Calcutta High Court (Appellete Side)

Debojyoti Datta vs M/S. Oriental Insurance Company ... on 15 September, 2022

                                  1


               IN THE HIGH COURT AT CALCUTTA

                   (Civil Appellate Jurisdiction)

                           Appellate Side
Present:
The Hon'ble Justice Bibhas Ranjan De


                         F.M.A 279 of 2009
                           Debojyoti Datta
                                 Vs.
           M/s. Oriental Insurance Company Ltd. & Ors.
                                With
                         FMAT 618 of 2008
                 The Oriental Insurance Co. Ltd.
                                 Vs.
                       Debojyoti Datta & Anr.


For the Appellant in                   :Mr. Ashique Mondal, Advocate
FMA 279 of 2009 & respondent          :Mr. Arup Kumar Bag, Advocate
Nos. FMAT 618 of 2008


For the Respondent no. 2          :Mr. Afroze Alam, Advocate
in FMA 279 of 2009 &
Respondent No. 4 in                    :Mr. Arup Kumar Bag, Advocate
FMAT 618 of 2008


For the Oriental Insurance Co. Ltd. : Mr. Sanjoy Paul
                                2




Heard on                       : September 05,2022
Judgment on                    : September 15,2022



Bibhas Ranjan De, J.

Re . FMA No. 279 of 2009

1. This appeal has been preferred against judgment passed in MJC

No. 284 of 2005 passed by Ld. Judge, 10th Bench, City Civil

Court at Calcutta allowing the award to the tune of Rs.

10,000,00/- and direction for apportionment for compensation

between the respondent no.1 Oriental Insurance Company and

respondent no. 2 National Insurance Company.

2. By this appeal claimant/appellant prayed for enhancement of

the awarded amount.

3. On 21.05.2005 at about 00.00 hours one truck, bearing Reg.

No. WB-25-9952, was plying through National Highway No. 34

with a very high speed and in rush and negligent manner and

all of a sudden pushed its break and stopped the vehicle. At

that time, one Qualis Car, bearing Reg. No. WB-02T4430, plying

on the same road following the truck, dashed the truck. At the

same time, one Bolero Car bearing Reg. No. WB-60-9313

coming with high speed following that Qualish Car, could not

control its speed and smashed the said Qualish Car, where

husband (since deceased) of the claimants No. 1was travelling

from Siliguri to Calcutta along with others. The said accident

took place within the jurisdiction of Police Station, Karamdighi

where a Police Case No. 79/2005 dated 21.05.2005 was started.

4. Accordingly, claimant prayed for compensation to the tune of

Rs. 27,00,000/- from the National Insurance Company who

insured the truck bearing Reg. No. WB-25-9952 as well as

Oriental Insurance Company insurer of Bolero vehicle bearing

Reg. No. WB-60-9313. The National Insurance Company and

Oriental Insurance Company contested the case by filling their

respective written statement denying all material allegations

made in the claim application.

5. Ld. Tribunal framed issues and took up the claim petition for

trial. Three witnesses were examined in this case and several

documents were admitted in evidence.

6. Ld. Tribunal after considering all the facts and circumstances,

including the evidence recorded thereon came to his findings

that claimant was entitled to the tune of Rs. 10,00,000/-and

both the Insurance Company i.e. National Insurance Company

and Oriental Insurance Company Ltd. were held equally

responsible to clear up the compensation amount by issuing

cheques in the name of claimants.

Re. FMAT NO.618 of 2008

7. This is an appeal filed on behalf of the Oriental Insurance

Company Limited, challenging the judgment and order dated

05.03.2008 passed by Learned Judge, 10th Bench, City Civil

Court at Calcutta in M.J.C No. 284 of 2005, under Section 166

of the Motor Vehicles Act, whereby a direction for apportionment

of compensation between the appellant (Oriental Insurance

Company Ltd.) and respondent no. 4 (National Insurance

Company Ltd.) was given.

