Puspo Hembroom And Others vs The Oriental Insurance Company ...
2022 Latest Caselaw 7442 Cal

10.11.2022
  SL No. 23
 Court No. 654
   Ali


                               F.M.A. 816 of 2021

                            Puspo Hembroom and Others
                                     versus
                     The Oriental Insurance Company Ltd. and Anr.
                     Mr. Subir Banerjee
                    Mr. Sandip Bandyopadhyay
                    Mrs. R. Basu Roy
                                       ...for the appellants-claimants.
                    Mr. Ananda Gopal Mukherjee
                                  ...for the respondents-Insurance Co.

This appeal is directed against the judgement and

award dated 25th September, 2020 passed by Additional

District Judge cum Judge, Motor Accident Claims

Tribunal, F.T.C.-II, Islampur, Uttar Dinajpur in MAC case

no. 38 of 2019 granting compensation in favour of the

claimants to the tune of Rs. 6,74,800/-along with interest

under Section 166 of the Motor Vehicles Act, 1988.

The brief fact of the case is that on 5.02.2019 at about

3:30 PM while the deceased with his van-rickshaw loaded

cement was going towards Aliganj village through the NH-

31 for delivery of the same and when he reached near

Sealtore Road para, a crane bearing No. WB-74-AS/7710

which was proceeding towards Kishanganj side from

Islampur side at a very high speed and in a very reckless

and negligent manner dashed the van rickshaw of the

victim resulting in multiple grievous bleeding injuries on

his person and died on the spot. On account of sudden

demise of the deceased, the appellants-claimants being

the legal heirs of the deceased-victim filed application

under Section 166 of the Motor Vehicles Act, 1988

claiming compensation to the tune of Rs. 10,00,000/-

alongwith interest.

The learned tribunal upon consideration of the

materials on record and the evidence adduced by the

claimants, both oral as well as documentary, allowed

compensation in favour of the claimants to the tune of Rs.

6,74,800/-along with interest @ 6% per annum from the

date of filing of the claim application till the date of

judgement.

Mr. Subir Banerjee, learned advocate for the

appellants-claimants submits that the present appeal has

been preferred by the claimants for enhancement of the

compensation amount solely on the ground of erroneous

assessment of income of the deceased by the learned

tribunal to the extent of Rs. 3,000/- per month. He further

submits that undisputedly at the time of accident in the

year 2019, the deceased-victim was a van-rickshaw puller

as per evidence on record and therefore, considering the

price index prevailing at the relevant period, the income

ought to have been assessed @ Rs. 6,500/-. He fairly

submits that the claimants failed to place any

documentary evidence in support of the income of the

deceased.

Furthermore, he submits that the deceased-victim at

the time of accident was married and there were 6(six)

dependents and therefore, following the decision of the

Hon'ble Supreme Court passed in Sarla Verma versus

Delhi Transport Corporation reported in (2009) 6 SCC

121 the deduction towards personal and living expenses

of the deceased should have been calculated @ 1/4th

instead of 1/5th.

He further submits that the amount of interest should

have been granted from the date of filing of the application

till realization of the amount, however, the learned

tribunal erred in allowing such interest from the date of

filing of the application till the date of judgment which is

required to be modified.

In the light of his aforesaid submissions, he prayed for

enhancement of the compensation amount.

Mr. Ananda Gopal Mukherjee, in reply to the

contention raised on behalf of the appellants-claimants

submits that the compensation is to be calculated

following the decision of the Hon'ble Supreme Court

passed in National Insurance Company Limited versus

Pranay Sethi and Others reported in 2017 (16) SCC

680.

As far as the income is concerned, the claimants

Manatosh Sarkar (PW3), who deposed in his evidence-in-

chief that the deceased-victim was a labour (van-rickshaw

puller) of his Hardware Store and he used to pay daily

wages of Rs. 300/- to the deceased-victim. In the cross-

examination, he deposed that he cannot show any

documents that the deceased-victim used to carry article

from his shop by his rickshaw van. Though PW3 has

deposed in his evidence that he used to pay Rs. 300/- per

day to the deceased-victim but he has failed to produce

any document showing such payment. Learned tribunal

has rightly discarded such evidence. Be that as it may,

considering that the accident has taken place in the year

2019 as well as the price index prevailing during the

relevant point of time and bearing in mind catena of

decisions of this court accepting an income of Rs. 5,000/-

in the event of accident taking place after 2015, I am

inclined to consider the income of the deceased-victim to

the tune of Rs. 5,000/- per month.

