Calcutta High Court (Appellete Side)

The New India Assurance Co. ... vs Najima Bibi & Ors on 29 August, 2023

29.08.2023                 IN THE HIGH COURT AT CALCUTTA
Ct. no.654                  CIVIL APPELLATE JURISDICTION
Item nos.3&4                         (Appellate Side)
   Sn/KB
                                      FMA 929 of 2022

                            The New India Assurance Co. Limited
                                           Vs.
                                   Najima Bibi & Ors.
                                          with
                                      COT 87 of 2022

                                    Najima Bibi & Ors.
                                          Vs.
                         New India Assurance Co. Limited & Anr.


               Mr. Sanjay Paul
                               ...for the appellants-insurance Co.
               Mr. Ashique Mondal
                                .. for the respondents-claimants

This appeal is preferred against the judgment

and award dated 12 April, 2022 passed by the

learned Additional District Judge-cum-Judge, Motor

Accident Claims Tribunals, Diamond Harbour, 24

Parganas (South) in MAC case no.22 of 2020

granting compensation of Rs.17,70,700/- together

with interest @ 9% per annum from the date of filing

of the claim application till realization under Section

166 of the Motor Vehicles Act, 1988.

The brief fact of the case is that on 9th

December, 2019 at about 1-00 p.m. while the victim

was proceeding from Amtala to Sirakole More riding

on a motor cycle and when he reached near

Gangarampur More at that time the offending vehicle

bearing registration no. WB-19H-7653 coming from

opposite direction in a rash and negligent manner

dashed the victim, as a result of which the victim

sustained severe bleeding injuries on his person.

Immediately, the victim was shifted to Amtala

Hospital wherefrom he was referred to Shankarnath

Dialysis Centre and Nursing Home and thereafter he

was also taken to Medical College & Hospital,

Kolkata, where he succumbed to his injuries and

died. On account of sudden demise of the victim, the

claimants being the widow, minor daughters and

parents of the victim filed application for

compensation of Rs.20,00,000/- together with

interest under Section 166 of the Motor Vehicles Act,

1988.

The claimants in order to establish their case

examined three witnesses and produced documents,

which have been marked as Exhibits 1 to 29

(collectively).

The appellant-insurance Company did not

adduce any evidence.

By order dated 3rd November, 2022, service of

notice of appeal upon the respondent no.6, owner of

the offending vehicle, has been dispensed with since

it did not contest the claim application.

Upon considering the materials on record and

evidence adduced on behalf of the respondents-

claimants, the learned Tribunal granted

compensation of Rs. 17,70,700/- together with

interest @ 9% per annum from the date of filing of

the claim application till realization under Section

166 of the Motor Vehicles Act.

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 Cross Objection being COT 87 of 2022.

Both the appeal and the cross objection is

taken up together for consideration and disposal.

Mr. Sanjay 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 which has not

been proved by any cogent documentary evidence

and the only oral evidence of the income of the victim

is of the widow of the deceased which is not

supported by any other evidence. He further submits

that the learned Tribunal erroneously granted filial

consortium and parental consortium of Rs.40,000/-

each. Furthermore, he submits that rate of interest @

9% per annum needs to be scaled down as per the

prevailing bank rate of interest. In the light of his

aforesaid submissions, he prays for modification of

the impugned judgment and award of the learned

Tribunal.

In reply to the contentions raised on behalf of

the appellant-insurance company, Mr. Ashique

Mondal, learned advocate for the respondent nos. 1

to 5 (claimants) submits that the evidence of PW-1,

widow of the deceased, clearly shows that the victim

at the relevant time of accident was a vegetable

vendor having income of Rs. 8,000/- per month and

such evidence has not been contradicted either in the

cross examination or by adducing independent

evidence. The solitary evidence of PW-1 can be

accepted for determination of income of the deceased

in the absence of any other supportive evidence. To

buttress his contentions, he relies on the decision of

this Court passed in Khairunnesa Bibi & Ors.

versus The National Insurance Co.Ltd. & Anr.

reported in 2010 SCC On Line Cal 1348. Referring

to the decision of the Hon'ble Supreme Court in Syed

Sadiq & Ors. versus Divisional Manager, United

India Insurance Co. Ltd. reported in (2014) 2 SCC

735, he submits that the Hon'ble Supreme Court

considered the income of the victim at Rs. 6,500/- in

respect of the accident which has taken place in the

year 2008. Therefore, the accident having taken place

in the year 2019, the income of Rs.8,000/- per

month claimed by the claimants is reasonable and

should be taken into account. He further submits

that since three years have elapsed the claimants are

entitled to 10% escalation on the general damages.