8. In fact, main ground of the appeal is that the order for

apportionment of compensation between Oriental Insurance

Company Ltd. and National Insurance Company Ltd., was bad

in law as the accident took place only due to negligent act on

the part of the driver of truck.

Decision:-

9. Ld. Advocate appearing on behalf of the Oriental Insurance

Company, concentrated his argument only in terms of the

manner of accident alleged to have been taken place on

21.05.2005 at about 00.00 hours. Ld. Advocate has tried to

make this Court understand that entire accident took place

involving three vehicles only due to sudden break of the truck

running with high speed that too on the National Highway No.

34. Therefore, according to Ld. Advocate insurer of that truck

i.e. National Insurance Company is only responsible for the

entire claim amount.

10. Ld. Counsel, appearing on behalf of the claimant only argued

on the issue of enhancement of compensation. In support of his

contention, he relied on the case of Smt. Sarla Verma and

other vs. Delhi Transport Corporation & another (2009) 6

SCC 121 on the point of deduction from gross salary and the

case of New Indian Assurance Company Ltd. Vs. Smt.

Somwati and others (2020) 9 SCC 644 on the point of

general damages including consortium.

11. After careful scanning of entire evidence on record including

Police reports (FIR, Seizure List & Charge sheet) I find that one

truck was running through National Highway No. 34 with high

speed followed by two vehicles i.e. one Qualsih Car and one

Bolero Car. All of a sudden, the truck moving with high speed

pushed its break, presumably emergency break, and as a

natural consequence both the cars namely Qualis and Bolero

moving with high speed on National Highway rammed into the

truck. Therefore, by no stretch of imagination, I can come to any

conclusion that the following vehicles i.e. Qualis Car and Bolero

Car are responsible for that unfortunate accident happened on

21.05.2005 at midnight, that too on a National Highway.

Naturally, Police started a case being Karamdighi Police Station

Case No. 79/2005 dated 21.05.2005 under Section

279/337/338/304A/427 of the Indian Penal Code and in that

case charge sheet was submitted against only the driver of the

truck who was responsible for the accident.

12. Therefore, insurer of the truck i.e National Insurance

Company is only responsible to pay entire compensation to the

claimants.

Computation of Compensation:-

13. Before entering into this issue it would appropriate to refer to

the relevant observation of the Hon'ble Apex Court in the

following two landmark judgements:-

 Smt. Sarla Verma and other vs. Delhi Transport

Corporation & another (2009) 6 SCC 121.

 National Insurance Company Ltd. Vs. Pranay Sethy and

others (2017) 16 SCC 680.

14. In Sarla Verma (supra) it is observed as follows:-

"21.We therefore hold that the multiplier to be used should be as mentioned in column (4) of the Table above (prepared by applying Susamma Thomas, Trilok Chandra and Charlie), which starts with an operative multiplier of 18 (for the age groups of 15 to 20 and 21 to 25 years), reduced by one unit for every five years, that is M-17 for 26 to 30 years, M- 16 for 31 to 35 years, M-15 for 36 to 40 years, M-14 for 41 to 45 years, and M-13 for 46 to 50 years, then reduced by two units for every five years, that is, M-

11 for 51 to 55 years, M-9 for 56 to 60 years, M-7 for 61 to 65 years and M-5 for 66 to 70 years."

15. Pranay Sethy (supra) viewed as follows:-

"60. The controversy does not end here. The question still remains whether there should be no addition where the age of the deceased is more than 50 years. Sarla Verma thinks it appropriate not to add any amount and the same has been approved in Reshma Kumari. Judicial notice can be taken of the fact that salary does not remain the same. When a person is in a permanent job, there is always an enhancement due to one reason or the other. To lay down as a thumb rule that there will be no addition after 50 years will be an unacceptable concept. We are disposed to think, there should be an addition of 15% if the deceased is between the age of 50 to 60 years and there should be no addition thereafter. Similarly, in case of self- employed or person on fixed salary, the addition should be 10% between the age of 50 to 60 years. The aforesaid yardstick has been fixed so that there can be consistency in the approach by the tribunals and the courts.

