Salma Khatoon & Ors vs The Oriental Insurance Co. Ltd. & ...
2022 Latest Caselaw 7547 Cal

                       IN THE HIGH COURT AT CALUTTA
                          Civil Appellate Jurisdiction
 15.11.2022
 SL No.29
Court No. 654
   Ali


                             F.M.A. 1063 of 2022
                              IA No. CAN/1/2021
                              Salma Khatoon & Ors.
                                    Vs.
                             The Oriental Insurance Co. Ltd. & Anr.

                       Mr. Amit Rajan Roy
                            .....for the appellants-claimants.

                      Ms Gopa Das Mukherjee
                      ....for the respondent No. 1-Insurance Co.

This appeal is preferred against the

judgment and award dated 27 November 2019

passed by the learned Judge Motor Accident Claims

Tribunal, Fast Track, 4th Court, 24-Parganas (North)

in a MAC Case no. 16 of 2015 (3937 of 2014)

granting compensation of Rs 3,61,000/-in favour of

the claimants under Section 166 of Motor Vehicles

Act, 1988.

The brief fact of the case is that on

14.9.2012 at about 12 hours while the deceased-

victim was standing beside B.T road at Kamarhati

More in front of 230 bus stand, at that time the

offending vehicle bearing registration no. WB-

23B/0253 (lorry), proceeding along B.T road with

high-speed and in negligent manner, dashed the

victim as a result of which he received severe

injuries all over his body and was taken to hospital

at Kamarhati where the attending doctor declared

him dead. On account of sudden demise of the

deceased-victim the claimants being the legal heirs

filed application under Section 166 of the Motor

Vehicles Act, 1988 claiming compensation to the

tune of Rs. 8,00,000/-alongwith interest.

Upon consideration of materials on record,

evidence produced by the claimants the learned

tribunal granted compensation of Rs 3,61,000/-in

favour of the claimants under Section 166 of the

Motor Vehicles Act, 1988.

Being aggrieved by and dissatisfied with the

impugned judgment and award the appellants-

claimants have preferred the present appeal.

Mr Amit Rajan Roy, learned advocate for the

appellants-claimants submits that the appeal has

been preferred solely on the ground of erroneous

assessment of income of the deceased-victim by the

learned tribunal to the extent of Rs.3,000/- per

month. He further submits that at the time of

accident the deceased-victim was a van-rickshaw

puller and used to earn Rs. 6000 per month.

However, he fairly submits that the claimants did

not produce any documentary evidence in support of

such income. Furthermore he submits that an

amount equaling to 25% of the annual income of the

deceased as well as general damages in terms of

decision of Hon'ble Supreme Court passed in

National Insurance Company Limited versus

Panay Sethi and others reported in 2017 ACJ

2700 is to be taken into account for assessment of

fair compensation.

Ms Gopa Das Mukherjee, learned advocate

for the respondent no.1-insurance company submits

that the compensation should be assessed following

observation of Hon'ble Supreme Court made in

Pranay Sethi's case (supra).

By order dated 5 August 2022 the service of

notice of appeal upon respondent no.2-owner of the

offending vehicle has been dispensed with on the

ground that he did not appear to contest the claim

application before the learned tribunal and the claim

application was disposed of exparte against him.

Having heard the learned advocates of both

the sides, I now proceed to decide the issue raised in

this appeal.

The learned tribunal has assessed the

income of the deceased-victim to the tune of Rs.

3,000/- per month. Undisputedly the wife of the

deceased-victim namely Salma Khatoon (PW1) did

not produce any documentary evidence in support of

profession and income of the deceased-victim. PW2,

Sk Hafizul, who is also a rickshaw puller in the

same locality of the deceased stated that deceased

was a rickshaw puller, however, he did not state of

income of the deceased. Be that as it may,

considering the price index prevailing at the relevant

point of time in the year 2012 and also bearing in

mind catena of decisions of this court where the

accident has taken place in the year 2012 an income

of Rs. 4,000/- was adopted for assessment of fair

compensation, I am inclined to consider the income

of the deceased-victim @ Rs. 4000/- per month.

