Manashi Ghosh & Ors vs Oriental Insurance Co. Ltd. & Ors
2023 Latest Caselaw 5001 Cal

14.08.2023                     IN THE HIGH COURT AT CALCUTTA
 Ct. no.654                    CIVIL APPELLATE JURISDICTION
 Sl. No.12                              APPELLATE SIDE
 KB/Sayandeep                                                         ,,




                                          FMA 490 of 2021

                                      Manashi Ghosh & Ors.
                                               -Vs-
                                 Oriental Insurance Co. Ltd. & Ors.
                ,,




                              Mr. Jayanta Kumar Mandal
                                          ... For the appellants-claimants.

                               Mr. Rajesh Singh
                                           ... For the Respondents-Ins. Co.

This appeal is preferred against the judgement

and award dated 3rd July, 2020 passed by Learned Judge,

Motor Accident Claims Tribunal, Fast Track Court,

Bankura in M.A.C. Case No. 164 of 2015 granting

compensation of Rs.39,64,900/- together with interest in

favour of the claimants under Section 166 of the Motor

Vehicles Act, 1988.

The brief fact of the case is that on 1st November,

2015 at about 02.10 P.M. while the victim was returning

to his residence along with his family members by a

vehicle bearing Registration No.WB-68N/3543 from

Jairambati side through Sonamukhi-Bishnupur road and

when the said vehicle reached near Village Bhatra, P.S.

Bishnupur, District:Bankura the offending vehicle

bearing Registration No.WB-39A/6001(Dumper) dashed

the vehicle in which the victim was travelling in a rash

and negligent manner. As a result of the said accident the

victim and others died at the spot. On account of sudden

demise of the victim the claimants, being the widow,

minor daughter and father of the victim filed application

for compensation of Rs.50,00,000/- together with interest

under Section 166 of the Motor Vehicles Act, 1988.

The claimants in order to establish their case

examined two witnesses and produced documents which

have been marked as Exhibits 1 to 14 respectively.

The respondent no.1-insurance company

adduced evidence of two witnesses and produced

documents which have been marked as Exhibits A to E

respectively.

Upon considering the materials on record and the

evidence adduced on behalf of the respective parties, the

learned Tribunal granted compensation of Rs.39,64,900/-

together with interest in favour of the claimants under

Section 166 of the Motor Vehicles Act.

Being aggrieved by and dissatisfied with the

impugned judgment and award, the claimants have

preferred the present appeal.

Mr. Jayanta Kumar Mandal, learned advocate, for

appellants-claimants submits that the learned Tribunal

erred in determining the income of the deceased-victim

inasmuch as it considered the net salary and the

contribution to the General Provident Fund to calculate

the actual income and thereafter deducted 10% towards

income tax. However, as per the pay slip for the month of

October, 2015 (Exhibit-14) the deduction towards income

tax and professional tax is nil. Thus for calculating the

actual income the gross salary less the tax paid should be

taken into account. He further submits that the claimants

are entitled to an amount equivalent to 50% of annual

income of the deceased towards future prospect as well as

general damages of Rs.70,000/- with escalation in view of

the decision of Hon'ble Supreme Court in National

Insurance Company Limited versus Pranay Sethi and

Others reported in 2017 ACJ 2700. Mr. Mondal in his

usual fairness submits that the multiplier should be 15

instead of 16 adopted by the learned Tribunal in view of

the decision of Hon'ble Supreme Court in Sarla Verma

versus Delhi Transport Corporation Limited & Ors.

reported in 2009 ACJ 1298.

In reply to the contention raised on behalf of the

appellants-claimants, Mr. Rajesh Singh, learned Advocate

for the respondent no.1-insurance company submits that

the claimants-appellants have produced the Pay Slip for a

single month, i.e. October, 2015. However, the salary

slips for remaining 11 months prior to death of the

deceased have not been produced which would have been

proper and appropriate for establishing the income of the

victim. The learned Tribunal has thus rightly calculated

the actual income of the victim which does not call for

interference. In the light of his aforesaid submissions, he

prays for dismissal of the appeal.

Having heard the respective parties, the following

issues have fallen for consideration.

Firstly, whether the learned Tribunal erred in

determining the income of the deceased-victim.

Secondly, whether the claimants are entitled to

an amount equivalent to 50% of the annual income of the

deceased towards future prospect.

And lastly, whether the claimants are entitled to

general damages of Rs. 70,000/- under the conventional

heads with escalation.

