The National Insurance Company ... vs Smriti Kana Saha & Ors
2022 Latest Caselaw 7554 Cal

                                   1


              IN THE HIGH COURT AT CALCUTTA

                     (Civil Appellate Jurisdiction)

                            Appellate Side
Present:
The Hon'ble Justice Bibhas Ranjan De


                         F.M.A 1426 of 2014
                                 With
            CAN 1 of 2013 (Old CAN 11924 of 2013)
            The National Insurance Company Limited
                                  Vs.
                       Smriti Kana Saha & Ors.


For the Appellant/            :Mr. Sanjay Paul, Advocate
Insurance Company              Mr. Anup Kumar Bag


For the Respondents/            :Mr. Md. Sabir Ahmed, Advocate
Claimants


Hearing concluded on              : November 09, 2022
Judgment on                        : November 15, 2022



Bibhas Ranjan De, J.

1. Accident occurred on 14.01.2008 at about 3.25 p.m., involving

a car bearing vehicle number WB-73/3821(truck), insured

with National Insurance Company Limited and a Tata Indica

Car bearing number WB-74/L-2521. At the relevant point of

time Haridas Saha (since deceased) was coming with Indica

Car from Mathabhanga to Falakata while the aforesaid truck

moving with high speed and rashly knocked the Indica car at

Baro Soulmari PS Ghoksadanga, Dist. Cooch Behar. In effect

Haridas saha succumbed to his injuries.

2. Legal representatives (wife and son) have filed the Motor

Accident Claim Case No. 05 of 2009 under Section 166 of the

Motor Vehicles Act, 1988, case on the file of the Motor

Accident Claim Tribunal (Fast Track Court), Cooch Behar,

claiming compensation of Rs. 18,50,000/-, under various

heads. According to them, deceased aged 51 years, was an

employee (manager) of M/s. Shiva Timber Concern and used

to receive salary of Rs. 21,000/- per month.

3. Owner (opposite party number 1 & 2) contested the claim

petition by filing their respective written statement denying all

material statements of the claim petition contending inter alia

that offending vehicle was insured under the National

Insurance Company at the relevant point of time and they are

not liable to pay any compensation. National Insurance

Company Ltd. also contested by filing written statement

denying all the statements regarding income of the deceased

and his age contending inter alia that accident took place due

to negligence of the victim himself.

4. To prove the manner of accident and income of the deceased,

PW 1, wife of the deceased has adduced evidence. PW-2, is

stated to be the eye witness. PW-3 & PW-4 adduced evidence

with regard to income of the deceased at the time of death. On

the side of the claimant, exhibit-1, formal FIR dated

26.09.2013, exhibit-2, written compliant dated 26.09.2013,

exhibit-3, forwarding application dated 26.09.2013, exhibit-4,

a bond certified copy dated 26.09.2013, exhibit-5, Insurance

Policy, exhibit-6, Post Mortem report dated 26.09.2013,

exhibit -7, income certificate, exhibit-8, authorisation letter,

exhibit -9, pay register (column number 1 for the month of

March, 2007), exhibit-10, pay register (column number 1 for

the month of December, 2007), were admitted in evidence. On

the side of M/s. National Insurance Company Ltd. no oral or

documentary evidence has been adduced.

5. On evaluation of pleadings and evidence, Ld. Tribunal came to

the conclusion that the driver of the truck bearing number

WB-73/3821 insured with M/s. National Insurance Company

Ltd., was negligent in causing the accident, ignoring the plea

of contributory negligence. Accordingly, fastened liability on

M/s. National Insurance Company Ltd., to pay compensation.

6. On quantum of compensation, PW-1 has adduced evidence

that her husband/ deceased was an employee of Ms./ Shiva

Timber Concern and used to receive salary of Rs. 21,000/- per

month by producing salary certificate ( exhibit-7) and pay

registers ( exhibit 9 and 10).

7. After going through the above documents and evaluating the

evidence thereon Ld. Tribunal assessed Rs. 21,000/- income

per month and after applying multiplier 11 in terms of age of

the deceased finally assessed total compensation as Rs.

18,57,500/-.