From the impugned judgment it is found

that the deceased at the time of death was aged 45

years. Thus as per observation of Hon'ble Supreme

Court made in Sarla Verma & Others versus

Delhi Transport Corporation and another

reported in 2009 ACJ 1298 a multiplier of 13 is to

be adopted as has been rightly held by the learned

tribunal.

As the deceased was aged 45 years and

rickshaw puller (self-employed) hence following

observation of Hon'ble Supreme Court passed in

Pranay Sethi's case (supra) an amount equaling to

25% towards future prospect is to be taken into

account.

Further the claimants are also entitled to

general damages under the conventional heads

namely loss of estate, loss of consortium and funeral

expenses amounting to Rs.15,000/-, Rs.40,000/-

and Rs.15,000/- respectively.

In the case at hand the claimants are the

wife and four children of the deceased victim and

thus the total number of dependent family members

is 5. Accordingly following the observation of the

Hon'ble Supreme Court made in Sarla Verma's

Case (supra) the deduction towards personal living

expenses of the deceased should be 1/4th as has

been rightly held by the learned tribunal.

Bearing in mind the aforesaid aspects the

calculation of compensation is made hereunder.

Calculation of Compensation.

Monthly Income.................................Rs.4,000/- Annual Income.....(Rs.4000/- X 12)...Rs. 48,000/- Add: Future Prospects @ 25% of total Income........................................Rs.12,000/- Annual loss of Income........................Rs.60,000/- Less: Deduction 1/4th of the Annual Income (towards personal and living expenses)...... . Rs.15,000/-

Rs.45,000/-

Adopting multiplier 13 ( Rs.45,000/- X 13).Rs.5,85,000/- Add: General Damages.......................Rs.70,000/- Loss of estate....Rs.15,000/-

Loss of Consortium....Rs.40,000/- Funeral Expenses.......Rs.15,000/- Total Compensation.........................Rs.6,55,000/-

Thus the total compensation comes to Rs.6,55,000/-.

It is pertinent to note that the learned

tribunal has awarded interest on the amount of

compensation in the event of default to deposit the

awarded within a specified period and failed to

award any interest on the awarded sum. It is

informed that the appellants-claimants have

received the awarded sum granted by the learned

tribunal. Thus the appellants-claimants are entitled

to interest @ 6% per annum on the awarded sum of

Rs.3,61,000/- from the date of filing of the claim

application till deposit was made before the learned

tribunal (if the interest is not paid).

Accordingly, respondent no.1- Oriental

Insurance Company Limited is directed to deposit

the balance amount of Rs.2,94,000/- together with

interest @ 6% per annum from the date of filing of

the claim application till deposit and the interest (if

any) as indicated in the foregoing paragraph, by way

of cheque with the learned Registrar General, High

Court, Calcutta within a period of five weeks from

date. The learned Registrar General upon deposit of

the aforesaid amount shall release the said amount

in favour of appellants-claimants in equal share

after disbursing an amount of Rs.35,000/- towards

spousal consortium to appellant no.1 (as Rs.5,000/-

as already been received in terms of order of the

learned tribunal) on satisfaction of their identity.

Appellant no.1, mother of the minors, being

appellant nos. 4 & 5 shall receive the share of the

minors on their behalf and shall deposit the said

amount in fixed deposit scheme of any Nationalized

Bank or Post Office till the attainment of the

majority of the minors.

Accordingly the appeal stands allowed on

contest against respondent no.1-Insurance

Company and exparte against respondent no.2-

Owner. The impugned judgment and award of the

tribunal stands modified to the aforesaid extent. No

order as to cost.

With the aforesaid direction the appeal

stands disposed of.

All connected applications stand disposed of.

Interim order, if any, also stands vacated.

Urgent photostat certified copy of this

judgment, if applied for, be given to the parties upon

compliance of necessary legal formalities.

(Bivas Pattanayak, J.)