Calcutta High Court (Appellete Side)
Bajaj Allianz General Insurance ... vs Marufa Bibi & Ors on 6 July, 2021
S/L 13 & 14
06.7.2021
Court No.26
SD
FMAT 405 of 2019
With
CAN 1 of 2019
(Old CAN 8837 of 2019)
(Application is not in the file)
with
COT 19 of 2020
(Via Video Conference)
Bajaj Allianz General Insurance Co. Ltd.
Vs.
Marufa Bibi & Ors.
Mr. Rajesh Singh
... for the Appellant/Insurance Co.
Mr. Ashique Mondal
... for the Respondents/Claimants.
The appeal is directed against the judgment and
award dated December 13, 2018 passed by the learned Judge,
Motor Accident Claims Tribunal, IVth Bench, City Civil Court,
Calcutta, in M.A.C. Case No. 146 of 2012.
The facts of the case are not in dispute. The claim was
filed under Section 166 of the Motor Vehicles Act, 1988 in
connection with a vehicular accident dated April 3, 2012.
The appeal has been preferred by the
appellant/insurance company, inter alia, primarily on the
ground that the driver of the offending vehicle did not
possess a valid driving license at the time of the accident.
Insurer also pleaded that the amount of compensation is
excessive.
Counsel for the respondent claimants, by way of cross
objection, submits that the Tribunal has not taken the
notional income of the deceased victim correctly and has not
awarded compensation on account of future prospects.
Claimants submit that in view of 7 numbers of dependents,
2
deduction for personal expenses should have been 1/5th of
the income of the deceased and not 1/3rd as deducted by the
Tribunal. Compensation granted under the collective heads
of general damages is also challenged.
The Tribunal below, in the impugned judgment, on
the basis of evidence, held that the offending motorcycle
driver was holding a licence to drive a light motor vehicle
w.e.f. 28.09.2007 and was subsequently authorized to drive
motor cycle with gear only from 22.05.2012, i.e. - after the
date of accident. The Tribunal further held that the principle
of pay and recovery from the owner does apply in the present
case. However, in the ordering portion, the Tribunal did not
grant any express liberty to the appellant/insurance
company to pay and then recover the awarded compensation
from the owner of the vehicle. In such view, the
appellant/insurance company is granted liberty to pay the
compensation amount to the respondent No. 1-7/claimants
and then recover the same from the owner of the vehicle.
On quantum, considering 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 and also following
the precedence of this Court on the point of monthly income,
I find substance in the arguments of the appellants. For the
year 2012, in a claim under section 166 of the Motor Vehicles
Act, 1988, an amount of Rs.4,000/- per month does not
appear to be exorbitant. Furthermore, the deduction towards
personal expenses of the victim ought to have been taken as
1/5th instead of 1/3rd keeping in mind that the deceased had
seven dependents. Appellants are also entitled to
Rs.70,000/- under collective heads of general damages.
Accordingly, the impugned award is modified and
recalculated in the manner referred hereinafter.
3
Particulars Amount (Rs.)
Monthly Income 4,000/-
Less - 1/5th towards personal expenses 3,200/-
Add - 25% income towards future prospects 4,000/-
Annual Income (x 12) 48,000 /-
Multiplier (13) 6,24,000/-
Collective General Damages 70,000/-
-------------
Total 6,94,000/-
Since no amount has been paid by the insurance
company to the respondent Nos.1 to 7/ claimants, the entire
compensation amount of Rs.6,94,000/- together with 6%
interest from date of claim application i.e. 14.06.2012 till
payment, shall be paid to the respondent Nos.1 to 7/
claimants within 30 days of receipt of particulars of their
respective bank accounts to be supplied by their counsel to
the counsel for the insurance company. Such payment shall
be made by the insurer by way of NEFT/ RTGS in the
respective bank accounts of the respondent Nos.1 to 7/
claimants directly in the proportion decided by the Court
below.
The appellant/ insurance company is granted liberty
to pay the compensation amount to the respondent No.1 to
7/claimants and then recover the same from the owner of the
vehicle in accordance with law.
Insurance Company is also given liberty to withdraw
the statutory deposit of Rs.25,000/- along with the accrued
interest from the Registrar General of this Court after
making the above payment to the claimants.
With the aforesaid directions, the instant appeal and
connected cross-objection being F.M.A.T. No. 405 of 2019
and C.O.T. 19 of 2020, together with the connected
applications shall stand 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.)
