Calcutta High Court (Appellete Side)
Anima Sahana And Anr vs The Oriental Insurance Company on 28 November, 2022
28.11.2022
KC(19)
F.M.A. 334 of 2010
Anima Sahana and Anr.
-versus-
The Oriental Insurance Company
Limited and Anr.
With
CAN 1 of 2013 (Old CAN No. 11547 of 2013)
(Application not in file)
Mr. Amit Ranjan Roy...................For the appellants.
Mr. Saswata Bhattacharya....For the respondent no. 1/
insurance company.
This appeal is directed against the judgment and
award passed on 19th March, 2009 by the learned
Judge, Motor Accident Claims Tribunal, 2nd Court
Murshidabad in Motor Accident Claim Case No.191 of
20072 under Section 166 of the Motor Vehicles Act,
1988.
One Susmita Sahana died in a motor accident on
1st February, 2007 at about 7.30 hours while she was
crossing the pucca road near Manigram bus stand
under Police Station - Sagardighi. The incident took
place due to rash ad negligent driving of the bus
bearing No. WGD 2145 proceeding from the side of
Raghunathganj towards Berhampore.
On account of said accidental death the claim
petition was filed stating inter alia that at the time of
accident the deceased was aged about 23 years and she
was a school teacher having monthly income of
Rs.6,106/- . After the accident, Sagardighi Police
Station Case No. 13 of 2007 dated 1st February, 2007
under Sections 279/338/304A of the Indian Penal Code
was started and ended in charge-sheet. That is why the
claim petition was filed by the parents of the deceased
with a prayer for compensation to the tune of
Rs.6,80,000/-.
The insurance company contested the case by
filing written statement denying all material allegations
in the claim petition contending inter alia that the
claimants are entitled to compensation subject to proof
of the statements made in the claim petition.
It is pertinent to mention here that mother of the
deceased, i.e. one of the claimants died on 23rd
January, 2018 leaving behind the legal heirs, i.e. one
son and one daughter who were substituted in this
appeal.
In course of trial, claimants examined three
witnesses.
P.W. 1, father of the deceased has corroborated
the entire averments of the claim petition. It is stated in
his evidence that the deceased was spinster at the time
of her death and she was a school teacher having gross
income of Rs.6,106/- per month. In course of his
evidence documents, namely, F.I.R., charge-sheet,
seizure list, insurance policy, post-mortem report,
driving licence, copy of service book and salary
certificate were admitted in evidence and marked as
Exhibits 1 to 10.
P.W. 2, claiming to be an eye witness, has stated
that he witnessed the accident as he accompanied the
deceased at the time of accident, due to involvement of
vehicle No. WGD 2145 and the accident took place due
to rash and negligent driving of the vehicle.
P.W. 3, Sub-Inspector of Schools, Suti Circle,
Murshidabad deposed in this case and in course of
evidence he proved the original service book as well as
the salary certificate of the deceased.
In course of argument Mr. Amit Ranjan Roy,
learned advocate appearing on behalf of the claimants
has referred to the judgment passed by the Tribunal
and submitted that learned Tribunal did not take the
gross salary after deduction of professional tax only at
the time of assessment of the compensation. It is also
submitted on behalf of the claimants that in terms of
the age of the deceased, multiplier should be 18 and
also in terms of settled principle laid down by the
Hon'ble Apex Court deduction for personal expenses
should be 50% of the income instead of 1/3rd.
In opposition, Mr. Saswata Bhattacharya learned
advocate appearing on behalf of the insurance company
supported the judgment passed by the learned Tribunal
and submitted that the grounds taken by the claimants
in this appeal clearly manifest that multiplier should be
considered in terms of the age of the mother of the
deceased. It has been further submitted on behalf of the
insurance company that there is no ground in this
appeal claiming future prospect.
However, undoubtedly this case should be viewed
in terms of beneficial legislation and also in terms of the
principles laid down by the Hon'ble Supreme Court in
several decisions. It is needless to mention that court
should take the principle of "just compensation"
irrespective of claim in terms of nature of the case
under the beneficial legislation.
In this appeal the only ground has been taken
regarding assessment of compensation. On a careful
perusal of the evidence and exhibited documents, I do
not find any necessity to enter into the matter of
accident, income and age of the deceased. On perusal of
the evidence I find that the victim suffered accidental
death due to rash and negligent driving of the offending
vehicle. Therefore, claimants are entitled to
compensation.
Learned Tribunal assessed the compensation
taking net salary of the deceased at the time of her
death. In this regard learned advocate on behalf of the
claimants has relied on the case of Vimal Kanwar -vs-
Kishore Dan and Ors., reported in 2013 SAR (Civil) 584
wherein Hon'ble Apex Court held that person
responsible for paying any income chargeable under the
head 'salaries' shall at the time of payment, deduct
income tax on estimated income of the employee from
'salaries' for that financial year. Thereby Hon'ble Apex
Court suggested deduction of professional tax and
income tax but not any other pecuniary advantage.
In this case, it appears from the evidence of P.W.
3 together with the salary certificate that gross income
of the deceased was Rs.6,361/- per month at the time
of death. Rs. 45/- was deducted as professional tax.
In that view of the matter, I find that salary of Rs.
6,316/- per month should be taken into account for
assessing compensation after applying multiplier 18 in
terms of the age of the deceased at the time of death
instead of any of the parents.
In the aforesaid view of the matter, I determine
the compensation as follows:
Monthly Income Rs. 6,316/-
Annual Income (Rs.6,316/- x 12) Rs. 75,792/-
Less: 50% Deduction (personal Rs. 37,896/-
expenses)
Multiplier by 18 (Rs.37,896 x 18) Rs.6,82,128/-
Add 50% future prospect Rs.3,41,064/-
10,23,192/-
Add: General Damages
Rs. 30,000/-
Total Rs.10,53,192/
Less - Already received
Rs.3,66,800/-
Enhancement: Rs.6,86,392/-
For the reasons, it is seen that the
appellants/claimants are entitled to the total
compensation to the tune of Rs.10,53,192/- .
It is reported that the appellants/claimants have
already received Rs.3,66,800/- from the insurance
company.
Thereby, the appellants/claimants are entitled to
the balance compensation amount of Rs.6,86,392/-
along with interest @ 6% per annum from the date of
filing of the claim petition, i.e., 18th April, 2007 till the
deposit of the amount.
The Oriental Insurance Company is directed to
deposit the balance amount of Rs.6,86,392/- along with
interest @ 6% per annum from the date of filing of the
claim petition till the actual deposit of the amount
before the office of the learned Registrar General of this
Court, within six weeks from the date of this order.
The insurance company is directed to deposit the
amount with the office of the learned Registrar General
within the aforesaid time limit.
The appellants/claimants are entitled to
withdraw the balance amount with interest, subject to
payment of additional ad valorem court fees on the
amount of Rs.3,73,192/-.
The learned Registrar General is requested to
disburse the amount to the appellants/claimants in
equal share on proper identification.
With the above observation, the appeal, being
FMA 334 of 2010 is disposed of.
All pending applications, if there be any, also
stand disposed of.
Records of the learned Tribunal along with a copy
of this order be transmitted back immediately.
Urgent photostat certified copy of this order, if
applied for, be given to the parties, upon compliance of
necessary formalities.
(BIBHAS RANJAN DE, J.)
