2. Smt. Kalandi Murmu vs National Insurance Company ...
2022 Latest Caselaw 4076 Cal

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                 IN THE HIGH COURT AT CALCUTTA
                  CIVIL APPELLATE JURISDICTION
                         APPELLATE SIDE

PRESENT:
THE HON'BLE JUSTICE RABINDRANATH SAMANTA

                           FMA 941 of 2013
                       1. Smt. Namita Murmu
                       2. Smt. Kalandi Murmu       ....Appellants/Claimants
                                   Vs
                       1. National Insurance Company Limited
                       2. Mahibul Khan             ..... Respondents

_______

Mr. Amit Ranjan Roy, Adv.

..... for the Appellants

Mr. Sanjay Paul,Adv.

Heard On                     : 29.06.2022

Judgment on                  : 08.07.2022


Rabindranath Samanta, J:-

1. This appeal is against the judgment and award dated 20.01.2009 passed by the learned Judge, Motor Accident Claims Tribunal (hereinafter be referred to as the Tribunal), 2nd Court, Tamluk, Purba Medinipur in M.A.C. Case No. 25 of 2007 arising out of M.A.C. Case No. 396 of 2006. By the judgment the learned Tribunal awarded compensation of Rs.8,90,568/- in favour of the claimants and directed the respondent No.1, The National Insurance Company Limited to pay the awarded amount to the claimants within two months, failing which the total awarded sum shall carry interest at the rate of 6% per annum till realisation of the entire amount of money.

2. Feeling aggrieved by the inadequate compensation awarded by the learned Tribunal, the appellants/claimants assail the impugned award in this appeal.

3. The facts emanating from the claim application under Section 166 of Motor Vehicles Act and which are necessary for adjudication may be adumbrated as under:

On 1st October, 2006 at about 00:30 hrs while Raghunath Murmu of Village Khagra, P.O- Tentulmuri, P.S- KGP(L), Paschim Medinipur and his friend Kalipada Dolai were talking with other two persons on the extreme left side of NH-60 Road keeping the motorcycle by the side of the road near Sankua over Bridge, at that time one Ambassador bearing registration No. WMB-6832 coming from Kharagpur Chowrangi side with excessive speed dashed those persons with great force. As a result, Raghunath Murmu sustained deep blood injuries on his head and died on the spot. Other persons who were with him also sustained deep blood injuries on their person. The injured persons were taken to hospital for their medical treatment.

4. The victim Raghunath Murmu died at the age of 26 years.

5. The accident took place due to rash and negligent driving on the part of the driver of the offending vehicle.

6. On the allegations of rash and negligent driving of the offending vehicle by its driver, one Kharagpur (L) Police Station Case No. 217 of 2006 under Sections 279/337/338/304A/427 of the Indian Penal Code was registered for investigation.

7. The victim was a teacher of a primary school named Arun Khagra Prathamik School and he used to earn Rs.6,800/- per month.

8. The claimant No.1 Smt. Namita Murmu is the widow and claimant No. 2 Smt. Kalandi Murmu is the mother of the victim Raghunath. Owing to untimely death of the victim, the claimants fell in untold financial crisis.

9. At the time of the accident the aforesaid offending vehicle was insured with the National Insurance Company Limited, the respondent No.1 herein.

10. Under the aforesaid facts the claimants sought for compensation of Rs. 10,75,000/-.

11. However, the respondent No.1, the Insurance Company contested the claim case by filing a written statement wherein it denied the allegations/averments as made in the claim application and sought for dismissal of the case.

12. To establish their case the claimants examined three witnesses namely claimant No.2 Kalindi Murmu (P.W.1), Ganesh Kisku (P.W. 2), an eye witness and Jagadish Chandra Jana (P.W.3), the Resort Teacher of Kharagpur Circle. Besides, some documents relied upon by the claimants were marked as Exhibits 1 to 11.