Having heard the learned advocates for the

respective parties, following issues that have fallen

for consideration. Firstly, whether the learned

Tribunal erred in determining the income of the

victim at Rs. 6,500/- per month. Secondly , whether

the learned Tribunal erred in granting filial

consortium and parental consortium. Thirdly,

whether the learned Tribunal erred in granting

interest on compensation @ 9% per annum and

Lastly, whether the claimants are entitled to 10%

escalation on the general damages.

With regard to the first issue relating to

determination of the income of the victim, 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 the

evidence of PW-1, widow of the deceased, had

claimed that the victim at the relevant time of

accident was a vegetable vendor and had monthly

income of Rs.8,000/- per month. It is true that save

and except the evidence of PW-1, there is no evidence

oral or documentary in support of business and

income of the victim. Be that as it may, in the cross

examination also, the PW-1 has stated that her

husband was engaged in vegetable business and

used to earn Rs.8,000/- per month.

In Khairunnesa Bibi (supra), the widow of the

victim in cross-examination deposed that everybody

of the locality knew that the victim was a vegetable

seller but she was not in a position to examine a

single person in support to such claim. Considering

the aforesaid aspect, this Court observed that, if a

witness asserts that everybody of the locality knew

that her husband was a vegetable seller, but for some

reason, she was not in a position to examine any of

them, that fact does not imply that the victim was

not at all a vegetable seller and when no person has

come forward to dispute the assertion of P.W.1. In

the case at hand, P.W.1, widow of the victim has

never deposed that the profession of her husband

was known to the local persons and she was not in a

position to examine a single person. The aforesaid

aspect in the cited decision is distinguishable from

the case at hand.

Be that as it may, the profession of the victim

can be accepted to be a vegetable vendor on the basis

of testimony of P.W.1 which stood firm in cross-

examination. However, the income claimed by the

claimants appears to be exorbitant. In the case of Sri

Ramachandrappa versus The Manager, Royal

Sundaram Alliance Insurance Company Limited

reported in (2011) 13 SCC 236, the Hon'ble

Supreme Court observed as follows:

"14. . . . We hasten to add that in all cases and in all circumstances, the Tribunal need not accept the claim of the claimant in the absence of supporting material. It depends on the facts of each case. In a given case, if the claim made is so exorbitant or if the claim made is contrary to the ground realities, the Tribunal may not accept the claim and may proceed to determine the possible income by resorting to some guesswork, which may include the ground realities prevailing at the relevant point of time. . . ."

In Syed Sadiq (supra), the Hon'ble Supreme

Court observed as follows:

"9. There is no reason, in the instant case for the Tribunal and the High Court to ask for evidence of monthly income of the appellant claimant. On the other hand, going by the present state of economy and the rising prices in agricultural products, we are inclined to believe that a vegetable vendor is reasonably capable of earning Rs.6,500/- per month."

Bearing in mind the aforesaid observation of

the Hon'ble Court, resorting to certain guesswork

and keeping in mind the economic factors and prices

of essential commodities prevalent in the year 2019, I

am of the opinion that the income of Rs.6,500/- per

month of the victim determined by the learned

Tribunal does not call for interference.

