Calcutta High Court (Appellete Side)
Chhaya Rani Das vs Rathi Ranjan Gupta & Ors on 28 November, 2022
10
28.11.2022
Ct. No.237
pg.
IN THE HIGH COURT AT CALCUTTA
CIVIL APPELLATE JURICTION
APPELLATE SIDE
FMA 1078 of 2007
with
IA No. CAN 1 of 2007 (CAN 734 of 2007)
Chhaya Rani Das
Vs.
Rathi Ranjan Gupta & Ors.
Mr. Subrata Ghosh
... For the appellant/claimant
Ms. Gopa Das Mukherjee
... For the respondent no.3/New India
Assurance Company Limited
Mr. Parimal Kumar Pahari
... For the respondent no.4/United India
Insurance Company Limited
This appeal is directed against the judgment and
order dated 9th December, 1999 passed by the learned
Judge, Motor Accident Claims Tribunal, Additional District
Judge, 4th Court, Murshidabad, in connection with MAC
Case No.19 of 1997.
Learned Tribunal took both the applications under
Sections 140 and 166 of the Motor Vehicles Act, 1988
together and awarded Rs.50,000/- under Section 140 of
the Motor Vehicles Act, 1988 and dismissed the
application under Section 166 of the Motor Vehicles Act on
the ground that the claimant could not prove the rash and
negligent act on the part of the drivers of the vehicles
involved in the accident.
2
The claim petition was filed on account of death of
one Pradip Kumar Das, being a student of class XII, on
13th November, 1996 at about 9/9.30 a.m., while the
victim was proceeding from Bharatpur towards Durgapur
by a Bus, bearing registration no.WB-53/1786, on G.T.
Road near Banskopa under Police Station Kanksa, the
said Bus collided with another Mini Bus, bearing
registration no.WGP/5405. It is alleged that the accident
took place due to rash and negligent driving of the drivers
of both the vehicles. The victim died on the spot. First
Information Report was lodged and Kanksa Police Station
Case No.87 of 1996 dated 13th November, 1996 under
Sections 279/337/338/304A of the Indian Penal Code was
started. Accordingly, the claim petition was filed with a
prayer for compensation to the tune of Rs.2,50,000/-.
Both the Insurance Companies contested the claim
petition by filing their respective written statements
contending, inter alia, that the claimant is not entitled to
any compensation as there was no rash or negligent act on
the part of the vehicles.
In course of trial, the claimant examined as many
as five witnesses, among them PW-1 is the mother of the
deceased who corroborated the claim petition. PW-2 is the
co-passenger of the Bus who witnessed the accident.
According to his evidence, the accident took place near
Banskopa at about 9/9.30 a.m. The Bus was proceeding
towards Durgapur at a high speed and the Mini Bus was
3
coming from the opposite side with high speed and
thereafter accident took place due to head on collision
between two buses. As a result, the victim sitting in the
cabin died on the spot.
PW-3 and PW-4 claiming themselves to be the
fathers of the students who were reported to have been
tuitioned by the victim and both the witnesses have stated
that they used to pay Rs.300/- per month each to the
victim for teaching their respective sons.
PW-5 also claiming to be an eyewitness to the
accident has deposed in his evidence that at the time of
accident, he was present at the spot though he noticed the
accident after hearing a big sound.
In course of their evidence, formal First
Information Report, post-mortem report, insurance policy,
Backward Class Certificate and admit cards in the name of
the victim were admitted in evidence as Exhibit-1 to 8.
Learned Tribunal further considering the evidence
on record held that the claimant could not prove the rash
and negligent driving of the vehicles by the evidence
adduced in the case.
Learned advocates appearing on behalf of the
parties to this appeal have referred to the evidence on
record. So far as the eye-witness is concerned, learned
advocates appearing on behalf of the Insurance Companies
have referred to cross-examination of PW-5 and tried to
4
convince this Court that PW-5 was not present at the time
of accident.
On careful perusal of the evidence of PW-5, I find
that the said witness was also present at the moment
when accident took place but he may not witness the
moment when accident took place between two vehicles.
But from the evidence of PW-2 - a passenger of the bus
where the victim was also travelling - has stated in his
evidence about rash and negligent driving of both the
buses.
I am not lost sight of the fact that I am dealing with
a case under a beneficial legislation where strict principle
of evidence has no role to play. On careful scrutiny of
evidence of PW-2, I do not find any reason to disbelieve the
victim and the incident which took place due to rash and
negligent driving of the two vehicles mentioned above.
Moreover, the said accident was further corroborated by
the First Information Report (Ext.-1) and post-mortem
report (Ext.-2).
After careful perusal of the documents, I find that
Kanksa Police Station Case was started, being No.87 of
1996 dated 13th November, 1996, under Sections
279/337/338/304A of the Indian Penal Code. Therefore,
by no stretch of imagination I can hold that the accident
took place otherwise not for the rash and negligent act of
the drivers of the vehicles. From the evidence, it is seen
5
that both the vehicles were duly insured with the
respective Insurance Companies.
So far as the income of the victim is concerned, the
claim petition disclosed no income but subsequently,
during evidence, the claimant has tried to establish the
income of her son by adducing evidence of PW-3 and PW-4
who claimed to be the fathers of the students whom the
victim used to give tuition. Therefore, I am not inclined to
accept the evidence adduced in support of the income of
the deceased who was a student of class XII at the time of
accidental death.
From the post-mortem report as well as the
documents, i.e., admit cards of the victim (Exts.-6, 7 and
8), I find that he was in the age group of 21 to 25 years
involving multiplier 18. From the evidence adduced on
behalf of the mother as well as evidence of PW-3 and PW-
4, I find that the monthly income of the victim was not
more than Rs.1,000/- and it also appears from the record
that the accident took place in the year 1996. Accordingly,
I determine the compensation as follows:-
Monthly Income Rs. 1,000/-
Annual Income (Rs.1,000/- x 12) Rs. 12,000/-
Add: Future prospect (@ 40%) Rs. 4,800/-
-------------------
Rs. 16,800/-
Less: ½ Deduction (mother is the claimant) Rs. 8,400/-
Multiplier by 18 (Rs.8,400/- x 18) x 18
Rs.1,51,200/-
Add: General Damages Rs. 30,000/-
Total Rs.1,81,200/-
Less - Awarded by ld. Tribunal Rs. 50,000/-
ENHANCEMENT Rs.1,31,200/-
For the reasons, it is seen that the
appellant/claimant is entitled to the total compensation to
the tune of Rs.1,81,200/- along with interest @ 6% 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.50,000/- as awarded by the learned
Tribunal.
Therefore, the appellant/claimant is entitled to the
balance amount of Rs.1,31,200/- along with interest @ 6%
per annum from the date of filing of the claim petition till
the deposit of the amount.
Accordingly, the respondent no.3/New India
Assurance Company Limited and the respondent
no.4/United India Insurance Company Limited are
directed to deposit the enhanced amount of Rs.65,600/-
each (Rs.1,31,200/- ÷ 2), along with interest @ 6% 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.
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
1078 of 2007, is 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.)
