Calcutta High Court (Appellete Side)
Shrimati Mala Chakraborty vs United India Insurance Co. Ltd. & ... on 29 August, 2023
29.08.2023
Ct. no.654
Sl. No.5 & 6
ss
IN THE HIGH COURT AT CALCUTTA
CIVIL APPELLATE JURISDICTION
(Appellate Side)
FMA 1342 of 2022
CAN 1 of 2023
CAN 2 of 2023
Shrimati Mala Chakraborty
Vs.
United India Insurance Co. Ltd. & anr.
With
FMA 223 of 2023
United India Insurance Co. Ltd.
Vs.
Mala Chakraborty and ors.
Mr. Rabindra Nath Mahata
Ms. Tandra Karim
...for the appellant-claimant
(F.M.A.1342 of 2022)
for the respondent no.1-claimant
(F.M.A.223 of 2023)
Ms. Sucharita Paul
..for the respondent-Insurance Co.
(F.M.A.1342 of 2022)
... for the appellant-Insurance Co.
(F.M.A.223 of 2023)
Both these appeals arise out of the judgment and
award dated 13th June, 2022 passed by learned Judge,
Motor Accident Claims Tribunal, XII Bench, City Civil
Court at Calcutta in MAC Case No. 171 of 2018 granting
compensation of Rs.20,05,000/- together with interest at
the rate of 9% per annum from the date of filing of the
claim application till realisation in favour of the claimant,
the mother of the deceased, under Section 166 of the
Motor Vehicles Act, 1988.
The brief facts of the case is that on 11th January,
2018 at about 15.10 hours in front of "Sandhya Sweets"
at P-106, CIT Road, Kolkata-700014 the offending vehicle
bearing registration No. WB-19H/9254 in a rash and
negligent manner dashed the victim, as a result of which,
the victim sustained severe injuries on his person and
was removed to Calcutta Medical College and Hospital
where the attending doctor declared him brought dead.
On account of sudden demise of the victim, the claimant
being the mother of the deceased filed application for
compensation of Rs.25,65,000/- together with interest
under Section 166 of the Motor Vehicles Act, 1988.
The claimant in order to establish her case
examined three witnesses and produced documents,
which have been marked as Exhibit-1 to 16 respectively.
The Insurance Company also adduced the evidence
of one witness and produced documents which have been
marked as Exhibit- A and B respectively.
By order dated 31st January, 2022, service of notice
of appeal upon the respondent nos. 2 and 3 has been
dispensed with in FMA 223 of 2023 since the said
respondents did not contest the claim application. For the
similar reason, in FMA 1342 of 2022, service of notice of
appeal upon the respondent nos.2 and 3-owners of the
offending vehicle also stands dispensed with.
Upon considering the materials on record and the
evidence adduced on behalf of the respective parties, the
learned Tribunal granted compensation of Rs.20,05,000/-
together with interest at the rate of 9% per annum from
the date of filing of the claim application till realisation
under Section 166 of the Motor Vehicles Act, 1988.
Being aggrieved by and dissatisfied with the
impugned judgment and award, the Insurance Company
has preferred the appeal being F.M.A.223 of 2023.
The claimant has also challenged the impugned
judgement and award of the learned Tribunal by
preferring the appeal being F.M.A.1342 of 2022.
Both the aforesaid appeals are taken up together
for consideration and disposal.
Ms. Sucharita Paul, learned advocate for the
appellant-Insurance Company (in F.M.A. 223 of 2023)
submits that the learned Tribunal erred in determining
the income of the deceased at Rs.15,000/- per month and
failed to appreciate that the income of the deceased has
not been supported by any documentary evidence. P.W.3,
father of the deceased, deposed that his deceased son
used to work under him in his business and his monthly
salary was Rs.15,000/-. However, P.W.3 failed to produce
any register or documents of business showing payment
of Rs.15,000/- per month from the profit of the business
to his deceased son towards monthly salary. Therefore,
the determination of income of the victim by the learned
Tribunal at Rs.15,000/- per month is totally flawed. She
further submits that the learned Tribunal erroneously
granted Rs.2,50,000/- towards future prospect whereas it
ought to have granted an amount equivalent to 40% of
the annual income of the victim in view of the decision of
Hon'ble Supreme Court in National Insurance
Company Limited versus Pranay Sethi & Others
reported in (2017) 16 SCC 680. Further, the
compensation under the general damages of
Rs.2,25,000/- needs to be modified in terms of the
decision of the Hon'ble Supreme Court in the case of
Pranay Sethi (supra). Lastly, she submits that the interest
on the compensation amount at the rate of 9% per
annum should be scaled down to 6% per annum in view
of prevalent rate of banking interest. In light of her
aforesaid submissions, she prays for modification of the
impugned judgement and award.
