Calcutta High Court (Appellete Side)

Ranajit Samanta @ Ranjit Samanta vs The Hdfc Ergo General Insurance ... on 17 August, 2023

17.08.2023                IN THE HIGH COURT AT CALCUTTA
Ct. no.654                 CIVIL APPELLATE JURISDICTION
Item no.6                        (Appellate Side)
   sn
                               FMA 929 of 2021
                    IA No.CAN/1/2019 (Old CAN 1815/2019)


                         Ranajit Samanta @ Ranjit Samanta
                                     Vs.
                    The HDFC ERGO General Insurance Co.Ltd.


             Mr. Amit Ranjan Roy
                                          ...for the appellant
             Mr. Rajesh Singh
                                          ...for the respondent

This appeal is preferred against the judgement

and award dated 5th January, 2019 passed by the

learned Judge, Motor Accident Claims Tribunals,

Fast Track, 1st Court, Tamluk, Purba Medinipur in

MAC case no.186 of 2015 granting compensation of

Rs.8,20,000/- together with interest in favour of the

appellant-claimant under Section 166 of the Motor

Vehicles Act, 1988.

The brief fact of the case is that on 7th

January, 2015 at about 7-15 a.m. while the victim

was standing besides NH-41 at village Sridharpur

(Haldia More) to proceed to his house at that time the

offending vehicle bearing registration number WB-

23C/4667 (Truck) which was going towards Haldia

Side in a rash and negligent manner dashed the

victim with great force, as a result of which the victim

sustained grievous injuries precisely on his right leg

and immediately the victim was taken to Khejurberia

B.P.H.C. wherefrom he was taken to Purba

Medinipur District Hospital at Tamluk, where his

right leg was amputated above knee. The victim was

also treated Saviour Clinic Pvt. Ltd. at Kolkata. On

account of injuries sustained and consequent

disablement, the victim filed an application for

compensation of Rs.25,00,000/- under Section 166

of the Motor Vehicles Act, 1988.

The claimant-victim in order to establish his

case examined four witnesses and produced

documents which have been marked as Exhibits 1-

14 (series) respectively.

The respondent no.1-insurance Company did

not adduce any evidence.

By order dated 27th February, 2023, service of

notice of appeal upon the respondent no.2, owner of

the offending vehicle, has been dispensed with since

he did not contest the claim application.

Upon considering the materials on record and

evidence adduced on behalf of the claimant, the

learned Tribunal granted compensation of

Rs.8,20,000/- together with interest in favour of the

claimant under Section 166 of the Motor Vehicles

Act.

Being aggrieved by and dissatisfied with the

impugned judgement and award of the learned

Tribunal, the claimant has preferred the present

appeal.

Mr. Amit Ranjan Roy, learned advocate for the

appellant-claimant submits that the learned Tribunal

erred in determining the income of the victim

inasmuch as it failed to consider the oral and

documentary evidence produced in support of the

income of the claimant to the tune of Rs.15,000/- per

month. There is no contrary evidence challenging the

income of the victim as claimed and as such the

income of Rs.15,000/- per month should be taken

into account for calculating just compensation. He

further submits that the claimant is also entitled to

an amount equivalent to 40% of the annual income

towards future prospect. He also submits for

enhancement of the compensation amount under the

head of non-pecuniary damages since due to injuries

sustained in the said accident the victim had to

undergo prolonged treatment and amputation of his

right leg. In the light of his aforesaid submissions, he

prays for enhancement on the compensation

amount.

In reply to the aforesaid submissions advanced

on behalf of the appellant-claimant, Mr. Rajesh

Singh, learned advocate for the respondent no.1-

insurance company submits that though the

claimant adduced evidence of the employer and

produced income certificate but such certificate of

income is not supported by any other documentary

evidence to primarily come to the conclusion that

prior to the accident the victim used to receive salary

of Rs.15,000/- per month and as such income of

Rs.15,000/- claimed by the claimant is exorbitant

and cannot be accepted. He submits for dismissal of

the appeal.

Having heard the learned advocates for the

respective parties, following issues have fallen.

Firstly, whether the learned Tribunal erred in

determining the income of the victim. Secondly,

whether the victim is entitled to an amount

equivalent to 40% of the annual income towards

future prospect and lastly whether the victim is

entitled to enhancement of non-pecuniary damages.

With regard to the first issue relating to

determination of the income, it is found that the

learned Tribunal has determined the income of the

victim at Rs.5,000/- per month. The claimant in

order to establish his income has adduced the

evidence, one Swapan Kumar Maity, as PW-3, who

deposed that he is a contractor by profession and the

victim used to work under him as a Spot Mixing

Machine Operator and he used to pay the victim a

salary of Rs.15,000/- per month. The witness also

proved the certificate of income as Exhibit-9. Though

the witness stated in his evidence-in-chief of the fact

of payment of salary of Rs.15,000/- per month to the

victim but in cross-examination he admitted that he

has no document to show that he used to pay salary

of Rs.15,000/- per month to the victim. He further

admitted that he has no document to show that the

victim used to work under him. Thus, salary

certificate (Exhibit-9) is found to be not supported by

any other cogent evidence. Accordingly, the evidence

of PW-3 and the salary certificate issued by him in

the absence of supportive documents cannot be

accepted. However, resorting to certain guesswork

and also bearing in mind the economic factors and

the cost of essential commodities prevailing at the

relevant point of time in the year 2015, I am of the

opinion that an amount of Rs.6,000/- per month

would be reasonable and appropriate for calculation

of compensation.

With regard to the future prospect, it is found

that at the time of accident, the victim was 38 years

of age and was presumably self-employed. In view of

the decision of the in Hon'ble Supreme Court passed

in National Insurance Company Limited versus

Pranay Sethi and Others reported in 2017 ACJ

2700, the claimant is entitled to an amount

equivalent to 40% of his annual income towards

future prospect.

So far as non-pecuniary damages is concerned,

it is found that the learned Tribunal has granted

Rs.1,00,000/- towards pain and suffering, which in

my opinion, it is appropriate and does not call for

interference.

The other factors have not been challenged in

this appeal.

Bearing in mind the above factors, calculation

is made hereunder:

Calculation of Compensation

Monthly income Rs.6,000/-

     Annual income                      Rs.72,000/-
     (Rs.6,000/- x 12)
     Add:40% of the annual income       Rs.28,800/-
     towards future prospect
                                        Rs.1,00,800/-

Loss of income: 80% of the total Rs.80,640/-

     income due to disablement of 80%
     Multiplier 15                      Rs.12,09,600/-
     (Rs.80,640/- x 15)
     Add: Non-pecuniary damages         Rs.1,00,000/-
     Total                              Rs.13,09,600/-

Accordingly, the appellant-claimant is entitled

to an amount of Rs.13,09,600/- together with

interest @ 6% per annum from the date of filing of

the application (i.e. 09.02.2015) till payment. It is

informed that the claimant has already received

Rs.8,20,000/- 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. 4,89,600 together with interest

@ 6% per annum on such amount from the date of

filing of the claim application (i.e. 09.02.2015) till

payment.