Calcutta High Court (Appellete Side)
And Grand-Father vs I) National Insurance Company ... on 13 September, 2022
Page 1 of 17
IN THE HIGH COURT AT CALCUTTA
CIVIL APPELLATE JURISDICTION
APPELLATE SIDE
PRESENT:
THE HON'BLE JUSTICE RABINDRANATH SAMANTA
FMA 43 of 2013
With
CAN 2 of 2015(Old CAN 471 of 2015)
i)Smt. Purnima Roy
ii) Sri Swapan Kumar Roy
iii)Minor Arpita Roy
represented by her guardian
and grand-father, appellant No.2
Swapan Kumar Roy
.....Appellants/Claimants
-Vs-
i) National Insurance Company Limited
ii)United India Insurance Company Limited
iii) Mr. Surinder Singh
iv) Smt. Purnima Roy .....Respondents
With
COT 61 of 2013
National Insurance Company Limited
..... Cross Objector/
Respondent No.1
-Vs-
i) Smt. Purnima Roy
ii) Sri Swapan Kumar Roy
iii) Minor Arpita Roy
represented by her guardian
and grand-father, appellant No.2
Swapan Kumar Roy
.....Respondents/
Appellants
iv) United India Insurance Company Limited
v) Mr. Surinder Singh
vi)Smt. Purnima Roy
.....Respondents
______
Mr. Jayanta Kumar Mondal,Adv.
in COT 61 of 2013
Mr. Sanjoy Paul,Adv.
.....for the National Insurance
Company Limited, Respondent No.1
in FMA No. 43 of 2013 and the
Cross-Objector in COT No. 61 of
Mr. Rajesh Singh, Adv.
.....for the United India Insurance
Company Limited, Respondent No.2
in FMA No. 43 of 2013 and
Respondent No. 4 in COT No. 61 of
Judgment on : 13.09.2022
Rabindranath Samanta, J:-
1. Challenge in the appeal and the cross-objection is against the
judgment and award dated 21.05.2012 passed by the learned
Judge, Motor Accident Claims Tribunal (hereinafter referred to as
the Tribunal), Special Court, Paschim Medinipur in MAC Case No.
108 of 2009. In the impugned judgment the learned Tribunal
observed that the respondent No.3 Surinder Singh, the owner of
the offending vehicle bearing registration No. WB-23/2141 (Truck)
and the respondent No. 1, National Insurance Company Limited
were jointly and severally liable to pay compensation of Rs.
13,32,747/- inclusive of Rs.2,000/- as funeral expenses and
Rs.2,500/- as loss of estate to the claimants and directed the
National Insurance Company Limited to pay the compensation to
the claimants in equal proportion along with interest @6% per
annum from the date of the filing of the claim case on 27.03.2009.
The learned Tribunal assessed the compensation at Rs.
26,56,494/- exclusive of Rs.2,000/- as funeral expenses and
Rs.2,500/- as loss of estate, but due to contributory negligence on
the part of the deceased/driver of vehicle No. WB-34G/6046 the
compensation was reduced to Rs.13,32,747/-.
2. The appellants in the appeal assail the impugned judgment on
the ground that the learned Tribunal wrongly held that the
deceased contributed negligence to cause the accident and the
learned Tribunal erred in not assessing compensation on the count
of future prospects of the deceased who was a renowned
businessman. By preferring the appeal the appellants have sought
for enhancement of the compensation. On the other hand, the
respondent No.1, National Insurance Company Limited, in the
cross-objection assails the impugned judgment on the ground that
the learned Tribunal erred in not holding that the claimants failed
to prove their case and thereby committed error in not dismissing
the claim case.
