The Oriental Insurance Co. Ltd vs Ganga Rajwar & Ors
2022 Latest Caselaw 6670 Cal

16.09.2022
  SL No. 1
 Court No. 654
   Ali


                               F.M.A. 2891 of 2016

                    IA No: CAN 1/2015 (Old No.:CAN 9039/2015)
                           CAN 2 of 2016 (Old No: CAN/5913/2016)


                            The Oriental Insurance Co. Ltd.
                                     versus
                               Ganga Rajwar & Ors.

                                     With
                                  COT 62/2022


                     Mr. Parimal Kumar Pahari
                                             ......for the appellant.
                    Mr. Krishanu Banik
                                              ......for the respondents.

This appeal is directed against the judgement and

order dated 21st April, 2015 passed by learned Judge,

Motor Accident Claims Tribunal, 1st Court, Purulia in

M.A.C.Case No. 4 of 2010 (48 of 2014) granting

compensation to the tune of Rs. 5,23,200/- in favour

of the claimants and Rs. 10,000/- towards loss of

consortium for claimant no.1 under Section 166 of the

Motor Vehicles Act, 1988.

The brief fact of the case is that on 30.06.2009 at

noon while the deceased Bhim @ Bhim Chandra

Rajwar was coming to village Chandra from Punura

More along the Punura-Makarka road at that time the

offending vehicle bearing No. WB-53A/0690 (truck)

dashed him from behind resulting in severe injuries.

The deceased was taken to the hospital where he was

declared dead by the attending doctor.

Considering the materials on record and the

evidences adduced by the parties the learned tribunal

allowed compensation to the tune of Rs. 5,23,200/- in

favour of the respondent nos. 1 to 7 (claimants) and

Rs. 10,000/- to Respondent no.1 towards loss of

consortium.

Being aggrieved by and dissatisfied with the said

judgment and order dated 21st April, 2015 the

Appellant-Insurance Company has preferred the

present appeal.

Mr. Parimal Kumar Pahari, learned advocate for

the appellant-Insurance Company submitted that the

only ground in the appeal is that the offending vehicle

at the time of the incident did not have valid route

permit to ply and accordingly, the impugned award of

compensation granted in favour of the claimant to be

paid by the Insurance Company be set aside and in

the alternative the respondent no.8-owner of the

offending vehicle be directed to satisfy such amount as

the Insurance Company cannot be held liable for the

same.

Mr. Krishanu Banik, learned advocate for the

respondent nos. 1 to 7 (claimants), in reply to the

aforesaid contention of appellant-Insurance Company,

submitted that neither there is any specific pleadings

made by the appellant that the offending vehicle did

not have valid route permit nor any cogent evidence

has been adduced for establishing such fact. Thus the

learned tribunal has rightly directed the appellant-

Insurance Company to make payment of the sum

awarded. He further submits that the respondent nos.

1 to 7 (claimants) have filed a cross objection being

COT 62 of 2022 praying for enhancement of the

compensation on the ground that the learned tribunal

failed to assess compensation of award on the head of

general damages and additional amount equaling to

25% of the annual income towards future prospect has

also not been taken into consideration. In view of the

above, he prayed for enhancement of the compensation

amount.

None appears on behalf of respondent no. 8.

It appears from the judgement of the learned

tribunal that respondent no. 8 did not contest the case

before the tribunal and the case proceeded exparte

against him. Hence the service of notice upon

respondent no. 8 is dispensed with.

Having heard the learned advocates of both the

sides let me at first consider the ground taken by the

appellant that the offending vehicle did not have valid

route permit on the date of incident. It is pertinent to

note that in its pleading submitted before the learned

tribunal by way of written statement, the appellant did

not specifically and explicitly state that on the date of

incident the offending vehicle did not have a valid

route permit. The ground as aforesaid was pressed into

service at the stage of argument. Be that as it may, the

learned tribunal had considered such ground on the

basis of available evidence on record. The appellant

adduced the evidence of the erstwhile owner of the

vehicle namely respondent no.8 herein as OPW-1.

Though in examination-in-chief OPW-1 stated that he

did not find the route permit on 30.06.2009 i.e. the

date of incident but in cross examination he deposed

that the route permit was upto date. The appellant-

Insurance Company neither did adduce evidence of the

route permit issuing authority nor were any records

called from the office of the concerned authority to

show the existence or non-existence of valid route

permit of the offending vehicle, in support of its

contention. On going through the impugned judgement

and order of the learned tribunal, it is found that the

learned tribunal has taken into consideration all the

aspects and thereafter refused to accept the

submission made on behalf of the Insurance Company

that the offending vehicle was plying without any route

permit. There is no perversity in such finding arrived

at by the learned tribunal. Accordingly, the

submissions made on behalf of the Insurance

Company for directing the owner of the vehicle namely

respondent no.8 herein to make payment of the

awarded sum falls short of merit.