13. No oral or documentary evidence was adduced on the part of the Insurance Company.

14. Upon hearing learned Advocates appearing for the parties and on consideration of the oral and documentary evidence on record the learned Tribunal on disposing of the issues framed by it partly allowed the claim case and awarded the compensation as stated hereinbefore.

15. It appears that the learned Tribunal on assessment of ocular evidence of P.W. 2 Ganesh Kisku, eye-witness and on consideration of the FIR and the charge-sheet in connection with the aforesaid Kharagpur (L) PS Case No. 217 of 2006 under Sections 279/337/338/304A/427, IPC has recorded the finding that due to rash and negligent driving on the part of the driver of the offending vehicle the accident took place. On analysing the oral evidence of P.W. 2 I concur with the finding of the learned Tribunal that due to the laches on the part of the driver the victim met with the accident and he succumbed to the injuries sustained by him due to the accident. It is not in dispute and as I find from the Insurance policy on record the offending vehicle was

insured with the Insurance Company at the time when the accident took place.

16. Now, the question which falls for consideration is whether the compensation as awarded by the learned Tribunal requires to be enhanced on modification of the award.

17. Learned Counsel appearing for the appellant submits that considering the age of the victim multiplier 18 will be adopted, but, the learned Tribunal wrongly used the multiplier 17 to compute the compensation. Learned Counsel by referring to the decision in the case of National Insurance Company Limited -Vs- Pranay Sethi and Ors reported in (2017) 16 SCC 680 submits that as per the mandate of the Hon'ble Apex Court the claimants are entitled to Rs.30,000/- on the heads of Loss of Estate (Rs.15,000/-) and Funeral Expenses ( Rs.15,000/-). Besides, the claimant No.1 being the widow of the victim is entitled to get Rs. 40,000/- as consortium. But, the learned Tribunal computed on such heads erroneously.

18. As it appears from the evidence on record, especially from the Check Register of Payments to Primary School Teachers (Exhibit 8), the learned Tribunal has rightly held that after necessary deduction of P.Tax etc. the monthly income of the victim was Rs.6,438/-. It is evident from the documentary evidence on record that the date of birth of the victim was 27.03.1981. That being so, on the date of the accident the deceased was aged about 24 years 8 months. In the decision in the case of Sarla Verma and Ors -Vs- Delhi Transport Corporation and Ors reported in (2009) 6 SCC 121 the Hon'ble Apex Court at paragraph 42 has held that multiplier 18 will be adopted for the victim who is within the age groups of 15 to 20 and 21 to 25 years. In view of the decision of Sarla Verma supra, adopting of the multiplier 17 by the learned Tribunal is erroneous. Since the victim left behind his mother and widow as two legal heirs, deduction towards personal and living expenses of the deceased would be to the

extent of 1/3rd in terms of the observations of the Hon'ble Apex Court at paragraph 30 of Sarla Verma.

19. In the decision in Pranay Sethi supra the Hon'ble Apex Court has held at paragraph 59.3 that while determining the income, an addition of 50% of actual salary to the income of the deceased towards future prospects, where the deceased had a permanent job and was below the age of 40 years, should be made. As it is evinced from the documentary evidence i.e. Service Book and Check Register of Payments to Primary School Teachers, the victim's job as a teacher of a primary school was permanent. As held above, the victim was below the age of 40 years. Therefore, 50% will be added as the future prospects.

20. In the decision in the case of National Insurance Company Limited

-Vs- Pranay Sethi and Ors reported in (2017) 16 SCC 680 the Hon'ble Apex Court at paragraph 59.8 has held that reasonable figures on conventional heads, namely, Loss of Estate, Loss of Consortium and Funeral Expenses should be Rs.15,000/-, Rs.40,000/- and Rs.15,000/- respectively. As observed by the Hon'ble Apex Court in Pranay Sethi at paragraph 46, consortium will be spousal consortium only. Therefore, the claimants jointly are entitled to get Rs.30,000/- on the conventional heads of Loss of Estate and Funeral Expenses and the claimant No.1 is entitled to Rs.40,000/- as Loss of Consortium. However, it is submitted on behalf of the claimants that if this amount of Rs. 40,000/- is given to both the claimants in equal share the claimant No.1 will have no objection.

