Calcutta High Court (Appellete Side)
Shriram General Insurance Co. Ltd vs Lalita Mondal & Ors on 17 April, 2023
17.04.2023 IN THE HIGH COURT AT CALCUTTA
Ct. no.654 CIVIL APPELLATE JURISDICTION
Sl. Nos.108 & 109
ss F.M.A. 1201 of 2022
C.A.N. 1 of 2019 (old No. CAN 6800 of 2019)
Shriram General Insurance Co. Ltd.
Versus
Lalita Mondal & ors.
With
F.M.A. 1202 of 2022
CAN 1 of 2019 (old No. CAN 11921 of 2019)
Lalita Mondal & ors.
Vs.
Shriram General Insurance Co. Ltd.
Mr. Rajesh Singh
... for the appellants-Insurance Co.
in F.M.A.1201 of 2022
Mr. Subir Banerjee
Mr. Sandip Bandyopadhyay
Ms. Ruxmini Basu Roy
... for the appellants-claimants
in F.M.A. 1202 of 2022
Mr. Parimal Kumar Pahari
... for the respondent no.8-ICICI
Lombard General Insurance co. Ltd.
Both these appeals have been preferred against the
judgement and award dated 29th March, 2019 passed by
the Learned Additional District Judge-cum-Judge, Motor
Accident Claims Tribunal, 2nd Court, Raiganj, Uttar
Dinajpur in M.A.C. Case No.162 of 2016 granting
compensation in favour of the widow and the minor
children of the deceased-victim to the tune of
Rs.4,15,500/- together with interest under Section 163A
of the Motor Vehicles Act, 1988.
Informal paper book filed by the appellants-
claimants in F.M.A. 1202 of 2022 is taken on record.
The brief fact of the case is that on 15th June, 2016
about 2:00 hours while the victim was carrying ginger on
a hired vehicle bearing registration no. WB-65B/9713
(pick-up van) from Raiganj through NH 34 and when it
reached near Gothlu More it hit another vehicle bearing
registration no.WB-65B/9280 (truck) which was parked
on the pucca road. Due to said accident the victim and
the driver of the vehicle bearing registration no.WB-
65B/9713 (pick-up van) sustained severe injuries. The
victim died on the spot. On account of sudden demise of
the victim, the claimants being the widow, minor children
and the father of the deceased filed application for
compensation of Rs.4,50,000/- together with interest.
The claimants in order to establish their case,
examined one witness and produced documents which
were marked as Exhibits 1 to 16, respectively.
The Insurance Company, Shriram General
Insurance Company Limited, insurer of truck bearing
registration no. WB-65B/9280 (truck), also adduced the
evidence of one witness and produced documents, which
have been marked as Exhibits A and B, respectively.
Owners of both the vehicles, i.e., respondent nos.6
and 7 did not contest the claim application. For that
reason, the service of notice of appeal upon the said
respondents is dispensed with.
The respondent no.8, ICICI Lombard General
Insurance Company Limited, insurer of the pick-up van
bearing registration no. WB-65B/9713, contested the
claim application but no award has been passed against
the said Insurance Company.
Upon considering the materials on record and the
evidence adduced on behalf of the respective parties, the
learned Tribunal granted compensation to the tune of
Rs.4,15,500/- together with interest in favour of the
claimants under Section 163A of the Motor Vehicles Act
and directed the insurer of truck to satisfy such award.
Being aggrieved by and dissatisfied with the
impugned judgment and award of the learned Tribunal,
the Insurance Company, namely, Shriram General
Insurance Company Limited has preferred the appeal
being No.F.M.A.1201 of 2022.
Challenging the award passed by the learned
Tribunal, the claimants also preferred appeal being
F.M.A. No.1202 of 2022 for enhancement of
compensation amount.
Both these appeals are taken up together for
consideration and disposal.
Mr. Rajesh Singh, learned Advocate for the Shriram
General Insurance Company Limited, the appellant in
F.M.A.1201 of 2022, submits that since two vehicles were
involved in the said accident, the compensation awarded
by the learned Tribunal should have been apportioned
between the insurers of the two vehicles. He further
submits that following the Second Schedule of the Act the
deduction towards personal and living expenses of the
deceased should be 1/3rd instead of 1/4th and the general
damages should be Rs.9,500/- instead of Rs.10,500/-
granted by the learned Tribunal.
Mr. Subir Banerjee, learned Advocate for the
appellants-claimants in F.M.A. No.1202 of 2022 submits
that since at the time of accident the deceased was 36
years of age, following the Second Schedule the multiplier
should have been 16. He further submits that the
accident having taken place in the year 2016, the income
ought to have been considered by the learned Tribunal at
the rate of Rs.3,300/- per month.
Having heard the learned Advocates for the
respective parties following issues have fallen for
consideration in the present appeal. Firstly, whether the
learned Tribunal was justified in directing the insurer of
vehicle bearing registration no.WB-65B/9280 (truck) to
satisfy the award without apportioning the same between
the insurers of the two vehicles, secondly, whether the
deduction towards personal and living expenses should
be 1/3rd and general damages should be Rs.9,500/-,
thirdly, whether the learned Tribunal should have
considered the income of the deceased at the rate of
Rs.3,300/- per month.
