Calcutta High Court (Appellete Side)
Badal Ghosh vs National Insurance Company Ltd. & ... on 10 November, 2022
02
10.11.2022
Ct. No.237
pg.
IN THE HIGH COURT AT CALCUTTA
CIVIL APPELLATE JURICTION
APPELLATE SIDE
FMA 78 of 2006
with
IA No. CAN 1 of 2011 (CAN 5890 of 2011)
Badal Ghosh
Vs.
National Insurance Company Ltd. & Anr.
Mr. Ashiqye Mondal
Mr. Snehasis Jana
... For the appellant/claimant
In terms of the order dated 26th September, 2022,
notice was served upon the respondent no.1/National
Insurance Company Limited and an affidavit of service is
filed in this regard which is taken on record.
From the records, it appears that this appeal is
pending since 2006 and on several occasions the
respondent no.1/Insurance Company did not care to
appear to contest this appeal. Today also none appears
on behalf of the respondent no.1/Insurance Company
when the matter is called. As such, the appeal is taken
up for hearing and disposed of on merit.
This appeal is directed against the judgment and
award passed on 16th December, 2004 by the learned
Additional District Judge, Motor Accident Claims Tribunal,
1st Court, Midnapore, in MAC Case No.1289 of 2003 under
2
Section 166 of the Motor Vehicles Act, 1988, granting an
award of Rs.3,26,000/-.
The claim petition filed on account of injury
sustained by the appellant/claimant in a motor accident
happened on 5th April, 2004 at about 11 a.m. near
Simultala on the Ghatal-Midnapore pitched road, while he
was going along with a companion with a motor cycle
bearing registration no.WB-30/0918. At the relevant point
of time, one Truck bearing registration no.WB-33/0979
coming from the back side with high speed, dashed the
motor cycle of the victim. Both the claimant and his
companion received severe injuries on their persons and
the claimant became permanent disable to the extent of
60% after amputation of his right leg. Accordingly, the
claimant filed the claim petition with a prayer for
compensation to the tune of Rs.5,00,000/-.
The Truck bearing registration no. WB-33/0979
was insured with the National Insurance Company Limited
at the relevant point of time and Kotwali Police Station
Case no.81 of 2003 dated 5th April, 2005 under Sections
279/338/427 of the Indian Penal Code was started and
charge sheet was filed against the driver of the offending
vehicle bearing registration no.WB-33/0979.
Owner of the offending vehicle did not contest the
claim petition but the National Insurance Company
Limited contested the case by filing written statement
3
denying all material allegations contending, inter alia, that
the claimant is not entitled to any compensation at all.
In course of trial, the appellant/claimant himself
examined as PW-1 only. In course of evidence, a good
number of documents were admitted in evidence as
Exhibit 1 to 6 series showing police papers, medical bills,
disability certificate. Copy of the insurance policy was also
filed before the learned Tribunal and that was not disputed
by the respondent no.1/Insurance Company at any point
of time in course of the entire proceedings.
After considering the entire evidence on record, the
learned Tribunal assessed Rs.18,000/- as annual income
of the claimant who was 33 years of age at the relevant
point of time and accordingly the learned Tribunal
assessed the total compensation to the tune of
Rs.3,06,000/- after applying multiplier 17 and in addition
to that amount, the learned Tribunal also awarded
Rs.5,000/- towards pain and suffering and Rs.15,000/-
for medical treatment. Thereby, the learned Tribunal
awarded the entire compensation of Rs.3,26,000/-.
I have gone through the evidence on record and
particularly the documents exhibited in this case
wherefrom I find that the injured claimed himself as a
Manager of a brick-field and he was having income of
Rs.3,000/- per month. That apart, the claimant filed a
good number of documents showing his long treatment
and amputation of his right leg causing expenditure of a
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sum of Rs.1,57,587/- which has also been discussed by
the learned Tribunal in its judgment.
It is true that the appellant/claimant did not file
any document showing his employment, but considering
the minimum wages, I do not find any reason to assess
yearly income of the claimant as Rs.18,000/-. I am of the
view that the income of Rs.3,000/- per month would be
justified in assessing the compensation in view of the
minimum wages of Rs.100/- per day.
In that view of the matter, I determine
compensation in the following manner:-
Annual Income (Rs.3,000/- x 12) Rs. 36,000/-
Add: Future prospect 40% Rs. 14,400/-
------------------
Rs. 50,400/-
Disability 60% (60% of Rs.50,400/-) Rs. 30,240/-
(Loss of income)
Multiplier 16 (Rs.30,240/- x 16) Rs.4,83,840/-
Medical Expenses Rs.1,57,587/-
------------------
Total Pecuniary Loss Rs.6,41,427/-
------------------
Therefore, the appellant/claimant is entitled to
Rs.6,41,427/- towards pecuniary loss. Besides that, the
appellant/claimant is also entitled to a sum of
Rs.1,00,000/- towards non-pecuniary damages, i.e., for
pain and suffering. Thereby, the total award comes to
Rs.7,41,427/- (Rs.6,41,427/- + Rs.1,00,000/-).
In the aforesaid view of the matter, the appellant/
claimant is entitled to compensation of Rs.7,41,427/-
along with interest @ 6% per annum from the date of filing
of the claim petition, i.e., on 24th September, 2003 till the
deposit of the same.
It is reported that the appellant/claimant has
already received Rs.3,26,000/- from the respondent no.1/
Insurance Company as awarded by the learned Tribunal
but no interest was received.
In these circumstances, the respondent
no.1/Insurance Company is directed to deposit
Rs.4,15,427/- (Rs.7,41,427/- - Rs.3,26,000/-) along with
interest @ 6% per annum from the date of filing of the
claim petition, i.e., on 24th September, 2003 till the actual
deposit of the amount before the office of the learned
Registrar General of this Court within six weeks from the
date of this order.
The respondent no.1/Insurance Company is also
directed to deposit interest @ 6% per annum on the
awarded amount of Rs.3,26,000/- by the learned Tribunal
before the office of the learned Registrar General of this
Court from the date of filing of the claim petition, i.e., on
24th September, 2003 till the date of payment of
compensation amount of Rs.3,26,000/-.
The appellant/claimant is entitled to withdraw the
balance award amount with interest, subject to payment of
additional ad valorem court fees on Rs.2,41,427/-
(Rs.7,41,427/- - Rs.5,00,000/-) before the learned
Tribunal.
The learned Registrar General will disburse the
amount along with interest to the appellant/claimant on
proper identification.
With the above observation, the appeal, being FMA
785 of 2006, stands disposed of.
All pending applications, if there be any, also stand
disposed of.
Records of the learned Tribunal be transmitted
back immediately.
Urgent photostat certified copy of this order, if
applied for, be given to the parties, upon compliance of
necessary formalities.
(Bibhas Ranjan De, J.)
