Calcutta High Court (Appellete Side)

Arifa Sekh & Ors vs National Insurance Co. Ltd. & Anr on 8 December, 2022

08.12.2022
 SL No. 5
Ct No. 654
  Ali


                    F.M.A.T. 987 of 2017
                    1A No. CAN 1 of 2022.
                       Arifa Sekh & Ors.
                             Vs
                National Insurance Co. Ltd. & Anr.


              Mr. Muktakesh Das
                         ............for the appellants-claimants.
              Mr. Rajesh Singh
                    ........for the respondent No. 1-Insurance Co.

The application for condonation of delay

under Section 5 of the Limitation Act read with

Section 173 of the Motor Vehicles Act, 1988 being

CAN 1 of 2022 is taken up for hearing.

Mr Muktakesh Das, learned advocate for

appellants-claimants submits that due to financial

stringency and ignorance there has been delay of

231 days in preferring the appeal and he submits for

condonation of such delay.

Mr Rajesh Singh, learned advocate appears

for respondent no.1-insurance company opposes

such prayer.

As per the report of stamp reporter dated

7.9.2017 there is a delay of 231 days in preferring

the appeal. Be that as it may, considering the

beneficial piece of legislation and the grounds shown

in the application for condonation of delay there is

sufficient ground to condone the delay. Accordingly,

the delay of 231 days in preferring the appeal is

condoned.

The application for condonation of delay

being CAN 1 of 2022 stands allowed and disposed

of.

Appeal is formally admitted and registered.

Now the appeal is taken up for hearing.

Both the learned advocates submit that the

appeal is solely based on enhancement of quantum

of compensation amount and as such calling for of

lower court records as well as preparation of

informal paper books be dispensed with. In view of

such submissions made at the bar calling for of

lower court records and preparation of informal

paper books is dispensed with.

Learned advocate for appellants-claimants

submits for dispensing with service of notice of

appeal upon respondent no.2-owner of the offending

vehicle as he did not contest the claim application

before the learned tribunal. It appears from the

impugned judgment that the respondent no.2-owner

of the offending vehicle did not contest the claim

application before the learned tribunal and the claim

case was disposed of exparte against him. In the

aforesaid backdrop service of notice of appeal upon

respondent no.2-owner of the offending vehicle is

dispensed with.

This appeal is directed against the judgment

and award dated 26 September 2016 passed by

Additional District Judge, 2nd court, Nadia at

Krishnagar in M.A.C Case no.351 of 2013 under

Section 166 of the Motor Vehicles Act, 1988 granting

compensation of Rs. 2,01,500/- to the claimants.

The brief fact of the case is that on 17

December 2012 at 6.00 hours while the victim was

proceeding to the market on his bicycle towards

Krishnagar-Palpara side to sell his vegetables at that

time the offending vehicle bearing no. WB-52N/1667

in a rash and negligent manner dashed the victim

near Hemanta-Himghar and Railway bridge on

Anatheswar Road as a result of which the victim

sustained multiple injuries on his person and was

taken to Nadia District Hospital for treatment but

soon thereafter the victim succumbed to his injuries

on the same day and died. On account of sudden

demise of the deceased-victim the claimants being

his legal heirs filed application for compensation

under Section 166 of the Motor Vehicles Act, 1988.

Upon consideration of materials on record,

evidence adduced both oral and documentary on

behalf of the claimants the learned tribunal granted

compensation of Rs.2,01,500/- in favour of the

claimants.

Being aggrieved by and dissatisfied with the

impugned judgment and award the claimants have

preferred the present appeal.

Mr Muktakesh Das, learned advocate for

appellants-claimants submits that the accident has

taken place in the year 2012 hence the income of

the deceased should have been considered @ Rs.

4000 per month. He further submits that the

claimants are entitled to an additional amount of

10% of the annual income of the deceased towards

future prospect. Furthermore it is submitted that as

the deceased at the time of accident was 56 years of

age hence the multiplier of 9 is to be adopted for

computing the compensation. Further general

damages under the conventional heads namely

funeral expenses, loss of consortium and loss of

estate should be Rs. 15,000/-, Rs. 40,000/- and Rs.

15,000/- respectively as per observation of Hon'ble

Supreme Court made in National Insurance

Company Limited versus Pranay Sethi and

Others reported in 2017 ACJ 2700 should be

taken into account. He further submits that as the

number of dependents of the deceased is 5 hence

the amount towards personal and living expenses of

the deceased should be 1/4th of the annual income

of the deceased. Moreover he also indicates that the

learned tribunal instead of granting interest from

the date of filing of the claim application has granted

interest as a default clause.

