Calcutta High Court (Appellete Side)
National Insurance Co. Ltd vs Smtya Kalyani Jana & Ors on 25 August, 2023
25.08.2023
Ct. 654
D/L 22 & 23
Kb/ab
IN THE HIGH COURT AT CALCUTTA
CIVIL APPELLATE JURIDICTION
APPELLATE SIDE
FMA 1082 of 2022
With
CAN 1 of 2022
National Insurance Co. Ltd.
-Vs-
Smtya Kalyani Jana & Ors.
With
COT 84 of 2022
Smtya Kalyani Jana & Anr.
-Vs-
National Insurance Co. Ltd
Mrs. Sucharita Paul
... for the appellant-Insurance Company
Mr. Jayanta Kumar Mandal,
Mr. Sayantan Rakshit
... for the respondent nos. 1 & 2-claimants
This appeal is preferred against the judgment and
award dated 4th March, 2022 passed by the learned
Judge, Motor Accident Claims Tribunal, 1st Court,
Contai in MAC Case No. 03 of 2014 granting
compensation of Rs. 11,06,600/- together with interest
in favour of the respondent nos. 1 & 2-claimants under
Section 166 of the Motor Vehicles Act, 1988.
The brief fact of the case is that on 11th
November, 2013 at about 8 a.m. while the victim was
standing beside Mandarmoni-Chaulkhola pitch road
near Tarangamala Hotel at that time the offending
vehicle bearing registration No. WB-31/2710 (Tractor)
dashed the victim from behind, as a result of which the
victim sustained grievous injuries all over his body and
died on the spot. On account of sudden demise of the
victim, the claimants being the widow, minor son and
the mother of the deceased filed application for
compensation of Rs. 9,60,000/- together with interest
under Section 166 of the Motor Vehicles Act, 1988.
During the pendency of the claim application, the
mother of the deceased namely Menaka Jana (Claimant
No. 3) expired and her name has been expunged from
the claim application on 15th February, 2022.
The claimants in order to establish their case
examined three witnesses and produced documents,
which have been marked as Exhibits 1 to 14
respectively.
The appellant-insurance company did not adduce
any evidence.
By order dated 1st February, 2023, service of
notice of appeal upon the respondent no. 3, owner of
the offending vehicle has been dispensed with since he
did not contest the claim application.
Upon considering the materials on record and the
evidence adduced on behalf of the claimants, the
learned Tribunal granted compensation of Rs.
11,06,600/- together with interest in favour of the
claimants under Section 166 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.
Challenging the impugned judgment and award of
the learned Tribunal, the claimants have also preferred
a cross objection being COT 84 of 2022.
Both the appeal and the cross objection are taken
up together for consideration and disposal.
Mrs. Sucharita Paul, learned advocate for the
appellant-insurance company submits that the learned
Tribunal erred in determining the income of the victim
at Rs. 6,500/- per month, in spite of fact that no such
cogent documentary evidence has been produced to
primarily establish the employment and the income
from salary of the victim. She submits that since the
accident has taken place in the year 2013, at best the
income can be considered at Rs. 4,000/- per month. In
the light of her aforesaid submissions, she prays for
modification of the impugned judgment and award of
the learned Tribunal.
In reply to the contention raised on behalf of the
appellant-insurance company, Mr. Jayanta Kumar
Mandal, learned advocate for respondent nos. 1 & 2-
claimants submits that P.W.1, widow of the deceased
has categorically deposed that her deceased husband
used to earn Rs.7,000/- per month by working in "M/s
Rekha Sea Food Product Private Limited" which is not
contradicted by any contrary evidence and therefore the
oral evidence can be taken into consideration for
determining the income of the victim. In support of his
contention, he relies on the decision of Hon'ble Supreme
Court passed in the matter of Mohammed Siddique &
Ors. versus National Insurance Co. Limited & Ors.
reported in (2020) 3 SCC 57 and another decision of
this Court passed in National Insurance Co. Limited
& Ors. versus Sujata Manna & Ors. reported in
MANU/WB/0540/2017. He further submits that the
victim at the time of accident was about 35 years of age
and was on fixed salary and as such the claimants are
entitled to an amount equivalent to 40% of the annual
income of the victim towards future prospect. He also
submits that claimants are entitled an amount of
Rs.70,000/- towards general damages under the
conventional heads together with 10% escalation on
such amount. In the light of his aforesaid submissions,
he prays for enhancement of the compensation amount.
Having heard the learned advocates for the
respective parties following issues have fallen for
consideration. Firstly, whether the Tribunal erred in
determining the income of the victim. Secondly,
whether the claimants are entitled to an amount
equivalent to 40% of the annual income of the deceased
towards future prospect. Lastly, whether the claimants
are entitled to general damages of Rs.70,000/- under
the conventional heads together with escalation of 10%
on such general damages.
With regard to the first issue relating to
determination of the income, it is found that the learned
Tribunal has determined the income of the victim at
Rs.6,500/- per month. The claimants in their claim
application as well as through their witnesses have
claimed that the deceased had a monthly income of
Rs.7,000/- per month by working in "M/s. Rekha Sea
Food Product Private Limited". In order to establish the
income and employment of the victim the claimants
adduced the evidence of one Sk. Mustaq Ali as PW-3,
who proved the salary certificate marked as Exhibit-14.
