Smt. Sumitra Biswas & Ors vs The National Insurance Co. Ltd. & ...
2023 Latest Caselaw 5436 Cal

                         IN THE HIGH COURT AT CALUTTA
                            Civil Appellate Jurisdiction
  23.08.2023
   SL No.39
Court No. 551
      Ali


                           FMA 1236 of 2022
                IA No: CAN/1/2013 (Old No:CAN/6484/2013)
                       Smt. Sumitra Biswas & Ors.
                                   Vs.
                  The National Insurance Co. Ltd. & Anr.

                    Mr. Amit Ranjan Roy
                                  ......for the appellants-claimants.
                    Mr. Afroze Alam
                              ...........for the respondent insurance Co.

The instant appeal is preferred by the

claimants against the judgment dated 18th January,

12th day of December, 2012 passed by the learned

Judge, Motor Accident Claims Tribunal, 1st Court,

Nadia in MAC Case No. 375 of 2011 under Section

166 of the M.V. Act.

The brief facts of the case is that the

present appellant being the claimants preferred one

claim 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 was died in a road traffic accident

due to rash and negligent driving of the driver of the

offending vehicle duly insured under the policy of

the insurance company. The owner of the offending

vehicle did not contest the matter before the learned

tribunal. However, the insurance company has

contested the case by filing written statement. After

hearing the parties and after receiving the evidences

from the claimants, the learned tribunal has

awarded a sum of Rs.3,69,500/- in favour of the

claimants.

Being aggrieved by and dissatisfied with the

said award the present appeal has been preferred by

the claimants for enhancement of the compensation.

Learned advocate for the appellants

submitted before this court that the impugned

award passed by the learned tribunal is erroneous.

It was pleaded before the learned tribunal that the

deceased was a mason and he used to earn Rs.

180/- per day. The oral evidences were properly

adduced to that effect. But the learned tribunal has

considered the income of the deceased notionally to

be Rs.100/- per day. There is no justification for

such finding of the learned tribunal so the

assessment of compensation by the learned tribunal

on the basis of the income of the deceased i.e. Rs.

3,000/- per month is erroneous. He also argued that

by virtue of decision of the Hon'ble Apex Court

passed in Pranay Sethi. The claimants are entitled

to get the future prospects as well as the general

damages, in this case which was not awarded by the

learned tribunal.

The learned advocate for the insurance

company submitted before this court that the

impugned award passed by the learned tribunal is

not perverse there is no chance to interfere with the

impugned award. No document of income was

produced or proved before the learned tribunal. The

learned tribunal has no materials to consider the

income of the deceased to Rs. 180/- per day. Only

the pleading is not sufficient to assess the

compensation in a Motor Vehicles Act.

In this case, the learned tribunal has not

committed any error. He also conceded that the

Constitution Bench of Hon'ble Supreme Court has

guided to provide the future prospects and general

damages so they may be allowed.

Heard the learned advocate perused the

materials on record and also perused the impugned

judgment passed by the learned tribunal. The

learned tribunal has awarded the compensation on

the basis of the income of the deceased to be Rs.

3,000/- per month. The income of the deceased was

considered by the learned tribunal to be Rs. 100/-

per day. It is true that for a mason is not possible to

show any document of income. Moreover, if it

considered the income of the deceased Rs. 180/- per

day then also in every day of a month, it is not

possible for a mason to be engaged himself for

employment.

However, this court on such obligation has

generally formulated a practice that when a

deceased died in a road traffic accident in the year

2011 to 2014 without any reliable documentary

evidences of income, the notional income of the

deceased to be considered Rs.4,000/- per month,

the same view may be applied in this case. Thus, in

this case the compensation should be calculated on

the basis of the income of the deceased to be Rs.

4,000/- per month. It further appears that the

multiplier adopted by the learned tribunal is 15 but

considering the postmortem report in page 15 of the

paper book the age of the deceased appears to be 45

years. Thus, the multiplier of this case would be 14

according to the judgment of Hon'ble Supreme Court

passed in Sarla Verma. The claimants are also

entitled to get the future prospect which would be

added with his establish income; it would be 25%.

The claimants are also entitled to get the general

damages of Rs. 70,000/-.

On considering the entire aspects, it appears

to me that the impugned award passed by the

leaned tribunal need be modified.

For just and proper compensation of this

case, the income of the deceased is calculated Rs.

4,000/- per month. The yearly income comes to Rs.

48,000/-. 25% future prospect i.e. Rs. 12,000/-to be

added so after adding the future prospect the

annual income comes to Rs. 60,000/- 1/3rd is

deducted towards his personal expenses of the

deceased. Thus, the yearly dependency comes to

Rs.40,000/-, the applicable multiplier in this case is

14 so after multiplying the multiplier the loss of

dependency comes to Rs.5,60,000/-. The claimants

are also entitled to get the general damages of Rs.

70,000/-thus the award comes to Rs.6,30,000/-.

The claimant has already received the award

amounting to Rs.3,46,500/- so after subtracting,

the balance award comes to Rs.2,83,500/-.

The insurance company is directed to pay

the balance compensation to the claimants

alongwith interest @ 6% per annum from the date of

filing of this claim application within eight weeks

from the date of passing of this order with the office

of the learned tribunal vide three equal account

payee cheques in the name of appellant Nos. 1, 2 &

3 i.e. Smt. Sumitra Biswas, Palash Biswas and

Baishakhi Biswas (Das).

On such deposit the claimants are at liberty

to receive the same cheques subject to

ascertainment of payment of requisite court fees.

The instant FMA 1236 of 2022 is disposed

of.

All connected applications, if any, stand

disposed of.

Interim orders, if any, stand vacated.

Parties to act upon the server copy and

urgent certified copy of this order be provided on

usual terms and conditions.

(Subhendu Samanta, J.)