In the light of his aforesaid submissions he

prays for enhancement of the compensation

amount.

Mr Rajesh Singh, learned advocate for

insurance company opposing the prayer for

enhancement of compensation amount at the very

beginning submits that in spite of direction given by

the learned tribunal for furnishing bank account

details in order to transfer the amount of

compensation in the account of the claimants, they

have failed to furnish details due to which the

insurance company could not comply the order of

the learned tribunal and therefore the interest on

the amount of compensation granted by the learned

tribunal should not extend beyond the period of one

month time given to the claimants for furnishing

such details in the event this Hon'ble court is

inclined in granting interest from the date of filing

the claim application. He further submits that the

income assessed by the learned tribunal of Rs.

3000/- has been rightly made and that should be

taken into account for computing the compensation

amount.

Having heard the learned advocates for the

appellants-claimants and the respondent no.1-

insurance company, I now proceed to decide the

issues raised in this appeal.

With regard to the income of the deceased it

is found that the learned tribunal has considered

the income of the deceased @ Rs. 3000/- per month.

However taking into consideration the price index

prevailing in the year 2012 when the accident took

place and also bearing in mind the catena of

decisions of this Hon'ble court in the event of

accident taking place in the year 2012 the rate of

monthly income of the deceased was considered at

Rs. 4000/-, I am inclined to consider the monthly

income of the deceased @ Rs.4,000/-.

Further it is found that the number of

dependents of the deceased is 5 and therefore

following the observation of Hon'ble Supreme Court

passed in Sarla Verma (Smt) & Ors versus Delhi

Transport Corporation and Anr reported in (2009)

3 WBLR (SC) 700 the deduction towards personal

and living expenses of the deceased should be 1/4th

instead of 1/3rd.

Moreover as the deceased is aged more than

55 years hence following the decision of Hon'ble

Supreme Court in Sarla Verma's case (supra) the

multiplier of 9 is to be adopted for computing

compensation amount.

Furthermore as per the decision of Hon'ble

Supreme Court passed in Pranay Sethi's case

(supra) the deceased being aged more than 55 years

and was self-employed an additional amount of 10%

towards future prospect is also to be taken into

account.

Following the decision of Hon'ble Supreme

Court in Pranay Sethi's case (supra) the claimants

are also entitled to general damages under the

conventional heads namely funeral expenses, loss of

consortium, loss of estate to the tune of Rs.

15,000/-, Rs. 40,000/- and Rs. 15,000/-

respectively.

Mr Singh, learned advocate for insurance

company has strenuously argued that since the

claimants failed to provide their bank details the

insurance company could not comply the order of

the learned tribunal for depositing the amount of

compensation in the bank account of the claimants

within the period of two months and therefore the

insurance should not be saddled with payment of

interest on the compensation amount granted by

learned tribunal from date of filing till deposit. I find

substance in the submission of Mr Singh, learned

advocate for insurance company in this regard. It is

pertinent to note that the learned tribunal granted

interest as a default clause. Be that as it may, the

claimants are entitled to get interest on the amount

of compensation granted by the learned tribunal

from the date of filing of the application till one

month from the date of order.

Keeping in mind the aforesaid aspects, the

calculation of compensation is made hereunder.

Calculation of compensation

Monthly Income ................................Rs. 4,000/- Annual Income..(Rs.4,000/- X 12).......Rs 48,000/- Add:Future Prospects @ 10% of total Income..Rs.4,800/- Annual loss of Income.........................Rs.52,800/- Less: Deduction of 1/4th of the Annual Income towards personal and living expenses... Rs.13,200/-

Rs.39,600/-

Adopting multiplier 9 ( Rs.39,600/- X 9)..Rs.3,56,400/- Add: General Damages........................Rs.70,000/- Loss of estate....Rs.15,000/-

Loss of consortium...Rs.40,000/-

Funeral Expenses.......Rs.15,000/- Total Compensation........................Rs.4,26,400/-

Thus the claimants are entitled to total

compensation of Rs. 4,26,400/-. It is made clear

that the amount of compensation granted by the

learned tribunal of Rs.2,01,500/-shall carry interest

@ 6% per annum from the date of filing of the claim

application till one month from the date of order of

the learned tribunal. The balance amount of Rs

2,24,900/-shall carry interest @ 6% per annum