Calcutta High Court (Appellete Side)

The National Insurance Co. Ltd vs Sufiya Mondal & Ors on 8 April, 2022

                                                            FMA 1189 of 2012

               IN THE HIGH COURT AT CALCUTTA

                    CIVIL APPELLATE JURISDICTION

                          APPELLATE SIDE

  Present:-

  THE HON'BLE JUSTICE Kesang Doma Bhutia.



                         F.M.A. No. 1189 of 2012
                                  With
              IA. No. CAN 1/2012 (Old CAN 5854/2012)
                     The National Insurance Co. Ltd.
                                   VS.
                         Sufiya Mondal & Ors.


For the Appellant          : -Mr. Sanjay Paul.


For the Respondent         : -Mr. Tushar Kanti Mukherjee,

Mr. Tapas Kumar Saha,

Hearing concluded on : -05.04.2022

Judgment on : -08.04.2022

Kesang Doma Bhutia, J:- This appeal is directed against the

award passed by the learned Motor Accident Claims Tribunal, City

Civil Court, 12th Bench in M.J.C. Case No. 428 of 2009 on 28th March

2012.

FMA 1189 of 2012

The respondents being the legal heirs of the deceased victim

Sabdar Ali Mondal, who had lost his life in a road accident being hit

by a lorry bearing Registration No.WB-25B/2581 and that took place

on 02.01.2009 at about 22-30 hours in front of Chayghariya Gram

Panchayat Office under Bangoan P.S. have filed the claim case under

M.V.Act.

After considering both oral and documentary evidence adduce

by the parties, the learned Motor Accident Claims Tribunal fixing the

monthly income of deceased at Rs. 9000/- awarded compensation of

Rs. 8,01,500/- along with interest at the rate of 6 % per annum from

the date of filing of the application till payment.

Being aggrieved by such award the Insurance Company has

come with the present appeal contending that learned Tribunal erred

in law and facts in awarding excess compensation in favour of the

claimants assessing the monthly income of the deceased at Rs. 9000/-

when the claimants have failed to produce documents to prove the

deceased had agricultural land and from where he used to earn

income. The registration certificate of the Omni Bus owned by the

deceased was for private use and not for commercial purpose and as

such it cannot be said that deceased used to make earning from the

said Omni Bus. Therefore, appellant has prayed for setting aside

award passed by the Tribunal.

FMA 1189 of 2012

Considering the arguments advance by the learned Counsel for

the insurance company, the only issue that requires determination in

the present appeal is whether the learned Tribunal below committed

error in assessing the monthly income of the deceased victim at Rs

9000/-.

Apparently, from the judgement it is seen the learned Tribunal

has observed that the claimants have failed to produce any documents

relating to income of the deceased or relating to his source of income,

but appears to have assessed the daily income of the deceased at

Rs.300/- per day just because no contra evidence has been adduced

from the side of the Insurance Company.

It is settled principles of law the burden lies upon the person to

prove the facts which he or she assert. Therefore, the burden lies upon

the claimants to prove what the source of income was and what the

monthly income of the deceased was at the time of his death in road

accident. It is not the liability of the Insurance Company to prove the

income of the deceased victim. The learned tribunal appears to have

committed error in shifting the burden upon the Insurance Company

to prove the income of the deceased.

In the claim application the claimants have alleged that deceased

had agricultural income and also used to run business and earn

money from his Omni Bus. Indeed no documentary evidence

FMA 1189 of 2012

whatsoever regarding the deceased having agricultural land or any

trade or business have come to show that deceased during his life

time he used to deal with the agricultural products from where he

used to earn.

It is true that deceased was owner of a private Omni Bus and not

a commercial Omni Bus. Therefore, it cannot be said that the

deceased used to make earning from the said private Omni Bus. Prima

facie, nothing has come on record to prove the exact source of income

of the deceased and what was his monthly income save and except

that he was the owner of a private Omni Bus. Under such

circumstances the safest method to calculate the income of the

deceased is to take into consideration what was the minimum wages

per day at the relevant time. In West Bengal minimum wages in

respect of Highly-Skilled worker in "A" Zone is Rs.11852/- per month

as on today in 2022. For the sake of argument even if we assume the

deceased was a highly skilled wage earner at the time of his death in

2009 his monthly income cannot be Rs.9000/- as assessed by the

learned tribunal.

Therefore, the monthly income of the deceased whose source of

income and actual income could not be proved by the claimants is

hereby assessed at Rs.6000/- p.m. at the time of his death in 2009.

FMA 1189 of 2012

No age proof document of the deceased has come on record save

and except his voter card and death certificate which are not

documents to prove his date of birth. However, in absence of

certificate of birth, the age of the deceased appearing on his voter card

and as well as in his death certificate, where his age has been

recorded 53 years at the time of death is taken into consideration for

selection of multiplier. That as per voter card he was 49 years old on

01.01.2006 and then he was aged about 52 years old when he died in

the road accident occurred on 02.01.2009.

In view of decision of Hon'ble Supreme Court in Sarla Verma and

others Vs Delhi Transport Coporation and another reported in (2009)

6 SCC 121, in the present case the victim being more than 51 years

old and less than 55 years old multiplier 11 is applicable.

In view of decision of the Hon'ble Supreme Court passed in

National Insurance Company Limited Vs Pranay Sethi and others

reported in (2017) 16 SCC 680, the victim who was alleged to be self-

employed but which the claimants have failed to prove and he having

died at the age in between 52-53 years, the claimants are entitled to

get 10% on the assed monthly income towards future prospect.

Further in the present case there having 4 claimants 1/4 th of

victim's assessed annual income is subject to deduction towards his

personal expenses.

FMA 1189 of 2012

In view of Pranay Sethi (supra) claimants are further entitled to

get Rs.15,000/- towards loss of estate, Rs.40,000/- for loss of

consortium and Rs.15,000/- towards funeral expenses.

Therefore, the petitioners are entitled to get compensation as

follows:-

a) Monthly Income- Rs.6,000/-

b) Annual income- Rs.6,000 X 12= Rs.72,000/-

c) Deduction towards personal expenses 1/4th of Rs.72,000 =

Rs.18,000/-. Then his annual contribution towards family

would be Rs.54,000/- per annum.

d) Claimants are entitled to 10% of Rs.72,000 = Rs.7,200/-p.a.

towards future prospects.

Total annual income along with future prospects comes to

Rs. 61,200/- (Rs.54,000 + Rs.7,200).

Total annual income is multiplied by applicable multiplier 11

comes to Rs. 6,73,200 (Rs.61,200 X 11=Rs. 6,73,200).

Claimants are entitled to loss of estate, loss of consortium

and funeral expenses and which comes to Rs. 70,000/-.

In total the claimants/respondents are entitled to Rs.

6,73,200 + Rs. 70,000 = Rs.7,43,200/-

Therefore, the respondents/ claimants are entitled to get death

compensation of Rs. 7,43,200/- (Seven Lakh Forty Three Thousand

FMA 1189 of 2012

and Two Hundred Rupee) from the appellant along with interest @ of

6% per annum on the awarded compensation from the date of filing of

the application till date of payment.

Accordingly, impugned order and judgment is modified. The

respondents/claimants are entitled to withdraw the awarded

compensation money along with interest lying in deposit with

Registrar General of this High Court as per law and provided not

withdrawn earlier.

Accordingly, FMA 1189 of 2012 is allowed.