Calcutta High Court (Appellete Side)
C&Cr vs The Branch Manager on 22 February, 2022
22.02.2022
Item No.32
Ct. No.7
AGM
FMAT 141 of 2020
CAN 1 of 2021
(Via Video Conference)
Smt. Mukta Ray @ Roy & Anr
C&CR
Vs.
The Branch Manager, Cholamandalam M/S
General Insurance Company Limited & Ors
Mr. Jayanta Kumar Mondal, ... For the appellants.
Mr. Debanjan Mukherjee,
Mr. S. Bose, ... For the respondents.
CAN 1 of 2021
This is an application for condonation of delay in
preferring the appeal.
As per Additional Stamp Reporter's report, the
appeal gets delayed by 839 days. In the relevant
averments of instant application, petitioners have
attempted to explain the delay as to what prevented
the petitioners from preferring the appeal within the
period of limitation.
Mr. Debanjan Mukherjee, learned advocate for the
respondents/ Insurance Company submits that there
has been huge delay caused in preferring the appeal,
which must be taken in view in consideration of the
prayer for condonation of delay.
Having considered the submissions of both sides
and explanation of appeal offered in the CAN
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application, it appears that the delay bas been
successfully explained.
The delay thus stands condoned.
CAN 1 of 2021 is thus disposed of.
FMAT 141 of 2020
Learned advocate 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
appellants/claimants that the appeal may be
disposed of on the basis of the materials furnished by
both the parties to this case, which is not opposed by
the respondents/insurance company.
When the learned advocates for both parties are
agreeable to the expeditious disposal of the instant
appeal, the Court should not stand in the way.
The appeal is directed against the judgment and
award dated July 26, 2017 passed by the learned
Motor Accident Claims Tribunal, (Redesignated)
Court, at Bankura in Motor Accident Claim Case No.
24 of 2016/ Motor Accident Claim Case No. 153 of
2015 on a claim under Section 166 of the Motor
Vehicles Act, 1988 for the death of one Rabi Ray @
Roy in a vehicular accident dated October 18, 2015.
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Basically, appellants have taken grounds, which
are two-folds; one pertaining to erroneous assessment
of the income, and other one being non-addition of
any future prospect, while making quantification of
the award.
Mr. Mondal, learned advocate appearing for the
appellants submits that the deceased victim was a
self-employed person from his own business, and
from such source, he had an earning of Rs. 8,000/-
per month, which was sought to be established by
adducing oral evidence at the time of trial before the
Tribunal. The Tribunal, according to Mr. Mondal, has
erroneously assessed the income at Rs. 3,000/- per
month of deceased, without considering the real
income of the deceased, he earned for his livelihood
as well as for his dependant family members. It is
thus, contended that in the year 2015, the deceased
victim could be well considered to be a person having
an income of Rs. 8,000/- per month, and there is no
justification in refusing the oral testimony of the
witnesses examined during trial revealing the actual
income of the deceased.
As regards absence of granting future prospect, it
is submitted by Mr. Mondal, that learned Tribunal
has erred in law in not making addition of future
4
prospect at the rate of 25% additionally on the income
of the deceased.
Reliance is placed on decisions reported in (2009)
6 SCC 121 in the case of Smt. Sarla Verma & ors.
Vs. Delhi Transport Corporation & Anr, and
National Insurance Company Ltd. vs. Pranay
Sethi & ors., reported in (2017) 16 SCC 680, in
context with the submissions, as already advanced by
the appellants.
Per contra, Mr. Debanjan Mukherjee, learned
advocate for the respondents/insurance company
submits that learned Tribunal has decided the award
upon considering the pros and cons of the case, and
in the absence of any documentary evidence being
furnished revealing the income of the deceased, the
Tribunal rightly assessed the compensation, which
must go unaltered.
Mr. Mukherjee, thus strongly disputes with the
arguments advanced by Mr. Mondal, and submits
that there lies nothing to be interfered with the
award.
Incidentally Mr. Mukhjee, without filing any COT
application disputes with the extent of general
damages being granted by the Tribunal, which
according to Mr. Mukherjee should be Rs. 70,000/-,
instead of Rs.1,39,500/-. Since Mr. Mondal has
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nothing to raise any objection with regard to actual
amount of general damages, to be granted to
Rs.70,000/-, as per the settled proposition of law, the
court finds reasons to accept such submission of Mr.
Mukherjee, representing the insurance company.
Having considered the submissions of the learned
advocate for both sides, and bearing in mind the
proposition of law already decided in this case of Smt.
Sarla Verma(supra) and Pranay Sethi(supra), it
appears that there is strong force in the submission
of learned advocate for the appellant. Bearing in mind
the price index, the then prevailed at the time of
accident, i.e. in 2015, it would be most reasonable for
all purposes to hold that the deceased victim could be
safely construed to be a person having an income of
Rs.5000/- per month. Such an amount can neither
be exorbitant, nor inflated one.
As regards future prospect, there should have been
addition to the extent of 25% on the income of
deceased, which could not be granted by Tribunal.
The award granted by the Tribunal thus needs
modification in terms of the calculation made
hereinbelow, and with this modification, there will be
no prejudice caused to either of the parties to this
case, so as to make the award proper, just and
perfect.
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Accordingly the impugned award is modified and
recalculated in the manner hereunder:
Particulars Amount(Rs.)
Monthly Income Rs. 5000/-/
Annual income (5000 x12) Rs. 60,000/-
Add 25% futue prospect Rs. 15000/-
--------------------
Rs. 75,000/-
Less 1/3 of personal Exp Rs. 25,000/-
--------------------
Rs. 50,000/-
Multiplier by 13 (50000 x 13) Rs. 650,000/-
Add: General Damages Rs.70,000/-
Rs. 7,20,000/-
Less awarded by Tribunal and
Paid by Insurer Rs. 4,51,500/-
------------------------
Balance (enhancement) Rs. 2,68,500/-
The claimants acknowledge receipt of the awarded
amount of Rs. 4,51,500/- in terms of the direction of
the Tribunal. Accordingly, the balance enhanced sum
of Rs. 2,68,500/- would become payable to the
appellants by the insurance company, together with
interest assessed at the rate of 6 per cent 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.
Learned advocate for the appellants will forward the
bank account details of the appellants within a
fortnight from date to learned advocate for the
insurance company. The payment shall be made to
the claimants' bank accounts directly, in the
proportion, as already decided by the Tribunal.
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. The
concerned department is directed to tag the
applications, if any, with the said appeal.
There will be no order as to costs.
Return the L.C.R., if any, received in the meantime.
Urgent photostat certified copy of this order, if
applied for, b given to the parties, upon compliance of
all formalities.
(Subhasis Dasgupta, J.)
