Calcutta High Court (Appellete Side)
Smt. Asima Sabar @ Asim & Anr vs The National Insurance Company ... on 16 September, 2022
05
16.09.2022
Ct. No.237
pg.
IN THE HIGH COURT AT CALCUTTA
CIVIL APPELLATE JURICTION
APPELLATE SIDE
FMA 438 of 2009
with
IA No. CAN 1 of 2012 (CAN 9398 of 2012)
(Application not in the file)
with
CAN 2 of 2022
with
CAN 3 of 2022
Smt. Asima Sabar @ Asim & Anr.
Vs.
The National Insurance Company Limited & Ors.
Mr. Amit Ranjan Roy
... For the appellants/claimants
Mr. Afroze Alam
... For the respondent no.1/Insurance Co.
In re: CAN 2 of 2022
The application, being CAN 2 of 2022, is taken up
for hearing.
Heard both sides.
It is reported that the appellant/claimant no.1,
namely, Smt. Asima Sabar @ Asim, expired on 29th
August, 2015 and the instant application has been filed
to expunge the name of the appellant/claimant no.1.
Accordingly, the name of the appellant/claimant
no.1, Smt. Asima Sabar @ Asim, stands expunged.
Department is directed to effect the necessary
correction by expunging the name of the appellant/
claimant no.1, Smt. Asima Sabar @ Asim.
CAN 2 of 2022 stands disposed of.
In re: CAN 3 of 2022
Leave is granted to the learned advocate for the
appellant/claimant to correct the cause title of the
Memorandum of Appeal.
This application, being CAN 3 of 2022, is taken
up for hearing.
Heard both sides.
It is reported that the appellant/claimant no.2,
Pratima Shabar, has already attained majority.
In the facts and circumstances, the prayer is
allowed.
Necessary noting be made in the cause title.
Department is directed to make necessary
correction in the cause title accordingly.
CAN 3 of 2022 stands disposed of.
In re: FMA 438 of 2009
Pratima Shabar
Vs.
The National Insurance Company Limited & Ors.
This appeal is directed against the judgment
passed on 30th August, 2008 by the learned Judge, Motor
Accident Claims Tribunal, 2nd Court, Paschim Midnapore,
in MAC Case No.504 of 2006 under Section 166 of the
Motor Vehicles Act, 1988 whereby the learned Judge
allowed compensation to the tune of Rs.2,81,500/-.
The Motor Accident Claim Case arose out of an
accident happened on 10th June, 2006 at about 10 a.m.
while the victim Kanta Sabar was travelling a Tracker
bearing registration no.WB-33/6564 which was running
with very high speed and suddenly the victim fell down
from the said Tracker due to rash diving and as a result of
which the victim sustained injury on his head. He was
taken to National Medical College & Hospital where he was
admitted for treatment, but on 21st June, 2006, he died
leaving his wife and minor daughter.
In support of case, the claimants examined two
witnesses, namely, Smt. Asima Sabar @ Asim (widow of
the deceased) as PW-1 and one eye-witness Dhirendra
Nath Bakli as PW-2.
In course of hearing, all police papers, copy of the
post-mortem report and copy of the insurance policy were
admitted in evidence as Exhibits 1 to 5. The learned Judge
of the Tribunal after appreciation of evidence and available
documents, returned his finding, observing, inter alia, that
the claimants could not prove the business of the victim at
the time of his death while adducing any evidence and
accordingly the learned Judge relied on monthly income of
Rs.2,000/- and calculated the compensation to the tune of
Rs.2,81,500/-.
In course of argument, none of the learned
advocates appearing on behalf of the parties raised any
other issue save and except monthly income of the
deceased. It is submitted on behalf of the appellant/
claimant that though no document was produced in
support of the said street food business but the deceased
used to run his family and surely he would earn a sum of
Rs.4,500/- at least for livelihood.
On the contrary, learned advocate appearing on
behalf of the respondent/Insurance Company has
contended that the appellant/claimant could have
adduced evidence by producing any customer of the
business before the Court to corroborate the factum of
business claimed in the petition.
In support of the contention, learned advocate
appearing on behalf of the appellant/claimant relied on
the following precedents of the Hon'ble Apex Court:-
1. Magma General Insurance Co. Ltd. v. Nanu Ram
alias Chuhru Ram & Ors., 2018 (4) TAC 345 (SC), and
2. Alan D. @ Lal & Anr. v. The Oriental Insurance
Company Ltd., 2020 SAR (Civ) 1147.
From the evidence of this case and also exhibited
documents, it appears that on the alleged date of incident,
i.e., on 10th June, 2006, the victim met with an accident
by the involvement of one Tracker duly insured with the
National Insurance Company Limited and the victim was
aged about 20 years at the relevant point of time.
So far as the monthly income of the deceased is
concerned, it appears from the evidence of PW-1 (widow of
the deceased) that the deceased used to earn Rs.4,500/-
per month by selling street foods. She could not produce
any documents in support of the business of her deceased
husband and in cross-examination, she denied the
suggestion put on her from the side of the Insurance
Company, regarding the income of her husband.
Both in Nanu Ram alias Chuhru Ram (supra) as
well as Alan D. @ Lal (supra), the Hon'ble Apex Court did
not interfere with the monthly income assessed by the
High Court as Rs.6,000/- and Rs.3,500/-, respectively.
From the evidence on record as well as the ratio of
the aforesaid two decisions, I am of the opinion that
earning of Rs.4,500/- per month for family consists of
three members in the present inflated market price cannot
be said to be unjustified.
In the aforesaid facts and circumstances, I find
that the award should be determined in the following
manner keeping an eye to the parameters settled by the
Hon'ble Apex Court:-
Gross Monthly Income Rs. 4,500/-
Annual Income Rs. 54,000/-
(Rs.4,500/- x 12)
Less: 1/3rd Deduction Rs. 36,000/-
Add: Future prospect (@ 40%) Rs. 14,400/-
Rs. 50,400/-
Multiplier 17 (Age 20 yrs.) (Rs.50,400/- x 17) Rs.8,56,800/-
Loss of dependency
Add: General Damages Rs. 70,000/-
Total Rs.9,26,800/-
Less - Awarded by ld. Tribunal Rs.2,81,500/-
ENHANCEMENT Rs.6,45,300/-
In the aforesaid view of the matter, it is seen that
the appellant/claimant is entitled to further enhanced
amount of Rs.6,45,300/- along with interest @ 6% per
annum from the date of filing of the claim petition till the
actual payment.
The respondent/Insurance Company is directed to
deposit the enhanced amount of Rs.6,45,300/- along with
interest @ 6% per annum from the date of filing of the
claim petition till the actual deposit of the amount before
the learned Registrar General of this Court within six
weeks from the date of this order.
The appellant/claimant will be entitled to withdraw
the enhanced amount with interest subject to payment of
ad valorem court fees on the enhanced amount.
The learned Registrar General will release the
amount to the appellant/claimant on proper identification
and subject to verification of the payment of ad valorem
court fees.
With the above observation, the appeal, being FMA
438 of 2009, stands disposed of.
All pending applications, if any, also stand
disposed of accordingly.
Records of the learned Tribunal 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.)
