Calcutta High Court (Appellete Side)
The National Insurance Co. Ltd vs Mahua Bhar & Ors on 23 August, 2021
S/L 11
23.8.2021
Court No.26
SD
FMAT 1158 of 2018
With
CAN 1 of 2018
(Old CAN 9597 of 2018)
With
CAN 2 of 2019
(Old CAN 7466 of 2019)
(Application is not in the file)
(Via Video Conference)
The National Insurance Co. Ltd.
Vs.
Mahua Bhar & Ors.
Mr. Sanjay Paul
... for the Appellant/Insurance Co.
Mr. Ashique Mondal
... for the Respondents/Claimants.
The appeal is directed against the judgment and
award dated 12th June, 2018 passed by the Judge, Motor
Accident Claims Tribunal-cum-Additional District & Sessions
Judge, 1st Court, Hooghly, in M.A.C. Case No. 79 of 2015. The
claim was filed under Section 166 of the M. V. Act, 1988.
The appeal has been preferred by the appellant
insurance company, inter alia, primarily on the ground of
quantum of the compensation awarded by the Tribunal. It is
argued by counsel for the appellant/insurance company that
the Tribunal has wrongly assessed the annual income of the
deceased and has applied the wrong multiplier apropos the
age of the deceased at the time of accident.
Mr. Paul further submits that the Tribunal erred in
law while assessing annual loss of dependency by ignoring
the fact that the business of the victim is still running and the
claimants are still enjoying income from said business of the
victim, therefore, the Tribunal ought to have considered this
aspect while assessing the pecuniary loss as well as annual
loss of dependency.
Per contra, counsel for the respondent Nos. 1-4/
claimants submits that the Tribunal has taken the income of
the deceased victim incorrectly and the same is on lower side.
Compensation granted under the head of loss of consortium
has also been challenged by way of COT 66 of 2019.
The accident occurred and the victim died on 4th
February, 2015. The Tribunal has arrived at the annual
income of the victim on the basis of Exhibit 14 Series which
apart from the income tax return for financial year 2013 -
2014, contains the audited balance sheet for the year ending
31.03.2014. On the basis of the said evidence, the Tribunal
has considered annual income of the victim as Rs. 4,08,675/-
. This is disputed by the counsel for the appellant/ insurance
company who submits that the said income tax return has
been filed on 25.03.2015 i.e. after the death of accident.
It is argued that the income reflected in the said
income tax return has been inflated for the purpose of getting
higher compensation in the instant proceedings. Counsel for
the appellant/ insurance company submits that the income
tax return for the financial year 2012 - 2013 ought to have
been taken into account which was filed much before the
accident by the deceased victim himself. Taking into
consideration the fact that the victim died on 4th February,
2015, to remove any doubts, the income of the victim as
reflected in the income tax return for the financial year 2012
- 2013 i.e. assessment year 2013 - 2014 should be taken into
account for the purpose of arriving at the income of the
victim at the time of accident. The income tax return for
assessment year 2013 - 2014 exhibited before the Learned
Tribunal below as Exhibit 12 reveals that the total income of
the victim for such year was Rs. 3,28,285/- from which tax of
Rs. 2,690/- should be deducted which would take the annual
income of the victim to Rs. 3,25,595/- per annum. The
multiplier should be taken as 14 instead of 15 since the age of
the victim was 43 years. Regarding pecuniary advantage as
received by the claimants from the business of the deceased,
there is no evidence as adduced by the appellant before the
tribunal to establish the actual pecuniary advantage as
received by the claimants from the said business. Therefore, I
am not inclined to interfere with the findings of the tribunal.
The remaining factors of computation of payable
compensation has been well-settled by the Hon'ble Apex
Court in National Insurance Company Limited -vs.-
Pranay Sethi & Ors., reported in (2017) 16 SCC 680.
The general damages of Rs. 70,000/- should stand increased
by 10% i.e. Rs. 77,000/- in terms of the diktat of the Hon'ble
Apex Court in National Insurance Company Limited
-vs.- Pranay Sethi & Ors., reported in (2017) 16 SCC
680.
Be that as it may, considering the rival submissions of
the parties as well as judgment of Hon'ble Apex Court as well
as general practice of our High Court, above award passed by
the Tribunal below is modified and recalculated as follows:
Particulars Amount (Rs.)
Annual Income 3,25,595/-
Less - 1/4th towards personal
expenses (Rs. 81,399/-) 2,44,196/-
Add- 25% additional income towards
future prospects (Rs. 61,049/-) 3,05,245/-
Multiplier (14) 42,73,430/-
Loss of consortium 44,000/-
Loss of estate 16,500/-
Funeral expenses 16,500/-
Total 43,65,430/-
Counsel for the appellant/insurance company submits
that he had deposited the entire awarded amount along with
interest, being Rs. 78,42,399/-, before the Registrar General
of this Hon'ble Court in terms of an order of this Hon'ble
Court dated 15.03.2019. The respondent No. 1/ claimant
shall be entitled to a consolidated sum of Rs. 43,65,430/- on
account of compensation together with interest at the rate of
8% per annum to be calculated by the Registrar General from
the date of filing i.e. 20.04.2015 till the date of payment. The
respondent No. 1/ claimant is granted liberty to approach the
Registrar General of this Court for release of such sum. If an
approach is made, the Registrar General shall take
immediate steps to release the same positively within four
weeks from date. The appellant/ insurance company is
granted liberty to approach the Registrar General of this
Court for release of the balance amount together with
interest accrued thereon.
With the aforesaid directions, the instant appeal is
disposed of.
There shall be no order as to costs.
In view of the disposal of this appeal, connected
applications, if any, are also disposed of.
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.)