3. The facts which led the filing of the claim application under
Section 166 of the Motor Vehicles Act and which are necessary for
adjudication of the appeal and cross-objection may be adumbrated
as under:
On 11.02.2009 Angsuman Roy, son of Swapan Kumar Roy of
Village and P.O. Silda, P.S- Binpur, District - Paschim Medinipur,
his wife Subhanita Roy and minor daughter Arpita Roy were
proceeding by a Bolero car bearing No. WB-34G/6046 from Silda
towards Haldia for business work along N.H.6 Road. At about 6:30
A.M while the Bolero car reached near Khemasuli Pahelwan Hotel,
at that time one truck bearing No.WB-23/2141 coming with
excessive speed and driven in a rash and negligent manner
suddenly dashed the Bolero car on the wrong side of the road in
sheer violation of traffic rules. Owing to the accident Angsuman
Roy sustained grievous injuries on his head and body. His wife
Subhanita Roy also sustained grievous injuries on her person. The
local people recovered both of them from the Bolero car. They were
making arrangement to take Angsuman Roy to local hospital. His
wife Subhanita Roy was seated on a side of the road. At that time
a trailer driven in rash and negligent manner dashed her and ran
over her body and as consequence thereof she died on the spot.
However, the local people took Angsuman Roy to Kharagpur Sub-
Divisional Hospital for medical treatment, but he expired there
after some time.
4. The accident took place due to rash and negligent driving on the
part of the driver of the offending truck No. WB-23/2141 and the
victim Angsuman Roy died because of the accident.
5. On the allegations of rash and negligent driving on the part of
the driver of the offending vehicle, an FIR was lodged at Kharagpur
(Local) Police Station and the FIR was registered as Kharagpur
(Local) PS Case No. 36 dated 11.02.2009 under Sections 279/304
of Indian Penal Code.
6. The victim died at the age of 29 years. He used to carry on
business as a proprietor of a filling station under name and style
Purnima filling station having lubricant licence being No. 27/Lub.
By carrying on such business he used to earn Rs. 3,18,471.56 as
gross income per year. On the sudden demise of the victim the
claimant Nos. 1 and 2 who happen to be his parents received
tremendous mental shock. Because of his death and the death of
her mother, claimant No.3 Arpita Roy became deprived of getting
parently affection forever.
7. On the facts as above, the claimants sought for compensation of
Rs.40,00,000/- with interest thereon.
8. The respondent No.1, National Insurance Company Limited
contested the claim case by filing a written statement wherein it
denied the allegations that due to rash and negligent driving on the
part of the driver of the offending truck bearing No. WB-23/2141
the accident took place and the victim died because of the
accident. It alleged that the accident took place solely due to rash
and negligent driving of the Bolero car bearing No. WB-34G/6046
by the deceased. Because of this the owner and the insurer of the
Bolero car were responsible for paying the compensation. On such
grounds and denying the other allegations as made in the claim
application the respondent No.1 sought for dismissal of the claim
case.
9. On the other hand, the respondent No. 2, United India
Insurance Company Limited also filed a written statement to
contest the claim case wherein it stated that due to rash and
negligent driving on the part of the driver of the offending truck
bearing registration No. WB-23/2141 the accident took place and
the deceased Angsuman Roy died because of the accident. It stated
that the deceased who drove the Bolero vehicle bearing No. WB-
34G/6046 had no negligence on his part in causing the accident. It
further stated that United India Insurance Company Limited not
being a necessary party to the claim case, the claim case against it
was liable to be dismissed.
10. Upon the pleadings of the parties the following issues were
framed by the learned Tribunal:
i) Is the petition under Section 166 of the M.V. Act
maintainable to its present form and prayer in accordance
with law?
ii) Had the deceased died due to rash and negligent driving of
the offending vehicle bearing No. WB-23/2141?
iii) Are the petitioners entitled to get award as prayed for?
iv) To what other relief, if any, are the petitioners entitled to get?
11. In order to prove their case, claimant No.2 Swapan Kumar Roy
got himself examined as P.W.1. The claimants examined
Harendranath Mahato, an eye witness as P.W.2, Asit Kumar Bisoi,
an Income Tax Inspector as P.W.3 and Amit Mondal, an U.D.A
attached to District Controller, Food & Supply Office as P.W.4. The
claimants relied on some documents which were marked as
Exhibits 1 to 13.
12. No oral or documentary evidence was adduced on the part of
any of the Insurance Companies.
