Calcutta High Court (Appellete Side)

Tumpa Mondal & Anr vs The Oriental Insurance Co. Ltd. & ... on 19 December, 2022

19.12.2022
Sl. No. 4
Ct No. 654
     Ali


                        F.M.A.T.425 of 2020
                         IA No: CAN/2/2022

                           Tumpa Mondal & Anr.
                                    Vs
                     The Oriental Insurance Co. Ltd. & Anr.

                      Mr. Amit Ranjan Roy
                                ....for the appellants-claimant.
                      Ms. Gopa Das Mukherjee
                        .....for the respondent No.1-Insurance Co.

This appeal is directed against the judgment

and award dated 14th January, 2020 passed by

learned Additional District Judge, Fast track, 2nd

Court, Asansol, Paschim Bardhaman in M.A.C Case

no.8 of 2016 granting compensation in favour of the

claimants amounting to Rs.48,67,408/-along with

interest under Section 166 of the Motor vehicles Act,

1988.

The brief fact of the case is that on 2nd

April, 2016 at about 6 AM while the victim was

proceeding towards his place of work at Sonepur

Bazari Project from his residence at Topsi by riding

on his motorcycle bearing registration no. WB-

38S/8655 and when he reached near Topsi bridge

on NH60 at that time the offending vehicle bearing

registration no.WB-44D/8768 (Bolero) in a rash and

negligent manner dashed the victim from behind as

a result of which the victim fell down on the road

and sustained fatal injuries on his person.

Immediately he was removed to District Hospital at

Asansol where the attending doctor declared him

brought dead. On account of sudden demise of the

deceased-victim the claimants being the widow and

minor daughter of the deceased filed claim

application for compensation of Rs.60,00,000/-

along with interest under Section 166 of the Motor

Vehicles Act, 1988.

Upon considering the materials on record

and the evidence adduced by the claimants both

oral and documentary, the learned tribunal granted

compensation in favour of the claimants to the tune

of Rs. 48,67,408/- together with interest @ 6% per

annum from the date of filing of the claim

application till realization.

Being aggrieved by and dissatisfied with the

impugned judgment and award the claimants have

preferred the present appeal.

By an order dated 12th December, 2022 the

service of notice of appeal upon respondent no.2-

owner of the offending vehicle has been dispensed

with.

Mr Amit Ranjan Roy, learned advocate for

appellants-claimants submits that the learned

tribunal erred in not allowing an additional amount

of 30% of the annual income of the deceased

towards future prospect on the ground that the

widow of the deceased (claimant no.1) joined service

in ECL on compassionate grounds whereas it ought

to have allowed future prospect in favour of the

claimants in view of decision of Hon'ble Supreme

Court passed in Vimal Kanwar & Ors versus

Kishore Dan & Ors reported in (2013) 7 SCC 476.

He further submits that compassionate appointment

is the condition of service of an employee and such

appointment has got no correlation with the

statutory amount of compensation receivable under

the Motor Vehicles Act on account of accidental

death of a deceased-victim. In light of his aforesaid

submissions he prays for enhancement of the

compensation amount.

In reply to the aforesaid contentions raised

on behalf of the appellants-claimants, Mrs Gopa Das

Mukherjee, learned advocate for respondent no.1-

insurance company submits that the learned

tribunal after going through the entirety of the facts,

circumstances and the evidence placed before it

came to a categorical finding that since the widow of

the deceased has joined a job in ECL on

compassionate grounds hence the claimants are not

entitled to receive compensation towards future

prospect which should be affirmed. In the aforesaid

backdrop she submits for dismissal of the appeal.

Having heard the learned advocates for the

respective parties I now proceed to decide the sole

issue involved in the present appeal. The primary

issue involved in the present appeal is whether the

claimants are entitled to receive compensation

towards future prospect in the event of appointment

of widow of the deceased (claimant no.1) on

compassionate grounds or not.

On going through the impugned judgment

under challenge it is found that the learned tribunal

disallowed compensation under future prospect on

the ground that the claimant had already joined the

job in ECL on compassionate ground. At this stage it

would be relevant to reproduce the observation of

Hon'ble Supreme Court in Vimal Kanwar's Case

(supra) at paragraph no.20 as hereunder.

"20.The second issue is "whether the salary receivable by the claimant on compassionate appointment comes within the periphery of the Motor Vehicles Act to be termed as "Pecuniary Advantage" liable for deduction." "Compassionate appointment" can be one of the conditions of service of an employee, if a scheme to that effect is framed by the employer. In case, the employee dies in harness i.e. while in service leaving behind the dependents, one of the dependents may request for compassionate appointment to maintain the family of the deceased employee dies in harness. This cannot be stated to be an advantage receivable by the heirs on account of one's death and have no correlation with the amount receivable under a statute occasioned on account of accidental death. Compassionate appointment may have nexus with the death of an

employee while in service but it is not necessary that it should have a correlation with the accidental death. An employee dies in harness even in normal course, due to illness and to maintain the family of the deceased one of the dependents may be entitled for compassionate appointment but that cannot be termed as "Pecuniary Advantage" that comes under the periphery of Motor Vehicles Act and any amount received on such appointment is not liable for deduction for determination of compensation under the Motor Vehicles Act."

Bearing in mind the aforesaid observation of

the Hon'ble Supreme Court even if one of the

dependent, widow of the deceased, joins service on

compassionate grounds it cannot be stated to be an

advantage receivable by the heirs on account of

death of the victim and such appointment has got

no relation with the amount receivable under a

statute occasioned on accidental death. Such

appointment on compassionate grounds may have

relation with the death of the deceased but it does

not necessarily have relation with the accidental

death of a deceased victim. Accordingly, the finding

of the learned tribunal in such regard is liable to be

set aside. Since the deceased victim at the time of

accident was 44 years of age and was on permanent

job hence following the observation of Hon'ble

Supreme court in National Insurance Company

Limited versus Panay Sethi and others reported

in 2017 ACJ 2700 an amount equalling to 30% of

the annual income of the deceased should be taken

into account towards future prospect.

The other observations and findings of the

tribunal have not been challenged in the appeal.

The calculation of compensation is made

hereunder:-

Calculation of compensation

Monthly Income ...............................Rs.42,834/- Annual Income..(Rs.42,834/- X 12)..Rs 5,14,008/- Add: Future Prospects @ 30% of total Income...Rs.1,54,202/-(approx) Annual loss of Income......................Rs.6,68,210/- Less: Deduction of 1/3rd of the Annual Income towards personal and living expenses.. Rs.2,22,736/-(approx) Rs.4,45,474/-

Adopting multiplier 14 (Rs.4,45,747/- X 14).......................Rs.62,36,636/- 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.63,06,636/-

Thus the claimants are entitled to total

compensation of Rs.63,06,636/-. It is informed that

the claimants have already received the amount of

Rs. 48,67,408/- along with interest. Accordingly the

claimants are entitled to the balance amount of Rs.

14,39,228/- alongwith interest @ 6% per annum on

the aforesaid amount from the date of filing of the

application (i.e 22.6.2016) till the deposit of the

amount.

Respondent no. 1-insurance company is