Calcutta High Court (Appellete Side)

Udayan Bouri vs The New India Assurance Company ... on 21 August, 2023

21.08. 2023
 item No.47
n.b.
ct. no. 551                FMA 3017 of 2016
     With
              IA No. CAN 3 of 2017(Old NO. CAN 4991 of 2017)
                               +
                        CAN 4 of 2023

               Udayan Bouri
                           Vs.
        The New India Assurance Company Limited & Anr.


              Mr. Amit Ranjoy Roy,
                               .... For the appellant.
              Ms. Gopa Das Mukherjee,
                               .... For the respondents.

In Re. CAN 4 of 2013

This is an application filed by the claimant for

amendment/correction of his name in the 'Adhar Card' as

well as in the PAN Card. The name of the claimant is

stated there in as "Uday Bauri". Let the name of the

appellant be corrected accordingly.

The department to do the correction within a

fortnight.

The Instant appeal has been preferred against the

judgment and award dated March 12, 2013 passed by the

learned Judge, Motor Accident Claims Tribunal, 2 nd Court,

Suri, District Birbhum in M.A. C. Case No. 164 of 2007.

The brief fact of the case is that the present

appellant being the claimant preferred an application

before the learned Tribunal under Section 166 of the M.V .

Act for getting compensation on the ground that the

predecessor of the claimant was died in road traffic

accident due to rash and negligent driving of offending

vehicle duly insured under the policy of the Insurance

Company. The claim case was contested by the Insurance

Company.

The learned Tribunal heard the matter and after

hearing the parties, learned Tribunal has awarded a sum

of Rs.6,75,100/- in favour of the claimants.

Being aggrieved by and dissatisfied with the

impugned award the claimant has preferred this appeal

for enhancement of the award.

The sole ground of the appeal is the income of the

deceased as assessed by the learned Tribunal in awarding

the compensation was not correct.

Learned advocate for the appellant submitted before

this Court that the deceased was the permanent employee

of Eastern Coal Field Limited and used to earn more than

Rs.10,000/- per month. The income of the deceased was

very well proved by submitting documentary evidence as

well as the oral evidence. Learned Tribunal after perusing

the pay slip as well as the salary statement considered the

income of the deceased on the basis of the net payment.

The observation of the learned Tribunal regarding the

income of the deceased completely erroneous. He

submitted before this Court that the learned Tribunal has

considered the income of the deceased regarding the last

month of pay i.e. February 2006. Wherein the gross pay

was mentioned in the exhibit 8 to be Rs.10,163 and neat

pay was mentioned as 6,401/-. Learned Tribunal has

considered the income of the deceased on the basis of neat

pay i.e Rs.6,400/-. The assessment of income of the

deceased on the basis of the neat income is completely

erroneous. The income of the deceased considering the

compensation of this case should be on gross income less

the tax component. He further argued that Hon'ble

Supreme Court in the case of Bimal Kanwar & Ors. Vs.

Kishor Dan & Ors has observed that income of the

deceased should be his gross income less the tax

component. He has made calculation regarding the

average of gross pay for the month of March 2005 to

February 2006 less the tax component which appears to

be Rs.10,659/-. He submitted that the income of the

deceased should be considered at least Rs.10,000/- per

month.

Learned advocate for the Insurance Company raised

strong objection and submitted before this Court that the

learned Tribunal has committed no error in passing the

impugned award. The neat income of the deceased was

taken to be considered for the assessment of

compensation. There is discrepancy in the documents

filed by the claimant before the learned Tribunal. While

the person appearing on behalf of the Eastern Coal Field

Limited stated the designation of the deceased to be

welder but the pay slip was prepared regarding the income

of the a welder labour. She also submitted that the pay of

the deceased was being paid on the basis of the

attendance. So, at this juncture, the neat income of the

deceased should be calculated as a monthly income.

Heard the parties and perused the records and the

observation of the Hon'ble Supreme Court passed in

Bimal Kanwar, I have also perused the exhibits 7,8,9. It

is true that the deceased was a permanent employee of

Eastern Coal Fields Limited and Eastern Coal Fields

Limited has submitted a salary statements salary

certificate of the deceased i.e. marked as exhibit 8.

Exhibit 9 is a pay slip, which is the computer generated

slip and it does not require any signature. The exhibit 8

shows the gross pay of the deceased from March 2005 to

February 2006. The salary statement also mentioned the

neat payment. Clarification of gross pay and neat pay has

been specifically mentioned in the exhibit 9. The

component towards the Provident Fund, Pension Scheme,

Family Pension Scheme was deducted from the gross

salary including the professional tax. So, in calculating

the income of a deceased the component from provident

Fund, Family Pension and other deposits regarding the

Pension Scheme shall not be deducted only the tax

component has to be deducted; from the gross pay

according to the direction of Honble Supreme Court in

Bimal Kanwar. So, in my view, the observation of the

learned Tribunal regarding the fixing the monthly income

of Rs.6,400/- is erroneous. After averaging the gross

income of the deceased from March 2005 to February

2006 less the tax component is monthly income appears

to be Rs.10,659/-. So, in this case, it is prudent to

considered the income of the deceased for the assessment

of compensation is Rs.10,000/- per month. In that score,

the impugned award passed by the learned Tribunal need

be modified.

The sole claimant is the son of the deceased and

during the pendency of the instant appeal, the wife of the

deceased has expired and his name was deleted from the

memo of the cause title of the appeal. Thus, the claimant

is entitled to get the future prospect and general damages

according to the direction of the Hon'ble Supreme Court

passed in Pranay Shetty.

Considering the entire observations the just and

proper compensation of this case is recusted as follows:

        1. Monthly income                   Rs.10,000/-

        2. Annual income (12,000 X 12)      Rs.1, 20,000/-

        3. Deduction 1/3rd (-)              Rs.80,000/-
        4. Add 30% Future Prospects         Rs.24,000/-
                                 Total      Rs.1,04,000/-

5. Multiplier 13 (Rs.1,04,000X13) Rs.13,52,000/-

        6. General Damages (+)              Rs. 30,000/-
                                            Rs.13,82,000/-
        7. Already received amount          Rs. 6,75,000/-
                          Total Balance     Rs. 7,09,900/-

The Insurance Company is directed to pay the

balance compensation along with 6% interest per annum

from date of filing of this case i.e. from November 29,

2007.

The Insurance Company is directed to pay

compensation within eight weeks from the date of passing

of this order with the office of the Registrar General, High

Court, Calcutta.

Accordingly, FMA 3017 of 2016 is disposed of.

Connected all applications, if any, are also disposed

of.

All parties shall act on the server copy of this order