioners humbly beg to draw the kind
notice of this Hon’ble Tribunal of the observations of the Hon’ble apex court quoted
under para-13 of the reported citation (supra) which reads “it is not necessary in a
proceeding under the M.V Act to go by any rules of pleadings or evidence. Sec.166
of the act speaks about grant of just compensation, The court’s duty being to award
just compensation ,it will try to arrive at the said findings irrespective of fact as to
whether any plea in that behalf was raised by claimant or not”. Accordingly the
annual income of the deceased that need to be arrived at comes to Rs.13,500/-x12
Months i.e Rs 1,62,000/- per annum.
15.That, as regard to the amount to be deducted towards personal expenses of the
deceased is concerned, in the case in hand the un-married person ,there need be
deduction of 1/2 of the annual income towards personal expenses need be taken in
to consideration in computing the amount of compensation.The above observations
have also followed by the Hon’ble apex court in the case of Sarala Verma V.Delhi
Transport Corporation,decide on 15th April 2009. Similar observations have been
made in the recent past in a catena of cases of his Lordships of Hon’ble Apex court
of India as well as several High courts to the effect that in fatal cases, the schedule
under the Act is only a guideline and need to be adhered to depending upon the
nature and circumstances of Individual cases and can not be followed as a strict rule
of law. So considering the above factum of law and considering the circumstances of
the case in hand,the amount to be deducted towards personal expenses and living of
the deceased may be calculated at 1/2 of the total of the annual income of the
deceased stated herein before under para-13 above and thereby the annual
dependency comes to Rs 1,62,000,/-- Rs 81,000/-(1/2 of Rs.81,000/- )= Rs81,000/-.

16.That,as regard to the application of multiplier factor, statutory provision, provided

under schedule-II of Sec.163 - A of the Act, for application of multiplier of “18”for the
age group of above 20 years but not exceeding 40 years would be just for calculation
of the amount of compensation. However, under abundant caution and keeping in
view of the latest position of law in this regard as has been held by the Hon’ble apex
court in the case of Sarala verma V. DTC, the multiplier of “18”,as is specified in the
schedule to the M.V Act ,for the deceased in the age group of below 40 years, the
gross amount of compensation comes to Rs 81,000x18=Rs.14,58,000/- and in case
this Hon’ble court is pleased to go by ratio decided in the case of Sarala Verma
(Supra),the amount of compensation comes to Rs.81,000/- x18=Rs 14,58.000/-.

Contd….P-5.

-5-

17.That, it is humbly submitted that besides the afore calculated amount of

compensation ,the petitioners are entitled to Rs.1,00,000/- towards loss of love and
affection and Rs 50,000/- towards loss of estate together with the expenses incurred
by the petitioner towards the funeral and obsequies to the tune of Rs30,000/- which
is just and proper under the facts and circumstances of the case. And this shall meet
the ends of justice and equity.

18.That, it would not be out of place and rather pertinent to submit that though an
amount of Rs.14,00,000/- has been claimed by the petitioner, keeping in view of the
afore-noted computation, of the amount of compensation, which is just and proper, it
is submitted that there is no bar on this Hon’ble Tribunal/Court to grant more
compensation than the amount claimed and instead of this Hon’ble Court/Tribunal
has the jurisdiction and is empowered to grant compensation more than the amount
claimed if the same is to be “just and proper” under a particular/given facts and
circumstances.

19. That, over and above the amount of compensation the petitioner is also
entitled for cost of litigation of Rs5,000/- together with interest @ 9%per annum with
effect from the date of filing of the case till the actual payment is made by the
respondent No-2 / insurer and failing which the petitioners are entitled for higher rate
of interest @12% in the larger interest of justice.

PRAYER

It is therefore humbly prayed that the Hon’ble court may be

pleased to direct the Respondent No-2 to satisfy the award and pay a sum of Rs
14,58,000/-together with a sum of Rs 1,00,000/- towards loss of love and affection
and Rs50,000/- towards loss of estate together with the expenses incurred towards
the funeral and obsequies to the tune of Rs 30,000/-along with interest @ 9 %
towards compensation on account of the death of the deceased Baruna Gouda in
the larger interest of justice.

Advocate for the petitioners

Citation relied- :
1.