With regard to the deduction towards personal and

leaving expenses of the deceased, it is found that the

learned tribunal has deducted 1/5th of the annual income

of the deceased towards personal and living expenses of

the deceased. As per the decision of the Hon'ble Supreme

Court passed in Sarla Verma's case (supra) where the

deceased is married and the number of dependents is in

between 4 to 6, the deduction towards personal and living

expenses of the deceased-victim should be 1/4th. In the

case at hand the number of dependents of the deceased is

6 (six) and hence an amount equaling to 1/4th of the

annual income of the deceased should be deducted

towards personal and living expenses of the deceased.

Further it is found from the impugned judgment that

the interest has been granted from the date of filing of the

claim application till the date of judgment. Be that as it

may, the interest should have been granted from the date

of filing of the claim application till actual realization of

the amount and hence the same needs to be modified.

As per the Adhar card the date of birth of the deceased

is 01.01.1981. Thus on the date of accident the deceased

was aged 38 years 1 month 4 days. Hence, the multiplier

as per Sarla Verma's Case (supra) would be 15 as has

been rightly held by the learned tribunal.

The deceased at the time of accident was self-employed

(van rickshaw puller) and aged more than 38 years but

below 40 years and therefore as per observation of Hon'ble

Supreme Court in Pranay Sethi's Case (supra) an

amount equaling to 40% of the annual income shall be

taken into consideration for calculation of compensation

as has been rightly held by the learned tribunal.

The general damages as per Pranay Sethi's Case

(supra) under conventional heads namely loss of estate,

loss of consortium and funeral expenses would be

15,000/-, 40,000/- and Rs. 15,000/- respectively.

In view of the above, the calculation of compensation is

made hereunder:

Calculation of Compensation

Income.................................... Rs. 5,000/- Annual income (5,000 X 12) ...Rs. 60,000/- Add: future prospect 40% ...................Rs. 24,000/-

Rs. 84,000/-

Less: Deduction 1/4th ............... Rs. 21,000/- (Towards personal and living expenses) Total.................Rs. 63,000/-

Adopting Multiplier 15 ( 63,000/- X 15)..Rs.9,45,000/-

Add: General Damage Rs. 70,000/-

Loss of estate.....Rs. 15,000/-

Loss of Consortium....Rs. 40,000/-

Funeral expenses........Rs. 15,000/-

Rs. 10,15,000/-

Thus, the total compensation amount comes to Rs

10,15,000/-. It is informed that the claimants have

received the amount of compensation of Rs. 6,74,800/-

granted by the learned tribunal alongwith interest from

the date of filing of the claim application till the date of

judgment.

The order of the learned tribunal is modified to the

extent that the claimants are entitled to further interest @

6% on the amount of Rs. 6,74,800/- from the date of filing

of the claim application till realization. Thus the claimants

will receive further interest @ 6% on the amount of Rs.

6,74,800/- from the date of judgment till the date the

deposit of the said amount made before the learned

tribunal.

The respondent No.1-Oriental Insurance Company Ltd.

is directed to pay the balance amount of compensation of

Rs. 3,40,200/- alongwith interest @ 6% p.a. from the date

of filing of the claim application till the deposit of the said

amount and further amount of interest @ 6% on the

amount of Rs. 6,74,800/- from the date of judgment till

the date the deposit of the said amount made before the

learned tribunal. The aforesaid amount shall be deposited

before the learned Registrar General, High Court, Calcutta

by way of cheque within a period of four weeks.

The learned Registrar General, High Court, Calcutta

shall disburse the amount in favour of the appellants-

claimants in the same proportion mentioned in the order

of the learned tribunal upon satisfaction of the identity of

the claimants.

Appellant no.1, being the mother and natural guardian

of minor claimants namely appellant nos.2 to 5, shall

receive the share of the minors and shall deposit the same

in fixed deposit scheme of any Nationalized Bank or Post

Office till the minors attain majority.

The order of the learned tribunal accordingly stands

modified to the aforesaid extent.

With the aforesaid observations, the appeal is disposed

of.

All connected applications, if any, stand disposed of.

Interim order, if any, stands vacated.

Urgent Photostat certified copy of this order, if applied for,

be supplied to the parties on complying all necessary legal

formalities.

(Bivas Pattanayak J.)