61. In view of the aforesaid analysis, we proceed to record our conclusions:-

(i) The two-Judge Bench in Santosh Devi should have been well advised to refer the matter to a larger Bench as it was taking a different view than what has been stated in Sarla Verma, a judgment by a coordinate Bench. It is because a coordinate Bench of the same strength cannot take a contrary view than what has been held by another coordinate Bench.

(ii) As Rajesh has not taken note of the decision in Reshma Kumari, which was delivered at earlier point of time, the decision in Rajesh is not a binding precedent.

(iii) While determining the income, an addition of 50% of actual salary to the income of the deceased towards future prospects, where the deceased had a permanent job and was below the age of 40 years, should be made. The addition should be 30%, if the age of the deceased was between 40 to 50 years. In case the deceased was between the age of 50 to 60 years, the addition should be 15%. Actual salary should be read as actual salary less tax.

(iv) In case the deceased was self-employed or on a fixed salary, an addition of 40% of the established income should be the warrant where the deceased was below the age of 40 years. An addition of 25%

where the deceased was between the age of 40 to 50 years and 10% where the deceased was between the age of 50 to 60 years should be regarded as the necessary method of computation. The established income means the income minus the tax component.

(v) For determination of the multiplicand, the deduction for personal and living expenses, the tribunals and the courts shall be guided by paragraphs 30 to 32 of Sarla Verma which we have reproduced hereinbefore.

(vi) The selection of multiplier shall be as indicated in the Table in Sarla Verma read with paragraph 42 of that judgment.

(vii) The age of the deceased should be the basis for applying the multiplier.

(viii) Reasonable figures on conventional heads, namely, loss of estate, loss of consortium and funeral expenses should be Rs. 15,000/-, Rs. 40,000/- and Rs. 15,000/- respectively. The aforesaid amounts should be enhanced at the rate of 10% in every three years."

16. Therefore, I propose to calculate the compensation, obviously,

in terms of observation of the Hon'ble Apex Court in the

aforesaid two landmark judgments as well as the judgment

relied upon from the side of the claimant.

17. From the evidence, it is seen that deceased was aged about 54

years and an employee of Directorate of Enforcement,

Government of India, at the time of accident. PW-3 came before

the Court and deposed that he issued the salary certificate

(exhibit-11) in favour of the deceased for the month of April,

2005 and he used to earn gross salary of Rs. 22,199/-according

to salary certificate. From the calculation of pay by the employer

of the deceased it is found that after deduction towards tax

monthly income of the deceased remained Rs. 20,269/-.

18. In terms of monthly income I propose to calculate the entire

compensation as follows:-

Monthly Income :20,269/-

Less 1/3rd personal expenses (Rs. 6,756/-) : 13,513/-

Add:- Future Prospects (15%) : 15,539/-

Annual Income (15,539 x 12) : 1,86,468/-

 Multiplier (x11)                              : 20,51,148/-

 Add:- Loss of consortium                      : 80,000/-

 (Spousal & Parental)



 Add:- Loss of estate                      : 15,000/-

 Add:- Funeral expenses                    : 15,000/-

                        Total               :21,61,148/-

19. National Insurance Company is directed to deposit the entire

amount before the Ld. Registrar General after deducting the

amount already paid to the claimant along with interest @ 6%

per annum from the date of filing of the claim petition till the

date of deposit of balance amount, within six (6) weeks from

date.

20. National Insurance Company is also directed to deposit the

amount, already paid by the Oriental Insurance Company,

before the Ld. Registrar General towards reimbursement to the

Oriental Insurance Company, within six (6) weeks from date.

21. Claimant is entitled to the balance amount of compensation

subject to payment of advelorem Court fees on the enhanced