Calcutta High Court (Appellete Side)
The New India Assurance Co. Ltd vs Saroj Singh & Ors on 23 September, 2022
13 & 14
23.09.2022
Ct. No.237
AKG.
IN THE HIGH COURT AT CALCUTTA
CIVIL APPELLATE JURICTION
APPELLATE SIDE
FMA 786 of 2010
The New India Assurance Co. Ltd.
Vs.
Saroj Singh & Ors.
with
COT 4 of 2010
Smt. Saroj Singh & Ors.
Vs.
The New India Assurance Co. Ltd. & Anr.
Ms. Gopa Das Mukherjee
... For the appellant/Insurance Company in
FMA 786 of 2010 & respondent no.1 in
COT 4 of 2010
Mr. Krishanu Banik
... For the respondents/claimants in FMA
786 of 2010 & appellants/claimants in
COT 4 of 2010
This appeal is directed against the judgment
passed on 25th May, 2009 by the learned Additional
District Judge, Motor Accident Claims Tribunal, 1 st Court,
Barasat, North 24 Parganas in M.A.C.C No. 58 of 2008
under Section 166 of the Motor Vehicles Act, 1988
whereby the learned Judge allowed compensation to the
tune of Rs.6,12,500/-.
The claim petition was filed on account of death of
one Sailesh Singh in a motor accident, which took place
on 01.07.2008 at about 16.00 hours while he was driving
a vehicle TATA-407 through National Highway No. 6. At
that time, one lorry bearing no. WB 41b/7599 coming
from opposite direction through wrong side and also with
high speed dashed with Tata407 near Birshibpore, in front
of Salem Motor Cycle Co. under Uluberia Police Station.
After the accident, said Sailesh Singh died on spot.
Father of the deceased lodged a written complaint
to the Officer-in-Charge, Uluberia Police Station, Howrah,
where the case was registered as no. 241/2008 dated
01.07.2008 under Sections 279/304A/427 of the Indian
Penal Code. After investigation, charge sheet was
submitted against the driver of the lorry. During
investigation, a good number of witnesses were examined
under Section 161 of the Code of Criminal Procedure.
The claim petition was filed by the family member
of the deceased with a prayer for compensation to the tune
of Rs. 11,90,000/-. Appellant/insurance company
contested the case by filing written statement denying all
material allegations.
In course of trial on behalf of the claimants,
witnesses were examined. Amongst them, witness no. 3 is
the eye-witness of the incident. In his evidence, P.W.3 has
stated that he witnessed the accident occurred on
01.07.2008 at about 16.00 hours. He narrated all the
incidents before the Court. P.W.1, widow of the deceased
deposed with regard to the age and income of the deceased
in course of her evidence. Some documents were produced
and admitted in evidence as Exhibit 1 to 10.
In course of argument, learned advocate appearing
on behalf of the Insurance Company/appellant in respect
of F.M.A. 786/2010 has contended before this Court that
multiplier should be 13 instead of 17 and it is a case of
contributory negligence. So, the appellant/Insurance
Company is not solely liable for compensation.
On the other hand in favour of cross-objection,
learned advocate appearing on behalf of the respondent in
connection with F.M.A. 786/2010, has contended that
evidence of widow of the deceased (P.W.1) along with
Exhibit 7 clearly proved the income of the deceased was
Rs. 8,000/- per month. That apart, learned advocate
appearing on behalf of the respondent has further
submitted that the learned Tribunal did not allow the
future prospect and deducted 25% of the total
compensation without any reasonable ground.
After careful perusal of the evidence particularly,
the evidence of P.W.1, I find that she has stated on behalf
of the income of her deceased husband as Rs. 8,000/- per
month but that was not substantiated by any cogent
documents.
Learned advocate appearing on behalf of the
respondent has referred to Exhibit 7, which is a photocopy
showing route permit in the name of the deceased.
The evidence adduced on behalf of the claimants is
not at all sufficient to come to any opinion regarding
income of Rs. 8,000/- in favour of the claimants.
In view of the facts and circumstances of the
present case, I do not find any reason to interfere with the
assessment of monthly income of Rs. 6,000/- by the
learned Tribunal.
So far as the argument of the issue contributory
negligence concerned, I do not find any evidence on record
with regard to contributory negligence as it appears from
the record that at the relevant point of time, a lorry was
seen with high speed and through right flank of the road
and dashed the vehicle which was driving by the deceased.
Therefore, from the evidence on record, I find that
at the time of accident, the vehicle TATA 407 was moving
through left flank of the road and the lorry was coming
with high speed through right side of the road. If that be
the position, we cannot hold that TATA 407 was also
responsible for the accident.
Regarding argument on the issue of multiplier, I
find that in a case of Section 166 of the Motor Vehicles
Act, multiplier should be 17 for the age group from 26
years to 30 years.
In the present case, it is found from the evidence
as well as the documents exhibited shows that deceased
was aged about 30 years at the time of incident. So, the
learned Tribunal rightly applied multiplier 17 in assessing
the award.
Considering all the aforesaid facts and
circumstances of the case, I find it necessary to determine
the compensation as follows :-
Gross Monthly Income Rs. 6,000/-
Annual Income Rs. 72,000/-
40% Future prospect Rs. 28,800/-
Rs.1,00,800/-
Less: 1/3rd Deduction Rs. 67,200/-
(Rs. 1,00,800 - Rs. 33,600)
Use of Multiplier as per deceased-17 Rs.11,42,400/
(Rs. 67,000 X 17)
General Damages - Rs. 70,000/-
Rs.12,12,400/-
Accordingly, claimants no. 1 to 3 except father of
the deceased are entitled to get compensation to the tune
of Rs. 12,12,400/- after deducting the awarded amount
by the learned Tribunal, which was deposited before the
learned Registrar General by the appellant/Insurance
Company, subject to payment of ad valorem court fees of
the enhanced amount.
Claimants are also entitled to interest @ 6 % per
annum from the date of filing of the claim petition i.e. on
25.09.2008 till the date of deposit of the enhanced
amount by the appellant/Insurance Company before the
learned Registrar General.
The appellant/Insurance Company is directed to
deposit the enhanced amount along with interest from
the date of filing of the claim petition till the deposit of
the amount before the learned Registrar General, within
six weeks from date.
The learned Registrar General will disburse the
amount amongst the claimants accept father of the
deceased, in equal share, on proper identification and
subject to verification of the payment of ad valorem court
fees.
With the above observation, the appeal, being FMA
786 of 2010 with COT 4/2010 stand 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.)
