Calcutta High Court (Appellete Side)

Basudev Basu @ Mahata vs The National Insurance Co. Ltd. & ... on 17 March, 2022

30     17.03.
       2022
AGM
/RKB
                               FMAT 2831 of 2007
 Ct                IA No: CAN 1 of 2012 (Old No. 2808 of 2012)
07
                             Basudev Basu @ Mahata
                                        Vs
                      The National Insurance Co. Ltd. & Anr.


                Mr. Amit Ranjan Roy.            ... for the appellant.

                Mrs. Sucharita Paul,
                        ... For the respondent/Insurance Company.


                      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

                appellant that since the appellant/claimant has 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 emerged out impugning the

                judgment and award dated 10th day of August, 2007,

                passed by learned Additional District Judge, Claims

                Tribunal, 2nd Court, Midnapore (W), in M.A.C. Case
                             2




No 732 of 2005,on a claim under Section 163A of the

Motor Vehicles Act, 1988, granting award to the tune

of Rs.1,64,000/- to the claimant/appellant, namely,

Basudev Basu @ Mahata for the injuries suffered by

him in a vehicular accident, occurred on 31st day of

August, 2005, by reason of involvement of vehicle

bearing No. WB-33/4881.

      Mr. Amit Ranjan Roy, learned advocate for the

appellant/claimant       primarily     urges      grounds    in

support of this appeal, which are four folds.

      It is contended by Mr. Roy that learned Tribunal

has erred in law in assessing the income of the victim

at Rs. 2,000/- per month, instead of considering the

actual income of the claimant, which was earned at

the relevant time of accident. The employer of the

victim while deposing as PW2 specifically stated that

she was paying a sum of Rs. 3,000/- per month to

the   injured     victim,       who   was    her     employee.

Accordingly,     Rs.     3,000/-      should       have   been

considered by the learned Court below in deciding the

quantum of compensation.

      The       second      ground        urged      by     the

appellant/claimant is that the Tribunal has erred in

law by deducting 1/3rd as 'personal expenses' of the

injured claimant while awarding the compensation.

      While     making      elaboration     of     such   issue

regarding deduction, it is submitted by Mr. Roy that
                           3




deduction to the extent of 1/3rd        towards personal

expenses of the deceased would be applicable in the

case where the victim ultimately succumbed to

injuries. Therefore, such deduction to the extent of

1/3rd towards personal expenses of the injured/

claimant in the instant case is erroneous resulting in

awarding improper quantification of the award.

     Lastly, Mr. Amit Ranjan Roy further submits

that the learned Tribunal has committed a mistake in

not granting Rs. 15,000/- for medical expenses, as

provided under second schedule of Section 163A of

the Motor Vehicles Act, 1988, since the victim's right

leg below the knee had to be amputated and the

injured had to be admitted to several hospitals for

treatment, and subjected to incurring even some

expenses, what was quite difficult for injured khalasi

to arrange such money, and as such, an amount of

Rs. 15,000/- ought to have been granted most

rationally.

     Mr. Roy also argues that the learned Court

below awarded inadequate compensation on the head

of pain and sufferings of the injured. It is submitted

that only Rs. 800/- was awarded on such head,

whereas a sum of Rs. 5,000/- should have been

awarded as per second schedule under section 163A

of the Motor Vehicles Act, 1988.

     Mrs.     Sucharita       Paul,   learned   advocarte
                         4




representing the Insurance Company/respondent No.

1 submits that award has been rightly decided after

considering the pros and cons of the case. She

strongly opposes the case made out by the appellant.

Thus, according to Insurance Company/respondent

No. 1, there lies nothing to be interfered with in the

impugned judgment and as such there is no scope for

making any interference by this Court.

     Facts

involved leading to the injury of the

claimant is not disputed.

The injured/appellant suffered the instant

accident, when he was 23 years old having

reasonable income. The Disability Certificate (Exhibit.

6) issued by the Medical Board, Midnapore College &

Hospital was proved in evidence, confirming 60%

permanent disablement suffered by the victim due to

amputation of his right leg below the knee, which

according to the claimant was an outcome of injuries

sustained in the concerned accident. The said

certificate was proved by P.W. 3, being one of the

doctors attending the Medical Board.

The claim case being filed under Section 163A

of the Motor Vehicles Act, 1988, the second schedule

appended to the said section is to be followed in

assessing the compensation amount in favour of the

claimant.

Upon perusal of the judgment, it appears that

the Tribunal has assessed the monthly income of the

injured at the rate of Rs. 2,000/- per month, but the

oral evidence adduced in this case revealed that at

the time of accident, victim had an earning of Rs.

3,000/- per month being a khalasi. Admittedly, no

documentary evidence could be produced in support

of the income of the injured. But to establish the

income of the injured, the employer was taken to

witness box and examined as PW3, who testified the

income of the injured to the extent of Rs.3,000/- per

month at the time of accident. Upon considering the

evidence disclosed by such witnesses, and also

bearing in mind the price index of the concerned

year, the then prevailed, the income of the claimant

should have been assessed at the rate of Rs. 3,000/-

per month giving a holistic approach therefor.

The deduction of 1/3rd on account of personal

expenses of the injured victim is also erroneous and

not in accordance with the second schedule under

Section 163A of the Motor Vehicles Act, 1988. There

should have been no such deduction. The award

should have been assessed on the basis of 60% loss

of earning capacity of the injured claimant.

The victim would also be entitled to Rs.

15,000/- under medical expenses and Rs. 5,000/- as

pain and sufferings, for his injuries, and as such the

above award needs modification.

Having considered the submission, thus

advanced by both the parties and bearing in mind the

general precedence of this Court, the award passed

by the learned Tribunal needs modification after a

revisit to the impugned judgment in context with the

points raised in the appeal so as to make it just and

proper, and with this modification there will be no

prejudice caused to either of the parties to this case.

Accordingly, the above order passed by the

learned Tribunal is thus modified to the extent

mentioned herein below and recalculated as follows:

      Particulars                       Amount (Rs.)

Monthly Income                            Rs.3000/-
                                              X12

Annual Income                            Rs.36,000/-

Multiplier of 17                        Rs.6,12,000/-

60% loss of earning capacity/                 x 60%
disability                              Rs. 3,67,200/-

Add Rs. 15,000/- as medical
Expenses                                Rs. 15,000/-
                                        Rs. 3,82,200/-



Add Rs. 5,000/- as pain and                    5,000/-
Sufferings                               Rs. 387,200/-

Less : awarded amount                   Rs. 1,64,000/-


Differential amount                     Rs. 2,23,200/-

The claimants acknowledge receipt of the entire

awarded amount of Rs. 1,64,000/- along with

interest.The balance sum of Rs. 2,23,200/- would be

paid to the appellant by the insurance company

together with interest assessed at the rate of 6% per

annum on and from the date of filing of the claim

petition.

Insurer is directed to make such payment in the

bank accounts of the claimants, in the same

proportion as direction by the Court below, through

RTGS/NEFT with in the period of 45 days form the

date of receipt of bank account particulars of the