With regard to the second issue as to grant of

filial consortium and parental consortium, it is found

that an amount of Rs.80,000/- each has been

granted on such head. The amount towards the

conventional head namely loss of consortium has

been settled by the Hon'ble Supreme Court in

National Insurance Company Limited versus

Pranay Sethi and Others reported in (2017) 16

SCC 680 after considering all other earlier decisions

passed by it and even noted that in different cases

different amounts under conventional heads have

been granted. The Constitution Bench took note of

the following decisions at paragraph no.48 such as in

Sarla Verma and Others versus Delhi Transport

Corporation and Another reported in 2009 (6) SCC

121, the court granted Rs.5,000/-under the head of

loss of estate, Rs.5,000/-towards funeral expenses

and Rs. 10,000/-towards loss of consortium whereas

in Santosh Devi versus National Insurance

Company Ltd. and others reported in 2012 ACJ

1428 (SC) the court granted Rs. 5,000/-for

transportation of the body, Rs.10,000/-as funeral

expenses and Rs.10,000/-as regards loss of

consortium and again in Rajesh and Others versus

Rajbir Singh and Others reported in 2013 ACJ

1403 (SC) the court granted Rs. 1,00,000/-towards

loss of consortium and Rs.25,000/-towards funeral

expenses and Rs.1,00,000/-for loss of care and

guidance to minor children. It has also quoted with

approval the meaning of consortium from paragraph

no.17 in Rajesh (supra). After accepting that the

concept of consortium was confined to spouse or

consort, the allowance for loss of care and guidance

of minor children as provided in Rajesh (supra) was

found to be unacceptable at paragraph no.54 in

Pranay Sethi (supra) which is reproduced hereunder:

"54. As far as the conventional heads are concerned, we find it difficult to agree with the view expressed in Rajesh, 2013 ACJ 1403 (SC). It has granted Rs. 25,000/-towards funeral expenses, Rs.1,00,000/-for loss of consortium and Rs.1,00,000/-towards loss of care and guidance to minor children. The head relating to loss of care to minor children does not exist. Though the Rajesh (supra) refers to Santosh Devi, 012 ACJ 1428 (SC), it does not seem to follow the same. The conventional and traditional heads, needless to say, cannot be determined on percentage basis because that would not be an acceptable criterion. Unlike determination of income, the said heads have to be quantified. Any quantification must have a reasonable foundation. There can be no dispute over the fact that a rise in price index, fall in bank interest, escalation of rates in many a field have to be noticed. The court cannot remain oblivious to the same. There has been a thumb rule in this aspect. Otherwise, there will be extreme difficulty in determination of the same and unless the thumb rule is applied, there will be immense variation lacking any kind of consistency as a consequence of which the orders passed by the tribunals and courts are likely to be unguided. Therefore, we think it seemly to fix reasonable sums. It seems to us

that reasonable figures under conventional heads, namely, loss of estate, loss of consortium and funeral expenses should be Rs.15,000/-,Rs. 40,000/- and Rs.15,000/-respectively. The principle of re-visiting the said heads is an acceptable principle. But the re-visit should not be fact- centric or quantum- centric. We think that it would be condign that the amount we have quantified should be enhanced on percentage basis in every three years and the enhancement should be at the rate of 10 per cent in a span of three years. We are disposed to hold so because that will bring in consistency in respect of those heads"

On conjoint reading of paragraph 48 and 54 of

the said decision, it is clear that the head under loss

of consortium is confined only to spousal

consortium. Thus, the grant of compensation under

filial and parental consortium in addition to the

spousal consortium is erroneous.

With the regard to the rate of interest on the

compensation amount it is found that the learned

Tribunal has granted interest on compensation @ 9%

per annum. However, bearing in mind the prevailing

banking rate of interest, the compensation amount

shall carry interest @ 6% per annum from the date of

filing of the claim application.

Coming to the last issue relating to escalation

on the general damages, following the observation of

Hon'ble Supreme Court in Pranay Sethi (supra), since

three years have already been elapsed, the claimants

are entitled to escalation of 10% on the general

damages.

Other factors have not been challenged in this

appeal.

Bearing in mind the aforesaid factors,

calculation of compensation is made hereunder.


                   Calculation of Compensation

       Monthly income                         Rs.6,500/-
       Annual income                          Rs.78,000/-
       (Rs.6,500/- x 12)
       Add: 40% of the annual income          Rs.31,200/-
            towards future prospect
                                              Rs.1,09,200/-
       Less: 1/4th towards personal           Rs.27,300/-
             and living expenses
                                              Rs.81,900/-
       Multiplier 18                          Rs.14,74,200/-
       (Rs.81,900/- x 18)
       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
       Add: Treatment expenses                Rs.66,500/-
                                              Rs.16,17,700/-

The claimants are entitled to compensation of

Rs.16,17,700/- together with interest @ 6% per

annum from the date of filing of the claim application

(i.e. 1st February, 2020) till payment.

It is found that the insurance company has

deposited a sum of Rs.21,33,410/- vide OD Challan

No. 1327 dated 26th July, 2022 and made statutory

deposit of Rs.25,000/- vide OD Challan No. 1123

dated 6th July, 2022. Both the aforesaid deposits

together with accrued interest be adjusted against

the compensation amount and interest thereon.

Respondents-claimants are directed to deposit