The respondent nos.1 to 7(claimants) by way of

filing cross objection being COT No. 62 of 2022 has

prayed for enhancement of the award of compensation

amount and such prayer is taken up for consideration.

The enhancement of award of compensation has

been sought for on two fold grounds firstly, on the head

of general damages and secondly, towards additional

amount equaling to 25% of the annual income for

future prospect.

From the impugned judgment and order of the

learned tribunal it is found it has allowed funeral

expenses to the tune of Rs.20,000/-, Rs. 50,000/-

towards loss of estate and Rs. 10,000/- for loss of

consortium. The Hon'ble Supreme Court in National

Insurance Company Limited Versus Pranay Sethi

& Ors. reported in 2017 ACJ 2700 observed that

figures under the conventional heads namely loss of

estate, loss of consortium and funeral expenses of Rs.

15,000/-, Rs. 40,000/- and Rs. 15,000/- respectively

to be reasonable. Accordingly, the amount granted

under the aforesaid conventional heads needs to be

modified in the light of the decision of Hon'ble

Supreme Court.

Further while assessing the compensation award

the learned tribunal did not consider the aspect of

future prospect of the deceased. The Hon'ble Supreme

Court in Pranay Sethi & Ors. (supra) observed that

in case of self-employed or person with fixed salary, an

addition of 25% is to be made if the deceased is

between the age of 40 and 50 years. As in the case at

hand the deceased was 45 years at the time of

accident, hence an additional amount @ 25% of the

annual income is to be taken into consideration

towards future prospect of the deceased.

The income of the deceased as assessed by the

learned tribunal to the tune of Rs. 3000/- per month

has not been disputed. The learned tribunal has also

correctly applied multiplier 14 and made deduction

towards personal living expenses of the deceased at

1/5th of the annual income due to number of family

members exceeding six.

In the aforesaid backdrop, the compensation

award is calculated as follows:

CALCULATION OF COMPENSATION

Monthly Income......................................Rs.3,000/- Annual Income.........(Rs.3,000/-x 12).........Rs.36,000/- Add: 25% of Annual Income towards Future prospect................... Rs.9000/-

Annual Loss of Income............................Rs. 45,000/- Less: Deduction of 1/5th of the annual income towards personal living expenses......... Rs.9000/-

Rs. 36,000/-

Adopting multiplier 14 (Rs 36,000/-X 14)...Rs,5,04,000/-

Add: General damages................................Rs. 70,000/- Loss of Estate (Rs. 15,000/-) Loss of Consortium (Rs 40,000/) Funeral Expenses (Rs. 15,000/-) Total compensation............................. Rs.5,74,000/-

In the light of aforesaid discussion instant appeal

fails and accordingly, FMA 2891 of 2016 stands

dismissed on contest.

The cross objection being COT 62 of 2022 is,

thus, allowed on contest. The impugned award of

compensation dated 21st April, 2015 passed by the

learned tribunal in MAC Case no.4 of 2010 stands

modified to the aforesaid extent.

The respondents-claimants are entitled to a sum of

Rs.5,74,000/- along with interest @ 6% per annum on

the said amount from the date of filing of claim

application till payment.

It appears that the appellant has deposited a sum

of Rs. 25,000/- towards statutory deposit vide challan

no. 1126 dated 31.07.2015 on filing of the appeal and

Rs. 4,98,200/- with the learned Registrar General,

High Court, Calcutta in terms of order dated

19.04.2016 by OD Challan no.313 dated 04.05.2016.

Hence the amount already deposited as above with the

learned Registrar General, High Court, Calcutta

alongwith accrued interest shall be adjusted against

the amount of compensation together with interest

payable to the claimants as aforesaid.

Accordingly, the Appellant-Oriental Insurance

Company Limited is directed to deposit the balance

amount (if any) by way of cheque with the learned

Registrar General, High Court, Calcutta within a

period of six weeks from date.

On deposit of the balance amount (if any) as

aforesaid the learned Registrar General, High Court,

Calcutta shall release the entire amount of

Rs.5,74,000/- along with interest @ 6% per annum on

the said amount from the date of filing of claim

application till payment, in favour of the respondents-

claimants in equal share after making payment of

Rs.40,000/- to respondent no.1(widow) towards

spousal consortium, upon being satisfied with the

identity of the respondents-claimants. Respondent

no.1 shall receive the share of the minor claimants

namely respondent nos. 5 to 7 and keep their share in

a fixed deposit scheme of a nationalized Bank or Post

office till attainment of majority by them.

The appeal as well as the cross objection is

accordingly disposed of, with the aforesaid direction.

No order as to costs.

All connected applications stand disposed of.

Interim order, if any, stands vacated.

Let a copy of this order along with the lower court

records be sent to the learned tribunal for information.

Urgent photostat certified copy of this order, if

applied for, be given to the parties upon compliance of

all formalities.

(Bivas Pattanayak J.)