Calcutta High Court (Appellete Side)

Gayatri Bardhan vs The National Insurance Co. Ltd. & ... on 28 November, 2022

                       IN THE HIGH COURT AT CALUTTA
                          Civil Appellate Jurisdiction
 28.11.2022
 SL No.41
Court No. 654
   Ali
                              FMA 1216 of 2022
                            ( F.M.A.T. 987 of 2015)

                             Gayatri Bardhan
                                    Vs.
                            The National Insurance Co. Ltd. & Anr.


                    Mr. Subir Banerjee
                    Mr. Sandip Bandyopadhyay
                                     ....for the appellant-claimant.

                    Mr. Afroze Alam
                   ....for the respondent No. 1-Insurance Company.

This appeal is preferred against the

judgment and award dated 8 March 2012 passed by

learned Judge, Motor Accident Claims Tribunal, 9th

court, Jalpaiguri in M.A.C. Case no.25 of 2012

under Section 166 of the Motor Vehicles Act, 1988

granting compensation of Rs. 10,78,628/- in favour

of the claimant.

The brief fact of the case is that on 15

December 2011 at about 10 PM while the victim was

returning home from Kamakshyaguri through

Kamakshyaguri-Barovisa pucca road on his

motorcycle bearing no. WB-70B/6996 and when he

reached near Ghoramara Chowpathi under

Kumargram PS, at that time the offending vehicle

bearing no. WB-72A/6633(Maruti Van) moving with

high-speed and in rash and negligent manner

dashed the victim as a result of which he sustained

grievous injuries on his person. The local people

shifted the victim to Kamakshyaguri Primary Health

Center and thereafter he was shifted to Alipurduar

Sub-Divisional Hospital and also to Dr Chang's

Nursing Home at Siliguri for his better treatment but

ultimately on 16 December 2011 he succumbed to

his injuries. On account of sudden demise of the

deceased- victim the claimant being the mother of

the deceased filed application for compensation to

the tune of Rs.11,50,000/-under Section 166 of the

Motor Vehicles Act, 1988.

Upon considering the materials on record,

the evidence both oral and documentary adduced on

behalf of the claimant, the learned tribunal allowed

compensation of Rs. 10,78,628/- in favour of the

claimant.

Being aggrieved by and dissatisfied with the

impugned judgment and award claimant has

preferred the present appeal.

Mr Subir Banerjee, learned advocate for

appellant-claimant submits as follows.

The learned tribunal erred in considering the

net income of Rs.12,206/-per month as the monthly

income of the deceased which ought to have been

calculated by deducting professional tax from the

gross income of the deceased relying on the figures

available in the salary certificate (Exhibit 10).

Further the deceased at the time of accident

was 21 years of age and was employed as a school

teacher having a permanent job and thus in view of

observation of the Hon'ble Supreme Court in

National Insurance Company Limited versus

Pranay Sethi and Others reported in 2017 ACJ

2700 an additional amount equalling to 50% of the

annual income of the deceased-victim should be

taken into account towards future prospect.

The learned tribunal erroneously considered

the age of the mother of the deceased-victim for

adopting the multiplier which ought to have been

adopted by considering the age of the deceased-

victim in terms of decision of Hon'ble Supreme

Court passed in Amrit Bhanu Shali and others

versus National Insurance Company Limited

reported in (2012) 11 SCC 738 and Royal

Sundaram Alliance Insurance Company Limited

versus Mandala Yadagari Goud and others

reported in (2019) 5 SCC 554. Further considering

the age of the deceased as 21 years as per the

decision of Hon'ble Supreme Court passed in Sarla

Verma (Supra) & Ors versus Delhi Transport

Corporation and Anr reported in (2009) 3 WBLR

(SC) 700 the multiplier should be 18.

The general damages under the conventional

heads namely funeral expenses and loss of estate of

Rs. 15,000/- each should be granted following the

observation of Hon'ble Supreme Court passed in

Pranay Sethi's case (supra).

