Calcutta High Court (Appellete Side)

Kanak Samanta & Ors vs The New India Assurance Co. Ltd. & ... on 10 August, 2023

10.08. 2023
 item No.8
n.b.
ct. no. 551           FMA 342 of 2010
     +
     IA No. CAN 1 of 2013(Old No. CAN 5392 of 2013)
     +
     CAN 2 2017(Old No. CAN 3130 of 2017)
     +
         CAN 3 of 2023

                   Kanak Samanta & Ors.
                          Vs.
          The New India Assurance Co. Ltd. & Anr.

              Mr. Krishanu Banik,
              Mr. Tathagata Banik,
                                .....for the appellant.
              Mr. Kartick Kr. Bhattacharya,
              Ms. Soumashree Dutta,
                                .... For the respondent.

The instant appeal has been preferred against

the judgment dated 25th day of July, 2008 passed by

the learned judge, Motor Accident Claims Tribunal, 4 th

Court, Paschim Medinipur in M.A. C. Case No. 438 of

2007 under Section 166 of Motor Vehicles Act.

The brief fact of the case is that the present

appellants being the claimant filed the application

before the learned Tribunal for getting compensation

under Section 166 of the Motor Vehicles Act on the

ground that that their predecessor namely, one Uttm

Samanta was died in a road traffic accident. The

owner of the offending vehicle did not contest the

matter but the Insurance Company contested the case

before the learned Tribunal by filing written statement.

The claimants adduced the witnesses including other

documentary evidences before the learned Tribunal.

Considering the evidences on record and

considering the submission of the learned advocate for

the respective parties, the learned Tribunal has

awarded sum of Rs.1,50,000/- in favour of the

claimants. Being aggrieved by and dissatisfied with

that order of the instant matter has been preferred.

Learned advocate for the appellant submitted

before this Court that the learned Tribunal has

awarded the minimum compensation on the ground

that the deceased has contributed the said accident to

the portion of 50%. He submitted before this Court

that the observation of the learned Tribunal in respect

of the alleged accident and the contributory negligence

on the on the part of the deceased is erroneous. The

submitted that the entire facts of the case does not

suggest that the involvement of the deceased to the

contributory negligence on the basis of the Post

Mortem report. The Post Mortem report does not

disclose any such material by which the learned

Tribunal can observe such finding.

He argued that the learned Tribunal has

erroneously come to the conclusion of this case and

there is miscarriage of justice. He prayed for a just and

proper compensation on behalf of the appellants.

Learned advocate appearing on behalf of the

Insurance Company submitted before this Court that

the impugned award passed by the learned Tribunal

suffers no illegality. Learned Tribunal has successfully

come to a finding that the injuries sustained by the

injured is disputed. He also argued that the learned

Tribunal on the basis of the evidences on record and

on the basis of specific cross-examination of opposite

party come to the finding that the deceased wanted to

catch up the Tractor and at that time, he fell down on

the front of the Tractor. He also pointed that the

observation of learned is quite correct in perusing the

specific injury over the belly of the deceased.

P.W. 2 appearing before the learned Tribunal to

be an eye witnesses, but he stated that no bleeding

injury was caused to the deceased, though, it is a fact

that the deceased was run over by the Tractor over his

belly. On that score, he submitted that impugned

award passed by the learned tribunal is justified and

there is no scope for interference.

Learned advocate for the appellants in support of

his contention cited some decisions of Appex Court

passed in Smt. Suvarnamma & Anr. Vs. United

India Insurance Company Ltd. & Anr. wherein the

Hon'ble Supreme Court is of view that the deposition of

Divisional Manager of the Insurance Company

regarding the cause of accident being the victim was

passenger of the Tractor cannot necessary to be proved

by wiping out all the evidences on record on behalf of

the claimants. He also cited the decision of Sanchita

Biswas Vs. Divisional Manager, National Insurance

Company Ltd. wherein the Hon'ble Supreme Court

has observed that the Tribunal has committed an error

by observing on the presumption and by disbelieving

the entire evidences on record of the claimants.

