Calcutta High Court (Appellete Side)

United India Insurance Co. ... vs Susmita Dhara Barman & Ors on 21 August, 2023

21.08.2023               IN THE HIGH COURT AT CALCUTTA
Ct. no.654                CIVIL APPELLATE JURISDICTION
Item no.11                      (Appellate Side)
   sn
                                   FMA 342 of 2022

                      United India Insurance Co. Limited
                                     Vs.
                       Susmita Dhara Barman & Ors.


             Mr. Rajesh Singh
                                         ...for the Appellant
             Mr. Pingal Bhattacharyya
             Ms. Poonam Keswani
             Mr. Rajdeep Singha
                                         ..for the respondents

This appeal is preferred against the judgment

and award dated 24th December, 2020 passed by the

learned Judge, Motor Accident Claims Tribunals, 1st

Court, Tamluk, Purba Medinipur in MAC case no.346

of 2015 granting compensation of Rs.99,64,352/-

together with interest in favour of the respondent

nos. 1, 2 & 3 under Section 166 of the Motor

Vehicles Act, 1988.

The brief fact of the case is that on 12th April,

2015 at about 12-30 p.m. while the victim was

returning to his home from Haldia through NH-41 by

a motor cycle keeping the left side at that point of

time the offending vehicle bearing registration no.

WB-57B/2165 (Dumper) in a rash and negligent

manner dashed the motor cycle of the victim near

Kasthakhali Baro Pool, as a result of which the

victim sustained grievous injuries on his head and

died on the spot. On account of sudden demise of the

victim, the claimants being the widow, minor son and

parents filed an application for compensation of

Rs.1,00,00,000/- together with interest under

Section 166 of the Motor Vehicles Act, 1988.

The claimants in order to establish their case

examined four witnesses and produced documents

which have been marked as Exhibits 1 to 17

respectively.

Appellant-insurance Company also adduced

evidence of one witness and produced documents

which have been marked as Exhibits A & B

respectively.

Since respondent no.5, owner of the offending

vehicle, did not contest the claim application, service

of notice of appeal upon the said respondent stands

dispensed with.

Upon considering the materials on record and

evidence adduced on behalf of respective parties, the

learned Tribunal granted compensation of

Rs.99,64,352/- together with interest in favour of the

claimant nos. 1, 2 & 3 under Section 166 of the

Motor Vehicles Act. However, no compensation was

granted in favour of the claimant no.4, father of the

deceased.

Being aggrieved by and dissatisfied with the

impugned judgment and award of the learned

Tribunal, the insurance company has preferred the

present appeal.

Lower court records have been received and

upon examination found to be complete and in order.

With the consent of the parties, preparation of

informal paper books is dispensed with.

Mr. Rajesh Singh, learned advocate for the

appellant-insurance company submits that although

the learned Tribunal has taken note of the fact that

the father is not a dependant of the deceased and

proceeded to allow compensation in favour of the

widow, minor son and mother of the deceased, yet, it

deducted 1/4th of the annual income of the deceased

towards personal and living expenses of the deceased

instead of 1/3rd. Referring to the decision of Hon'ble

Supreme Court in Sarla Verma and Others versus

Delhi Transport Corporation and Another

reported in 2009 ACJ 1298, he submits that since

the number of dependant is 3, deduction towards

personal and living expenses of the deceased should

be 1/3rd of his annual income instead of 1/4th. In the

light of his aforesaid submissions, he prays for

modification of the impugned judgment and award.

Mr. Pingal Bhattacharyya, learned advocate for

the respondents-claimants leaves the matter to the

discretion of the Court.

Mr. Bhattacharyya, learned advocate for the

respondents-claimants informs the Court that the

respondent no.4 namely Anil Barman @ Atul

Chandra Barman, father of the deceased, has already

expired and he submits for expunging the name of

respondent no.4 from the Memorandum of Appeal.

Mr. Rajesh Singh, learned advocate for the

appellant-insurance company does not raise any

objection to the prayer for expunging the name of the

respondent no.4, since such expunging has got no

bearing so far as entitlement on compensation by the

other respondents are concerned.

Having heard the learned advocates for the

respective parties in this regard, the name of the

respondent no.4 Anil Barman @ Atul Chandra

Barman stands expunged.

The department concerned is directed to make

necessary amendments/correction in the

Memorandum of Appeal.

Having heard the learned advocates for the

respective parties, the only issue that has fallen for

consideration is whether the deduction towards

personal and living expenses of the deceased should

be 1/3rd of the annual income instead of 1/4th.

It is found that the learned Tribunal has

deducted 1/4th towards personal and living expenses

of the victim. It is trite law that deduction towards

personal and living expenses of the deceased

squarely depends on the number of dependants of

the victim at the time of accident. Although, the

learned Tribunal has held that the wife, minor son

and mother of the victim are entitled to

compensation and did not grant compensation in

favour of the father of the deceased, yet, it deducted

an amount equivalent to 1/4th of the annual income

of the victim towards his personal and living

expenses which is applicable when the number of

dependents of the victim is 4 to 6. The Hon'ble

Supreme Court in the decision of Sarla Verma (supra)

has observed that subject to evidence to the contrary,

the father is likely to have his own income and will

not be considered as a dependant. Save and except a

solitary statement of PW-1, widow of the deceased,

that the family was dependant on the income of the

deceased, there are no positive evidence that the

father of the victim was dependant on the income of

his son (deceased). Thus, the materials on record

clearly suggest that the victim had 3 dependants at

the time of accident. Following observations of the

Hon'ble Supreme Court in Sarla Verma (supra),

deduction towards personal and living expenses of

the deceased should be 1/3rd of his annual income

instead of 1/4th adopted by the learned Tribunal.

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.48,861/-

     Annual income                       Rs.5,86,332/-
     (Rs.48,861/- x 12)
     Add: 50% of the annual income       Rs.2,93,166/-
          towards future prospect
                                         Rs.8,79,498/-

Deduction: 1/3rd towards personal Rs.2,93,166/-

and living expenses Rs.5,86,332/-

     Multiplier 15                       Rs.87,94,980/
     (Rs.5,86,332/- 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/-
     Total amount                        Rs.88,64,980/-


      Accordingly, the respondent nos.        1 to     3

(claimants) are entitled to compensation amount of

Rs.88,64,980/- together with interest @ 6% per

annum from the date of filing of the application till

payment.

It is informed that the insurance company has

already deposited a sum of Rs.1,41,62,484/- vide

O.D. challan no.556 dated 20.05.2022 as well as an

amount of Rs.25,000/- vide O.D. challan no.2261

dated 01.03.2022 before the registry of this Court.

Both the aforesaid deposits together with accrued

interest be adjusted against the entire compensation

amount and interest on the said amount.

The learned Registrar General, High Court,

Calcutta shall release the compensation amount

together with interest in favour of the respondent

nos. 1, 2 & 3 in equal proportion after making

payment of Rs.40,000/- towards spousal consortium

in favour of the respondent no.1, widow of the

deceased, upon satisfaction of their identity.

The order of the learned Tribunal granting

liberty to the insurance company to recover the