Calcutta High Court (Appellete Side)

C&Cr vs Smt. Rina Deb & Ors on 17 February, 2022

17.02.2022
Item No.24
Ct. No.7
AGM
RKB
                              F.M.A.T. (MV) 6of 2022
                               IA No. CAN 1 of 2022
                                  CAN 2 of 2022
                                  CAN 3 of 2022

                              (Via Video Conference)

                     National Insurance Company Limited
                                         C&CR




                                     Vs.
                             Smt. Rina Deb & Ors

             Mr. Deb Narayan Ray,
                      ... For the Appellant/Insurance Company.

             Mr. Amit Ranjan Roy ,
                            ... For the Respondents/Claimants.

CAN 1 of 2022

The CAN application bearing No. CAN 1 of 2022 is

relatable to a prayer for condonation of delay. Learned

advocate, Mr. Deb Narayan Ray, appearing for the

appellant/Insurance Company submits that though

there has been delay of 673 days in filing the appeal

beyond the statutory period of limitation, but there

are good grounds/circumstances preventing thereby

the appellant 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 being CAN 1 of 2022 is thus

disposed of.

FMAT (MV) No. 6 of 2022

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 F.M.A particulars,

if necessary.

There are two other CAN applications; one filed by

appellant being CAN No. 2 of 2000, praying for stay of

the proceedings of execution case vide No. 8 of 2020

pending before the Additional District & Sessions

Judge, Fast Track, 1st Court, Asansol cum Judge,

Motor Accident Claims Tribunal. Arising out of Motor

Accident Claim Case No. 37 of 2017/32 of 2017 and

another CAN application being CAN No. 3 of 2022,

praying for appropriate order, 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.

The appeal has emerged out against the judgment

and award dated 28th November, 2019 passed by the

learned Judge, Motor Accident Claims Tribunal,

Asansol in M.A.C. Case No. 37 of 2017/M. A. C. Case

No. 32 of 2017 (Rina Deb & Anr -vs- National

Insurance Co. Ltd), 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 Tapas

Deb in a vehicular accident, occurred on 25th July,

2016, by reason of involvement of vehicle bearing No.

WRH/0066.

  The         compensation            was     awarded         upon

consideration        of       evidence,      both      oral    and

documentary, with which the appellant was not

satisfied. Hence this appeal.

The sole question raised in this appeal is that the

learned Tribunal decided the instant claim case under

Section 163A of the Motor Vehicle Act, 1988 by

considering judgment of Supreme Court under

Section 166 of the M.V. act, 1988, rendered in the

case of National Insurance Company Ltd.-Vs.

Pranay Sethi & Ors reported in (2017) 16 SCC 680.

Mr. Deb Narayan Ray, 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) giving much reliance

upon Apex Court judgment rendered in Pranay Sethi

(Supra).

Mr. Deb Narayan Ray contends that the learned

Tribunal has erred in law in perceiving the real

proposition of law of Section 166 and Section 163A of

the Motor Vehicles Act, 1988. The learned Tribunal

ought not to have applied the ratio of Pranay Sethi

(Supra), where the Apex Court decided the case

under Section 166 of the M.V. Act, 1988.

Incidentally, Mr. Deb Narayan Ray submits that

the learned Tribunal ought to have assessed the

compensation relying upon the 2nd Schedule, under

Section 163A of the Motor Vehicles Act, 1988 for

grant of just compensation.

Mr. Amit Ranjan Roy, learned Advocate, has

nothing to raise any objection with regard to the legal

proposition of law and virtually conceding the

submission of the appellant, Mr. Ray candidly

submits that the appeal may be disposed of deciding

the award in terms of the 2nd Schedule of the M. V.

Act, 1988, to which the respondent/claimants would

not express any grievance and they are willing to take

compensation in terms of second schedule of the M.

V. Act, 1988.

Having considered of the submission of both sides,

the award passed by the learned Tribunal needs

modification, relying upon the second schedule of the

M. V. Act, 1988 on the ground that claim case has

been filed under Section 163A of the M. V. Act, 1988.

In view of the matter, awarded sum needs a revisit

upon perusal of the judgment of the learned 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 self employed person and he

had an income of Rs. 3,300/- per month, with which

he had to maintain his livelihood and family

members also. In course of evidence adduced before

the learned Tribunal, no documentary evidence,

however, could be adduced. Adhering to the 2nd

Schedule appeared to Section 163A of the M. V. Act,

1988, it would be quite reasonable for all purposes to

hold that the victim had an earning of Rs. 3,000/-

per month.

Selection of a multiplier is of the immense

potentiality, since the victim left this world when he

was 43 years old. Multiplier, in such case, 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. 9,500/- should be granted as a

general damages in view of the structure laid down in

the second schedule attached with the section under

Section 163A of M.V Act. Accordingly, the above

order passed by the learned Tribunal is thus modified

to the extent mentioned herein below and

recalculated as follows:

 Particulars                                      Amount (Rs.)


Monthly Income                                          3,000/-

Yearly income (3,000x12)                               36,000/-

Less : 1/3 Deduction personal
   Expenses                                        (-) 12,000/-
Annual income after deduction                           24,000/-

Multiplier of 15 to be used                              x    15
                                                       3,60,000/-
General damages   (2000+2500+5000)                     (+) 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 28th November, 2019 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 the bank accounts, to be supplied by their learned