National Insurance Co. Ltd vs Rashmi Kumari & Ors
2023 Latest Caselaw 5435 Cal

23.08. 2023
 item No.36
n.b.
ct. no. 551           FMA 2293 of 2016
     with
     IA No. CAN 1 of 2015(Old No. CAN 10780 of 2015)
     +
     CAN 3 of 2017(Old No. CAN 7114 of 2017)
     +
     CAN 4 of 2021

                      National Insurance Co. Ltd.
                                 Vs.
                       Rashmi Kumari & Ors.

              Mr. Saibalendu Bhowmik,
                               .....for the appellant.
              Mr. Krishanu Banik,
                               .... For the respondent.

The appeal has been filed by the Insurance

Company. Being aggrieved by and dissatisfied with the

judgment and award dated March 26, 2015 passed by the

learned Judge, M.A.C. Tribunal, 2nd Court, Burdwan in

M.A.C Case No.04/379 of 2013/2012.

The brief fact of the case is that the present

respondent/claimant filed one application before the

learned Tribunal under Section 166 of the M.V. Act for

getting compensation from the Insurance Company on the

ground that their predecessor died in a road traffic

accident due to rash and negligent driving of the driver of

the offending vehicle duly insured by the Insurance

Company/appellant. The owner of the offending vehicle

has not contested the matter before the learned Tribunal

but the Insurance Company has contested the claim case

by filing written statement.

After hearing the parties, the learned Tribunal has

awarded the compensation amounting to Rs.71,95,815 in

favour of the claimants. The Insurance Company is before

the Appellant Court against the said award.

Learned advocate for the Insurance Company

argued before this Court that the fact of the accident

would show that two vehicles were involved in the alleged

accident. The Insurance Company has pleaded before the

learned Tribunal by filing written statement that the

deceased was driving a Motor Cycle in a rash and

negligent manner and he dashed the Tata Sumo Car and

died in the road traffic accident.

He submitted that the learned Tribunal has not

considered the matter, thus, the observation of the

learned Tribunal is erroneous. The deceased himself

contribute the accident, so, some part of the

compensation should be deducted towards the negligence

of the deceased in the said accident.

He also argued that the income of the deceased was

taken to be Rs.29,000/- per month but the document of

income was not exhibited before the learned Tribunal.

They were not properly produced or not legally proved. He

argued that the pay slip issued by the State Bank of India

of the concerned Branch including Form 16 and Form

12BA were not properly proved. The contents of the

document cannot be considered at this stage as the

contents of the documents were not specifically pleaded

before the learned Tribunal. He also argued that the

perquisites amounting to Rs.73,221/- was added with the

income of the deceased annually. The chaiments never

pleaded such income on perquisites in their claim

application but after producing the evidences, the learned

Tribunal has considered the said perquisites to be the part

of the compensation. The observation of the learned

Tribunal to that effect is erroneous.

He also argued that the claimant has failed to prove

the rash and negligent driving of the offending vehicle. It

would be evident from FIR that the FIR was lodged to the

concerned police station with the unknown number of

offending vehicle. After investigation, the police had

submitted charge sheet containing the number of the

offending vehicle to be (Tata Sumo) bearing registration

no. WB 42H-4846. There are no materials where from the

police has collected the number of the vehicle. He argued

that the police have been manipulated by the claimants to

frame the Tata Sumo in this case. The alleged offending

vehicle Tata Sumo was not at all involved in the alleged

accident. He argued that the learned Tribunal has

adopted the general damages in this case to be

Rs.2,25,000/- which is erroneous by virtue of decision of

the Hon'ble Supreme Court passed in Pranay Shetty.

On the above score, he argued that the claimants

have failed to prove case before the learned Tribunal.

Thus, the impugned order passed by the learned Tribunal

is liable to be set aside.

In support of his contention he has cited a decision

reported in (2003)8 SCC 740 on the principle that when

pleadings and evidences are at variance to each other

such evidences cannot be relied upon.

Learned advocate for the claimant/respondent

submitted before this Court that the impugned award

passed by the learned Tribunal suffers no illegality. The

deceased was the Manager of State Bank of India and the

claimants are the legal heirs of the deceased including

wife, two sons and the mother. He argued that the income

of the deceased taken to be Rs.29,000/- per month on the

basis of the pay slip. Pay slip is the system generated

document, thus, it does not require any signature or

proof. The future prospect @50% was adopted as per view

of the Hon'ble supreme Court passed in Pranay Shetty.

It is correct that there are dependent number more than

three, so, 1/4th was correctly deducted towards the

personal expenses of the deceased. He admitted that the

general damages as awarded by the learned Tribunal in

this case is erroneous, it should be Rs.70,000/- instead of

Rs.2,25,000/-. He again argued that the Hon'ble Supreme

Court in several decisions has specifically pointed out that

the income of salaried person should be assessed on the

basis of gross income, lessthe tax component. The perks

and other perquisites including the fund/credit by the

deceased during his monthly income towards HRA, CCA,

GPF etc. cannot be deducted.

In support of his submission he has cited the

decision of Hon'ble Supreme Court passed in Sunil

Sharma & Ors. Vs. Bachitar Singh , Raghubir Singh &

Ors. Vs. Hari Singh and National Insurance Company

Ltd. Vs. Indira Srivastav.

On that score, he submitted that there are no

illegality in the impugned order, so it need be maintained.

