Calcutta High Court (Appellete Side)
26 2021 National Insurance Co. ... vs 8 Kabita Mandal & Ors on 2 August, 2021
Ct.
No. 02.8 F.M.A. 1067 of 2017
26 2021 National Insurance Co. Limited
Vs.
8 Kabita Mandal & Ors.
& With
9 C.O.T. 63 of 2017
akb Kabita Mandal & Ors.
Vs.
National Insurance Co. Limited & Anr.
( Via Video Conference )
Mr. Rajesh Singh ...For the Appellant/Insurance Co.
And respondent in COT 63 of 2017
Mr. Ali Imam Shah ...For the Claimants/Respondents
& Appellants in COT 63 of 2017
The instant appeal is directed against the
judgment and award dated July 14, 2016 passed by the
learned Additional District Judge, Fast Track Court,
Durgapur and Motor Accident Claims Tribunal, Durgapur,
Burdwan, in M.A.C. Case No. 40 of 2013/78 of 2012.
The appeal has been preferred by the appellant
Insurance Company, disputing its liability of satisfaction of
the award, on the ground that the offending vehicle, a
'Dumper', did not possess any 'route permit' at the time of
accident. The insurer also pleaded that the 56 years old
deceased was due to retire after 4 years, therefore
considering the residual years of service, instead of '9', the
multiplier of '4' should have been adopted. The
compensation of Rs.1,25,000/- granted under collective
heads of 'general damages' is alleged to be excessive.
Learned Counsel for the respondent claimants, by
way of cross objection, submits that the Tribunal has not
awarded compensation on account of deceased's future
prospects.
It is the case of the Insurance Company that route
permit was neither found nor seized by the police. In spite
of the summons being issued, the owner of the offending
vehicle did not appear and the route permit was not even
produced before the Court below. Insurance Company took
the plea of 'no route permit' in its written statement.
However, Insurance Company did not bring any evidence to
prove its case. The insurer neither exhibited any document
nor produced any witness to deny its liability. Thus, it could
not substantiate its case conclusively and there cannot be any
definite finding on the issue of 'no route permit'.
While dealing with the 'quantum' of
compensation assessed, relying upon the judgments of Smt.
Sarla Verma & Ors. Vs. Delhi Transport Corporation & Anr.,
reported in (2009) 6 SCC 121 and National Insurance Company
Ltd. Vs. Pranay Sethi & Ors., reported in (2017) 16 SCC 680, I
find substance in the arguments of the Insurance Company
on the point of 'general damages'. It should not exceed
Rs.70,000/- in total. However, insurer's plea of selection of
multiplier on the basis of residual years of service is rejected.
The decision of Bhogireddi Varalakshmi and Others -Vs- Mani
Muthupandi and Others, reported in 2017 (2) TAC 3 SC on the
said point, is specific and against the insurer. Deceased was
a permanent employee of Eastern Coalfield Limited,
therefore claimants' entitlement for 15% additional income
under 'future prospect' is allowed.
Accordingly, the impugned award is modified
and recalculated in the manner referred hereinafter.
Net Annual Salary (less tax) Rs. 14,95,620/-
Add 15% future prospects (Rs.2,24,343/-) Rs.17,19,963/-
Less - 1/3rd towards personal
expenses (5,73,321/-) Rs. 11,46,642/-
Multiplier (9) Rs.1,03,19,778/-
Collective General Damages Rs. 70,000/-
____________
Total Rs.1,03,89,778/-
The compensation amount shall carry interest at
the rate of 6% per annum from the date of filing of claim
application till the date of realization.
Mr. Singh submits that the Insurance Company
has deposited a total of Rs.1,19,50,357/- before the Registrar
General of this Court. In the light of above submissions, the
claimants/respondents shall furnish particulars of their
respective Bank accounts with the Registrar General of this
Court as expeditiously as possible. Upon receipt of such
details, the Registrar General is directed to pay the total
deposited amount along with accrued interest to the
claimants/respondents in accordance with law in the same
manner and proportion of the award as decided by the Court
below within a period of four weeks.
The Registrar General shall check the veracity of
the bank accounts and the identity of the claimants before
disbursing the amounts.
Upon receiving the said payment, the learned
Counsel for the claimants shall intimate the amount received
along with details of the bank account of the claimants, to
the insurer. The Insurance Company, within four weeks
from the date of receiving such details and bank particulars,
shall calculate and make over the deficit payment to the
claimants by way of NEFT/ RTGS in the respective bank
accounts of the respondent claimants directly in the
proportion decided by the Court below.
However, it will be open to the Insurance
Company to file a civil suit against the owner of the
offending vehicle for recovery of the compensation paid or
payable on the ground that it was the sole obligation of the
owner of offending vehicle to pay the compensation, if it can
prove its case that the offending vehicle did not possess a
valid route permit at the time of accident.
With the aforesaid directions, the instant appeal
and connected cross-objection, being F.M.A. 1067 of 2017
and C.O.T. 63 of 2017, together with the connected
applications shall stand disposed of. The concerned
Department is directed to tag the applications, if any, with
the main appeal. There shall be no further order as to costs.
The Registry is directed to send down the lower
Court records at once, if received by this time.
Urgent photostat certified copy of this order, if
applied for, be given to the parties, upon compliance of all
formalities, on priority basis.
( Shekhar B. Saraf, J.)
