Calcutta High Court (Appellete Side)

Jogeswar Bin vs National Insurance Company ... on 16 August, 2023

16.08.2023
 Ct. 654
 D/L 8
   ab

                           IN THE HIGH COURT AT CALCUTTA
                             CIVIL APPELLATE JURIDICTION
                                 APPELLATE SIDE

                             FMA 1413 of 2018
                                    With
               IA No. CAN 1 of 2018(Old No. CAN 6308 of 2018)

                                Jogeswar Bin
                                     -Vs-
                 National Insurance Company Limited & Anr.


             Mr. Saidur Rahaman
                                       ... for the appellant-claimant

             Mr. Rajesh Singh
                      ... for the respondent no.1-insurance company

This appeal is preferred against the judgment and

award dated 15th May, 2017 passed by the learned

Additional District Judge-cum-Judge, Motor Accident

Claims Tribunal, 2nd Court, Raiganj, Uttar Dinajpur in

MAC Case No. 178 of 2015 granting compensation of

Rs. 2,40,000/- together with interest in favour of the

claimant under Section 166 of the Motor Vehicles Act,

1988.

The brief fact of the case is that on 7th October,

2015 at about 07.00 a.m. while the minor victim

(injured) was going to his school (Dewkhanda Primary

School) on foot and when he was crossing the road at

that time the offending vehicle bearing registration No.

WB-25/5614 (Tanker) coming from Malda side towards

Raiganj in a rash and negligent manner dashed the

victim-injured and his right leg was crushed, which was

later amputated at Raiganj District Hospital. On

account of serious injuries sustained and subsequent

disablement, the injured-victim (minor) filed application

for compensation of Rs. 8,50,000/- together with

interest under Section 166 of the Motor Vehicles Act,

1988 through his father and natural guardian.

The claimant in order to establish his case

examined three witnesses and produced documents,

which have been marked as Exhibits 1 to 9

respectively.

The respondent no. 1-insurance company did not

adduce any evidence.

In spite of due service of notice of appeal, the

respondent no. 2 owner of the offending vehicle is

unrepresented.

Upon considering the materials on record and the

evidence adduced on behalf of the claimant, the learned

Tribunal granted compensation of Rs. 2,40,000/-

together with interest in favour of the claimant under

Section 166 of the Motor Vehicles Act, 1988.

Being aggrieved by and dissatisfied with the

impugned judgment and award, the claimant has

preferred the present appeal.

Mr. Saidur Rahaman, learned advocate for the

appellant-claimant submits that the learned Tribunal

erred in determining the annual income of the minor at

Rs. 15,000/- per annum whereas it ought to have

determined the annual income of the minor at Rs.

30,000/- per annum. He further submits that due to

the injuries sustained by the victim in the said accident,

his right leg had been amputated and as per the

disablement certificate, the victim sustained 75%

permanent disablement, however, the learned Tribunal

erred in granting loss of future earnings of 60% only. He

further submits that the non-pecuniary damages and

the loss of amenities of life are required to be enhanced

keeping in mind the amputation undergone by the

minor child. To buttress his contentions, he relies on

the decision of the Hon'ble Supreme Court in Divya

versus National Insurance Co. Ltd and another

reported in 2022 ACJ 2533. In the light of his

aforesaid submissions, he prays for enhancement of the

compensation amount.

In reply to the contentions raised on behalf of the

appellant-claimant, Mr. Rajesh Singh, learned advocate

for the respondent no. 1-insurance company submits

that the learned Tribunal after considering the

circumstances involved in the case as well as the nature

of injuries sustained by the victim has granted non-

pecuniary damages under the pain and sufferings and

loss of amenities of life and loss of career at

Rs.1,05,000/-, which is appropriate in the facts of the

case and hence does not call for interference. He

submits for dismissal of the appeal.

Having heard the learned advocates for the

parties, following issues have fallen for consideration.

