Calcutta High Court (Appellete Side)
Smt. Pinki Porel & Ors vs G.Singh & Ors on 22 November, 2022
22.11.2022
List - D/L.
Sl.No.13.
Mithun
Ct.No.237. FMA 199 of 2011
Smt. Pinki Porel & Ors.
Vs.
G.Singh & Ors.
Mr. S. Bhowmick, Adv.
Mr. L.M.Ghosh, Adv,
Ms. Srilekha Chatterjee, Adv.
...for the appellants/claimants.
Mr. Sanjay Paul, Adv.
...for the respondent/Insurance Co.
This is an appeal directed against the judgement
and award passed by the Motor Accident Claims
Tribunal, Howrah (Learned Fast Track 2 nd Court)
whereby learned Tribunal dismissed the claim
application filed under Section 166 of the Motor Vehicles
Act, 1988.
Claim petition arose on account of death of
Pravash Porel, husband of claimant No.1 Pinki Porel on
01.07.2005 at about 00.15 hours over Andul Road near
Crustal Cables. On the relevant date and time the said
Pravash Porel was travelling by a Maruti car bearing
No.WB-12A-6522 proceeding from Dhulagarh side
towards Howrah side along the left side of the road and
at the material point of time a vehicle bearing No.WB-
23/2389 coming from the Howrah side i.e. opposite
direction with high speed and in negligent manner
dashed the Maruti vehicle which was driven by the
victim. In effect, Pravash Porel died on spot.
After the accident Sankrail Police Station Case
No.167 of 2005 was started against the driver of the
vehicle No.WB23/2389 under Sections 279/427/304A
of the IPC and charge-sheet was filed accordingly.
The owner of the vehicle No.WB-23/2389 did not
contest the claim petition but the New Indian Assurance
Co. Ltd. contested the case by filing written statement
denying all material facts delineated in the claim petition
containing, inter alia, that Insurance Company is not
liable to pay any compensation.
In course of trial claimant No.1, i.e. wife of the
deceased was examined as P.W.1 and in course of her
evidence she stated about the accident though she was
not present at the relevant point of time. She stated
about monthly income and business of her deceased
husband who was 28 years of age and that is why
prayed for compensation to the tune of Rs.3,00,000/-.
In course of her evidence Certified copy of FIR,
certified copy of charge-sheet, Post Mortem Report,
Insurance Policy, Registration Card for Telephone
Connection and Provisional Certificate of enlistment for
Trade Licence were admitted in evidence as Exbt.1 to 7.
One Dilip Bajil was examined as P.W.2 on behalf
of the claimants and in course of his evidence he
deposed that on the relevant date and time he was
present on the spot and saw the accident which took
place only due to rash and negligent driving of the driver
of the vehicle No.WB-23/2389. In course of
examination, he also stated that he witnessed the
accident and police examined him.
Learned Tribunal dismissed the claim petition on
the ground that the claimants failed to prove the
accident by the involvement of the vehicle alleged.
According to learned Tribunal the eye witness (P.W.2)
was not cited as charge-sheeted witness in connection
with Sankrail Police Station Case No.167 of 2005 and
that is why learned Tribunal could not believe the
evidence of P.W.2 who claimed himself to be an eye
witness of the accident alleged in this case.
Learned Advocate on behalf of the appellants has
referred to the judgment passed by the learned Tribunal
and has submitted that learned Tribunal committed
wrong in marshaling of facts alleged in this case.
Besides, the learned Advocate for the appellant has
further submitted that the grounds taken by the learned
Tribunal is also wrong.
Learned Advocate on behalf of the Insurance
Company supported the judgment passed by the learned
Tribunal.
Most humbly I differ from the views taken by the
learned Tribunal for refusal of the claim in the case.
Learned Tribunal did not believe the evidence of P.W.2
i.e. eye witness on the ground that his name did not find
place in the witness list of the charge-sheet submitted
by the police in connection with the accident. We
should not unmindful as to the object of the enactment
of this beneficial legislation where the principle of
preponderance of probability and proof beyond
reasonable doubt has no application.
P.W.2 claiming himself to be an eye witness has
deposed before the Tribunal after taking oath that he
saw the accident and he remained present on the spot
where accident took place. He narrated the entire
incident and FIR was lodged in connection with this
accident and charge-sheet was also filed corroborating
the fact of rash and negligence driving of the driver of
the vehicle bearing No.WB-23/2389.
In these circumstances, in my humble opinion,
the learned Tribunal committed wrong in appreciating
the evidence of P.W.2 in a case under this beneficial
legislation.
In the aforesaid view of the matter, I find no scope
to disbelieve the factum of death of Pravash Porel due to
rash and negligent driving of the vehicle No.WB-
23/2389.
So far as the income of the deceased is concerned,
learned Advocate appearing on behalf of the claimants
has referred to the provisional Trade Licence as well as
the registration card-cum-receipt issued by the BSNL
showing installation of phone in the grocery shop and
thereby tried to make this Court understand that
amount of income stated in the claim petition has been
duly corroborated by the documents admitted in
evidence.
Learned Advocate appearing on behalf of the
Insurance Company has submitted that those two
documents cannot prove the amount of income of the
deceased at the time of death. According to him notional
income of Rs.3,000/- per month should be taken for
consideration.
After scrutiny of the claim petition and evidence of
P.W.1 coupled with the provisional Trade Licence and
registration Card -cum- receipt issued by the BSNL, I
find no reason to disbelieve the fact that deceased used
to deal in grocery and would earn Rs.5,000/- per month.
Keeping an eye to the principles laid down by the
Hon'ble Apex Court, I determine the compensation as
follows:-
Monthly Income = Rs.5,000/-
Annual Income
Rs.5,000 x 12 = Rs.60,000/-
- 1/3rd (Rs.20,000/-) = Rs.40,000/- + 40 % future
prospect Rs.16,000/-
Total loss of annual dependency
= Rs.40,000/- + Rs.16,000/- = Rs.56,000/-.
Multiplier 17
(28 years) = Rs.9,52,000/-.
General Damages = Rs.70,000/-
Total compensation = Rs.10,22,000/-
Therefore, claimants are entitled to compensation
to the tune of Rs.10,22,000/- along with interest @ 6%
p.a. from the date of filing of the claim petition till the
deposit of the sum before the office of the Registrar
General, High Court, Calcutta, subject to payment of ad
valorem Court fees.
Insurance Company is directed to deposit
Rs.10,22,000/- along with interest @ 6% p.a. from the
date of filing of the application till deposit of the sum
before the office of the Registrar General, High Court,
Calcutta, within six weeks from the date of this order.
Claimants are at liberty to withdraw the amount
along with interest, subject to payment of deficit Court
fees.
Learned Registrar General is requested to disburse
the amount among the claimants in equal share.
The judgment passed by the learned Tribunal in
MAC Case No.497 of 2005 stands set aside.
The instant appeal stands disposed of
accordingly with a direction upon the department to
send back original record along with a copy of this order.
Urgent photostat certified copy of this order, if
applied for, be supplied to the parties subject to
compliance with all requisite formalities.
(Bibhas Ranjan De, J)