So far as the first issue is concerned, before delving
into the merit of the issue and for convenience of
discussion, it would be profitable to refer to Section 163A
of the Act which is reproduced hereunder:-
"163A. Special provisions as to payment of
compensation on structured formula basis -
(1) Notwithstanding anything contained in this Act or in
any other law for the time being in force or instrument
having the force of law, the owner of the motor vehicle of
the authorised insurer shall be liable to pay in the case of
death or permanent disablement due to accident arising
out of the use of motor vehicle, compensation, as
indicated in the Second Schedule, to the legal heirs or the
victim, as the case may be.
(2) In any claim for compensation under sub-section (1),
the claimant shall not be required to plead or establish
that the death or permanent disablement in respect of
which the claim has been made was due to any wrongful
act or neglect or default of the owner of the vehicle or
vehicles concerned or of any other person.
(3) The Central Government may, keeping in view the cost
of living by notification in the Official Gazette, from time to
time amend the Second Schedule."
The provision of Section 163A of the Act as
aforesaid clearly enshrines, in claim under such provision
the claimant shall not be required to plead or establish
that the death or permanent disablement in respect of
which the claim has been made was due to any wrongful
act or neglect or default of the owner of the vehicle or
vehicles concerned or of any other person.
Thus, since this is an application under Section
163A of the Motor Vehicles Act the question of negligence
cannot be gone into. The question of apportionment of
compensation amount between two insurers depends on
the extent of negligence of each of the vehicles involved in
the accident, however, such factor cannot be arrived at by
the Court while dealing with an application under Section
163A of the Act. Accordingly, the submissions advanced
by Mr. Rajesh Singh, learned Advocate on behalf of the
Shriram General Insurance Company Limited, cannot be
accepted.
So far as the deduction towards personal and living
expenses of the deceased is concerned, it is found that
the learned Tribunal deducted 1/4th of the income of the
deceased towards personal and living expenses. However,
following the Second Schedule of the Act, the deduction
towards personal and living expenses should be 1/3rd
instead of 1/4th.
With regard to the general damages the learned
Tribunal has taken into account Rs.10,500/- which
should be Rs.9,500/- under the conventional heads
namely loss of estate, loss of consortium and funeral
expenses in terms of Second Schedule of the Act.
The multiplier should be 16 since at the time of
accident the victim was 36 years of age.
So far as the income of the victim is concerned
since the accident took place in the year 2016 the income
is to be considered at the rate of 3,300/- per month.
Bearing in mind the aforesaid observations, the
compensation is calculated hereunder:
Calculation of Compensation
Monthly Income Rs.3,300/-
Annual Income (Rs.3,300/- X12) Rs.39,600/-
Less : Deduction of 1/3rd Rs.13,200/-
Rs.26,400/-
Multiplier '16' (Rs.26,400/- X 16) Rs.4,22,400/-
Add : General damages - Rs.9,500/-
Rs.4,31,900/-
Thus, the total compensation comes to
Rs.4,31,900/- which will carry interest @ 6% per annum
from the date of filing of the claim application till
realisation.
It is found that the Insurance Company namely
Shriram General Insurance Company Limited has
deposited statutory amount of Rs. 25,000/- before the
registry of this Court vide OD Challan No. 849 dated
17.07.2019 as well as Rs. 5,86,411/- vide OD Challan No.
1925 dated 19.09.2022 in terms of order of this Court
dated 22nd August, 2022.
Both the aforesaid amount together with accrued
interest be adjusted against the total compensation
amount.
The balance, if any, shall be paid by the Insurance
Company.
Further, any amount in excess after satisfaction of
the award should be refunded to the Insurance Company.
The appellants-claimants are directed to deposit ad
valorem court fees on the compensation amount, if not
already paid.
Learned Registrar General, High Court, Calcutta
shall disburse the compensation amount in favour of the
claimants-appellants (in FMA 1202 of 2022) in equal share
after making payment of Rs.5,000/- towards loss of
consortium in favour of the widow of the deceased, the
appellant no.1, upon satisfaction of their identity and
payment of ad valorem court fees on the compensation
amount, if not already paid.
The appellant no.1 (in FMA 1202 of 2022), mother
and natural guardian of appellant nos.2, 3 and 4 being the
minor children, shall receive the share of the minor
children on their behalf and shall keep the share of the
minor children in fixed deposit scheme of any nationalised
bank or post office till attainment of majority of the said
minor children.
With the above observations, both the appeals
stand disposed of.
No order as to costs.
All connected applications, if any, stand disposed
of.
Interim order, if any, stands vacated.
Urgent photostat certified copy of this order, if
applied for, be given to the parties upon compliance of
necessary legal formalities.
< (Bivas Pattanayak, J.)
