Calcutta High Court (Appellete Side)

Smt. Rupa Biswas vs National Insurance Company Ltd. & ... on 19 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 956 of 2012
                          Smt. Rupa Biswas
                                  Vs.
            National Insurance Company Ltd. & Ors.


For the Appellant/            :Mr. Jayanta Kumar Mondal, Advocate
claimant


For the Respondents/            :Mr. S.N. Ganguly, Advocate
Insurance Co.


Heard on                           : September 06, 2022
Judgment on                        : September 19, 2022



Bibhas Ranjan De, J.

1. Judgement and award passed by the Learned Motor Accident

Claims Tribunal, Additional District Judge, Barasat, 2nd Court,

North 24 Pargans, in connection with MAC No. 75 of 2010 has

been assailed by this appeal on the ground of insufficient award

ignoring settled parameters for calculation of the award. It is

further alleged that Ld. Judge ignored the series of Income Tax

Returns showing monthly income of Rs. 9,000/- and wrongly

assessed the income of the victim as Rs. 15,000/- per annum.

That apart, Ld. Judge failed to add mandatory interest along

with the award.

2. The claim petition under Section 166 of the MV Act, 1988, was

filed with a prayer for compensation to the tune of Rs.

9,90,000/- on account of accidental death of one Pramit Kumar

Biswas, aged about 42 years on 05.09.2009 at about 7.45 a.m.

by the involvement of one vehicle (Bus) bearing no. WB-

25/2232. According to claim petition, on the alleged date and

time, the said bus while moving with high speed and in

negligent manner towards Kestopur side through VIP Road,

dashed the Motor Cycle of the victim from behind. Victim

sustained severe injuries and taken to R.G. Kar Medical College

and Hospital where he was declared brought dead. After the

accident a Police case was started being Lake Town Police

Station Case No. 149 of 2009, dated 05.09.2009 under Section

279/304/427 of Indian Penal Code and charge sheet was

submitted against the driver of the offending vehicle. In course

of proceeding claimant being widow of the victim examined

herself as PW-1. She narrated the incident of accident when her

husband Pramit Kumar Biswas died. She further stated that her

husband used to earn Rs. 9,000/- per month from private

tuition and she submitted a good number of documents and

those were admitted in evidence. In cross examination she has

stated about monthly income of her husband.

3. PW-2, (Sushil Saha) claiming himself as eye-witness to the

accident has testified before the Tribunal about rash and

negligent driving of the vehicle (Bus) bearing no. WB-25/2232.

In cross-examination he denied suggestions put to him.

4. PW-3, (Gautam Biswas) claimed himself as Senior Tax Assistant

and posted at Ward 49 (4), CIT, 17, Maniktala Centre, Uttrapan

Complex, Kolkata-54. He submitted letter of authorization

(exhibit-11). He brought copies Income Tax Return in respect of

victim Pramit Kumar Biswas for three (3) assessment years prior

to his death. All those copy of the Income Tax Return were filed

and marked as exhibit 13 series.

5. After considering all the aforesaid evidences though Ld.

Tribunal relied on the evidence with regard to accident alleged

in this case but did not accept the monthly income of victim

Pramit Kumar Biswas on the reason that claimant could not

produce any document in support of payment of tax and also

ignored the Income Tax Returns (exhibit 13 series) on the plea of

'Self styled and self creations'. Ld. Tribunal assuming the

income of the victim as Rs. 15,000/- per annum, calculated the

award to the tune of Rs. 1,59,500/-.

Argument Advanced:-

6. Ld. Advocate Mr. Jayanta Kumar Mondal appearing on behalf of

the claimant/appellant has submitted that Ld. Tribunal did not

rely on the Income Tax Return on an unreasonable ground that

victim did not pay Income Tax. Mr. Mondal has further

contended that Ld. Tribunal even did not care to add the future

prospect, interest and general damages as per guideline of the

Hon'ble Apex Court. In support of his contention, Mr. Mondal

relied on the following cases:-

 Smt. Sangita Arya and others Vs. Oriental Insurance

Company and others, 2020 SAR (Civ) 905

 Malarvizhi and other Vs. United India Insurance company

Limited and another, 2020 (1) T.A.C 328 (SC).

