Calcutta High Court (Appellete Side)
Hamidul Islam @ Hamizul Islam vs National Insurance Company ... on 28 November, 2022
03
28.11.2022
Ct. No.237
pg.
IN THE HIGH COURT AT CALCUTTA
CIVIL APPELLATE JURICTION
APPELLATE SIDE
FMA 2330 of 2004
with
IA No. CAN 1 of 2011 (CAN 4196 of 2011)
Hamidul Islam @ Hamizul Islam
Vs.
National Insurance Company Limited,
Jalpaiguri Branch & Ors.
Mr. Subir Banerjee
Mr. Sandip Bandyopadhyay
... For the appellant/claimant
Mr. Parimal Kumar Pahari
... For the respondent no1/Insurance Co.
This appeal is directed against the judgment and
award passed on 1st November, 2003 by the learned
Judge, Motor Accident Claims Tribunal, Jalpaiguri, in
MAC Case No.78 of 2002 whereby award of Rs.20,000/-
was promulgated.
The claim petition arose out of an application filed
under Section 163A of the Motor vehicles Act, 1988 on
account of injury sustained by the claimant while he was
travelling by a vehicle bearing registration no.WB-73/2014
with his goods towards Jhalong Beat. The said vehicle
overturned and claimant suffered injury causing partial
disability and he was unable to do his normal work. That
is why the claim petition was filed with a prayer for
compensation to the tune of Rs.99,000/-.
The respondent no.1/National Insurance Company
Limited contested the case by filing written statement
denying all material allegations in the claim petition
contending, inter alia, that the claimant was a gratuitous
passenger and was not entitled to any compensation as
prayed for.
In course of proceedings, two witnesses were
examined on behalf of the appellant/claimant. Claimant
himself was examined as PW-1 and one Rajindar Parihar
as PW-2. In course of their evidence, First Information
Report, discharge certificate, Disability Certificate, police
report and one trade licence issued by the village
Panchayat were admitted in evidence as Exhibit 1 to 6.
Learned Tribunal after considering the evidence on
record, assessed the compensation at Rs.20,000/-. In
course of determining the compensation, the learned
Tribunal returned his finding that the claimant sustained
injury in the accident by the involvement of the vehicle
which was duly insured with the Insurance Company and
learned Tribunal also relied on hospitalisation and
disability to the extent of 40%. Learned Tribunal also
accepted the trade licence certificate in support of the
occupation of the claimant who returned his last finding
awarding compensation to the tune of Rs.20,000/- in
favour of the claimant.
Mr. Subir Banerjee, learned advocate on behalf of
the appellant/claimant has submitted that the appellant/
claimant was not a gratuitous passenger. In support of his
argument, he refers to the evidence of both the witnesses,
particularly, cross-examination of PW-2 who virtually
supported the victim of travelling by the Truck for the
purpose of vegetable business in the haat. Mr. Banerjee
also relied on the document, i.e., trade licence issued by
the village Panchayat showing business of the claimant as
vegetable selling.
In opposition to that, Mr. Parimal Kumar Pahari,
learned advocate appearing on behalf of the respondent
no.1/Insurance Company has submitted that the claimant
was gratuitous passenger and no document has been filed
on behalf of the appellant/claimant regarding injury and
thereby Mr. Pahari supported the judgment passed by the
learned Tribunal.
This is a case under Section 163A of the Motor
Vehicles Act, 1988. It is needless to mention that the
appellant/claimant is not required to prove any rash or
negligent act on the part of the driver of the vehicle. In
spite of that, one report of the Officer-in-Charge,
Nagarkata Police Station, District - Jalpaiguri, was
admitted in evidence as Exhibit-2 and that report
corroborates the accident which took place on 23rd
February, 2000 at about 8.30 hours by the involvement of
a Tractor bearing registration no.WB-73/2014, which was
further corroborated by the First Information Report
(Exhibit.-1).
From the claim petition, it is found that the
appellant/claimant sustained fracture injury on his leg.
That was further substantiated by his oral evidence and
the Disability Certificate (Exhibit-5). From the evidence on
record, I find that the learned Tribunal rightly assessed
the disability to the extent of 40% in favour of the claimant
but the learned Tribunal did not assess the compensation
in terms of the pecuniary loss within the meaning of
Section 163A of the Motor Vehicles Act, 1988.
In the aforesaid view of the matter, I find that
Rs.3,000/- as notional income would be justified to assess
the compensation after applying multiplier 15. Thus, I find
it necessary to modify the compensation as follows:-
Monthly Income Rs. 3,000/-
Annual Income (Rs.3,000/- x 12) Rs. 36,000/-
Less: Deduction 60% (since the claimant Rs. 21,600/-
was disabled to the extent of 40%) ------------------
Total loss of Income Rs. 14,400/-
Multiplier by 15 (Rs.14,400/- x 15) x 15
Rs.2,16,000/-
Add: Grievous Injury Rs. 5,000/-
Total Rs.2,21,000/-
Less - Awarded by ld. Tribunal Rs. 20,000/-
ENHANCEMENT Rs.2,01,000/-
For the reasons, it is seen that the
appellant/claimant is entitled to the total compensation to
the tune of Rs.2,21,000/- along with interest @ 4% per
annum from the date of filing of the claim petition till the
deposit of the amount.
It is reported that the appellant/claimant has
already received Rs.20,000/- as awarded by the learned
Tribunal.
Therefore, the appellant/claimant is entitled to the
balance amount of Rs.2,01,000/- along with interest @ 4%
per annum from the date of filing of the claim petition till
the deposit of the amount.
Accordingly, the respondent no.1/National
Insurance Company Limited is directed to deposit the
enhanced amount of Rs.2,01,000/- along with interest @
4% per annum from the date of filing of the claim petition
till the 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 appellant/claimant is entitled to withdraw the
balance award amount with interest, subject to payment of
additional ad valorem court fees on the amount of
Rs.1,22,000/- (Rs.2,21,000/- - Rs.99,000/-) before the
learned Tribunal.
The learned Registrar General is requested to
disburse the amount to the appellant/claimant on proper
identification.
With the above observation, the appeal, being FMA
2330 of 2004, stands disposed of.
All pending applications, if there be any, 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.)
