Calcutta High Court (Appellete Side)

Anjana Saha vs Icici Lombard General Insurance ... on 13 December, 2022

                        IN THE HIGH COURT AT CALUTTA
                           Civil Appellate Jurisdiction
13.12.2022
 SL No.56
Court No. 654
     Ali


                             F.M.A.T. 388 of 2019


                               Anjana Saha
                                  Vs.
                 ICICI Lombard General Insurance Co. Ltd. & Anr.


                 Mr. Amit Ranjan Roy
                                ....for the appellant-claimant.
                 Mr. Mr. Saswata Bhattacharyya
                                .....for the respondent-Insurance Co.

This appeal is directed against the judgment

and award dated 2nd August 2018 passed by learned

Judge, Motor Accident Claims Tribunal, 1st court,

Howrah in M.A.C. case no. 3200 of 2014 granting

compensation in favour of the claimant to the tune

of Rs. 2,54,500/- alongwith interest under Section

166 of the Motor Vehicles Act, 1988.

The brief fact of the case is that on 16th

April 2013 at about 3.00 AM while the victim was

travelling by the offending vehicle bearing

registration no. WB-23C/6034 (mini truck) through

NH6 at that time when the said vehicle reached near

Chamrail petrol pump it capsized due to rash and

negligent driving of the offending vehicle and it

dashed another vehicle beside the road with great

force, as a result of which the victim sustained

severe bleeding injuries on his chest, waist and head

and he succumbed to his injuries and died. On

account of sudden demise of the victim the claimant

being the mother filed application for compensation

under Section 166 of the Motor Vehicles Act,1988.

Upon considering the materials on record and the

evidence, both oral and documentary, adduced on

behalf of the claimant the learned tribunal granted

compensation in favour of the claimant to the tune

of Rs. 2,54,500/- alongwith interest @ 6% per

annum from the date of filing of the claim

application till realization of the amount.

Being aggrieved by and dissatisfied with the

impugned judgment and award the claimant has

preferred the present appeal.

Mr Amit Ranjan Roy, learned advocate for

appellant-claimant submits that the learned

tribunal erroneously considered notional income of

Rs. 3000/-per month of the deceased without taking

into account the Income Tax Return for the

assessment year 2011-12 furnished by the claimant

showing the income of the deceased Rs.1,65,900/-.

He further submits that as per the settled

proposition the income of the deceased disclosed in

the Income Tax Return should be accepted for

computation of compensation amount as the same

is a statutory document and in support of his

contention he relied on the decision of Hon'ble

Supreme Court passed in Kalpanaraj & Ors

versus Tamil Nadu State Transport reported in

(2015) 2 SCC 764. He further submits relying on

the decision of Hon'ble Supreme court passed in

National Insurance Company Limited versus

Pranay Sethi and Others reported in 2017 (4)

T.A.C 673(S.C), that the claimant is also entitled to

an additional amount of 40% of the annual income

of the deceased towards future prospect which is

also not been considered by the learned tribunal.

Further general damages under the conventional

heads of loss of estate and funeral expenses of

Rs.30,000/-are also to be taken into account.

Furthermore he submits that the learned

tribunal erred in considering the age of the mother

for adopting multiplier whereas it ought to have

considered the age of the deceased for adopting

multiplier. In his usual fairness Mr Roy, learned

advocate for appellant-claimant indicated that as

the deceased died bachelor hence in view of

observation of Hon'ble Supreme Court passed in

Sarla Verma and Others versus Delhi Transport

Corporation and Another reported in (2009) 6

SCC 121 the deduction towards personal and living

expenses of the deceased should be ½ instead of

1/3rd.

In the light of his aforesaid submissions he

prayed for enhancement and modification of the

impugned judgment and award passed by the

learned tribunal.

In reply to the aforesaid contentions raised

on behalf of the appellant-claimant, Mr Saswata

Bhattacharya, learned advocate for respondent no.1-

insurance company at the very outset concedes to

the submissions advanced on behalf of the

appellant-claimant with regard to future prospect

and multiplier. However he strenuously argues that

the income asserted by the appellant-claimant

relying on the income disclosed for the assessment

year 2011-12 should not be considered in view of

the fact that the claimant failed to produce any

documents pertaining to the business of the

deceased and therefore the income of the deceased

determined by the learned tribunal should be

affirmed.

By an order dated 7th November, 2022 the

service of notice of appeal upon respondent no.2-

owner of the offending vehicle has been dispensed

with on the ground that he did not contest the claim

application and the case was disposed of exparte

against him.

Having heard the learned advocates for both

the sides, I now proceed to decide the issues

involved in the appeal.