21. Therefore, if the aforesaid figures and factors are taken into consideration the computation of compensation as arrived by the learned Tribunal should be revisited and the award shall be modified accordingly.

22. The computation of the compensation would be in the following manner:

   Monthly Income=                                    Rs. 6,438/-

   Yearly Income (Rs. 6438 x 12)=                     Rs. 77,256/-

   Future Prospects (Rs. 50% of Rs.77,256)=           Rs. 38,628/-

   Total loss of yearly income =                      Rs. 1,15,884/-
   ( Rs.77,256 + Rs.38,628)


   Deduction to the extent of 1/3rd =                 Rs. 77,256/-
   ( Rs.1,15,884 - Rs. 38,628)


  Adopting multiplier 18 considering =                Rs. 13,90,608/-
  the age of the victim as of 24 years
  and 8 months
  ( Rs.77,256 x 18)




  General Damages on conventional =                   Rs. 70,000/-
  heads, Loss of Estate and Funeral
  Expenses for the Claimants (Rs.30,000)
  and on Loss of Consortium of (Rs.40,000)
  to the claimant No.1


  Total Compensation=                                 Rs. 14,60,608/-
  ( Rs.13,90,608+Rs.70,000)

23. Since the claimant No.1 has no objection, consortium of Rs. 40,000/- admissible to claimant No.1 may be allotted to both the claimants in equal share.

24. If Rs. 8,90,568/- awarded by the Tribunal is deducted, the total compensation comes to Rs. 14,60,608 - Rs. 8,90,568 = Rs. 5,70,040/.

25. It is not is dispute that the claimants are entitled to get interest at the rate of 6% per annum on the awarded amount of Rs.5,70,040/-.

26. Learned Counsel appearing for the respondent No.1 submits that as directed by the learned Tribunal the Insurance Company is at liberty to recover the awarded amount of money from the owner of the offending vehicle. On such score learned counsel emphasises that this Court should direct the respondent No.1 to recover the awarded amount of money from the owner of the offending vehicle.

27. What I find, no iota of evidence has been adduced by the Insurance Company to prove that the driver of the offending vehicle possessed invalid or fake driving licence or that the owner of the offending vehicle was responsible for the accident due to his unlawful acts contrary to the conditions of Insurance policy. In such factual scenario, the direction as above passed by the learned Tribunal is palpably erroneous and illegal. While any error or illegality on the face of record of any Court or Tribunal comes to the notice of High Court, the High Court in exercise of power under Article 227 of the Constitution can interfere with it and rectify or remove the error or illegality. Accordingly, the direction passed by the learned Tribunal to recover the awarded amount of money from the owner of the offending vehicle having no evidential base is hereby set aside.

28. In view of the above, the appeal merits success and accordingly the appeal is allowed on contest against the respondent No.1 and ex parte against the respondent No.2.

29. The respondent No.1, the National Insurance Company Limited is directed to pay Rs.5,70,040/- as an awarded amount of money and to pay interest at the rate of 6% per annum on such awarded amount of money to the appellants/claimants from the date of filing of the claim application.

30. The respondent No.1 is directed to deposit the awarded amount of money with interest thereon by cheque with the learned Registrar General, High Court, Calcutta within 5 weeks from date.

31. After such deposit is made, the learned Registrar General shall release the aforesaid amount of money to the claimants in equal share as expeditiously as possible.

32. With the aforesaid direction, the appeal and the connected application, if any, stand disposed of.

33. No order as to costs.

34. Urgent certified website copies of this judgment, if applied for, be given to the parties upon compliance with all requisite formalities.

(Rabindranath Samanta, J.)