Calcutta High Court (Appellete Side)
Smt. Kumkum Mondal & Ors vs Oriental Insurance Company ... on 26 April, 2023
15
26.04.2023
Ct. No.237
pg.
IN THE HIGH COURT AT CALCUTTA
CIVIL APPELLATE JURISDICTION
APPELLATE SIDE
IA No. CAN 2 of 2023
in
FMA 1115 of 2008
Smt. Kumkum Mondal & Ors.
Vs.
Oriental Insurance Company Limited & Anr.
Mr. Amit Ranjan Roy
... For the appellants/claimants
Ms. Gopa Das Mukherjee
... For the respondent no.1/Insurance Co.
In re: IA No. CAN 2 of 2023
This application has been moved with a prayer for
recording attainment of majority of the appellant/claimant
nos.2 and 3.
It is submitted by the learned advocate appearing
on behalf of the appellants/claimants that the claimant
no.2 Keya Mondal got married with Sushil Kumar Show
few months ago and her surname has been changed by
adding her husband's surname. Now, the appellant/
claimant no.2 is known as Keya Mondal Show. It is further
submitted on behalf of the appellants/claimants that the
spelling of the name of the appellant/claimant no.3 should
be corrected as Riya Mondal in terms of Admit Card issued
by the West Bengal Board of Secondary Education which
has been filed along with this application.
2
Perused the Aadhaar Card and Admit Cards of
appellant/claimant nos.2 and 3 and considering the year
of filing of the claim petition, the prayer is allowed.
Department is directed to make necessary notes
and corrections in the cause title of the Memorandum of
Appeal.
The application, being CAN 2 of 2023 stands
disposed of.
In re: FMA 1115 of 2008
This appeal is directed against the judgment and
award dated 23rd April, 2007 passed by the learned Judge,
Motor Accident Claims Tribunal, Fast Track 2nd Court,
Paschim Medinipur, in connection with MAC Case No.278
of 2006 under Section 166 of the Motor vehicles Act, 1988
whereby the learned Judge awarded compensation to the
tune of Rs.5,85,000/- in favour of the claimants.
On 9th April, 2006 at about 4.20 p.m. when Pradip
Mondal was returning along with other passengers from
Monoharpur to Ghatal by a trekker and passengers were
getting down at the left side of morrum portion of pitch
road at Ranirbazar. At that time, one Bus, bearing
registration no.WB-29/1479, coming to Ghatal from
Kutighat with high speed and dashed the back side of the
trekker. As a result, Pradip Mondal along with other
passengers sustained grievous injuries in their person.
They were taken to Ghatal Hospital where Pradip Mondal
3
succumbed to his injuries. At the time of accident, Pradip
Mondal was a man of 29 years having transport business
with monthly earning of Rs.7,150/-. That is why the
claimants, i.e., legal heirs of the deceased, filed the claim
petition under Section 166 of the Motor Vehicles Act, 1988
with a prayer for compensation to the tune of
Rs.10,00,000/-.
The Insurance Company contested the claim
petition by filing written objection denying all material
allegations of the claim petition contending, inter alia, that
the claimants are not entitled to any compensation, as
prayed for.
To prove the case, claimants examined two
witnesses, i.e., wife of the deceased Kumkum Mondal as
PW-1 and Shanti Shaw as PW-2. Wife of the deceased (PW-
1) has testified and corroborated the entire contents of the
claim petition including the income of her husband from
seasonal transport business. During cross-examination,
suggestions were thrown to her denying the income of her
husband.
Shanti Shaw PW-2 testified before the Tribunal
and claimed himself to be an eyewitness to the accident.
He stated all facts of the accident and involvement of the
bus, bearing registration no.WB-29/1479, due to rash and
negligent driving. In his cross-examination, he further
testified that Pradip Mondal was selling potato and rice
etc. for his livelihood.
4
In course of their evidence, formal First
Information Report, seizure list, charge sheet, post-mortem
report and insurance policy were admitted in evidence and
marked as Exhibit 1 to 5.
After careful perusal of the entire materials on
record, the learned Tribunal awarded compensation on the
monthly income of Rs.4,000/-.
Mr. Amit Ranjan Roy, learned advocate, appearing
on behalf of the appellants/claimants has submitted
before this Court that the learned Tribunal could not
consider the compensation on the head of future prospect
as well as general damages of Rs.70,000/- in terms of
principle laid down in National Insurance Co. Ltd. v.
Pranay Sethi & Ors. reported in (2017) 16 SCC 680 =
2017 ACJ 2700.
On the other hand, Ms. Gopa Das Mukherjee,
learned advocate on behalf of the respondent no.1/
Insurance Company has submitted that in absence of any
particular evidence in support of the business, learned
Tribunal ought to have considered the notional income of
Rs.3,000/- per month.
After having a look on the judgment passed by the
learned Tribunal, it comes to my view that on behalf of the
respondent no.1/Insurance Company, the monthly income
of Rs.4,000/- was proposed in terms of number of family
members of the deceased and livelihood.
5
So far as the accidental death is concerned, there
is sufficient evidence on record regarding involvement of
the bus, bearing registration no.WB-29/1479, and
accident took place due to rash and negligent driving of
the bus. The manner of accident and involvement of the
bus were duly corroborated by FIR, charge sheet and
seizure list (Exhibits-1, 2 and 3) and that was further
supported by the evidence of PW-2.
Considering all facts and circumstances as
discussed above as well as the principle laid down by the
Hon'ble Apex Court in Pranay Sethi (supra), I find it
necessary to reassess the compensation as follows:-
Monthly Income Rs. 4,000/-
Annual Income (Rs.4,000/- x 12) Rs. 48,000/-
Add: Future prospect 40% Rs. 19,200/-
-------------------
Rs. 67,200/-
Less: 1/4th Deduction (personal expenses) Rs. 16,800/-
-------------------
Rs. 50,400/-
Multiplier by 17 (as per age of the victim) X 17
Rs.8,56,800/-
Add: General Damages Rs. 70,000/-
------------------
Total Compensation Rs.9,26,800/-
Less: Awarded by ld. Tribunal & received Rs.5,85,000/-
-------------------
ENHANCEMENT Rs.3,41,800/-
-------------------
For the reasons, it is seen that the
appellants/claimants are entitled to the total
compensation to the tune of Rs.9,26,800/-. It is reported
that the appellants/claimants have already received
Rs.5,85,000/- along with interest as awarded by the
learned Tribunal.
Therefore, the appellants/claimants are entitled to
the balance compensation amount of Rs.3,41,800/- along
with interest @ 6% per annum from the date of filing of the
claim petition till the deposit of the amount.
Accordingly, the respondent no.1/Oriental
Insurance Company Limited is directed to deposit the
enhanced compensation amount of Rs.3,41,800/- along
with interest @ 6% per annum from the date of filing of the
claim petition till the actual deposit of the amount before
the office of the learned Registrar General of this Court,
within six weeks from the date of this order.
The appellants/claimants are entitled to withdraw
the balance award amount with interest.
The learned Registrar General is requested to
disburse the amount with interest to the appellants/
claimants in equal share on proper identification and proof
as the minors have already attained majority by lapse of
time.
With the above observations, the appeal, being
FMA 1115 of 2008, is disposed of.
All pending applications, if there be any, stand
disposed of.
A copy of this order be forwarded to the learned
Tribunal 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.)