Firstly, whether the learned Tribunal erred in

determining the annual income of the victim; secondly,

whether the learned Tribunal erred in determining

percentage of loss of future earnings and lastly, whether

the learned Tribunal erred in granting non-pecuniary

damages of a meagre sum.

With regard to the first issue relating to

determination of the annual income of the minor victim,

it is found that the learned Tribunal determined the

annual income of the victim at Rs. 15,000/- per annum.

Be that as it may, bearing in mind the catena of

decisions of the Hon'ble Supreme Court, I am of the

view that it would be reasonable to accept the notional

income of Rs. 30,000/- per annum as the annual

income of the victim-injured.

With regard to second issue relating to loss of

further earnings, it is found that the learned Tribunal

has considered 60% of the annual income of the victim

towards loss of future earnings. It is not in dispute that

due to the injuries sustained by the victim in the said

accident, his right leg below knee had to be amputated.

The disability certificate (Exhibit-1) shows permanent

disablement of 75%. It is trite law that extent of

disablement may not always be the extent of loss of

future earnings. Keeping in mind that the victim at a

tender age has to undergo amputation of his right leg

below knee, it would be appropriate to consider loss of

future earnings at 80% of the annual income. Further,

since the victim is minor, an amount equivalent to 40%

of the annual income should also be taken into

consideration towards future prospect.

So far as the non-pecuniary damages is

concerned, Mr. Rahaman, learned advocate for the

appellant-claimant has strenuously argued relying on

Divya (supra) that the amount under the non-pecuniary

damages is required to be enhanced in view of the

injuries and disablement sustained by the victim-

injured. In the report of the Divya (supra), it is found

that the injured sustained locomotor disability at 75%

and neuro-physical disability at 40% and the Medical

Board opined disability of 100%. That apart, the injured

could not stretch her legs and stand without support.

The facts involved in the cited decision are quite

dissimilar to the case at hand. However, since the

victim was hospitalized for a period of 10 days and had

to undergo amputation, I am of the opinion that an

amount of Rs. 80,000/- towards pain and sufferings

and another sum of Rs. 80,000/- towards loss of

amenities of life and also medical expenses of Rs.

10,000/- should be reasonable and appropriate in the

facts and circumstances of the case.

The other factors have not been challenged in this

appeal.

Bearing in mind the above factors, calculation is

made hereunder:

Calculation of Compensation

Annual income Rs. 30,000/-

Add: 40% of annual income Rs. 12,000/-

towards future prospect Total income Rs. 42,000/-

Loss of income: 80% of the total Rs. 33,600/-

         income due to disablement of 80%
         Multiplier 15                           Rs. 5,04,000/-
         (Rs. 33,600/- x 15)
         Add: Pain and sufferings                Rs. 80,000/-
         Add: Loss of amenities of life          Rs. 80,000/-
         Add: Medical expenses                   Rs. 10,000/-
         Total compensation                      Rs. 6,74,000/-


        Thus,    the   appellant-claimant     is   entitled     to

compensation of Rs. 6,74,000/- together with interest @

6% per annum from the date of filing of the claim

application (08.12.2015) till payment. It is informed that

the claimant has already received the awarded sum of

Rs. 2,40,000/- together with interest in terms of the

order of the learned Tribunal. Accordingly, the

appellant-claimant is entitled to balance amount of

compensation of Rs. 4,34,000/- together with interest @

6% per annum from the date of filing of the claim

application (08.12.2015) till payment.

The respondent no.1-insurance company is

directed to deposit the balance amount of compensation

and the interest indicated hereinabove by way of a

cheque before the learned Registrar General, High

Court, Calcutta within a period of six weeks from date.

Upon deposit of the balance amount of

compensation and the interest indicated hereinabove,

the learned Registrar General, High Court, Calcutta

shall release the aforesaid amount in favour of the

appellant-claimant, upon satisfaction of his identity.

Sri Jogeswar Bin, being the father and natural

guardian of injured victim (minor) shall receive the