Calcutta High Court (Appellete Side)

The New India Assurance Co. Ltd vs Smt. Subodhi Hembram @ Murmu & Ors on 10 February, 2022

02    10.02.
       2022
AGM
RKB
 Ct
07                             FMAT 534 of 2019
                   IA No. CAN 1/2019 (Old CAN 5710 of 2019)
                     CAN 2 of 2019 (Old CAN 5715 of 2019)
                                CAN 3 of 2021

                                      (Video Conference)

                           The New India Assurance Co. Ltd
                                       versus
                        Smt. Subodhi Hembram @ Murmu & Ors.



               Mr. Sanjay Paul,
                                                    ... For the appellant.

               Mr. Amit Ranjan Roy,
                               ... For the respondents/claimants.

IA NO. CAN 1 OF 2019 (Old CAN No. 5710 of 2019)

The CAN application bearing no. CAN 5710 of

2019 (Old number) corresponding to IA NO:

CAN/1/2019 (New number), is relatable to a prayer

for condonation of delay. Learned advocate Mr.

Sanjoy Paul, appearing for the appellant/insurance

company submits that though there has been delay of

63 days in filing the appeal beyond the statutory

period of limitation, but there are good

grounds/circumstances preventing thereby the

petitioner from preferring the appeal within period of

limitation.

Mr. Amit Ranjan Roy, learned advocate

representing respondents/claimants submits that

there has been huge delay caused in preferring the

appeal, which must be taken in view in consideration

of application for condonation of delay.

In the relevant averments of the pleadings,

petitioner has explained the delay. The delay thus

explained appears to be sufficient. Accordingly, delay

stands condoned.

The CAN application is thus disposed of.

FMAT No. 534 of 2019

Learned advocates for both the parties are ad

idem on the point that the instant appeal may be

disposed of giving a go by to the technicalities

involved in the process. It is submitted by the

learned advocate for the respondents that since the

respondents/claimants have been suffering from

financial distress for want of money for their

sustenance, the appeal may be disposed of on the

basis of materials furnished by both the parties to

this case, which is not opposed by the learned

advocate representing the insurance

company/appellant.

When learned advocates for both the parties are

agreeable to the expeditious disposal of the instant

appeal, the Court should not stand in the way.

Department to furnish relevant FAM particulars

upon registering the same, and the matter is taken as

on day's list to ensure expeditious disposal of this

appeal.

There are two other CAN applications, one filed

by appellant being CAN No. 5715 of 2019, praying for

stay and another CAN application being CAN No. 3 of

2021, praying for withdrawal of the awarded amount,

which may be addressed subsequently.

Parties to this case are not in dispute as

regards the service of these CAN applications. That

being the position, this court finds no difficulty to

take up these CAN applications along with this

appeal. Department is directed to tag the

applications, if any, with the main appeal without any

delay.

The appeal has emerged out against the

judgment and award dated 21st December, 2018

passed by the learned Additional District Judge,

M.A.C. Tribunal, 2nd Court, Asansol, Bardhaman in

M.A.C. Case No. 173 of 2010, CIS Registration No.

173 of 2010 (Subodhi Hembram @ Murmu @ Ors.-

vs- Masiur Maji & Anr.), on a claim case under

Section 163A of the M.V. Act, 1988, granting award to

the tune of Rs.5,00,000/- (Rupees Five Lakh) to the

claimants/respondents for the death of one Jamidar

Hembram, in a vehicular accident, occurred on

August 1, 2010, by reason of involvement of vehicle

bearing No. WB-38-U/6298.

The compensation was awarded upon

consideration of evidence, both oral an documentary,

with which the appellant was not satisfied. Hence this

appeal.

The sole question raised in this appeal is

whether the Gazette notification, published by

Ministry of Road Transport and Highways

Department with effect from 22nd May, 2018 can be

made applicable in this case for assessment of the

award under Section 163A of the M.V. Act.