In reply to the contentions raised on behalf of the
Insurance Company, Mr. Rabindra Nath Mahata, learned
Advocate for the respondent no.1-claimant (in F.M.A.223
of 2023) at the outset submits that the claimant has filed
two separate applications, namely (i) For acceptance of
additional evidence in respect of income tax returns
acknowledgement for the Assessment Years 2016-2017,
2017-2018, 2018-2019 and 2019-2020, being CAN 1 of
2023 and (ii) For filing four documents namely salary
certificate, trade licence for the years 2016-2017, 2015-
2016 and 2014-2015, before this Court, being CAN 2 of
2023. He submits that the aforesaid documents are
required for just decision of the case. He further submits
that the learned Tribunal considering the evidence of
P.W.3, father of the deceased, has considered the income
of the victim at Rs.15,000/- per month taking into
account that the P.W.3 due to ailment was unable to
carry on his business which was looked after by his
deceased son. Such finding of the learned Tribunal with
regard to determination of income at Rs.15,000/- per
month of the victim does not call for interference. He
fairly submits that multiplier in the present case should
be 18 instead of 17, as adopted by the learned Tribunal.
So far as the future prospect, general damages and
interest on the compensation amount are concerned, he
leaves the matter to the discretion of the Court.
Having heard the learned advocates for the
respective parties, following issues are fallen for
consideration.
Firstly, whether the learned Tribunal erred in
determining the income of the victim at Rs.15,000/- per
month; secondly, whether the learned Tribunal erred in
granting Rs.2,50,000/- towards future prospect; thirdly,
whether the learned Tribunal erred in granting
Rs.2,25,000/- under the general damages; fourthly,
whether the learned Tribunal erred in adopting the
multiplier 17 instead of 18 and lastly, whether the
learned Tribunal erred in allowing interest on the
compensation amount at the rate of 9% per annum.
Before delving into the merits of the appeal, it
would be appropriate to deal with the application being
CAN 1 of 2023 filed by the appellant-claimant (in
F.M.A.1342 of 2022) for acceptance of additional evidence
in respect of income tax returns for Assessment Years
2016-2017, 2017-2018 and 2019-2020 of Shyamal
Chakraborty, father of the deceased.
The power to allow additional evidence at the
appellate stage under Order XLI Rule 27 of the Code of
Civil Procedure is a discretionary power. The general rule
is that no evidence shall be produced during the
pendency of the appeal but the Court has been given the
discretionary power under some specified circumstances
to allow additional evidence. The parties to an appeal
shall not be entitled to produce additional evidence,
whether oral and documentary, in the Appellate Court
except on the grounds enumerated in clauses (a), (aa) and
(b) of Order XLI Rule 27 of the Code of Civil Procedure.
The Court may permit additional evidence to be produced
only on satisfaction that the following three grounds
namely, (i) if the Court from whose decree the appeal is
preferred, has refused to admit evidence which ought to
have been admitted, (ii) the party seeking to produce
additional evidence, establishes that notwithstanding
exercise of due diligence, such evidence was not within
his knowledge or could not, after the exercise of due
diligence, be produced by him at the time when the
decree appealed against was passed or (iii) when the
Appellate Court requires any document to be produced or
any witness to be examined to enable it to pronounce
judgement, or for any other substantial cause.
Bearing in mind the aforesaid proposition of law, let
me revert back the grounds taken by the appellant-
claimant (in FMA 1342 of 2022) in her application for
adducing additional evidence. Precisely, the only ground
taken by the claimant is that she could not file the
documents relating to income from business since she
was not advised for the same. No ground has been made
out that in spite of due diligence the documents were not
within her knowledge or after due diligence the
documents could not be produced before the learned
Tribunal. Further, the income tax returns annexed to the
application relate to the father of the deceased namely,
Shyamal Chakraborty and not of the deceased. Due to the
aforesaid reasons, the application for producing
additional evidence falls short of merits.
Accordingly, the application being CAN 1 of 2023
is dismissed.
The appellant-claimant in her appeal (in FMA 1342
of 2022) has taken out another application seeking leave
to file four documents namely, salary certificate, trade
licence for the years 2016-2017, 2015-2015 and 2014-
2015. Upon going through the case record it is found that
already those documents have been filed by the claimant
on 4th April, 2022 and by order no.20 dated 4th April,
2022 those documents filed were considered as exhibits.
Therefore, the prayer seeking leave to file the aforesaid
documents also falls short of merits.
Accordingly, CAN 2 of 2023 also stands dismissed.
With regard to first issue relating to determination
of income of the victim, it is found that the learned
Tribunal has determined the income of the victim at
Rs.15,000/- per month. In order to establish the income
of the victim, the claimant has examined one Shyamal
Chakraborty, father of the deceased, as P.W.3 and
produced salary certificate issued by the said witness.
