Calcutta High Court (Appellete Side)

Hanufa Bewa Molla vs New India Assurance Co. Ltd. & Anr on 22 August, 2023

22.08.2023               IN THE HIGH COURT AT CALCUTTA
Ct. no.654                CIVIL APPELLATE JURISDICTION
Item no.11                         (Appellate Side)
   sn
                                   FMA 359 of 2022

                                Hanufa Bewa Molla
                                        Vs.
                         New India Assurance Co. Ltd. & Anr.


             Mr. Anup Kumar Bag
                                         ...for the Appellant
             Ms. Sucharita Paul
                                         ..for the respondents

This appeal is preferred against the judgment

and award dated 14th December, 2021 passed by the

learned Additional District Judge-cum- Judge, Motor

Accident Claims Tribunals, 3rd Court, Berhampore,

Murshidabad in MAC case no.570 of 2015 granting

compensation of Rs.5,16,500/- 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 19th March,

2015 at about 12-00 noon while the victim was

returning to his home after completion of his work at

Bhaduripara UBI Bank and was standing near

Bhaduripara Mosque More near Pakuria market on

the State Highway at that point of time the offending

vehicle bearing registration no. WB-57B/4251 which

was proceeding towards Dhanirampur More in a rash

and negligent manner dashed the victim, as a result

of which the victim sustained injuries. Immediately

the local people took the victim to Domkal SD

Hospital, wherefrom the victim was shifted to

Berhampore New General Hospital for treatment,

where the victim succumbed with injuries and died.

On account of sudden demise of the victim, the

claimant being the mother filed application for

compensation of Rs.4,17,100/- together with interest

under Section 166 of the Motor Vehicles Act, 1988.

The claimant in order to establish her case

examined three witnesses and produced documents,

which have been marked as Exhibits 1 to 7

respectively.

The respondent no.1-insurance Company did

not adduce any evidence.

By order dated 16th June, 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 appellant-

claimant, the learned Tribunal granted compensation

of Rs. 5,16,500/- together with interest in favour of

the claimant under Section 166 of the Motor Vehicles

Act.

Being aggrieved by and dissatisfied with the

impugned judgment and award of the learned

Tribunal, the appellant-claimant has preferred the

present appeal.

Mr. Anup Kumar Bag, learned advocate for the

appellant-claimant submits that the learned Tribunal

erred in determining the income of the victim at

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

considered the income at Rs.7,000/- per month

following the minimum rates of wages as per

Schedule of employment under the Minimum Wages

Act, since the victim at the time of accident was a

Mason by profession, which has been established by

the Assistant Labour Commissioner. He further

submits that since the victim at the time of accident

was 30 years of age, the multiplier should be 17

instead of 16 adopted by the learned Tribunal.

Moreover, the claimant is entitled to general damages

under the conventional head of Rs.30,000/- with

10% escalation. Further, the claimant is also entitled

to an amount equivalent to 40% of the annual

income of the victim towards future prospect. 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, Ms. Sucharita Paul, learned

advocate for the respondent no.1-insurance company

submits that the claimant though examined the

Assistant Labour Commissioner yet has failed to

produce any documentary evidence in support of the

income of the victim. The Assistant Labour

Commissioner has categorically deposed in Court

that they do not fix the wages of the beneficiary and

such wages depends on the establishment in which

beneficiary worked and therefore the schedule of

minimum wages cannot be made applicable for

determining the income of the victim.

Having heard the learned advocates for the

respective parties, following issues that has fallen for

consideration. Firstly, whether the learned Tribunal

erred in determining the income of the victim.

Secondly, whether the multiplier should be 17

instead of 16 adopted by the learned Tribunal.

Thirdly, whether the claimant is entitled to general

damages of Rs.30,000/- with escalation of 10% and

Lastly, whether the claimant is entitled to an amount

equivalent to 40% of the annual income towards

future prospect.