13. Upon hearing the learned Advocates appearing for the parties
and on consideration of the evidence on record the learned
Tribunal partly allowed the claim application and awarded the
compensation as indicated above.
14. The learned Tribunal in the impugned judgment has observed
that the accident took place due to negligence contributed by the
deceased Angsuman Roy who at the material time was driving the
Bolero car bearing registration No. WB-34G/6046 as well as by the
driver of the offending truck bearing registration No. WB-23/2141.
The learned Tribunal on assessment of the evidence on record and
considering the other factors namely adopting the relevant
multiplier etc. assessed the compensation of Rs. 26,56,494/-. But,
as observed by the learned Tribunal, since the driver of the Bolero
car equally contributed the negligence to cause the accident, 50%
of the aforesaid compensation as assessed was reduced and the
compensation was calculated at Rs.13,28,247 inclusive of
Rs.2,000/- as funeral expenses and Rs.2,500/- as loss of estate.
Holding that this compensation was to be paid by the respondent
No.1, National Insurance Company Limited, the learned Tribunal
by the impugned award directed it to pay the compensation to the
claimants.
15. Learned Counsel appearing for the appellants submits that the
claimants by examining the eye-witness P.W. 2 Harendranath
Mahato have proved that due to rash and negligent driving on the
part of the driver of the offending vehicle (truck) the accident took
place. But, the learned Tribunal erred in not recording the finding
that it was the driver of the offending truck for whose negligence
and rash driving the accident took place. Learned Counsel by
referring to a decision in the case of Khenyei -Vs- New India
Assurance Co. Ltd and another reported in 2015 (2) T.A.C. 677
(SC) submits that even if two vehicles are involved in causing the
accident, the claimants can recover at their own option whole
damages from any one of them. Learned Counsel points out that
the learned Tribunal miscalculated the yearly income of the
deceased by taking into consideration all the recoveries and not
considering the deduction of taxes only. According to learned
Counsel the learned Tribunal erred in not awarding compensation
on the count of future prospects of the deceased. On such
contention, learned counsel submits that the compensation as
awarded by the learned Tribunal should be enhanced by
modification of the award.
16. Per Contra, learned counsel for the National Insurance
Company Limited submits that the learned Tribunal on
assessment of the evidence ought to have held that the claimants
failed to prove their case. Learned Counsel submits that the
evidence of P.W. 2 Harendranath Mahato, if analysed in proper
prospective, will show that this witness did not see the accident. In
support of his contention learned Counsel has cited a decision in
the case of New India Assurance Company Limited-Vs-Yogesh
Devi and Others reported in (2012) 3 SCC 613.
17. Learned Counsel appearing for the United India Insurance
Company Limited submits that since the Bolero vehicle was not
involved in causing the accident, no liability is cast upon his client
to pay any compensation relating to the accident.
18. As it appears from the FIR, the accident which took place on
11th February, 2009 was massive in nature which involved death of
three persons. The instant claim case has been filed on the death
of the deceased Angsuman Roy. It is not in dispute that on the
death of his wife Subhanita Roy, another claim case was brought
and the claim case was disposed of. However, the case record does
not speak about initiation of any claim case on the death of the
third deceased.
19. Before I advert to the evidence on record, it will be apposite to
excerpt the facts/allegations in the FIR lodged by one Nageshwar
Sharma, the owner of Khemasuli Pahelwan Hotel which are as
under:
On 11.02.2009 at about 6:30 A.M one Bolero car bearing No.
WB-34G/6046 was coming from Lodhasuli towards Kharagpur
along N.H.6 Road. From the opposite direction one truck bearing
No. WB-23/2141 was going towards Lodhasuli and in front of his
hotel both the two vehicles driven in excessive speed and in rash
and negligent manner collided with each other. One man and one
woman who were in the Bolero vehicle became seriously injured.
With the help of the local people those injured were recovered from
the vehicle. The injured woman after being recovered was kept on a
side of the road and they made arrangement for taking the injured
man to hospital for treatment. At that time one trailer bearing No.