In considering the impugned judgment, it

appears to me that the learned Tribunal has observed

that the contributory negligence can be appeared from

the post mortem report of the instant case. On

perusing the post mortem report, it appears that the

post mortem report contain in column no.6 regarding

the inquest report of the deceased; the inquest report

of the deceased is stated to be that the deceased was

fell down and received major injury. The learned

Tribunal has found stitches over the belly of the

deceased and come to a conclusion that such stitches

must have some bleeding injuries resutted run over

under wheel of Tractor. I could not find any

observation of the doctor in the post mortem report

regarding the cause of the stitches over the belly of the

deceased.

In considering the fact and circumstances of the

case, I am of the view that the learned Tribunal has

come to a conclusion that it is the case of run over by

the Tractor but it is surprising how the learned

Tribunal has calculated contributory negligence on

behalf of the deceased. It appears to me that the

learned Tribunal has misguided himself in deciding the

issue before him and the observation of the learned

Tribunal is on the basis of assumption and it needs to

be set aside.

Further, it appears that the learned Tribunal has

assessed the compensation only a lump sum basis,

which also appears to be erroneous.

The Motor Vehicles Act as well as the direction of

Hon'ble Supreme Court formulated that in every

compensation case should be disposed of according to

the structure formula. In this case, after considering

the evidence on record and after considering the

impugned judgment, I am of the view that the

impugned judgment needs to be set aside.

The appeal is allowed.

Impugned award passed by the learned Tribunal

is set aside.

The just and proper compensation of this case is

hereby recasted as follows:

The monthly income of the deceased was stated

to be Rs.90 per day being a day labourer. Learned

advocate for the Insurance Company submitted that no

document was filed to that effect. It is the general

norms and practice of this Court that when accident

was happened before 2010 and if there is no

convincing document of income, this court adopted

income of the deceased to be Rs.100/- per day i.e.

Rs.3000/- per month. In this case the claim of the

appellants to be daily of Rs.90/- appears to be

justified. The claimant is also entitled to get the future

prospects of 40% of established income, according to

the observation of the learned Apex Court passed in

Pranay Shetty and the claimants being 4 in number,

the deduction of the personal expenses of the deceased

would be 1/4th. Considering the age of the victim is

mentioned in post mortem report to be 28 years but

the claim application stated the age to be 33 years.

Thus, considering the same, the age of the deceased to

be calculate within age group of 31 to 35; applicable

multiplier is a 16. The claimants are also entitled to

get general damages of Rs.70,000/-. Thus the award

of compensation is as follows:

1. Monthly income be assessed as Rs.2,700/-

2. Annual income be assessed as Rs.32,400/-

      3. 40% Future Prospect                           Rs.12,960/-

      4. Total                                         Rs.45,360/-

      5.1/4th Deduction (45360-11,340)                 Rs.34,020/-

      6. Use of multiplier as per age of 16            Rs.5,44,320/-

      7. General Damages                               Rs.6,14,320/-

      8. Less awarded amount                           Rs.4,64,320/-

So, the award comes to Rs.4,64,320/-, the

Insurance Company is directed to pay the

compensation along with 6% interest per annum. from

the date of filing of the claim application i.e. from

21.8.2007 within 8 weeks from the date of passing of

this order through the office of the learned Registrar

General, High Court, Calcutta. On such deposit the

claimants are liberty to withdraw the same according

to the prevalent rules subject to the ascertainment of

payment of requisite Court Fees.

In Re. CAN 3 of 2023

The instant application is filed by the appellant

regarding the fact that the appellant nos. 2 and 3

became the major.

The above application is considered and allowed

with a direction that the department shall made out

necessary correction in the Memo of the Cause Title of

the appeal within a fortnight.

Accordingly, FMA along with all pending

connected applications are disposed of.

All parties shall act on the server copy of this

order duly downloaded from the official website of this