Calcutta High Court (Appellete Side)
C&Cr vs Animesh Mishra & Anr on 18 February, 2022
18.02.2022
Item No.18
Ct. No.7
AGM
F.M.A.T. 1222 of 2018
CAN 1 of 2018 (Old CAN 10247 of 2018)
CAN 2 of 2018 (Old CAN 10248 of 2018)
(Via Video Conference)
Tapi Saha (Biswas) & Ors
C&CR
Vs.
Animesh Mishra & Anr
Mr. Subir Banerjee,
Mr. Sandip Bandopadhyay,
Mrs. Ruxmini Basu Roy,
... For the Appellants.
Mr. Afroze Alam, ... For the Respondents.
(Virtually)
CAN 1 of 2018 (Old CAN 10247 of 2018)
The present CAN application is relatable to a
prayer for condonation of delay.
Learned advocate for the appellants has attempted
to explain the delay caused in preferring the appeal
thereby explaining the delay in the relevant
averments of application.
Mr. Afroze Alam, learned advocate appearing for
the respondent No. 1/ Insurance Company submits
that there has been delay of 84 days caused in
preferring the appeal, which must be taken in view,
while considering the prayer for condonation of delay.
Upon perusal of the relevant averments contained
in the pleadings, it appears that the delay has been
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successfully explained and appellants / caimants
were prevented by sufficient causes from preferring
the appeal within the statutory period of limitation.
The delay being sufficiently explained, the delay
caused in preferring the appeal stands condoned.
Accordingly, the application for condonation of
delay being CAN 1 of 2019 stands disposed of.
FMAT 1222 of 2018
Learned advocates for both the parties are ad idem
on the point that the instant appeal may be disposed
of giving a go-bye to the technicalities involved in the
process.
It is submitted by the learned advocate for the
appellants/claimants that the claimants have been
suffering from financial distress for want of
sufficiency of money for their sustenance, the appeal
may be disposed of on the basis of materials
furnished by both the parties to the case, which is not
opposed by the learned advocate representing the
Insurance Company/respondent No. 1.
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.
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The appeal has emerged out against the judgment
and award dated 29th March, 2018 passed by learned
Additional District Judge, Motor Accident Claims
Tribunal, Fast Track Court, Raiganj, Uttar Dinajpur
in M.A.C. Case No. 80 of 2016, on a claim case under
Section 166 of the Motor Vehicles Act, 1988, for the
death of one Susanta Biswas, aged about 32 years, in
a road accident occurred on 20.06.2013.
Mr. Subir Banerjee, learned advocate representing
the appellants/claimants primarily urges four (04)
grounds in support of this appeal. It is contended that
the Tribunal has erred in law, in assessing the
income of the deceased at Rs. 3,000/- per month,
instead of considering the actual income of the
deceased earned at the relevant time of accident. The
income of the deceased, was Rs. 6,000/- per month
from his seasonal business, and same should have
been taken into account, according to appellants, in
deciding the quantum of compensation.
The second ground urged by the appellants is that
no future prospect has been granted to the claimants
on the income of the deceased, leading to inadequate
quantification of the award.
The claimants also submit that they were
erroneously given only Rs. 5,000/- for funeral
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expenses, instead of Rs. 70,000/- under the full
component of general damages.
Lastly, the claimants submit that the learned
Tribunal has erred in law is not granting interest on
the compensation amount. Accordingly it was argued
that a lesser quantum of compensation has been
wrongfully awarded by the learned Tribunal.
Mr. Afroze Alam, learned advocate appearing for
the Insurance Company/Respondent No. 1 in virtual
mode without disputing with the facts leading to the
death of deceased submits that the award has been
rightly decided by Tribunal upon considering pros
and cons of the case. He strongly opposes the case
made out by the appellants. According to Insurance
Company/respondent No. 1, there lies nothing to be
interfered with in this appeal, and as such, there is
no scope for making any interference by this Court.
Facts
leading to the death of the deceased are not
at all disputed.
Having considered the submission of both sides, as
well as the proposition of law laid down by the Apex
Court in cases of Smt. Sarla Verma & Ors Vs. Delhi
Transport Corporation & Anr reported in (2009) 6
SCC 121 and National Insurance Company Ltd. Vs.
Pranay Sethi & Ors reported in (2017) 16 SCC 680,
as well as precedence of our High Court, the Court is
of the view that there is strong force in the
submission advanced by the learned advocate for the
appellanst/claimants.
The award granted by the learned Tribunal needs
modification with respect to monthly income and the
same is to be considered at Rs. 4,000/- per month. In
addition, claimants would also be entitled to '40%
future prospect', of the income of the deceased, since
the deceased was 32 years old at the time of accident.
More so, damages component has been improperly
addressed by Tribunal, which needs to be taken care
of, while doing modification of award.
Accordingly, the order passed by the learned
Tribunal is modified to the extent mentioned
hereinbelow and recalculated as hereunder:
Particulars Amount (Rs.)
Monthly Income 4,000/-
X 12
Annual Income 48,000/-
Add 40% future prospect 19,200/-
67,200/-
Less 1/3 for personal expenses 22,400/-
44,800/-
33,600/-
Multiplier of 16 to be used x16
7,16,800/-
Collective heads of General
Damages 70,000/-
7,86,800/-
Less: Awarded amount 3,89,000/-
Balance enhanced amount 3,97,800/-
According to Mr. Subir Banerjee, the Insurance
Company though has deposited the awarded amount
of Rs. 3,89,000/- in terms with the order of the
Tribunal on the strength of the award dated
29.03.2018, but those cheques already got lapsed
needing revalidation for the proper disbursement of
the same.
Relying upon the submissions of Mr. Banerjee, the
Insurance Company is directed to deposit the entire
modified sum amounting to Rs. 7,86,800/- together
with interest assessed at the rate of 6% per annum on
and from the date of filing of the claim petition within
a period of 45 days from the date of receipt of the
bank account particulars of the appellants. For such
purpose, learned advocate for the appellants will
forward the bank account details of the appellants
within a fortnight from the date to the learned
advocate for the Insurance Company.
Since the deposited cheque has already been
lapsed, as per submission disclosed by Mr. Banerjee,
Insurance Company is at liberty to take back the
lapsed chequeafter making payment of the modified
sum as already mentioned hereinabove.
The payment shall be made to the bank accounts
of the claimants directly either by NEFT or RTGS.
With the aforesaid directions, the instant appeal is
disposed of.
In view of the disposal of this appeal, connected
applications, if any, are also disposed of.
There shall be no order as to costs.
Urgent photostat certified copy of this order, if
applied for, be given to the parties, upon compliance
of all formalities, on priority basis.
(Subhasis Dasgupta, J.)