Heard the learned advocates, perused the materials

on record. The involvement of the offending vehicle(Tata

Sumo) in this case is verified. It true that the FIR was

lodged in the police station on the self-same day of

accident(30.12.2010) containing no number of offending

vehicle. The informant of the FIR, one of the Bank

officials, who actually was not an eye witness of the

accident. On the basis of the FIR, Burdwan Police

Station case No.917 of 2010 dated 30.12.2010 was

initiated; police took up the investigation of this case.

During the investigation, the police has examined

available witnesses and recorded their statement under

Section 161 of the Code of Criminal Procedure. On the

basis of their statement, police has came to know that

offending vehicle is (Tata Sumo) bearing registration

no.WB 42H-4846 which dashed the victim due to rash

and negligent driving of the driver of the offending vehicle.

The driver was arrested on February 8, 2011 and he was

produced before the learned Chief Judicial Magistrate,

Burdwan vide a forwarding memo. Seizure was effected to

that effect regarding the offending vehicle. After

completion of investigation, police has submitted charge-

sheet on February 24, 2011 under Section 279/304A/427

of IPC against the driver of the offending vehicle.

It appears that during the course of investigation,

the damaged Hero Honda Motor Cycle driven by deceased

was seized including the Tata Sumo Car. Police is of the

opinion by submission of the charge-sheet that the Tata

Sumo Car is responsible for the accident. One of the

charge-sheeted witnesses appeared before the learned

Tribunal as P.W.2. The P.W. 2 was witnesses of the

accident.

Learned advocate for the Insurance Company

argued that the distance between P.W. 2 and the accident

spot was 100 ft. From such distance, it was not possible

for the P.W.2 to locate the number of the offending vehicle.

In considering the said argument, it appears to me

that the accident happened in broad day light and the

distance of 100 ft. is not so far to see the manner of

accident. The Insurance Company also did not produce

any witnesses either oral and documentary evidence

which case contradict the prima facie fact of accident as

stated by P.W.2 as well as supported by the charge-sheet.

Considering the same, I am of the view that accident

in question by the driver of the offending vehicle was

sufficiently proved before the learned Tribunal.

In considering the income of the deceased, it

appears to me that learned advocate for the Insurance

Company has challenged the content of the pay slip for

the month of November, December i.e. exhibit 9 and form

16. It appears that the said pay slip was issued from the

HRMS portal and it is a government portal used by the

government to make salary of every employee. I find no

justification to contradict the content of the pay slip as

well as the form 16. Form 16 is a document which is the

certificate under Section 203 of the Income Tax Act of

1961 for tax deducted at source from income chargeable

under the head salaries. The claimant has pleaded that

the deceased was a salaried person and there is no

evidence on regard regarding other source of income of the

deceased. So, in my view, form 16 is the document to

calculate the annul income of the salaried person.

On perusal of the impugned award, it appears to me

that learned Tribunal has assessed the compensation on

the basis of monthly income of the deceased as appears in

the pay slip less the income tax and professional tax

which appears to be Rs.29,000/-. The yearly perquisites

of Rs.73,221/- was also added with the said income. The

perquisites were specifically mentioned in exhibit 11 i.e.

form 12BA. Perquisites contained accommodation charge,

which was also included in the pay slip as housing.

Considering the same, it would be proper to calculate the

compensation of this case on the basis of the form 16.

The form 16 is the document filed by the claimant

regarding the annual income of the deceased under the

head of salary. So, I think it necessary that the award

passed by the learned Tribunal need be modified.

For just and proper compensation of this case, the

yearly income comes to Rs.3,29,995.

Learned advocate for the Insurance Company is also

argued that the mother who is the widow of the father is

not at all dependant of the deceased son. The argument

made by the learned advocate for the Insurance Company

is not acceptable as the legal heirs i.e. legal

representatives are entitled to get the compensation

according to the provision of Section 166 of the M. V. Act.

Thus, in this case, the dependent would be wife, two sons

and the mother.

Assessment of compensation.

      1. Annual income                Rs.3,29,995/-

      2. Future prospect(50%)        Rs.1,64,997/-
                               Total Rs.4,94,992
      3. 1/4th deduction             Rs.1,23.748/-
                                     Rs.3,71,208/-

4. Multiplier 15 as per age of Rs.55,68,120/- the deceased.

         (3,71,208X15)
      5. General Damages             Rs.70,000/-
                                     Rs.56,28,120/-

It appears from the record that the claimants has

already received a sum of Rs.35,00,000/-during the

pendency of the appeal, so, after deducting already

received part, the claimants are entitled to get the

compensation amounting to Rs.21,38,120/-. It appears

that the Insurance Company has deposited the entire

awarded sum Rs.25,000/- on 19.5.2016 deposit

Rs.71,70,815. The fund deposited by the Insurance

Company has accrued some interest. The claimants are

entitled to get the balance compensation to

Rs.21,30,120/- along with 6% interest per annum from

the date of filing of the claim application i.e. from

December 20, 2012.

The office of the Learned General, High Court,

Calcutta is directed to calculate the award amount along

with interest and pay the same to the claimants with

equal account payee cheques subject to the ascertainment

of payment of requisite court fees. After such payment, if

some amount appear to be excess in the fund that should

be refunded back to the Insurance Company.

With the above observation, FMA 2293 of 2016 is

disposed of.

Connected applications, if any, are also disposed of.

All parties shall act on the server copy of this order

duly downloaded from the official website of this Court.

( Subhendu Samanta, J.)