Calcutta High Court (Appellete Side)

C&Cr vs National Insurance Company ... on 7 March, 2022

07.03.2022
Item No.28
Ct. No.7
AGM/RKB
                                F.M.A. 988 of 2015
                      CAN 1 of 2019 (Old CAN 11363 of 2019)
                      CAN 2 of 2019 (Old CAN 11364 of 2019)
                      CAN 3 of 2019 (Old CAN 11365 of 2019)

                        Habibar Rahaman and Ors.
                                          C&CR




                                    Vs.
                National Insurance Company Limited & Anr


             Mr. Subir Banerjee.
             Mr. Sandip Bandyopadhyay,
             Mrs. Ruxmani Basu Roy.
                                ..... For the appellants/claimants.

             Mr. Afroze Alam
                   ...for the respondent no.1/Insurance Company.


               CAN 1 of 2019 (Old CAN No. 11363 of 2019)


               The present CAN application is relatable to prayer

             for condonation of delay.

               Mr.      Afroze   Alam    representing   respondents/

             Insurance Company furnishes affidavit-in-opposition

             to challenge the condonation application.

               Appellants have attempted to explain the delay

             caused in preferring the appeal thereby explaining the

             delay in the relevant averments of application.

               Learned advocate representing the respondent

             No.1/Insurance Company submits that the delay

             caused in preferring the appeal, must be taken in

             view while considering the prayer for condonation of

             delay.
                    2




   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 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 (Old CAN No. 11363 of

2019) stands disposed of.


        CAN 2 of 2019 (Old No. 11364 of 2019)


   This is an application for recording the death of

appellant no.1, namely, Habibar Rahaman, and also

for deletion of his name from the Memo of Appeal, as

the legal heirs left behind by the appellant no.1 are

already on record, being appellant nos.2 to 6.

   Mr. Afroze Alam, learned advocate appearing for

the respondent/Insurance Company has nothing to

raise any objection in respect of the proposed prayer

for   recording   the   death   of   appellant   no.1.

Accordingly, the application for recording the death of

appellant no.1 is allowed.

   Department to make necessary correction in the

Memo of Appeal recording the death of appellant no.1.

   The application being CAN 2 of 2019 (Old CAN No.

11364 of 2019) stands disposed of.
                    3




               FMAT No. 988 of 2015

  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.

  It is submitted by the learned advocate for the

appellants that since the appellants/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 this 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 been preferred impugning the

judgment and award dated 3.12.2012 passed by

Motor Accident Claims Tribunal, 2nd Court, Jalpaiguri

in M.A.C Case No. 183 of 2008 on a claim case under

Section 166 of the M.V. Act, granting award to the

tune of Rs. 3,69,500/- for the death of one Tarikul

Islam, a 40 year old Supervisor serving then in a

private firm, with an income of Rs.4500/- per month,

for a vehicular accident occurred on 28.02.2008 due

to rash and negligent driving of an offending vehicle

bearing Registration No. WB-73A/6346.
                      4




   During the course of hearing, all the points raised

by Mr. Banerjee are squeezed into four (04) points

pertaining     to   non-consideration    of     the    future

prospect, erroneous deduction of personal expenses

to the extent of 1/3rd, which should have been 1/4th

in the instant case, improper grant of damages to the

extent of Rs.9500/-, which should have been Rs.

70,000/-, and absence of consideration of interest

component, as available under Section 171 of the

M.V. Act.

   Mr. Subir Banerjee, learned advocate representing

for   the    appellants/claimants     submits     that   the

Tribunal has erred in law in not granting any future

prospect to the appellants on the income of the

deceased, which ought to have been 40% upon

considering the age of the deceased, as he left this

world, at his 40 years of age, being a victim of road

traffic accident.

   The second ground urged by Mr. Banerjee is that

there has been erroneous deduction of personal

expenses to the tune of 1/3rd, but the same should

have been 1/4th, since the deceased left behind six

claimants.

   Though there has been grant of general damages to

the extent of Rs.9500/-, but according to Mr.

Banerjee,    under    the   full   component    of    general
                     5




damages, the amount should be Rs.70,000/- instead

of Rs.9500/-.

  The last ground urged by the appellants is that the

Tribunal ought to have granted interest on the

awarded amount from the date of filing of the

application, and in this case Tribunal has granted

default interest thereby making contravention of the

provision of Section 171 of the M.V. Act, which should

have been granted from the date of filing of the claim

application till the realization of the award.

  Mr. Afroze Alam, learned advocate representing the

Insurance       Company/respondent       no.1    without

disputing with the facts submits that the award has

been rightly decided by the Tribunal upon considering

the pros and cons of the case.       Mr. Alam 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

disputed.

Mr. Banerjee has placed reliance on decisions

reported in (2009) 6 SCC 121 in the case of Smt.

Sarla Verma & Others -vs- Delhi Transport

Corporation & Another and (2017) 16 SCC 680 in

the case of National Insurance Company Ltd. -vs-

Pranay Sethi & Ors. to fortify his submission in

context with the points raised in this appeal.

Having considered the submission of both sides as

well as the proposition of law laid down by the Apex

Court in the case of Smt. Sarla Verma (supra) and

Pranay Sethi (supra) as well the general precedence

of our High Court, the court is of the view that there

is strong force in the submissions advanced by the

learned advocate for the appellants/claimants.

Since the victim left this world, when he was 40

years old with some substantial amount of income

from a private firm, the claimants are justified in

advancing the prayer for 40% addition on the income

of the deceased towards the head of future prospect,

and Rs.70,000/- under collective heads of general

damages, instead of Rs.9500/- already granted by the

Tribunal.

As the deceased left behind six

dependents/claimants at the time of accident, the

Tribunal ought to have deducted 1/4th instead of

1/3rd towards the deduction for personal expenses of

the deceased.

In view of the proposition of law laid down in

Section 171 of the M.V. Act, it is quite well settled

that the compensation amount should carry interest

from the date of filing of the claim application till the

realization of the award. No further elaboration is

necessary on such issue.

Accordingly, the impugned order is modified and

recalculated in the manner referred hereinafter:-

      Particulars                                Amount (Rs.)

  Monthly Income                             Rs. 3,000,00

  Annual Income                              Rs.     x12
                                             Rs. 36,000.00
  Add: Future Prospect @ 40%                 Rs. 14,400.00
  (since the age of the deceased
   is 40 years)
                                   _____________
                                   Rs. 50,400.00
  Less: Deduction ¼                Rs. 37,800.00
  Multiplier 15                              x 15
                                  Rs. 5,67,000.00
  Add: General Damages            Rs. 70,000.00
                                  Rs. 6,37,000.00

Less: Award of Learned Tribunal Rs. 3,69,500.00

Balance enhanced amount Rs. 2,67,500.00

The appellants/claimants acknowledged the

receipt of the entire awarded amount of Rs.

3,69,500/- in terms of the direction of the Tribunal.

Accordingly, the balance enhanced sum of

Rs.2,67,500/- would become payable to the appellant

Nos. 2 to 6 by the respondents No.1/Insurance

Company with the interest assessed @ 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