P.W.3 in his evidence-in-chief deposed that since due to
his ailment he was unable to look after the day-to-day
affairs of the business under the name and style of "M/s.
M.M. Enterprise, General Order Suppliers" his son used to
work under him as business assistant. He also produced
the salary certificate issued by him showing income of
Rs.15,000/- per month of the victim from such
occupation. Be that as it may, in his evidence-in-chief,
P.W.3 has admitted that he does not maintain any
attendance register or salary register. In cross-
examination, he stated that he could not submit cash
book, ledger and other account books of his firm. He
further stated that he used to pay the salary to his son in
cash. It is imprudent that a person carrying on business
of general order suppliers and making payment of
Rs.15,000/- per month to his son from the account of the
business would not maintain any register for
salaries/payments. The absence of such document raises
doubt as to the income claimed by the claimant at
Rs.15,000/- per month of the victim. The income of the
victim at Rs.15,000/- per month claimed by the claimant
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. . . ."
Bearing in mind the aforesaid proposition and
resorting to certain guesswork, considering the evidence
of the parents that the victim used to assist his father in
the business of general order suppliers and keeping in
mind the peculiar facts and circumstances involved in the
case, I am of the opinion that an income of Rs. 6,000/-
per month of the victim would be reasonable and
appropriate.
With regard to second issue relating to future
prospect, it is found that the learned Tribunal has
granted Rs.2,50,000/- towards future prospect. However,
since the victim at the time of accident was 23 years of
age and presumably self-employed, following the
observation of the Hon'ble Supreme Court in Pranay
Sethi's case (supra) the claimant is entitled to an amount
equivalent to 40% of the annual income of the victim
towards future prospect.
With regard to general damages, it is found that the
learned Tribunal has granted Rs.2,25,000/- on such
head. However, following the observation of Hon'ble
Supreme Court in Pranay Sethi's case (supra), the
claimant is entitled to general damages under the
conventional heads of loss of estate and funeral expenses
of Rs.15,000/- each.
So far as the multiplier is concerned, it is found
that the learned Tribunal has adopted a multiplier of 17.
Following the observation of the Hon'ble Supreme Court
in Sarla Verma and Others versus Delhi Transport
Corporation Ltd. & Another reported in (2009) 6 SCC
121 since the victim at the time of accident was 23 years
of age, hence a multiplier of 18 should be adopted instead
of 17 as adopted by the learned Tribunal.
Coming to the last issue relating to interest on
compensation, the learned Tribunal has granted interest
at the rate of 9% per annum on the compensation
amount from the date of filing of the claim application till
realisation. Bearing in mind the prevalent banking rate of
interest, the compensation amount should carry interest
at the rate of 6% per annum from the date of filing of
claim application till payment.
The other factors have not been challenged in both
the appeals.
Bearing in mind the above, the calculation of
compensation is assessed as follows:
Calculation of Compensation
Monthly income Rs. 6,000/-
Annual income Rs. 72,000/-
(Rs. 6,000/- x 12)
Add: 40% of the annual income Rs. 28,800/-
towards future prospect
Rs. 1,00,800/-
Less: 1/2 towards personal and Rs. 50,400/-
living expenses
Rs. 50,400/-
Multiplier 18 Rs. 9,07,200/-
(Rs. 50,400/- x 18)
Add: General damages Rs. 30,000/-
Loss of estate: Rs.15,000/-
Funeral expenses: Rs.15,000/-
Total compensation Rs. 9,37,200/-
Thus, the claimant is entitled to compensation of
Rs.9,37,200/- together with interest at the rate of 6% per
annum from the date of filing of the claim application
(i.e. 03.04.2018) till payment.
It is found that the Insurance Company has
deposited a sum of Rs.28,57,036/- vide OD Challan
No.3924 dated 27.02.2023 and an amount of Rs.25,000/-
towards statutory deposit vide OD Challan No.1837 dated
13.09.2022. Both the aforesaid deposits together with
accrued interest be adjusted against the entire
compensation amount and the interest thereon.
The claimant is directed to deposit ad valorem court
fees on the compensation assessed, if not already paid.
Learned Registrar General, High Court, Calcutta
shall release the amount of compensation and interest
indicated hereinabove in favour of the claimant upon
satisfaction of her identity and payment of ad valorem
court fees, if not already paid.
Upon full satisfaction of the award, if any amount is
left over, the same shall be refunded to the Insurance
Company.
With the above observations, both the appeals 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, stand disposed
of.
Interim order, if any, stands vacated.
Let a copy of this order along with lower court
records be forwarded to the learned Tribunal at once in
accordance with rules.
Urgent photostat certified copy of the order, if
applied for, be given parties on compliance of all
necessary legal formalities.
< (Bivas Pattanayak, J.)