With regard to the determination of the

income, it is found that the learned Tribunal has

determined the income of the victim at Rs.4,000/-

per month. The claimant in her claim application as

well as in her evidence has claimed that the victim at

the time of accident was Mason by profession and

had monthly income of Rs.6,500/- per month. It is

also claimed that the victim was registered with West

Bengal Building and Other Constructions Workers

Welfare Board, Domkol, Murshidabad. The claimant

adduced evidence of Assistant Labour Commissioner,

who proved the identity card of the victim and

and Other Constructions Workers Welfare Board as

Mason, namely, Exhibits-6 & 7 which shows that

the victim was registered as a Mason. On going

through the evidence of PW-3, Bibhuti Bhusan

Mondal, Assistant Labour Commissioner, it is found

that the victim was registered as beneficiary under

with West Bengal Building and Other Constructions

Workers Welfare Board. Beneficiary identity card of

West Bengal Building and Other Constructions

Workers Welfare Board and register of registration for

individual beneficiary Exhibit-7 also shows that the

victim was registered in the said Board under serial

no.4380. PW-3 has deposed on clarification by the

court that they do not fix the wages of the beneficiary

and the wages depends upon establishment in which

beneficiary worked. Thus to apply the rate as per

minimum wages will be inappropriate since P.W.3

himself admitted that they do fix the wages of the

beneficiary. He further deposed that the register is

maintained by the department for giving benefits to

the registered beneficiaries after six months of their

registration. The victim is registered on 14th June,

2011. There are no documents showing receipt of any

benefit for work done by the victim. The claimant

also did not produce any document showing wages

received from the establishment in which victim

worked as a Mason. Such being the position, the

claimant has failed to produce any document relating

to the income of the victim. Though the evidence of

PW-1, Hanufa Bewa Molla as well as register and

identity card shows that the victim was a Mason by

profession but the income has not been proved.

However, bearing in mind catena of decisions of this

Court and also considering the economic factors and

prices of the essential commodities prevalent in the

year 2015 when the accident has taken place, I am of

the opinion that an amount of Rs.5,000/- per month

should be appropriate and reasonable in the facts

and circumstances of this case.

With regard to the second issue relating to

multiplier, it is found that the learned Tribunal has

adopted multiplier of 16. However, since the victim at

the time of accident was 30 years of age, following

the observations of the Hon'ble Supreme Court made

in Sarla Verma versus Delhi Transport

Corporation Limited & Ors., reported in 2009 ACJ

1298, the multiplier should be 17 instead of 16

adopted by the learned Tribunal.

With regard to the third issue relating to

general damages, it is found that the learned

Tribunal has granted an amount of Rs. 4,500/- on

such head. However, following the observations of

the Hon'ble Supreme Court made in National

Insurance Company Limited versus Pranay Sethi

and Others reported in 2017 ACJ 2700, the

claimant is entitled to general damages under the

conventional head of loss of Estate and funeral

expenses of Rs. 15,000/- each with 10% escalation

on such amount since three years have elapsed.

Coming to the last issue relating to future

prospect, it is found that the learned Tribunal did not

grant any amount towards future prospect. However,

bearing in mind the proposition of the Hon'ble

Supreme Court laid down in Pranay Sethi (supra),

since at the time of accident, the victim was 30 years

of age and was self-employed, the claimant is entitled

to an amount equivalent to 40% of the annual

income of the victim towards future prospect.

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.5,000/-

       Annual income                     Rs.60,000/-
       (Rs. 5000/- x 12)





       Add: 40% of the annual income        Rs.24,000/-
            towards future prospect
                                            Rs.84,000/-
       Less: 50% towards personal and       Rs.42,000/-
             living expenses
                                            Rs.42,000/-
       Multiplier 17                        Rs.7,14,000/-
       (Rs.42,000/- x 17)
       Add: General damages                 Rs.30,000/-
           Loss of estate: Rs.15,000/-
           Funeral expenses: Rs.15,000/-
       Add:10% escalation on                Rs.3,000/-
            general damages
       Total compensation                   Rs.7,47,000/-

Thus, the claimant is entitled to compensation of

Rs. 7,47,000/- together with interest @ 6% per annum

from the date of filing of claim application (30.06.2015)

till payment.

It is informed that the claimant has already

received an amount of Rs. 5,16,500/- together with

interest in terms of the order of the learned Tribunal.

Accordingly, the claimant is entitled to balance amount

of compensation of Rs. 2,30,500/- together with

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

claim application (30.06.2015) till payment.

The respondent no. 1-Insurance Company is

directed to deposit the balance amount of

compensation together with interest as indicated above

before the learned Registrar General, High Court,

Calcutta by way of a cheque within a period of six