Calcutta High Court (Appellete Side)
Shilpa Halder (Minor) & Ors vs The Oriental Insurance Company & ... on 23 February, 2022
S/L 31
23.02.2022
Court No.7
SD
FMAT 441 of 2017
With
CAN 1 of 2017
(Old CAN 6276 of 2017)
(Application is not in the file)
With
CAN 2 of 2022
(Via Video Conference)
Shilpa Halder (Minor) & Ors.
Vs.
The Oriental Insurance Company & Anr.
Mr. Amit Ranjan Roy
... for the Appellants/Claimants.
Mr. Rajesh Singh
... for the Respondent/Insurance Co.
In Re: CAN 1 of 2017 (Old CAN No.6276 of 2017)
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. Rajesh Singh, learned advocate representing the
respondent no.1/Insurance Company submits that there has
been delay 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 successfully
explained and appellants/claimants were prevented by
sufficient causes from preferring the appeal within the
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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 2017 stands disposed of.
In Re: CAN 2 of 2022
The present CAN application is for expunging the
name of the appellant no.3, namely, Subhadra Halder, who
died intestate on 27th January, 2022.
The legal representatives and heirs of the deceased are
already on record as appellant nos.1 and 2.
Upon perusal of the application and taking into
account of the death of the appellant no.3, namely, Subhadra
Halder, the application deserves success on the ground that
the legal heirs left by Subhadra Halder are already on record.
Accordingly, the application for expunging the name
of appellant no.3, being CAN 2 of 2022 is allowed.
The department is directed to amend the cause title of
the Memorandum of Appeal by incorporating the necessary
changes.
In Re: F.M.A.T. 441 of 2017:-
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.
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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 in this pandemic, and urges the Court for
disposing of the appeal 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.
The appeal has emerged out against the judgment and
award dated 28th September, 2016 passed by the learned
Member, Motor Accident Claim Tribunal, District Judge,
Nadia in M.A.C. Case No.186 of 2015, on a claim under
Section 166 of the M.V. Act, 1988, granting an award to the
tune of Rs.4,41,500/- to the dependants/claimants of the
deceased, Lakshman Halder aged about 29/30 years, for a
vehicular accident, occurred on 9th June, 2015 by reason of
involvement of vehicle bearing no.WB-51/1751 in
consequence of rash and negligent driving.
Mr. Amit Ranjan Roy, learned advocate representing
the appellants/claimants primarily urges grounds in support
of this appeal, which are four-fold. It is contended by the
appellants that Tribunal has erred in law, in assessing the
income of the deceased at Rs.3,000/- per month, instead of
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considering the actual income of the deceased earned at the
relevant time of accident. The income of the deceased, being
a salesman of one M/s. Mondal Bastralaya with an income of
Rs.7,000/- per month, according to appellants, should have
been taken into account by the Tribunal in deciding the
quantum of compensation.
The second ground urged by the appellants is that no
future prospect was granted by the learned Tribunal to the
claimants on the income of the deceased victim leading to
inadequate quantification of the award, which can hardly be
regarded to be just and proper.
The third ground urged by the appellants/claimants is
that the learned Tribunal has erroneously awarded
Rs.9,500/- under the collective heads of 'general damages',
which should have been Rs.70,000/-. It is also submitted by
Mr. Roy that the claimants are also entitled to interest on the
awarded sum from the date of filing of the claim case.
Mr. Rajesh Singh, learned advocate representing the
insurance company/respondent no.1 submits that though a
COT application has not been taken as yet, but the multiplier
for the 29/30 years old victim has been erroneously chosen
as 18, which should have been 17. As regards the other
points raised in this appeal, Mr. Singh, submits that award
has been rightly decided after considering the pros and cons
of the case. Thus, according to insurance
company/respondent no.1, there lies nothing to be interfered
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with in the impugned judgment and as such, there is no
scope for making any interference by this Court.
Since, it is a piece of social legislation, proper
multiplier should be chosen, otherwise there will be
inadequate quantification of award. When appellants do not
dispute as regards selection of suitable multiplier, as
proposed by respondent no.1, which is most appropriate, the
multiplier should be taken as 17 instead of 18.
Facts
leading to the death of the deceased are not at all
disputed.
Having considered the submission of the 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 general practice 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 appellants/claimants. The award granted by the learned
Tribunal needs modification with respect to monthly income
and the same is to be considered at Rs.5,000/- per month
upon considering the price index, the then prevailed. The
said amount does not seem to be exorbitant, as a salesman in
2015 can be reasonably expected to be having an income of
Rs.5,000/- per month. In addition, claimants would also be
entitled to '40% future prospect', Rs.70,000/- on the
collective heads of general damages and also 'interest', from
the date of filing of the claim application till payment.
Accordingly, the impugned award is modified and re-
calculated in the manner referred hereinafter:
Particulars Amount (Rs.)
Monthly income 5000.00
Add 40% future prospect (Rs.2000/-) 7000.00
Annual Income (x 12) 84000.00
Less: 1/3rd personal expenses (Rs.28000/-) 56000.00
Multiplier (x 17) 952000.00
Add General damages (70,000.00/-) 1022000.00
Less: Awarded amount 4,41,500.00
Enhanced amount 5,80,500.00
The claimants acknowledge receipt of the entire
awarded amount of Rs.4,41,500/- minus interest. The
enhanced sum of Rs.5,80,500/- would become payable to the
claimants/appellants together with interest assessed @ 6 per
cent per annum, from the date of filing of the claim petition
till payment by the respondent/Insurance Company within a
period of 45 days from the date of receipt of the bank account
particulars of the claimants/appellants from the learned
advocate of the appellants. Insurance company is also
directed to pay 6% interest on the awarded amount, if not
already disbursed, to be calculated from the date of lodging
the claim till the date of payment.
The payment is to be made in the proportion as
already directed by the learned Tribunal. The share of
appellant no.3, since deceased, is to be equally distributed
between appellant nos.1 and 2.
With the aforesaid directions, the instant appeal is
disposed of.
In view of the disposal of this appeal, connected
application, if any, is also disposed of.
There shall be no order as to costs.
Return the lower courts records, if received, in the
meantime.
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.)
