Calcutta High Court (Appellete Side)

Shriram General Insurance Co. Ltd vs Mita Dutta & Anr on 30 August, 2023

30.08.2023
 Ct. 654
D/L 4 & 5
  ab/kb

                   IN THE HIGH COURT AT CALCUTTA
                     CIVIL APPELLATE JURIDICTION
                           APPELLATE SIDE

                               FMA 150 of 2023
                                    With
                                CAN 4 of 2023

                      Shriram General Insurance Co. Ltd.
                                    -Vs-
                              Mita Dutta & Anr.

                                      With

                                COT 26 of 2018

                                Mita Dutta
                                    -Vs-
                  Shriram General Insurance Co. Ltd. & Anr.


             Mr. Rajesh Singh
                           ... for the appellant-Insurance Company

             Mr. Amit Ranjan Roy
                              ... for the respondent No. 1 -claimant

This appeal is preferred against the judgment and

award dated 19th August, 2016 passed by the learned

Judge, Motor Accident Claims Tribunal, 3rd Court,

Nadia at Krishnanagar in MAC Case No. 204 of 2014

granting compensation of Rs. 6,08,561/- together with

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

claim application in favour of the claimant under

Section 166 of the Motor Vehicles Act, 1988.

Mr. Amit Ranjan Roy, learned advocate for the

respondent no. 1-claimant submits that the claimant

has filed an application being CAN 4 of 2023 for

amendment of the cause title of the memorandum of

appeal as well as the cross objection to the extent that

her name should be recorded as "Mita Dutta Malakar"

instead and place of "Mita Dutta". He seeks for

necessary amendment.

Mr. Rajesh Singh, learned advocate for the

appellant-insurance company does not raise any

objection.

It is found from the documents annexed to the

application, namely, Aadhaar Card and PAN Card of the

respondent no. 1 that her name is 'Mita Dutta Malakar'.

In view of the above, let the name of the

respondent no. 1 in the cause title of memorandum of

appeal and in the cross-objection be incorporated as

"Mita Dutta Malakar" in place of "Mita Dutta".

Department concerned is directed to make

necessary corrections/incorporations as aforesaid in the

cause title of memorandum of appeal as well as in

cross-objection.

The application being CAN 4 of 2023 stands

disposed of.

The brief fact of the case is that on 7th July, 2013

at about 1.45 p.m, while the victim was returning to her

home by her car at that time the offending vehicle

bearing registration no. WB-41/4004 (Lorry) dashed the

said car, as a result of which the victim sustained

injuries on her person. Due to the said injuries, the

victim sustained disablement. On account of injuries

sustained and subsequent disablement, the claimant-

injured filed application for compensation of Rs.

7,00,000/- under Section 166 of the Motor Vehicles Act,

1988.

The claimant in order to establish her case

examined eight witnesses including herself and

produced documents, which have been marked as

Exhibits 1 to 12 respectively.

The appellant-insurance did not adduce any

evidence.

By order dated 30th January, 2023, service of

notice of appeal upon the respondent no. 2, owner of

the offending vehicle has been dispensed with.

Upon considering the materials on record and the

evidence adduced on behalf of the claimant-injured, the

learned Tribunal granted compensation of Rs.

6,08,561/- together with interest @ 9% per annum from

the date of filing of the claim application in favour of the

claimant 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 present appeal.

Challenging the impugned judgment and award of

the learned Tribunal, the claimant has also preferred a

cross objection being COT 26 of 2018.

Both the appeal and the cross objection are taken

up together for consideration and disposal.

Mr. Rajesh Singh, learned advocate for the

appellant-insurance company submits that the victim

after the said accident joined her service as a school

teacher and as such, there was no such loss of

earnings. He further submits that the learned Tribunal

erred in granting interest on compensation amount @

9% per annum which needs to be scaled down bearing

in mind the prevalent banking 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. Amit Ranjan Roy,

learned advocate for the respondent no. 1-claimant

submits that the assessment towards the loss of

earnings made by the learned Tribunal is correct and

does not call for interference. He further submits that

the learned Tribunal granted a meagre sum of

Rs.2,000/- towards pain and sufferings and failed to

consider that due to injuries sustained in the said

accident, the victim had to undergo several operative

measures. In view of such submissions, he prays for

enhancement of the compensation amount.

Having heard the learned advocates for respective

parties, following issues have fallen for consideration.

Firstly, whether the learned tribunal erred in

determining the loss of earnings at 10%; secondly,

whether the learned tribunal erred in granting

Rs.2,000/- only towards pain and sufferings and lastly,

whether the Learned Tribunal erred in granting interest

@ 9% per annum on the compensation amount.

With regard to the first issue relating to loss of

earnings, it is found that the learned tribunal has

assessed the loss of earnings at 10% of the annual

income of the victim. The claimant examined Dr. Anjan

Sengupta as P.W.-7, who was a member of the Medical

Board which assessed the disability and he proved the

disability certificate marked as Exhibit 9. P.W.-7

deposed that on examination, the Board found 70%

disablement as the victim suffered fracture of both ulna

along with inter cerebral haemorrhage. However, P.W.7

deposed that the victim did not have any physical

implication of the haemorrhage on her cerebral action

or physical limbs. Further the disability certificate

shows partial disablement. It is not in dispute that after

the accident the victim resumed her services in the

school. P.W.1 Smt. Mita Dutta (injured) in her evidence

in chief stated that due to the said accident she did not

suffer any loss of income as she is still working in the

same institution.

Learned Tribunal taking into consideration the

condition of the victim when she appeared before Court

as well as evidence on record came to this finding that

her disability is of 10%. It is trite law that percentage of

disablement is not always the percentage of loss of

earnings. In the backdrop, the loss of earnings assessed

at 10% of the annual income of the victim by the

Learned Tribunal dos not call for interference.

So far as pain and sufferings is concerned, it is

found that the Learned Tribunal has granted a sum of

Rs.2,000/- towards pain and sufferings. It is not in

dispute that the victim for treatment of her injuries had

to be hospitalised and operated medically. The

discharge certificate of the Divine Nursing Home Pvt.

Ltd. shows that the victim sustained fractures injuries

and had to be operated for distal medial tibial plate

fixation. Such being the position, I am inclined to grant

Rs.50,000/- towards pain and sufferings.

Coming to the last issue relating to the interest on

the compensation amount, it is found that the Learned

Tribunal has granted interest @ 9% per annum on the

compensation amount. However, bearing in mind the

prevailing banking rate of interest, the compensation

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

filing of claim application till payment.

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.20,697/-
      Annual income                      Rs.2,48,364/-
      (Rs.20,697/- x 12)
      Loss of income: 10% of the         Rs.24,836/-
      annual income
      Multiplier 13                      Rs.3,22,868/-
      (Rs.24,836/- x 13)
      Add: Medical Expenses              Rs.2,33,688/-
      Add: Pain and suffering            Rs.50,000/-
      Add: Future medical expenses       Rs.50,000/-
      Total                              Rs.6,56,556/-

Thus the claimant is entitled to compensation of

Rs.6,56,561/- together with interest @ 6% per annum

from the date of filing of the claim application till

payment.

It is informed that the Insurance Company has

deposited a sum of Rs.7,41,986/- vide OD Challan no.

1096 dated 28th July, 2017 and has also deposited an

amount of Rs.25,000/- vide OD Challan no. 3260 dated

7th March, 2017. Both the aforesaid deposits together

with accrued interest be adjusted against the entire

compensation amount and the interest thereon.

Appellant-insurance company is directed to