Calcutta High Court (Appellete Side)
2. Ms. Sulekha Mondal vs Oriental Insurance Company Ltd on 14 July, 2022
Page 1 of 7
IN THE HIGH COURT AT CALCUTTA
CIVIL APPELLATE JURISDICTION
APPELLATE SIDE
PRESENT:
THE HON'BLE JUSTICE RABINDRANATH SAMANTA
FMA 928 of 2004
IA No. CAN 1 of 2004 (Old No. CAN 9854 of 2004)
IA No. CAN 3 of 2008 (Old No. CAN 2380 of 2008)
1. Sri. Gunadhar Mondal
2. Ms. Sulekha Mondal ....Appellants/Claimants
Vs
1. Oriental Insurance Company Ltd.
2. The New India Assurance Company Ltd.
3. Sri Bamandev Halder
4. Sri Sukanta Bangal ..... Respondents
_______
Mr. Krishanu Banik, Adv.
..... for the Appellants
Ms. Sucharita Paul,Adv. .....for the Respondent No.1
Mr. Rajesh Singh,Adv.
Heard On : 30.06.2022
Judgment on : 14.07.2022
Rabindranath Samanta, J:-
1. Being aggrieved by the inadequate compensation awarded by the
learned Judge, Motor Accident Claims Tribunal (hereinafter be
referred to as the Tribunal), 8th Court, Alipore, South 24 Parganas
vide judgment dated 25.06.2004 in M.A.C. Case No. 265 of 2000 the
claimant Smt. Arati Mondal, wife of Gunadhar Mondal, appellant No.1
herein, preferred the instant appeal. During the pendency of the
appeal the sole appellant/claimant Arati Mondal died and in her place
her husband namely Gunadhar Mondal and her daughter namely
Sulekha Mondal were substituted in her place by order dated
02.07.2007 passed by a Division Bench of this Court.
2. The claimant Arati Mondal initially filed the claim application under
Section 163A of the Motor Vehicles Act. Subsequently, on her
application for amendment, the claim case was converted to a case
under Section 166 of the Motor Vehicles Act from the case under
Section 163A of the Act vide order dated 23rd June, 2003 passed by
the learned Tribunal.
3. To put succinctly, the facts of the claim application as brought by the
claimant Arati Mondal may be stated as under:
On 28.04.2000 at about 3:45 P.M. Gopal Mondal, the son of the
claimant Arati Mondal being the driver of a bus bearing No. WB-
19/6287 on route No. SD-8 was proceeding from the Thakurpukur
bus stoppage with a destination to go to Bibirhut bus stand. While the
bus reached near Nandabhanga-Ghosh pukur bus stoppage, then a
bus bearing No. WB-19/6703 on route No. SD-22 was proceeding
from the opposite direction rashly and in negligent manner
endangering to human life dashed against the driver's cabin of Gopal
Mondal. As a result, he sustained severe chest injuries. Blood came
out from his face and he was taken to Samaly Primary Health Centre.
After some first aid was given to him, he was referred to M.R. Bangur
Hospital where he succumbed to the injuries.
4. It was alleged by the claimant that the driver of the offending bus
bearing No. WB-19/6703 was responsible for the accidental death of
the claimant's son. The victim Gopal Mondal died at the age of 24
years. He was the only son of the claimant. The victim used to earn
Rs. 6,000/- per month.
5. On the allegations of rash and negligent driving on the part of the
driver of the offending vehicle an FIR was lodged at Bishnupur Police
Station which was registered as Bishnupur P.S Case No. 106 dated
28.04.2000 under Sections 279/338/427/304A of the Indian Penal
Code.
6. At the time of the accident the offending bus bearing No. WB-19/6703
was registered with the Oriental Insurance Company Limited and the
non-offending bus bearing No. WB-19/6287 driven by the victim was
insured with the New India Assurance Company Limited.
7. The victim used to earn Rs.6,000/- per month as a driver of the
aforesaid non-offending bus.
8. Under the aforesaid facts, the claimant sought for compensation.
9. The respondent No.1 Oriental Insurance Company Limited contested
the claim application by filing a written statement wherein it denied
the averments/allegations as made by the claimant in the claim
application and sought for dismissal of the case with costs.
10. Upon the pleadings of the parties the following issues were framed by
the learned Tribunal:
i) Is the case maintainable in its present form ?
ii) Whether the alleged accident took place due to rash and negligent
driving of the driver of the offending vehicle bearing No. WB-
19/6703 (bus) ?
iii) Whether the offending vehicle was covered by Insurance at the
time of accident ?
iv) Is the claimant entitled to get the award as prayed for ?
v) To what other relief/reliefs the claimant is entitled ?
11. From the case records of the learned Tribunal, it appears that the
claimant in order to prove her case examined as many as three
witnesses. The documents filed by the claimant were marked as
Exhibited documents. However, no oral or documentary evidence was
adduced from the side of the Insurance Company.
12. Upon hearing the learned Advocates appearing for the parties and on
consideration of the oral and documentary evidence the learned
Tribunal after disposing of the issues as above passed the award
directing the Oriental Insurance Company Limited, the respondent
No.1 herein to pay an amount of Rs.3,00,000/- to the claimant
within 30 days from date, failing which penal interest at the rate of
9% per annum shall be charged till realisation of the awarded
amount.