NL-01D/1975 which was coming from Lodhasuli side in rash and
negligent manner dashed and run over the injured woman and as
a result of which she died on the spot. The trailer after dashing two
cycles went towards the road which is by the side of his hotel. The
trailer also dashed against a truck bearing No. CG-04JA/5503
which was stranded in front of his hotel from the back side and as
a result of which the vehicle dashed the helper of the truck and the
helper died on the spot. The injured man later on died at the
hospital. After the family members of the deceased were informed,
they came to the spot.
20. On the basis of the aforesaid FIR one Kharagpur (Local) PS
Case No. 36 dated 11.02.2009 under Sections 279/304, IPC was
registered against the driver of the offending truck bearing No. WB-
23/2141, and the driver of the offending vehicle No. NL-01D/1975.
After completion of the investigation, the Investigating Officer
submitted charge-sheet against the drivers of the offending vehicle
No. WB-23/2141 and NL-01D/1975. But, the I.O. made prayer for
discharging the driver Dharmendra Saha of vehicle No. CG-
04JA/5503 on the reasons that there was no fault on his part and
discharging Angsuman Roy, son of Swapan Kumar Roy since he
died.
21. Admittedly, the claim case brought on the demise of Subhanita
Roy against the owner of the offending vehicle No. NL-01D/1975
and its insurer has already been disposed of.
22. The charge-sheet as submitted by the Investigating Officer
primafacie shows that due to negligence on the part of the driver of
the offending truck bearing No. WB-23/2141 the accident took
place and the deceased Angsuman Roy died due to the accident.
23. However, let us see on assessment of the evidence on record
whether the allegations as levelled by the claimants in the claim
application have stood substantiated.
24. As it is evident from the claim application as well as from the
charge-sheet in connection with the aforesaid Kharagpur (Local) PS
Case, it has been alleged that due to negligence and rash driving
on the part of the driver of the offending truck bearing No. WB-
23/2141 the accident took place and the victim Angsuman Roy
sustained severe injuries on his person because of the accident
and ultimately he succumbed to the injuries. The claimants in
order to establish the allegations examined Harendranath Mahato
(P.W.2) who witnessed the occurrence. It is in the evidence of P.W.
2 in chief that on 11.02.2009 Angsuman Roy, his wife Subhanita
Roy and his minor daughter Arpita Roy were proceeding by a
Bolero car bearing No. WB-34G/6046 from Jhargram side towards
Kharagpur. At that time one truck bearing No. WB-23/2141
coming from Kharagpur towards Lodhasuli with a high speed and
driven in rash and negligent manner dashed the driver's side of the
Bolero car with a great force and as a result of which Angsuman
Roy who was in the driver's seat sustained severe bleeding injuries.
He was rescued and taken to Kharagpur S.D. Hospital where he
breathed his last. In cross-examination a suggestion was put to
this witness on the part of the National Insurance Company that
since his village Khairbani was at a distance of 14 kms from the
place of occurrence, he did not see the accident to which this
witness replied that on the previous day he went to Village- Jatia
by a bicycle and at the relevant time he was returning home from
Jatia. He started from Jatia at about 5:30 A.M and while he
reached the place at the material time he saw the accident. I find
that nothing has been elicited from his cross-examination to
discredit his evidence as adduced in chief.
25. The Hon'ble Apex Court in the decision in the case of N.K.V.
Bros. (P) Ltd-Vs- M. Karumai Ammal and Ors reported in 1980
ACJ 435 has observed that the road accidents are one of the top
killers in our country, especially when truck and bus drivers
operate nocturnally. This proverbial recklessness often persuades
the Courts as has been observed by this Court earlier in other
cases, to draw an initial presumption in several cases based on the
doctrine of res ipsa loquitur. In the decision in the case of Shyam
Sunder and Others -Vs- The State of Rajasthan reported in
1974 A.C.J. 296 the Hon'ble Apex Court at paragraph 9 of the
judgment has held as under:
" The maxim is stated in its classic form by Erie, C.J.L, see
Scott v. London & St. Katherine Docks (1865) 3 H & C 596 "
where the thing is shown to be under the management of the
defendant or his servants and the accident is such as in
ordinary course of things does not happen if those who have
the management has used proper care, it affords reasonable
evidence, in the absence of explanation by the defendants
that the accident arose from want of care."