8. It is needless to mention that strict proof of an accident by the

involvement of the vehicles in a particular manner may not be

possible to be done by the claimants. Claimants are merely to

establish their case on the touch stone of preponderance of

probability. Standard of proof beyond reasonable doubt is not

at all applicable under this beneficial legislation. In our case,

testing the finding fixing negligence on driver of the truck, on

the aforesaid principle, I am of the view that oral testimony of

PW-1 has been well supported by the eye witness, PW-2 duly

corroborated by exhibit-1, First Information Report and

exhibit-2, written complaint. On the contra, there is no

evidence to indicate that M/s. National Insurance Company

Ltd., appellant herein has made any attempt to examine the

driver of the truck, nor adduced any rebuttal evidence. In the

absence of examining the driver, adverse inference has also

been drawn. Even if I assume that accident took place owing

to involvement of both the truck and Indica car, I am unable

to hold that claimants should have impleaded with Insurance

Company of the Indica Car, ignoring the choice of the

claimants. Therefore, I find no reason to interfere with the

observation of the Ld. Tribunal on the issue of liability M/s.

National Insurance Company Limited.

9. M/s. National Insurance Company Limited preferred this

appeal particularly on the ground of contributory negligence of

both the truck and Indica Car and assessment of monthly

income of the deceased, at the time of death. But, in course of

argument, Ld. Advocate Mr. Sanjay Paul only contended on

the point of income of the deceased. Referring to the evidence

of PW-3 and 4 Mr. Paul has tried to convince this Court that

pay register for the month of March and December, 2007 (

exhibit 9 & 10) are not matching with the certificate (exhibit-7)

issued by the employer (PW-3). Mr. Paul has further submitted

that salary certificate reflects only two heads i.e monthly

salary and travelling/Tiffin allowance, but on the other hand

pay register reflects three heads viz. rate of wages, additional

wages for over times and deduction. Thereby, Mr. Paul

contended before this Court that documents were prepared for

the purpose of compensation.

10. In opposition to that, on the issue of income, Ld.

Advocate Mr. Md. Sabir Ahmed has argued that salary

certificate shows the amount of total salary by two heads and

pay register shows salary by three heads. Mr. Ahmed has

further contended that there is no discrepancy between salary

certificate and pay register regarding the total salary. Mr.

Ahmed has further submitted that monthly salary of Rs.

21,000/- has been duly corroborated by PW-1 (wife of the

deceased), PW-3 (employer of the deceased).

11. Before entering into the area of monthly income, I

should bear in mind that in civil case the rule is

preponderance of probability and in a criminal case the rule is

proof beyond reasonable doubt. It is not necessary to consider

niceties in a matter of claim case in as much as it is summary

inquiry. If there is some evidence to arrive at the finding that

itself is sufficient. No nicety, doubt or suspicion should weigh

with the claims tribunal in deciding in Motor Accident Claim

case.

12. In our case, claim petition reflects the monthly income of

Rs. 21,000/- and that was corroborated by the wife of the

deceased (PW-1) and employer of the deceased (PW-3). Not

only that those oral evidences were further corroborated by the

salary certificate (exhibit-7) and relevant page of the pay

register (exhibit-9&10). Both the pay register and salary

certificate show monthly salary of Rs. 21,000/- in favour of

deceased Haridas Saha prior to accidental death. Mere

discrepancies between salary certificate and pay register, in

my opinion, does not make any difference with regard to

quantum of salary received by the deceased. But, from the pay

register it is found that Rs. 130/- was being deducted without

assigning any reason in the register itself. Therefore, I am

unable to accept any argument regarding deduction of tax or

professional tax. For the sake of argument, if I assume that

Rs. 130/- was deducted towards tax then the amount of

deduction from the lesser salary received by other employees,

as shown in the pay register, would have been much less than

Rs. 130/- which was deducted from the salary of the

deceased.

13. Therefore, I find no discrepancy in the assessment of

award by the Tribunal.

14. With the above observation the appeal is dismissed, with

a direction, to the Insurance Company, to deposit the entire

award amount, before the Motor Accident Claim Tribunal/

Additional District Judge/ Fast Track Court, Cooch Behar

within a period of six (6) weeks from the date. The Ld. Tribunal

is requested, to disburse the amount only on proper

identification and proof.

15. All pending applications, if any, stand disposed of

accordingly.

16. Let the records of the Tribunal, be sent back at once.

17. Urgent Photostat certified copy of this order, if applied

for, be supplied to the parties upon compliance with all

requisite formalities.

[BIBHAS RANJAN DE, J.]