Calcutta High Court (Appellete Side)

National Insurance Co. Ltd vs Kalpana Khamri & Ors on 17 August, 2023

17.08.2023
 Ct. 654
D/L 18 & 19
    ab

                IN THE HIGH COURT AT CALCUTTA
                  CIVIL APPELLATE JURIDICTION
                        APPELLATE SIDE

                         FMAT (MV) 547 of 2022

                       National Insurance Co. Ltd.
                                   -Vs-
                         Kalpana Khamri & Ors.

                                    With

                                COT 41 of 2023

                         Kalpana Khamri & Anr.
                                   -Vs-
                       National Insurance Co. Ltd.


          Mrs. Sucharita Paul
                        ... for the appellant-Insurance Company

          Mr. Amit Ranjan Roy
                     ... for the respondent Nos. 1 & 2 -claimants

This appeal is preferred against the judgment and

award dated 23rd September, 2022 passed by the

learned Judge, Motor Accident Claims Tribunal, 1st

Court, Paschim Medinipur in MAC Case No. 459 of

2013 granting compensation of Rs. 4,57,000/- in favour

of the claimants under Section 166 of the Motor

Vehicles Act, 1988.

The brief fact of the case is that on 29th October,

2013 at abour 8.00 p.m. while the victim was

proceeding from his house at Parulia to Fecco Haat on

bicycle keeping left side of the pitch road and when he

reached near Topsia Hospital under Beliabera P.S.

Distirct-Jhargam at that time the offending vehicle

bearing registration No. CG-05B/5340 coming from

Fecco Haat towards Gopiballavpur in a rash and

negligent manner dashed the victim, as a result of

which the victim sustained grievous injury and was

admitted to Tapsia Block Hospital. Thereafter, the

victim was shifted to Jhargram District Hospital where

he succumbed to his injuries and died. On account of

sudden demise of the victim, the claimants being the

widow, married daughter and father of the deceased

filed application for compensation of Rs. 5,00,000/-

under Section 166 of the Motor Vehicles Act, 1988.

During the pendency of the claim application, father of

the deceased died and his name has been expunged

from the claim application.

The claimants in order to establish their case

examined two witnesses and produced documents,

which have been marked as Exhibits 1 to 5

respectively.

The appellant-insurance also adduced the

evidence of two witnesses and produced documents,

which have been marked as Exhibits A to E

respectively.

By order dated 15th May, 2023, service of notice of

appeal upon the respondent no. 3, owner of the

offending vehicle has been dispensed with.

Upon considering the materials on record and the

evidence adduced on behalf of the respective parties,

the learned Tribunal granted compensation of Rs.

4,57,000/- in favour of the claimants under Section 166

of the Motor Vehicles Act, 1988.

Being aggrieved by and dissatisfied with the

impugned judgment and award of the learned Tribunal,

the insurance company has preferred the present

appeal.

Challenging the impugned judgment and award of

the learned Tribunal, the claimants have also preferred

a cross objection being COT 41 of 2023.

Both the appeal and the cross objection are taken

up together for consideration and disposal.

Mrs. Sucharita Paul, learned advocate for the

appellant-insurance company submits that this appeal

has been preferred by insurance company on the

solitary issue that the learned Tribunal has imposed

interest on the compensation amount as a default

clause at 9% per annum which is much higher than the

existing banking rate of interest and, therefore, the

same needs to be set aside.

Mr. Amit Ranjan Roy, learned advocate for the

respondent nos. 1 & 2-claimants submits that the

learned Tribunal erred in determining the income of the

victim at Rs. 4,000/- per month whereas it ought to

have determined the income at Rs. 6,000/- per month

for calculation of just compensation. He further submits

that the learned Tribunal, instead of adding future

prospect to the monthly income, has granted

Rs.35,000/- only towards future prospect, which is

arithmetically a wrong computation. Further more, he

submits that the claimants are entitled to escalation of

10% on the general damages under the conventional

heads. He further submits that the learned Tribunal

erred in granting interest on the compensation amount

as a default clause. In the light of the aforesaid

submissions, he prays for enhancement of the

compensation.

Having heard the learned advocates for the

respective parties, following issues have fallen for

consideration. Firstly, whether the learned Tribunal

erred in determining the monthly income of the victim;

secondly, whether the future prospect of 10% of the

annual income of the victim be added with the income;

thirdly, whether the claimants are entitled to escalation

of 10% on general damages under the conventional

heads and lastly, whether the claimants are entitled to

interest on the compensation amount from the date of

filing of the claim application.

With regard to the first issue relating to

determination of income of the victim, it is found that

the learned Tribunal has determined the income at

Rs.4,000/- per month of the victim. As per the evidence

adduced on behalf of the claimants and statement made

in the claim application, it is found that the victim at

the time of accident was a cultivator. It is true that it is

not possible on the part of the claimants to produce any

documentary evidence in support of the income of the

victim from cultivation. Be that as it may, bearing in

mind the economic factors and the prices of the

essential commodities prevalent in the year 2013 when

the accident has taken place, I am of the view that the

amount of monthly income determined at Rs. 4,000/-

per month of the victim by the learned Tribunal is

reasonable and does not call for interference.

With regard to the second issue relating to

computation of future prospect, it is found that the

learned Tribunal has allowed a sum of Rs. 35,000/-

towards future prospect. The amount equivalent to 10%

of annual income of the deceased towards future

prospect is to be added with income for standardization.

With regard to the third issue relating to

escalation on the general damages, it is found that

already three years have elapsed and as such, the

claimants are entitled to escalation of 10% on the

general damages under the conventional heads.

Coming to the last issue relating to interest on the

compensation amount, it is found that the learned

Tribunal has granted interest on the compensation

amount as a default clause. Ordinarily when a claim

succeeds, the interest is to be given on the

compensation amount from the date of filing of the

claim application till the payment is made. Accordingly,

the claimants are entitled to interest on the

compensation amount from the date of filing of the

claim application.

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.4,000/-

       Yearly Income                                 Rs.48,000/-
       (Rs. 4,000/- x 12)
       Add: 10% of the annual income                 Rs.4,800/-
             towards future prospect
       Total income                                  Rs.52,800/-
       Less: 1/3rd towards personal                  Rs.17,600/-
              and living expenses
                                                     Rs.35,200/-
       Multiplier 11                                 Rs.3,87,200/-
       (Rs.35,200/- x 11)
       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.4,64,200/-

Thus, the claimants are entitled to compensation of

Rs. 4,64,200/- together with interest @ 6% per annum

from the date of filing of claim application (26.11.2013)

till payment.

It is found that the appellant-insurance company

has deposited a sum of Rs. 6,88,643/- vide OD Challan

No. 358 dated 3rd May, 2023 and an amount of

Rs.25,000/- towards statutory deposit vide OD Challan

No. 2556 dated 22nd November, 2022. All the aforesaid

deposits together with accrued interest be adjusted

against the entire compensation amount.

Appellant-Insurance Company is directed to deposit

the balance amount of compensation together with

interest before the learned Registrar General, High Court,

Calcutta by way of a cheque within a period of six weeks

from date.