At the foremost, with regard to income of the

deceased it is found that the learned tribunal has

considered the annual income of the deceased of

Rs.36,000/- and discarded income disclosed in the

Income tax Return on the ground that the petitioner

failed to produce the books of account and paper

pertaining to business of the deceased. The Hon'ble

Supreme Court in Kalpanaraj' case (supra)

observed as follows:-

"It is pertinent to note that the only available documentary evidence on record of the monthly income of the deceased is the income tax return filed by him with the income tax Department. The High Court was correct therefore, to determine the monthly income on the basis of the income tax return........".

It is fact that save and except the Income

Tax Returns the claimant has not produced any

other document relating to business of the deceased.

Be that as it may, bearing in mind the aforesaid

observation of Hon'ble court, the Income Tax

Returns submitted by the deceased can be taken

into account for determining the income of the

deceased. In order to establish the income of the

deceased the claimant adduced the evidence of one

Nilesh Kumar (PW3) of the Income Tax Department

who produced the attested copy of Income Tax

Return filed by the deceased from 2008 to 2012

(Exhibit 13). From the aforesaid copy of income tax

returns it is found that the deceased filed income

tax return for the assessment year 2012-13 on

31.3.2013 just prior to his death. PW3 deposed that

the return for the assessment year 2012-13 is not

valid return due to delay. Accordingly for the

reasons as above the same cannot be accepted. Be

that as it may, it is found that the Income Tax

Return for assessment year 2011-12 which is also

filed prior to the death of the deceased has also been

produced before the court. The gross income of the

deceased victim disclosed in the said Income Tax

Return for the assessment year 2011-12 is

Rs.1,65,900/-and the tax paid is Rs.610/-.

Therefore the actual income of the deceased should

be gross income of Rs.1,65,900/- less tax paid of

Rs.610/- which comes to Rs.1,65,290/-. Thus

following the aforesaid observation of the Hon'ble

Supreme Court the income of the deceased disclosed

in the Income Tax Return for assessment year 2011-

2012 should be taken into consideration.

It is further found that the learned tribunal

did not grant any amount towards future prospect.

Following the decision of Hon'ble Supreme Court

passed in Pranay Sethi's case (supra) as the

deceased at the time of accident was 38 years of age

and was self-employed hence an amount equalling

to 40% of the annual income of the deceased should

be taken into account towards future prospect.

The learned tribunal has considered the age

of the mother for adopting multiplier of 8. The

Hon'ble Supreme Court in Pranay Sethi's case

(supra) observed that age of the deceased should be

the basis for adopting multiplier. Following such

observation in the decision passed in Royal

Sundaram Alliance Insurance Co. Ltd versus

Mandala Yadagari Goud and Others reported in

(2019) 5 SCC 554 the Hon'ble Supreme Court

observed that it is the age of deceased which has to

be taken into account and not the age of the

dependants. Bearing in mind such observations of

the Hon'ble Supreme Court and considering the age

of the deceased to be 38 years the multiplier to be

adopted in the present case should be 15.

As indicated by learned advocate for

appellants claimants that the deduction towards

personal and living expenses should be ½ instead of

1/3rd , I am of the opinion that in view of decision of

Hon'ble Supreme Court passed in Sarla Verma's

case (supra) as the deceased died bachelor hence

an amount equalling to ½ of the annual income of

the deceased should be deducted towards personal

and living expenses of the deceased.

Further the claimant is also entitled to

general damages under the conventional heads of

funeral expense and loss of estate of Rs.15,000/-

each.

Keeping in mind the aforesaid aspects the

calculation of compensation amount is made

hereunder.

Calculation of compensation

Annual Income.........................................Rs 1,65,290/- Add: Future Prospects @ 40% of total Income..Rs.66,116/-

Annual loss of Income..........................Rs.2,31,406/- Less: Deduction ½ of the Annual Income towards personal and living expenses.... Rs.1,15,703/-

Rs.1,15,703/-

Adopting multiplier 15 ( Rs.1,15,703/- X 15)..Rs.17,35,545/- Add: General Damages.....................................Rs.30,000/- Loss of estate.............Rs.15,000/- Funeral Expenses.......Rs.15,000/- Total Compensation...............................Rs.17,65,545/-

Thus the compensation amount is

calculated to Rs. 17,65,544/-.It is informed that the

appellant claimant has already received

Rs.2,54,500/- alongwith interest thereon as directed

by the learned tribunal. Accordingly the appellant-

claimant is entitled to balance amount of Rs

15,11,045/- together with interest @ 6% per annum

from the date of filing of the claim application (i.e

22.12.2014) till deposit.

Respondent no.1-Insurance Company is

directed to deposit the balance amount alongwith

the interest as indicated above by way of cheque