Calcutta High Court (Appellete Side)
Md. Imam Alias Mahahimam vs Magma Hdi General Insurance Co. ... on 14 December, 2022
14.12.2022
Sl. No. 62
Ct No. 654
Ali
F.M.A.T(MV) 421 of 2022
IA No: CAN/1/2022
Md. Imam Alias Mahahimam
Vs
Magma HDI General Insurance Co. Ltd. & Anr.
Mr. Saidur Rahaman
....for the appellant-claimant.
Mr. Parimal Kumar Pahari
.......for the respondent No.1-Insurance Co.
Re: CAN 1 of 2022
This is an application for condonation of
delay under Section 5 of the Limitation Act readwith
Section 173 of the Motor Vehicles Act, 1988.
Mr Saidur Rahaman, learned advocate for
appellant-claimant submits that there has been a
nominal delay of only 4 days in preferring the appeal
and he prays for condonation of such delay.
Mr Parimal Kumar Pahari, learned advocate
appears for respondent no.1-insurance company.
It appears from the report of Additional
Stamp Reporter dated 20.9.2022 that there is a
delay of 4 days in preferring the appeal. The cause
shown is sufficient to condone such delay. Thus the
delay of 4 days in preferring the appeal stands
condoned.
The application being CAN 1 of 2022 stands
allowed and disposed of.
Accordingly the appeal is formally admitted
and registered.
FMAT (MV) 421 of 2022
This appeal is directed against the
judgement and award dated 27th April, 2022 passed
by learned Additional District Judge cum Judge,
Motor Accident Claims Tribunal, 2nd Court,
Islampur, Uttar Dinajpur in M.A.C Case no. 154 of
2018 under Section 166 of the Motor Vehicles Act,
1988.
The brief fact of the case is that on 14th May
2018 at about 0.00 hours while the victim was
travelling in vehicle bearing registration no. NL-
02N/6822 (truck) from Chopra side as a Khalasi of
the said vehicle and when it reached near Teesta
More under Islampur PS on NH31 at that time the
driver lost control over the vehicle and dashed
behind another moving truck with great force as a
result of which the victim sustained serious injuries
and was treated at different hospitals. On account of
such injury the injured-claimant filed application
under Section 166 of the Motor Vehicles Act, 1988
claiming compensation.
Upon hearing and considering the materials
on record the learned tribunal granted
compensation in favour of the injured-claimant to
the tune of Rs. 12,05,600/-along with interest.
Being aggrieved by and dissatisfied with the
impugned judgement and award the claimant has
preferred the present appeal.
Mr Saidur Rahaman, learned advocate for
appellant-claimant submits that the present appeal
is precisely on a short point challenging the
determination of income of the claimant @ Rs.
3000/-per month by the learned tribunal and as
such the calling for of lower court records and
preparation of informal paper books be dispensed
with. Mr Parimal Kumar Pahari, learned advocate
for respondent no.1-insurance company also
concedes to such submissions. In view of the above,
calling for of lower court records and preparation of
informal paper books is dispensed.
Now the appeal is taken up for hearing.
Mr Rahaman, learned advocate for
appellant-claimant submits that the learned
tribunal erred in considering the income of the
claimant @ Rs.3000/- per month which should have
been considered @ Rs 5000/- per month in view of
several decisions of this court. In light of his
aforesaid submissions he prays for enhancement of
the compensation amount. He fairly submits that as
the victim at the time of accident was 42 years
hence an amount equaling 25% of annual income
should be considered towards future prospect.
Mr Parimal Kumar Pahari, learned advocate
for respondent no.1-insurance company opposes
such prayer for enhancement of the compensation.
The service of notice of appeal upon
respondent no.2-owner of the offending vehicle is
dispensed with since he did not contest the claim
application before the learned tribunal and the case
was disposed of exparte against him.
From the impugned judgment it is found
that the learned tribunal considered the income of
the claimant-injured to the extent of Rs.3000/- per
month. The owner of the vehicle under whom the
claimant-injured was employed deposed before the
court as PW2 and stated that he used to pay Rs.
5000/- per month to the claimant-injured. However,
no document was produced by the witness to show
monthly payment of such amount. Be that as it
may, bearing in mind the price index prevailing on
the relevant date of accident in the year 2018 as well
as catena decisions of this court as the accident has
taken place in the year 2018, the income of the
deceased should be considered @ Rs.5000/- per
month.
It appears that the learned tribunal has
considered an amount equalling to 40% of the
annual income towards future prospect. Be that as
it may, as the victim is admittedly aged 42 years at
the relevant time and was on fixed salary as Khalasi
hence an amount equaling to 25% be taken into
account towards future prospect.
The other findings of the learned tribunal
namely the multiplier adopted, the percentage of
disablement considered has not been challenged in
this appeal.
Now keeping in mind the above aspects the
calculation of compensation is made hereunder:-
Calculation of compensation
Monthly Income............................................Rs.5,000/-
Annual Income.....(Rs.5,000/- X 12)............Rs. 60,000/-
Add: Future Prospects @ 25% of total Income...Rs.15,000/-
Total..........................................................Rs.75,000/-
100% loss of Income due to disablement of 91%.Rs.75,000/-
Adopting multiplier 14 ( Rs.75,000/- X 14)..Rs.10,50,000/-
Non-pecuniary damages
towards pain & suffering.............................Rs.5,00,000/-
Total Compensation..............................Rs.15,50,000/-
Thus the total compensation comes to
Rs.15,50,000/-. It is informed that the injured-
claimant has already received the amount of
compensation of Rs.12,05,000/-alongwith interest
as directed by the learned tribunal.
Accordingly, the respondent no.1-Magma
HDI General Insurance Company Limited is directed
to deposit the balance amount of Rs.3,45,000/-
alongwith interest @ 6% per annum from the date of
filing of the claim application till deposit, by way of
cheque with learned Registrar General, High Court,
Calcutta within a period of six weeks from date. The
learned Registrar General upon deposit of the
aforesaid amount shall release the said amount to
the injured-claimant on satisfaction of his identity.
The appeal accordingly stands allowed on
contest. No order as to cost.
Appellant claimant is directed to deposit ad
valorem court fees on the enhanced amount, if not
already paid.
With the aforesaid direction the appeal,
stands disposed of.
All connected applications stand disposed of.
Interim order, if any, also stands vacated.
Urgent photostat certified copy of this
judgement, if applied for, be given to the parties
upon compliance of necessary legal formalities.
(Bivas Pattanayak, J.)
