National Insurance Co. Ltd vs Sarasvati Devi & Ors
2022 Latest Caselaw 7727 Cal

                       IN THE HIGH COURT AT CALUTTA
                          Civil Appellate Jurisdiction
 22.11.2022
 SL No.03
Court No. 654
   Ali


                          F.M.A.T. 887 of 2017
                 IA No: CAN/2/2017 (Old No: CAN/8085/2017)

                             National Insurance Co. Ltd.
                                    Vs.
                             Sarasvati Devi & Ors.

                     Mr. Rajesh Singh
                               ....for the appellant-Insurance Co.

                    Mr. Jayanta Kumar Mandal
                            .....for the respondents-claimants.

This appeal is directed against the judgment

and award dated 13 April 2017 passed by learned

Additional District Judge cum Judge, Motor

Accident Claims Tribunal, 2nd court, Durgapur,

Burdwan in MAC Case no. 40 of 2013 under Section

166 of the Motor Vehicles Act, 1988.

The brief fact of the case is that on 13

September 2012 at about 8 AM while the victim was

proceeding towards SBSTC garage from Gammon

Bridge side riding on his bicycle and when he

reached near UBI bank, Coke Oven Branch at that

time the offending vehicle bearing no.WMH-1359

(truck) in a rash and negligent manner dashed the

victim from behind as a result of which the victim

fell down on the road and sustained severe multiple

bleeding injuries over his body. Local people shifted

the victim to S.D Hospital, Durgapur where the

attending doctors declared him dead. On account of

sudden demise of the deceased-victim, the claimants

being the legal heirs and dependents of the

deceased-victim filed application under Section 166

of the Motor Vehicles Act, 1988 for compensation of

Rs.19,50,000/-along with interest.

Upon consideration of materials on record,

evidence, both oral and documentary, adduced on

behalf of the claimants, the learned tribunal granted

compensation of Rs.36,47,880/-along with interest.

Being aggrieved by and dissatisfied with the

impugned judgment and award, the insurance

company has filed the present appeal.

Mr Rajesh Singh, learned advocate for

appellant-insurance company submits that there

has been delay of 6 days in lodging the FIR which

indicates of fabrication and non-involvement of the

offending vehicle.

He further submits that the learned tribunal

erred in granting 50% of the annual income of the

deceased towards future prospect which should be

40% in terms of the observation of Hon'ble Supreme

Court made in National Insurance Company

Limited versus Pranay Sethi and Others reported

in 2017 (4) T.A.C 673(S.C).

He further relying on the observations of the

Hon'ble Supreme Court in the aforesaid decision

indicated that the general damages under the

conventional heads namely loss of estate, loss of

consortium and funeral expenses should be

Rs.70,000/- and further as three years have elapsed

the claimants are also entitled to 10% escalation on

such conventional heads however the learned

tribunal erred in allowing Rs.2,25,000/-under

conventional heads including loss of love and

affection. In light of his aforesaid submissions he

prayed for modification of the impugned award

passed by the learned tribunal.

Mr Jayanta Kumar Mandal, learned

advocate for respondents-claimants also submits

that the amount towards future prospect and

general damages requires to be modified in the light

of decision of Hon'ble Supreme Court made in

Pranay Sethi's case (supra).

As far as the challenge to the involvement of

the offending vehicle is concerned it is found that

the claimants in order to establish their case have

adduced the evidence of one Rana Pratap Das as

PW2, who is an eyewitness to the occurrence. PW2,

has categorically stated that he saw the motor

vehicle accident and also stated of the involvement

of offending vehicle. Such evidence of PW2 has

remained unchallenged in cross examination.

Further delay in lodging FIR per se does not make

the claim case doubtful in the absence of attending

circumstances and fabrication. It is pertinent to note

that there is no such evidence of fabrication or

exaggeration so far as the written complaint is

concerned. Further it is placed on record that the

FIR (Exhibit 1), as well as the Charge sheet (Exhibit

2) clearly indicates of involvement of the offending

vehicle in the said motor vehicle accident.

Accordingly the argument advanced on behalf of the

appellant-insurance company throwing challenge to

involvement of the offending vehicle falls short of

merit.

Now I revert to the issues raised in relation

to assessment of quantum of compensation by

learned tribunal.

It appears from the impugned judgment that

an amount equaling to 50% of the annual income of

the deceased-victim has been taken into account by

the learned tribunal while calculating the

compensation amount. Undisputedly the deceased-

victim was an employee of M/s Diligent Steel

Auxiliary Private Limited and was on a fixed salary

and further at the time of death he was aged 32

years. Therefore following the observation of Hon'ble

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

amount equaling to 40% of annual income of the

deceased should be considered for granting

compensation towards future prospect.

Moreover it is found that the learned

tribunal allowed compensation towards general

damages of Rs.2,25,000/-including an amount

towards loss of love and affection. However in view of

the decision of Hon'ble Supreme Court in Pranay

Sethi's case (supra) the general damages under the

conventional heads namely loss of estate, loss of

consortium and funeral expenses should be Rs.

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

and as already three years have elapsed hence an

amount equaling to 10% of the conventional heads

should be increased.

Taking into consideration the aforesaid

aspects the compensation is calculated hereunder.

Calculation of compensation

Monthly Income....................................Rs.15,847/-

Annual Income..(Rs.15,847/- X 12)......Rs. 1,90,164/-

Add: Future Prospects @ 40% of total Income........................Rs.76,066/-(approx)

Annual loss of Income..........................Rs.2,66,230/-

Less: Deduction 1/4th of the Annual Income towards personal and living expenses...... Rs.66,558/-

Rs.1,99,672/-

Adopting multiplier 16 ( Rs.1,99,672/- X 16)..................Rs.31,94,752/-

Add: General Damages..........................Rs.70,000/-

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

Loss of Consortium....Rs.40,000/- Funeral Expenses.......Rs.15,000/- Add: Increase of 10% on General damages...Rs.7,000/-

Total Compensation........................Rs.32,71,752/-

Thus the claimants are entitled to

compensation of Rs. 32,71,752/- along with interest

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

application till payment. It appears that the

appellant-insurance company has deposited Rs

25,000/-vide OD challan no.1301 dated 24.8.2017

as statutory deposit and Rs. 51,34,861/- vide OD

challan no. 477 dated 7.6.2018. Both the aforesaid

amount be adjusted against the entire compensation

amount.

The appellant-National Insurance Company

Limited shall deposit the balance amount, if any, by

way of cheque with the learned Registrar General,

High Court, Calcutta within a period of five weeks.

Thereafter the learned Registrar General, High

Court, Calcutta shall disburse Rs. 2,00,000/- each

to respondent no.5 and 6 and the rest amount shall

be disbursed in the following proportions namely

respondent no.1 (widow) will receive 40% and the

minor respondent no. 2, 3 and 4 shall get 20% each

of the rest amount.

If after disbursement of the aforesaid

amount in favour of the claimants, if any balance

amount is left, the same shall be refunded to the

appellant-insurance company.

Appellant no.1, mother and natural

guardian of minors, being appellant nos. 2 to 4,

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.

With the aforesaid observation the appeal stands

disposed of.

All connected applications, if any, stand

disposed of.

Interim order, if any, 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.)