 Rasmita Biswal and others Vs. Divisional Manager,

National Insurance Company Limited and another, 2022

SAR (Civ) 238.

 Amrit Bhanu Shali and other Vs. National Insurance

Company Limited and others, 2012 SAR (Civil) 708.

7. Per Contra, Ld. Advocate Mr. S.N. Ganguly, appearing on behalf

of the respondents/Insurance Company, referred to the

evidence in support of non-payment of Professional Tax as well

as statement of account submitted by the deceased himself. It is

submitted that the gross income mentioned in the statement of

account submitted by the deceased did not match with the

amount of monthly income delineated in the claim petition as

well as in the evidence of claimant herself.

Decision:-

8. Ld. Tribunal took up the income of Rs. 15,000/- per annum and

ignored the entire evidence on record with regard to Income Tax

Return. From the evidence it appears that the claimant

produced Income Tax Return for successive years along with

statement of account through an authorized person (PW-3) and

all those documents were ratified by the authorized person (PW-

3) of the concerned Income Tax Department.

9. What I comprehend from the record that the only dispute of

this appeal is regarding monthly income of the deceased. So far

as the accident and involvement of the vehicle is concerned

there is sufficient evidence on record to show that the deceased

met an accident on 05.09.2009 at about 7.45 a.m. by the

involvement of vehicle (Bus) bearing no. WB-25/2232.

10. In Malarvizhi (supra), Sangita Arya (supra) as well as Amrit

Vanu Shali (supra) Hon'ble Apex Court determined the amount

of compensation relying on the income appearing in the Income

Tax Returns. In Rasmita Biswal (supra) Hon'ble Apex Court

considered the ratio of National Insurance Company Ltd. Vs.

Pranay Sethy and others (2017) 16 SCC 680 and enhanced

general damages @ 10% after three(3) years.

11. In our case, PW-3, Senior Tax Assistant attached to Income

Tax Department came forward to prove all the Income Tax

Returns along with statement of account submitted therewith.

The income of the deceased, for the assessment year 2008-2009

i.e. prior to death of Pramit Kumar Biswas was Rs. 7,000/- per

month. In view of the evidence adduced on behalf of the

claimant, I do not find any plausible reason to disbelieve the

monthly income of deceased shown in the Income Tax Return.

From the Income Tax Returns, it appears that deceased had no

taxable income, so, the question of payment of tax does not

arise.

12. In the aforesaid view of the matter, it would be justified to

determine the amount of compensation with the help of monthly

income of Rs. 7,000/- as follows:-

 Monthly Income                             :7,000/-

 Annual Income (7,000 x 12)                :84,000/-

 Less 1/3rd personal expenses              :56,000/-

  (Rs. 28,000/-)

 Add:- Future Prospects (25%)              :14,000/-

                                           __________

                                           70,000/-

 Multiplier (x14) (Age 42 years)           :9,80,000/-

 Loss of dependency                        :9,80,000/-

 Add:- Spousal consortium                  : 44,000/-

 Add:- Loss of estate                      : 16,500/-

 Add:- Funeral expenses                    : 16,500/-

                         Total              :10,57,000/-

13. National Insurance Company is directed to deposit the entire

amount of compensation before the Ld. Registrar General, after

deducting the amount if 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 compensation amount, within

six (6) weeks from date.

14. Claimant is entitled to the enhanced amount of compensation

subject to payment of advelorem Court fees thereon.

15. Ld. Registrar General will disburse the amount in favour of the

claimant on proper identification and also on verification of

payment of Court fees on the enhanced compensation.

16. F.M.A 956 of 2012 stands disposed of without any order as to