With regard to the first issue, it is found that the

learned Tribunal has calculated the total net monthly

income of the victim and deducted 10% of the net income

towards income tax to calculate actual income of the

deceased. The actual income is to be calculated by

deducting income tax and professional tax from the gross

salary. As per the pay slip for the month of October, 2015

(Exhibit 14), the gross monthly income of the deceased is

Rs. 37,021/-. The income tax and professional tax are nil.

There are no contrary evidence that the victim paid

income tax or professional tax. Thus, the actual monthly

income of the deceased victim comes to Rs. 37,021/-.

With regard to the second issue pertaining to future

prospect, it is found that the deceased at the time of

accident was more than 38 years but less than 40 years

and was on permanent employment with Directorate

General, Central Reserve Police Force. Following the

observation of Hon'ble Supreme Court in Pranay Sethi

(Supra), the claimants are entitled to an amount

equivalent to 50% of the annual income of the deceased

towards future prospect.

Further in view of the decision in Pranay Sethi

(Supra) the claimants are also entitled to general

damages under the conventional heads of loss of estate,

loss of consortium and funeral expenses to the tune of

Rs.15,000/-, Rs. 40,000/- and Rs. 15,000/- together with

10% escalation on the said heads respectively.

So far as the multiplier is concerned, it is found

that learned Tribunal adopted multiplier of 16. However,

following the observation of Hon'ble Supreme Court in

Sarla Verma (Supra) since at the time of accident, the

victim was more than 38 years to less than 40 years, the

multiplier should be 15 instead of 16 adopted by the

learned Tribunal.

Other factors have not been challenged in this

appeal.

Bearing in mind the aforesaid, calculation of

compensation is made hereunder.

Calculation of Compensation

Monthly income Rs.37,021/- Yearly income Rs.4,44,252/- (Rs.37,021/- x 12) Add: 50% of the annual income Rs.2,22,126 /- towards future prospect Rs.6,66,378/- Less: 1/3rd towards personal Rs.2,22,126/- and living expenses Rs.4,44,252/- Multiplier 15 Rs.66,63,780/- (Rs.4,44,252/- x 15) Add: General damages Rs.70,000/- Loss of estate: Rs.15,000/- Loss of consortium: Rs.40,000/- Funeral expenses: Rs.15,000/- Add: 10% escalation on Rs.7,000/- general damages Total compensation Rs.67,40,780/-

Thus the total compensation comes to

Rs.67,40,780/-. It is informed that the claimants have

already received the amount of Rs. 39,64,900/- together

with interest in terms of order of the learned Tribunal.

Accordingly, the claimants are entitled to the balance

amount of compensation of Rs. 27,75,880/- together with

interest at the rate of 6% per annum from the date of

filing of the claim application till payment.

Respondent no. 1-insurance company is directed to

deposit the balance amount of compensation and the

interest as indicated above by way of cheque before the

learned Registrar General, High Court, Calcutta within a

period of six weeks from date.

The appellants-claimants are directed to deposit ad

valorem court fees on the balance amount of

compensation, if not already paid.

Upon deposit of balance amount of compensation

and the interest as indicated above, the learned Registrar

General, High Court, Calcutta shall release the amount in

favour of the appellants-claimants, after making payment

of Rs.34,000/- in favour of appellant no. 1, widow of the

deceased, towards spousal consortium (since Rs.

10,000/- has already been received), in the proportion

that 50% of the amount shall be released in favour of

appellant no. 1, 40% in favour of appellant no. 2 (minor

daughter) and 10% in favour of the appellant no. 3, upon

satisfaction of their identity and payment of ad valorem

court fees.

Appellant no.1, being the mother and natural

guardian of minor appellant no.2, shall receive the share

of the minor on her behalf and shall keep the same in a

fixed deposit scheme of any nationalised bank or post

office till attainment of majority of the appellant.

With the aforesaid observations, the present appeal

stands disposed of. The impugned judgment and award of

the learned Tribunal is modified to the above extent. No

order as to costs.

All connected applications, if any, are also disposed

of.

Interim order, if any, stands vacated.

Let a copy of this order along with the lower Court

records be transmitted to the learned Tribunal in

accordance with Rules.

Urgent certified photocopy of this order, if applied

for, be supplied to the parties expeditiously upon

compliance of all necessary legal formalities.

              <                     (Bivas Pattanayak, J.)