The learned tribunal erred in not allowing

interest on the compensation amount from the date

of filing of the claim application till deposit rather

the interest was allowed as a default clause which

needs to be modified in the interest of justice.

In his usual fairness he submits that the

learned tribunal erred in deducting 1/3rd instead of

½ (half) of the income of the deceased towards

personal and living expenses as victim died a

bachelor.

Mr Afroze Alam, learned advocate for

respondent no.1-insurance company submits that

the observation of the Hon'ble Supreme Court made

in Pranay Sethi's case (supra) is to be followed in

computing the compensation amount.

By an order dated 17.8.2022 the service of

notice of appeal upon respondent no.2-owner of the

offending vehicle has been dispensed with.

Having heard the learned advocates of both

the sides, accordingly, I proceed to discuss the

issues raised in this appeal.

With regard to the income of the deceased, it

is found that the learned tribunal has considered

the net income of Rs.12,206/-per month to be the

monthly income of the deceased victim. However as

per the decision of Hon'ble Supreme Court passed in

Pranay Sethi's case (supra) the income should be

actual income less tax component. Therefore as from

the salary certificate (Exhibit 10) it appears that the

gross income of the deceased-victim is Rs.12,916/-

per month and the Professional Tax is Rs.110/-,

taking into consideration the aforesaid figures, the

gross salary of Rs.12,916/- per month less the

Professional Tax of Rs.110/-comes to Rs.12,806/-

per month which should be the monthly income of

the deceased-victim.

The deceased-victim in the present case was

in permanent employment as a school teacher and

was aged 21 years and thus as per the decision of

Hon'ble Supreme Court passed in Pranay Sethi's

case (supra) an amount equalling to 50% of the

annual income of the deceased-victim is to be taken

into account towards future prospect.

The learned tribunal has considered the age

of the mother for adopting the multiplier. However

following the observation of Hon'ble Supreme Court

passed in Amrit Bhanu Shali (supra) and

Mandala Yadagari Goud (supra) the age of the

deceased is to be taken into consideration for

adopting the multiplier and not the age of the

parent. Thus considering the age of the deceased to

be 21 years, the multiplier as per observation of

Hon'ble Supreme Court in Sarla Verma's case

(supra) would be 18.

Further it is found that the learned tribunal

allowed the general damages of Rs.4,500/-. However

following the observation of Hon'ble Supreme Court

made in Pranay Sethi's case(supra) the general

damages under the conventional heads namely

funeral expense and loss of estate should be

Rs.15,000/- each.

Further the learned tribunal did not grant

any interest on the compensation amount and the

interest has been granted as a default clause.

Accordingly the claimant is entitled to receive

interest on the amount of compensation from the

date of filing of the claim application till its

realization.

In view of the above the compensation is

calculated as hereunder.

Calculation of compensation

Monthly Income..(Rs.12,916/- less Rs.110/-)..Rs.12,806/- Annual Income.....(Rs.12,806/- X 12)..........Rs 1,53,672/- Add: Future Prospects @ 50% of total Income...Rs.76,836/- Annual loss of Income.................................Rs.2,30,508/- Less: Deduction of ½ of the Annual Income towards personal and living expenses.......... Rs.1,15,254/-

Rs.1,15,254/-

Adopting multiplier 18 ( Rs.1,15,254/- X 18)..Rs.20,74,572/- Add: General Damages....................................Rs.30,000/-

Loss of estate.............Rs.15,000/- Funeral Expenses.......Rs.15,000/- Total Compensation.....................................Rs.21,04,572/-

Thus the total compensation comes to

Rs.21,04,572/-. It is informed that the appellant-

claimant has already received the amount of

compensation of Rs.10,78,628/-. It is pertinent to

note that the learned tribunal did not allow interest

on the compensation amount. Accordingly, the

appellant-claimant is entitled to interest @ 6% per

annum on amount of compensation of Rs.

10,78,628/- granted by learned tribunal, from the