PW-3 deposed that the victim performed his duties at
"M/s. Rekha Sea Food Product Private Limited" from 1st
June, 2013 to 11th November, 2013 and his monthly
salary was Rs.7,000/-. However, in cross examination
the witness admitted that he did not bring the payment
register regarding payment of salary of Rs.7,000/- per
month to the victim. He also admitted that no register is
maintained in the Company regarding appointment.
Further, there is no pay-slip issued to the victim by
"M/s. Rekha Sea Food Product Private Limited". It is
pertinent to note from cross-examination of P.W. 3 that
on the date of examination he was not in employment
with "M/s. Rekha Sea Food Product Private Limited". No
letter of authority was produced before the Court by
this witness to depose in this case. The salary certificate
has been issued on 23rd December, 2015 but the
witness failed to produce any document on the material
point of time, he worked as a manager in "M/s. Rekha
Sea Food Product Private Limited". Such being the
position the evidence of P.W.-3 and the salary certificate
issued by him is not acceptable.
In Mohammed Siddique (supra), it is found that
the employer of the victim was examined who issued
certificate marked as Exhibit. Considering the same, the
Hon'ble Court held that the interference made by the
High Court with the findings of the Tribunal with regard
to the monthly income of the deceased was uncalled for.
The fact of the cited decision is distinguishable.
With regard to Sujata Manna (supra), it is found
that the victim used to run a hair cutting saloon as
Barber and oral testimony of widow was consistent with
regard to income of the victim of Rs. 6,000/- per month
whereas in the case at hand the claimants have claimed
that the victim was in service and tried to prove
documents which have already been found to be
unacceptable for the reasons enumerated as above.
Thus, the proposition in the Sujata Manna (supra) does
not apply to the facts of this case.
Be that as it may, bearing in mind the catena of
decisions of this Court and also considering the
economic factors and price of essential commodities
prevailing at the relevant time in the year 2013, I am of
the opinion that an amount of Rs.4,000/- per month as
income of the victim will be reasonable and appropriate
in the facts and circumstances of this case.
With regard to second issue relating to future
prospect, it is found that the Learned Tribunal granted
future prospect of 30% of annual income of the victim.
However, following the proposition of Hon'ble Supreme
Court in National Insurance Company Limited
versus Pranay Sethi and Others, reported in 2017
ACJ 2700, since the victim at the time of accident was
about 35 years of age and was presumably self-
employed, an amount equivalent to 40% of the annual
income of the victim should be taken into account
towards future prospect.
As regards general damages, it is found that the
learned Tribunal has granted Rs. 5,000/- towards
funeral expenses and Rs. 20,000/- towards loss of
consortium. Following decision in Pranay Sethi (supra),
the claimants are entitled to general damages under
the conventional heads of loss of estate, loss of
consortium and funeral expenses to the tune of Rs.
15,000/-, 40,000/- and Rs. 15,000/- respectively
together with 10% escalation on the said amount since
three years have already been elapsed.
Other factors have not been challenged in this
appeal.
Bearing in mind the aforesaid, calculation of
compensation is made hereunder.
Calculation of Compensation
Monthly Income Rs.4,000/-
Annual Income Rs.48,000
(Rs.4,000/-x 12)
Add: 40% of annual income towards Rs.19,200/-
future prospect
Rs.67,200/-
Less: 1/3rd towards personal and Rs.22,400/-
living expenses
Rs.44,800/-
Multiplier 16 Rs.7,16,800/-
(Rs.44,800/- x 16)
Add: General damages Rs.70,000/-
Loss of estate: Rs.15,000/-
Loss of consortium: Rs.40,000/-
Funeral expenses: Rs.15,000/-
Add: 10% escalation on general Rs.7,000/-
damages
Total compensation Rs.7,93,800/-
Thus the claimants are entitled to compensation
of Rs.7,93,800/- together with interest @6% per annum
from the date of filing of the claim application till
payment.
It is found that the insurance company has
already deposited the amount of Rs. 16,53,769/- vide
OD Challan no. 1629 dated 25th August, 2022 and a
sum of Rs.25,000/- towards statutory deposit vide OD
Challan no.1060 dated 30.06.2022. Both the aforesaid
deposits together with accrued interest be adjusted
against the entire compensation amount and interest
thereon.
Learned Registrar General, High Court, Calcutta
is directed to release the compensation amount and
interest as indicated above in favour of the respondent
nos. 1 and 2, in equal proportion after making payment
of Rs.44,000/- to respondent no.1-widow of the
deceased towards spousal consortium upon satisfaction
of their identity.
Upon full satisfaction of the award, if any amount
is left over, the same shall be refunded to the insurance
company.
Respondent no.1, being the mother and natural
guardian of minor respondent no.2 shall receive the
share of the minor on his behalf and keep the same in a
fixed deposit of any nationalised bank or post office
until attainment of majority of the said minor.
With the aforesaid observations, the present
appeal and the cross objection stand disposed of. The
impugned judgment and award of the learned Tribunal
is modified to the above extent. No order as to costs.
All connected applications, if any, are also
disposed of.
Interim order, if any, stands vacated.
Let a copy of this order along with the lower Court
records be transmitted to the learned Tribunal in
accordance with Rules.
Urgent certified photocopy of this order, if applied
for, be supplied to the parties expeditiously upon
compliance of all necessary legal formalities.
( Bivas Pattanayak, J.)
