Calcutta High Court (Appellete Side)
Khairunnesa Bibi & Ors vs Oriental Insurance Co. Ltd. & Anr on 6 January, 2021
06.01.2021
Court No.13
sp
F.M.A. No. 451 of 2013
With
I.A. No. CAN 1 of 2020 (Old CAN 8493 of 2013)
Khairunnesa Bibi & Ors.
Versus
Oriental Insurance Co. Ltd. & Anr.
Mr. Krishanu Banik.
...For the appellants/claimants.
Mr. Parimal Kr. Pahari.
....For the Insurance Company.
The instant appeal is directed against a judgment
and award dated November 15, 2011 passed by the
Judge, 2nd Motor Accident Claim Tribunal, Tamluk in
MACC No. 48 of 2010.
The brief facts of the case that one Sk. Jakir Ali
was proceeding from Nimtala Bazar in Tamluk by motor
cycle. When he reached Radhamoni Shyamashree bazar
near Kalimondir, a truck bearing No. WB 33/7049
coming in the same direction in high speed and in being
driven a rash and negligent manner dashed the said
motor cycle with great force. Sk. Jakir Ali sustained
severe injuries to himself. The said Sk. Jakir Ali died at
the Purba Medinipur District Hospital after being taken
for treatment from the accident site. The claim was filed
under Section 166 of the M.V. Act by his dependants.
The principal ground urged in the appeal is that
the evidence on record of PW/3 indicates that the
appellant had submitted Income Tax Return for the
Assessment Year 2006-07 for Rs. 1,01,180/-. A xerox
copy of this Form No. 20 (Saral Form) has been brought
on record though not formally marked as an exhibit.
However, an interpolated letter stated to be on August
10, 2011 (without signature or authentication on the
interpolated date), is marked as Exhibit-8. It is a letter
addressed by the ITO, Ward-3, Haldia Basudevpur,
Khanjanchak, Purba Medinipur to the Tribunal stating
that the victim had a PAN Card and for the Assessment
Year 2006-07, his income was Rs. 1,01,080/-. In addition
thereto, there is oral evidence of the wife of the victim
that the deceased owned a truck and also had a
mosquito net business.
Based on the above evidence, the learned counsel
for the appellants would argue that the Tribunal wholly
erred in taking the victim's income at Rs. 3,000/- per
month i.e. as a daily wager.
This Court notes firstly that the original
acknowledgement copy of the "Saral Form-20" had not
been brought on record. There is discrepancy in the
figure of total income between the letter of the ITO, Ward-
3, Haldia Basudevpur, Khanjanchak, Purba Medinipur
purportedly dated August 10, 2011 stating that the total
income is Rs. 1,01,080/- as opposed to the "Saral Form-
20" which says Rs. 1,01,180/-. The letter of the ITO has
an interpolation on the date which has not been
explained in evidence or corrected.
There is also no documentary evidence brought on
record to show that the victim was engaged in any
mosquito net business or owned truck.
This Court is, therefore, of the view that the
conclusion of the Tribunal as regards the income of the
victim as Rs.3,000/- per month cannot otherwise be
faulted.
This Court, however, observes that the Insurance
Company, as usual, has miserably failed to cross-
examine the claimants' witnesses, particularly, that of
the ITO and the victim's wife. Hence, this Court is of the
view that a limited weightage should be given to the
evidence produced by the claimants. This Court,
therefore, assesses the total income of the victim at
Rs.4,000/- per month.
The learned counsel for the appellants relies on a
decision of a Division Bench of this Court in the case of
Krishna De & Ors. vs. National Insurance Co. Ltd.
dated June 11, 2008 passed in FMA No. 1920 of 2003, in
support of his argument that victim's monthly income
should be treated as Rs.9,000/-. The vital distinguishing
factor in the facts of the instant case that there was
sufficient proof that the victim therein was a owner of a
truck which is not available in the instant case.
It is also found that the Tribunal has erred in
awarding general damages at Rs.9,500/- and also
misapplied the multiplier.
The victim had five dependants and the deduction
from monthly income ought to have been 1/5. The
Tribunal also did not consider the future prospects.
Given the decision of the Hon'ble Supreme Court in
the case of National Insurance Company Ltd. vs.
Pranay Sethi & Ors. reported in (2017) 16 SCC 680,
this Court recalculates and re-assesses the compensation
payable to the appellants as follows:
Particulars Amount (Rs.)
Yearly Income (4000 x 12) 48,000.00
Add: Future Prospect 25% 12,000.00
60,000.00
Less: 1/5th for personal expenses 12,000.00
48,000.00
Multiplier "14" (x) 14
6,72,000.00
Add: General Damages 70,000.00
7,42,000.00
Less awarded amount (-) 3,69,500.00
Total compensation amount 3,72,500.00
The appellants have received a sum awarded by the
Tribunal. The balance sum of Rs. 3,72,500/- shall be
paid to the appellants together with interest @ 6% per
annum in the proportion ordered by the Tribunal below
from the date of filing of the claim petition. The payment
shall be made by the Insurance Company within 45 days
of receipt of the bank particulars of each of the
appellants from the counsel for the appellants. Payment
shall be made only in their respective bank accounts.
With the aforesaid direction, the instant appeal and
the connected application are disposed of.
There shall, however, be no order as to costs.
The LCR may be returned to the Court below.
Urgent photostat certified copy of this judgment, if
applied for, be given to the parties upon compliance of all
formalities.
(Rajasekhar Mantha, J.)