26. As recorded on assessment of the evidence of P.W. 2
Harendranath Mahato, it was the act of rashness and negligence
on the part of the offending truck for which the accident took
place. In the decision in the case of Gobald Motor Service Ltd.
and another-Vs-R.M.K. Veluswami and others reported in AIR
1962 SC 1959 the Hon'ble Apex Court has held if the events that
happened told their story and there was presumption that the
accident was caused by the negligence of the driver, in that event it
will be held that the accident took place due to negligence on the
part of the driver. In an another decision in the case of Basthi
Kasim Saheb (Dead) by Legal Representatives -Vs- Mysore
State Road Transport Corporation and Others reported in
1991 (1) T.A.C. 715 (SC) it has been held by the Hon'ble Apex
Court that while the driver failed to explain the accident, the
claimant's case shall be presumed to have been proved pressing
the doctrine of res ipsa loquitur in service.
27. Despite service of notice upon the owner of the offending truck,
he did not prefer to contest the claim case. However, taking
permission from the learned Tribunal the Insurance Company i.e.
National Insurance Company Limited placed all the defence
available to the owner before the Tribunal. As the evidence on
record show, the Insurance Company failed to examine the driver
of the offending truck or any of the persons who witnessed the
accident to establish its defence. The accident as occurred speaks
of the story that the speed of the offending truck was so high that
it dashed the Bolero car to such an extent that the deceased and
his wife who were in the vehicle got severe injuries on their person
and the deceased Angsuman Roy succumbed to the injuries. In
the absence of any evidence on the part of the defence to explain
for whose cause the accident took place, this Court apart from
placing reliance on the evidence of the eye-witness P.W.2
Harendranath Mahato, by pressing the principle of res ipsa loquitur
in service may without any hesitation in mind hold that the
accident took place due to the rash and negligent driving on the
part of the driver of the offending truck. The Bolero car bearing No.
WB-34G/6046 was also involved in the accident. However, if the
evidence as adduced by the claimants is considered in proper
prospective it stands proved that due to rashness and negligent act
on the part of the driver of the offending truck the accident took
place and the deceased died of the accident.
28. The learned Tribunal reduced the compensation to the extent
of 50% recording the observation that the deceased Angsuman Roy
also contributed negligence to happen the accident.
29. In the decision in the case of Khenyei-Vs- New India
Assurance Co. Ltd and another reported in 2015 (2) T.A.C. 677
(SC) the Hon'ble Apex Court has held that as liability of joint tort-
feasors being joint and several, apportionment of compensation
between two tort-feasors vis-a-vis claimant is not permissible and
the claimant can recover at his option whole damages from any
one of them.
30. In view of this legal principle enunciated by the Hon'ble Apex
Court in Khenyei (supra), the deduction to the extent of 50% on
the reason of contributing negligence by the deceased is not
warranted by law.
31. It is axiomatic from the Income Tax Return (Exhibit 12) duly
proved by P.W. 3 Asit Kumar Bisoi, Income Tax Inspector that the
gross annual income of the deceased by carrying on his business
was Rs. 3,18,471.56/-. By deducting Rs.23,706 as taxes, his net
income for a year was Rs. 2,94,765/- rounded off to Rs. 2,94,700/.
But, the learned Tribunal wrongly calculated his yearly net income
as Rs.2,21,374/-. Admittedly, the victim died at the age of 29
years. As observed by the Hon'ble Apex Court at paragraph 42 of
the decision in the case of Sarla Verma and Others-Vs- Delhi
Transport Corporation and Another reported in (2009) 6 SCC
121 multiplier 17 would be adopted to compute the compensation.