13. Admittedly, at the time of the accident, the offending bus bearing No.
WB-19/6703 was insured with the respondent No.1, the Oriental
Insurance Company Limited. As held by the learned Tribunal on
assessment of the evidence of the eye-witness (P.W.2) Sripati Mondal,
the driver of the offending bus was responsible for causing the
accident due to his rash and negligent driving. However, on analysing
the evidence of P.W. 2 I find that the eye-witness Sripati Mondal
unequivocally testified that due to rash and negligent driving on the
part of the driver of the offending vehicle, the offending vehicle dashed
against the victim who was driving the bus bearing No. WB-19/6287.
He also testified that because of such accident the victim sustained
injuries on his vital organ of the body and he succumbed to the
injuries. Be that as it may, no cross-appeal has been preferred by the
respondent No.1 to challenge the findings of the learned Tribunal in
this regard. Therefore, it stands proved that due to rash and negligent
driving on the part of the offending bus the victim met with the
accident and he lost his life.
14. From the evidence on record it appears that the victim died at the age
of 24 years. From an unchallenged documentary evidence (salary
certificate) it appears that the victim used to earn Rs. 6,000/- per
month. That being so, the learned Tribunal rightly held that the
monthly income of the victim was Rs. 6,000/-.
15. A reading of the judgment of the learned Tribunal shows that the
learned Tribunal selected the multiplier 6 on calculation of the
average age of his parents.
16. Learned lawyer appearing for the appellants submits that adopting
multiplier as 6 by the learned Tribunal is erroneous in view of the
decision in the case of Sarla Verma and Ors -Vs- Delhi Transport
Corporation and Ors reported in (2009) 6 SCC 121 and National
Insurance Company Limited -Vs- Pranay Sethi and Ors reported
in (2017) 16 SCC 680. Learned lawyer submits that the learned
Tribunal did not award any compensation considering the future
prospects of the deceased. Besides, awarding compensation of
Rs.12,000/- on the grounds of pain and suffering of the mother of
the victim and on funeral expenses is also erroneous in view of the
aforesaid two decisions.
17. However, learned lawyer appearing for the Insurance Company
opposes the submission as advanced by the learned lawyer for the
appellants.
18. As held above, the victim Gopal Mondal died at the age of 24 years.
19. The Hon'ble Apex Court in the decision in the case of National
Insurance Company Limited -Vs- Pranay Sethi and Ors reported
in (2017) 16 SCC 680 has held that the age of the deceased whether
died unmarried or married will be the basis for applying multiplier. In
terms of paragraph 42 of the decision in the case of Sarla Verma and
Ors -Vs- Delhi Transport Corporation and Ors reported in (2009) 6
SCC 121 multiplier 18 will be adopted for the age groups of 15 to 20
and 21 to 25 years.
20. In the decision in the case of Pranay Sethi supra, the Hon'ble Apex
Court at paragraph 59.4 has observed that if the victim was on a fixed
salary, an addition of 40% of the established income should be the
warrant where the deceased was below the age of 40 years. Therefore,
40% would be added to the compensation. It has been held by the
Hon'ble Apex Court in Pranay Sethi (supra) that if the victim died
unmarried 50% deduction would be made towards his personal and
living expenses. If the aforesaid multiplier is adopted and the
guidelines of the Hon'ble Apex Court are taken into consideration, the
computation of the compensation would be in the following manner:
1) Monthly Income to be assessed= Rs. 6,000/-
2) Annual Income to be assessed= Rs. 72,000/-
( Rs.6000 x 12)
3) Future Prospects to be assessed at the = Rs. 28,800/-
Rate of 40%
4) Total= Rs. 1,00,800/-
5) 50% deduction on the death of the= Rs. 50,400/-
victim as unmarried on account of
his personal and living expenses
(Rs.1,00,800 - Rs.50,400)
6) Multiplier 18 will be adopted as per= Rs. 9,07,200/-
the age of the victim
(Rs.50,400 x 18)
7) General damages admissible to the = Rs.30,000/-
mother of the deceased
(Rs.15,000 for loss of estate and Rs.15,000
for funeral expenses)
8) Total= Rs.9,37,200/-
9) Less the awarded amount already paid= Rs.3,00,000/-
by the Insurance Company
Total Balance Amount = Rs. 6,37,200/-
21. In view of the above, the award passed by the learned Tribunal
requires modification.
22. On modification of the award passed by the learned Tribunal the
respondent No.1 Oritenal Insurance Company Limited is directed to
pay compensation of Rs.6,37,200/- to the claimants, the legal heirs of
the deceased claimant. The respondent No.1 is directed to pay interest
at the rate of 6% per annum on the amount of Rs.3,00,000/- as
awarded by the learned Tribunal from the date of filing of the claim
application on 27.06.2000 till this amount was deposited by the
Insurance Company. The respondent No.1 is further directed to pay
interest at the rate of 6% on the further awarded amount of
Rs.6,37,200/- from the date of filing of the claim application.
23. The respondent No.1 is directed to deposit the awarded amount of
Rs.6,37,200/- and 6% interest as indicated above by cheque with the
learned Registrar General, High Court, Calcutta within five weeks
from date. After the aforesaid amount of money is deposited, the
learned Registrar General shall release the amount to the claimants in
equal share as expeditiously as possible.
24. With the aforesaid direction the appeal and the connected application,
if any, stand disposed of.
25. No order as to costs.
26. Send down the LCR along with a copy of this judgment to the learned
Tribunal for information.
27. Urgent certifed website copies of this judgment, if applied for, be given
to the parties upon compliance with all requisite formalities.
(Rabindranath Samanta,J.)
