Calcutta High Court (Appellete Side)

Susmita Panja & Anr vs Oriental Insurance Co. Ltd. & Ors on 23 November, 2022

    16
23.11.2022
Ct. No.237
    pg.
                       IN THE HIGH COURT AT CALCUTTA
                          CIVIL APPELLATE JURICTION
                                APPELLATE SIDE

                                FMAT 1121 of 2012

                              Susmita Panja & Anr.
                                       Vs.
                        Oriental Insurance Co. Ltd. & Ors.



                    Mr. Amit Ranjan Roy
                               ... For the appellants/claimants

                    Ms. Gopa Das Mukherjee
                              ... For the respondent/Insurance Co.

Being aggrieved by and dissatisfied with the

judgment and award passed on 14th March, 2012 by the

learned Judge, Motor Accident Claims Tribunal, Additional

District Judge, 4th Fast Track Court, Tamluk, Purba

Medinipur, in MAC Case No.64 of 2000/293 of 2008 under

Section 166 of the Motor Vehicles Act, 1988, this appeal

has been filed.

The original claim petition was filed on account of

death of one Uttam Kumar Panja, i.e., the husband of the

claimant no.1 Susmita Panja, in a motor accident by the

involvement of a Bus bearing registration no.WB-

33A/2346 proceeding from Jothgoura to Paskura, on 8th

July, 2008 at about 6.00 a.m. On the relevant date and

time, the driver of the said Bus was driving the same with

high speed and in reckless manner, endangering human

life and safety and also violating the traffic rules. As a

result, the said Bus collided with one Truck bearing

registration no.WB-29/3856 coming from the opposite

direction also with high speed. The accident took place

near Jiankhali village of Ghatal. Uttam Kumar Panja,

being a passenger of the Bus, died on the spot. After the

accident, Paskura Police Station Case No.110 of 2008

dated 8th July, 2008 under Section 279/337/338/304A/

427 of the Indian Penal Code was started. The claimants,

i.e., the heirs of the victim, filed the claim petition with a

prayer for compensation of Rs.14,50,000/-.

Admittedly, both the vehicles were duly insured

with the Oriental Insurance Company Limited at the time

of accident and the Oriental Insurance Company Limited

contested the claim case by filing written statement

denying all averments in the claim petition contending,

inter alia, that the Insurance Company is not liable to pay

any compensation.

In course of trial, claimants adduced evidence of

three witnesses. PW-1, wife of the deceased, corroborated

the contents of the claim petition regarding accident,

employment and age of her deceased husband. In course

of her evidence, certified copy of the First Information

Report, charge sheet, seizure list, salary certificate, post

mortem report, Admit Card of the Madhyamik Pariksha of

the deceased and insurance policy were all admitted in

evidence as Exhibit 1 to 9.

PW-2 claiming herself to be an eye-witness and

also one of the passengers of the Bus bearing registration

no.WB-33A/2346 also corroborated the accident due to

reckless driving of both the vehicles.

PW-3, General Duty Attendant of Block Medical

Officer of Health, Jagatballavpur Rural Hospital, District

Howrah, proved the employment and salary of deceased

Uttam Kumar Panja.

Learned Tribunal in assessing monthly income of

the deceased took the net salary of deceased and not only

that, the learned Tribunal also deducted the amount of

pension received by the claimant no.1, i.e., the wife of the

deceased. Accordingly, the learned Tribunal calculated the

compensation to the tune of Rs.6,39,380/-

Learned advocate appearing on behalf of the

appellants/claimants only disputed the assessment of

quantum of compensation by taking net pay instead of

gross salary. Leaned advocate appearing on behalf of the

appellants/claimants also submitted that no amount was

added towards future prospect. In support of the

contention, learned advocate appearing on behalf of the

appellants/claimants has referred to a case of Vimal

Kanwar & Ors. v. Kishore Dan & Ors. reported in 2013

SAR (Civil) 584 (SC) wherein the Hon'ble Apex Court held

that "Provident Fund, Pension, Insurance and similarly

any cash, bank balance, shares, fixed deposits, etc. are all

a "Pecuniary advantage" receivable by the heirs on account

of one's death but all these have no correlation with the

amount receivable under a statute occasioned only on

account of accidental death."

In opposition to that, learned advocate appearing

on behalf of the respondent/Oriental Insurance Company

Limited has supported the judgment passed by the learned

Tribunal.

On careful perusal of the evidence on record along

with FIR and charge sheet, I do not find any necessity to

discuss in detail on the issue of accident which by the

involvement of two vehicles and the accident which took

place due to rash and negligent driving of the drivers of the

two vehicles. It also appears from the evidence that Uttam

Kumar Panja, the victim of the case, died in that accident

and the heirs of the deceased are entitled to compensation.

Besides none of the learned advocates raised those issues

before this Court. Dispute raised regarding quantum of

compensation.

On perusal of the judgment passed by the learned

Tribunal, I find that the learned Tribunal considered the

net salary in assessing the compensation and further

deducted pension from the amount of compensation,

received by the wife of the deceased.

In view of the principles laid down in Vimal

Kanwar (supra), I find that there is no scope to deduce any

of the amount from the gross salary, save and except

professional tax and income tax. From the certified copy of

the pay bill (Ext.-9) of Uttam Kumar Panja, since deceased,

who was an employee of Hospital, it appears that he used

to draw gross salary of Rs.12,399/- and professional tax of

Rs.110/- was deducted.

In that view of the matter, the amount of

Rs.12,289/- should be taken into account after deducting

professional tax of Rs.110/- from the gross salary. In view

of the principles laid down in Vimal Kanwar (supra), I find

hardly any scope to deduct further amount of Rs.4,000/-

allotted towards pension.

With the aforesaid observation, I determine the

compensation as follows:-

  Monthly Income                                     Rs.     12,399/-

  Less: Deduction of Professional Tax                Rs.        110/-
                                                     -----------------
                                                     Rs. 12,289/-

  Annual Income (Rs.12,289/- x 12)                   Rs. 1,47,468/-

  Less: 1/3rd Deduction (personal expenses)          Rs.     98,312/-
       (Rs.1,47,468/- - Rs.49,156/-)

  Add: Future prospect (@ 30% of Rs.98,312/-)        Rs. 29,493/-
                                                     ------------------
                                                     Rs. 1,27,,805/-

  Multiplier by 15 (Rs.1,27,805/- x 15)               x      15
                                                     Rs.19,17,075/-

  Add: General Damages                               Rs.     70,000/-

                                    Total            Rs.19,87,075/-

  Less - Awarded by ld. Tribunal                     Rs. 6,39,380/-

                ENHANCEMENT                          Rs.13,47,695/-


        For    the   reasons,      it     is   seen        that    the

appellants/claimants      are      entitled     to     the        total

compensation to the tune of Rs.19,87,075/- along with

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

claim petition, i.e. on 5th August, 2008 till the deposit of

the amount before the office of the learned Registrar

General.

It is reported that the appellants/claimants have

already received Rs.6,39,380/- as awarded by the learned

Tribunal.

Therefore, the appellants/claimants are entitled to

the balance amount of Rs.13,47,695/- along with interest

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

petition, i.e. on 5th August, 2008 till the deposit of the