But, the learned Tribunal erroneously used the multiplier 18 as
per the second schedule of the Motor Vehicles Act. The learned
Tribunal did not assess any compensation on the count of future
prospects. As it is evident from the evidence on record, the victim
used to carry on business as a proprietor of a filling station under
name and style Purnima filling station having lubricant licence No.
27/Lub. Such being the factual matrix, he was a self-employed
person. The Hon'ble Apex Court in the decision in the case of
National Insurance Company Limited -Vs- Pranay Sethi and
Ors reported in (2017) 16 SCC 680 has held at paragraph 59.4
that in the case the deceased was self-employed or on a fix salary,
an addition of 40% of the established income should be the
warrant where the deceased was below the age of 40 years. In view
of this decision, 40% of the income of the deceased should be
added towards his future prospects. Since the deceased had three
dependants, there will be deduction to the extent of 1/3rd in view of
the decision of Sarla Verma (supra) at paragraph 30 of the
decision. Besides, the claimants are entitled to get Rs.15,000/- as
loss of estate and Rs.15,000/- on the count of general damages.
However, since the wife of the deceased died on the spot prior to
the death of the deceased, no spousal consortium is admissible to
the claimants. Therefore, the compensation of Rs.4,500/- awarded
by the learned Tribunal on such counts invites interference and
modification.
32. In view of the observations as recorded above and since the
claimants are entitled to get enhanced compensation, the decision
cited by the learned counsel in the case of New India Assurance
Company Limited -Vs- Yogesh Devi and Others reported in
(2012) 3 SCC 613 is not applicable to the facts and circumstances
of the case on hand.
33. Therefore, in view of the above, the compensation as awarded
by the learned Tribunal requires modification in the following
manner:
Yearly Income of the
victim
(Rs.3,18,471.06-Rs.23,706
as taxes)= Rs.2,94,765.06/-
Rounded off to
Rs.2,94,700/-
Future Prospects @40%
of the yearly income = Rs.1,17,880/-
Total= Rs.4,12,580/-
Deduction to the extent of 1/3rd= Rs.1,37,526/-
towards personal and living expenses
Total= Rs.2,75,054/-
Adopting multiplier 17 considering = Rs. 46,75,918/-
the age of the victim of 29 years
(Rs.2,75,054 x 17)
General Damages = Rs. 30,000/-
Loss of Estate(Rs.15,000/-)
Funeral Expenses(Rs.15,000/-)
Therefore total compensation towards
Loss of dependency comes to= Rs.47,05,918/-
34. It appears from the case record of the learned Tribunal that the
claimants have received Rs.15,85,787/- by way of three cheques.
Therefore, the claimants are entitled to get further compensation of
Rs. 31,20,131/-. They are also entitled to get interest @6% per
annum on this further awarded amount of money from the date of
filling of the claim application on 27.03.2009.
35. Therefore, as observed above, the appeal preferred by the
claimants merits success and the cross-objection preferred by the
National Insurance Company Limited merits dismissal and
accordingly the appeal is allowed and the cross-objection is
dismissed.
36. On modification of the award passed by the learned Tribunal,
the respondent No.1, National Insurance Company Limited is
directed to deposit Rs.31,20,131/- and interest @6% per annum
on this further awarded amount of money from the date of filing of
the claim application on 27.03.2009 by way of cheque in favour of
the learned Registrar General, High Court, Calcutta with his office
within six weeks from date. After such deposit is made the learned
Registrar General shall release the amount to the claimants in
equal share. The appellant No.2/claimant No.2 on receiving the
compensation money on behalf of the claimant No.3 Arpita Roy as
her guardian and grandfather shall invest the money in any
nationalised bank in her name and this amount shall not be
withdrawn till the minor attains her majority.
37. With the aforesaid directions, the appeal, cross-objection and
connected application, if any, stand disposed of. No order as to
costs.
38.Send down the LCR along with a copy of this judgment to the
learned Tribunal for information.
39.Urgent certified website copies of this judgment, if applied for,
be given to the parties upon compliance with all requisite
formalities.
(Rabindranath Samanta,J.)
