Calcutta High Court (Appellete Side)
The New India Assurance Co. Ltd vs Smt. Sova Gayen & Ors on 24 August, 2023
24.08.2023
Ct. 654
D/L 12
ab
IN THE HIGH COURT AT CALCUTTA
CIVIL APPELLATE JURIDICTION
APPELLATE SIDE
FMA 1882 of 2018
With
CAN 1 of 2018 (Old No. CAN 1294 of 2018)
The New India Assurance Co. Ltd.
-Vs-
Smt. Sova Gayen & Ors.
Mr. Sanjay Paul,
Ms. Jaita Ghosh
... for the appellant-Insurance Company
Mr. Laltu Mohan Ghosh
... for the respondent Nos. 1 & 2 -claimants
This appeal is preferred against the judgment and
award dated 15th November, 2017 passed by the
learned Additional District Judge-cum-Judge, Motor
Accident Claims Tribunal, 10th Court, Alipore, 24
Parganas (South) in MAC Case No. 100 of 2001 granting
compensation of Rs. 3,90,000/- together with interest
in favour of the claimant no. 1 under Section 163A of
the Motor Vehicles Act, 1988.
The brief fact of the case is that on 14th January,
2001 at about 14:30 hours the offending vehicle bearing
registration No. WB-02/1735 (Taxi) moving through
Amtala Baruipur Road in a rash and negligent manner
dashed the minor-victim aged about 6 years near
Nabutalla bus stop, as a result of which the victim
sustained multiple injuries on her person and died at
the spot. On account of sudden demise of the victim,
the claimants being the parents filed application for
compensation of Rs. 1,74,500/ together with interest
under Section 163A of the Motor Vehicles Act, 1988.
The claimants in order to establish their case
examined one witness and produced documents, which
have been marked as Exhibits 1 to 8 respectively.
The appellant-insurance did not adduce any
evidence.
Since the respondent no. 2, 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 the
evidence adduced on behalf of the claimants, the
learned Tribunal granted compensation of Rs.
3,90,000/- together with interest in favour of the
claimant no. 1 under Section 163A of the Motor
Vehicles Act, 1988.
Being aggrieved by and dissatisfied with the
impugned judgment and award of the learned Tribunal,
the insurance company has preferred the present
appeal.
Mr. Sanjay Paul, learned advocate for the
appellant-insurance company submits that the learned
Tribunal erred in determining the income of the minor-
victim at Rs. 36,000/- per annum whereas it ought to
have followed the Second Schedule to the Motor
Vehicles Act which provides for notional income of Rs.
15,000/- per annum in case of non-earning persons. He
fairly submits that the multiplier should be 20 instead
of 15 adopted by the learned Tribunal. To buttress his
contention, he relies on the decision of this Court
passed in FMA 197 of 2019 (Ruksana Bibi &
Another versus The Divisional Manager, National
Insurance Company Limited & Another). He further
submits that the learned Tribunal also erred in granting
general damages of Rs. 30,000/- whereas it ought to
have granted Rs. 4,500/- following the Second Schedule
to the Act. In the light of his aforesaid submissions, he
prays for modification of the impugned judgment and
award of the learned Tribunal.
Mr. Laltu Mohan Ghosh, learned advocate for the
respondent nos. 1 & 2 (claimants) leaves the matter to
the discretion of the Court.
Having heard the learned advocates for the
respective parties, following issues have fallen for
consideration. Firstly, whether the learned Tribunal
erred in determining the income of the minor-victim at
Rs. 36,000/- per annum; secondly, whether the
multiplier should be 20 in case of a minor instead of 15
adopted by the learned Tribunal and lastly, whether the
learned Tribunal erred in granting general damages of
Rs. 30,000/- instead of Rs. 4,500/-.
With regard to the first issue relating to determination
of income of the minor-victim, it is found that the
learned Tribunal has considered Rs. 36,000/- per
annum as the income of the minor-victim. The Second
Schedule to the Act provides for notional income of Rs.
15,000/- per annum in case of non-earning persons.
This Hon'ble Court has consistently considered the
notional income of Rs. 15,000/- per annum in case of a
minor-victim in an application under Section 163A of
the Act. [See Sabina Yeasmin & Anr. versus The
Branch Manager, New India Assurance Co. Ltd. &
Anr. reported in (2016) 2 WBLR (Cal) 71 and National
Insurance Company Ltd. versus Jayanti Barik and
Another reported in 2019 (1) T.A.C. 201 (Cal.)].
Therefore, in the facts and circumstances of the case,
since the victim is a minor, the notional income of Rs.
15,000/- per annum should be taken into account for
calculation of just compensation.
So far as the multiplier is concerned, it is found
that the learned Tribunal has adopted multiplier of 15.
This Court in Sabina Yeasmin (supra) and Jayanti Barik
(supra) following the proposition laid down by the
Hon'ble Supreme Court in Sarla Verma and Others
versus Delhi Transport Corporation and another
reported in 2009 ACJ 1298, has considered the
multiplier for a victim of road accident who was aged
below 15 years to be 20. Thus, the multiplier in this
case in respect of a victim aged 6 years should be 20
instead of 15 adopted by the learned Tribunal.
Coming to the last issue relating to general
damages, it is found that the learned Tribunal has
granted Rs. 30,000/- under the conventional heads
towards general damages. Following the Second
Schedule to the Act, the claimants are entitled to Rs.
2,500/- towards loss of estate and Rs. 2,000/- towards
funeral expenses.
The other factors have not been challenged in this
appeal.
Bearing in mind the above factors, calculation is
made hereunder:
Calculation of Compensation
Notional yearly income Rs. 15,000/-
Less: 1/3rd towards personal Rs. 5,000/-
and living expenses
Rs. 10,000/-
Multiplier 20 Rs. 2,00,000/-
(Rs. 10,000/- x 20)
Add: General damages Rs. 4,500/-
Loss of estate: Rs.2,500/-
Funeral expenses: Rs.2,000/-
Total compensation awardable Rs. 2,04,500/-
Thus the claimants are entitled to compensation
of Rs.2,04,500/- together with interest @ 6% per
annum from the date of filing of the claim application
till deposit.
It is found that the appellant-insurance company
has deposited a sum of Rs. 7,70,173 vide OD Challan No.
481 dated 7th June, 2018 and has also deposited an
amount of Rs.25,000/- towards statutory deposit vide
OD Challan No. 3343 dated 16th March, 2018 before the
registry of this Court. Both the aforesaid deposits together
with accrued interest be adjusted against the entire
compensation amount and interest thereon.
Relying on the decision in Sarla Verma (supra), the
learned Tribunal granted compensation in favour of
mother only. However, father being legal representative is
also entitled to compensation.
Accordingly, learned Registrar General, High
Court, Calcutta shall release the aforesaid amount of
compensation and interest as indicated above in favour of
the respondent nos. 1 and 2 (claimants) in equal
proportion, upon satisfaction of their identity.
After satisfaction of the entire compensation
amount, if any amount is left over, the same shall be
refunded to the Insurance Company
With the aforesaid observations, the appeal stands
disposed of. The impugned judgement and award is
modified to the above extent. No order as to costs.
All the connected applications, if any, stand
disposed of.
Interim order, if any, stands vacated.
Let a copy of this order along with the lower court
records be sent to the learned Court below for information
in accordance with the rules.
Urgent photostat copy of this order, if applied for,
be given to the parties upon compliance of necessary legal
formalities.
( Bivas Pattanayak, J.)