Mr. Sanjoy Paul, learned advocate representing

the appellant/insurance company solitary urges the

said ground submitting that there has been

erroneous assessment of compensation, already

awarded by the Tribunal to the tune of Rs. 5,00,000/-

(Rupees Five Lakh) upon giving much reliance upon a

Gazette notification published by the Ministry of Road

Transport and Highways Department dated 22nd May,

2018, whereby the said authority amended a 2nd

Schedule of Section 163A of the M.V. Act, 1988. Mr.

Paul contends that the Tribunal has erred in law in

perceiving the real proposition of law that unless and

until specific provisions is mentioned in the Gazette

notification for giving retrospective effect of a

notification, the Tribunal ought not to have applied

the same giving retrospective effect for the

assessment of the award, and as such there has been

complete erroneous assessment of the award.

Incidentally, Mr. Paul submits that Tribunal

ought to have assessed the compensation relying

upon the old 2nd Schedule for the grant of just

compensation.

Mr. Amit Ranjan Roy learned advocate for the

respondents has nothing to raise any objection with

regard to the unambiguous applicability of such

Gazette notification of Ministry of Road Transport and

Highways Department giving prospective effect, and

virtually conceding the submission of Mr. Paul, Mr.

Roy candidly submits that appeal may be disposed of

deciding the award in terms of the 2nd Schedule of the

M.V. Act, 1988, to which the respondents/claimants

would not express any grievance and they are willing

to take compensation in terms of the 2nd Schedule of

the M.V. Act.

Having considered the submission of both the

sides, the award passed by the learned Tribunal

needs modification relying upon the 2nd Schedule of

the M.V. Act, 1988, on the ground that the accident

was admittedly held on 1st August, 2010, and the

corresponding notification, relied upon by the

Tribunal, appears to be silent, as regards it's giving

effect with retrospective operation. In the absence of

any specific stipulation in such Gazette notification

with regard to its retrospective operation, such

notification is always perceived to be with prospective

operation.

In that view of the matter, awarded sum needs

a revisit upon perusal of the judgment of the Tribunal

in context with the solitary point raised in the appeal,

so as to make it just and proper and with this

modification, there will be no prejudice caused to

either of the parties to this case.

The deceased was a vegetable seller at the time

of accident, and he had an earning of Rs.3300/- per

month with which he had to maintain his livelihood,

and family members also. In course of the evidence

adduced before the Trial Court, no documentary

evidence, however, could be adduced. In the year

2010, it would be quite reasonable for all the

purposes to hold that a vegetable seller had an

earning of Rs.3000/- per month, bearing in mind also

the then price index prevailed at that time. Such

amount cannot be regarded as exorbitant or inflated

also.

Selection of a multiplier is of immense

potentiality, since victim left this world when he was

40 years old. Multiplier should be selected as 15 for

the perfect quantification of the award.

As regards deduction towards personal

expenses, 1/3 of the annual income of the deceased

should be deducted, and Rs.9500/- should be

granted as general damages, in view of the structure

laid down in the 2nd Schedule attached with Section

163A of the M.V. Act.

Accordingly the above order passed by the

learned Tribunal is thus modified to the extent

mentioned here in below and recalculated as follows:

       Particulars                       Amount (Rs.)

Monthly income                             3,000/-

Annual income (Rs.3000x12)                36,000/-

Less: 1/3rd deduction personal          (-) 12,000/-
Expenses
                                      _______________

Annual income after deduction             24,000/-

Multiplier of 15 to be used                   x 15
                                      ________________
                                           3,60,000/-
General damages                            (+) 9,500/-
Total Compensation                    ________________
                                           3,69,500/-

Learned counsel for the respondents/claimants

submits that their respondents/claimants have not

received any compensation amount in terms of the

award, dated 21.12.2018 passed by the Tribunal.

The appellant submits that they have already

deposited the statutory amount of Rs.25,000/- before

this Hon'ble Court. Therefore, the

appellant/insurance company is directed to pay a

sum of Rs 3,69,500/- together with 6% interest from

the date of filing of claim application till payment to

the claimants within 45 days of receipt of particulars

of their bank accounts, to be supplied by their