Rekha Bibi vs The Manager
2023 Latest Caselaw 5708 Cal

                       IN THE HIGH COURT AT CALUTTA
                          Civil Appellate Jurisdiction
  30.08.2023
   SL No.7
Court No. 551
      Ali


                         F.M.A. 267 of 2012
                 IA No: CAN/1/2017 (Old No.:CAN/5203/2017)
                            Rekha Bibi
                                Vs.
                  The Manager, Bajaj Allianz General
                      Insurance Co. Ltd. & Ors.

                  Mr. Saidur Rahaman
                                 ......for the appellant-claimant.

                  Mr. Indradip Das,
                  Ms. Sristi Roy
                    ...........for the respondent No. 1 insurance Co.

The instant appeal is preferred against the

judgment and award dated 18th May, 2011 passed

by the learned Judge, Motor Accident Claims

Tribunal, 2nd Court, Malda in MAC Case No. 184 of

2009 under Section 163-A of the M.V. Act.

The present appellant being the claimant

preferred an application before the learned tribunal

under Section 163-A of the M.V. Act for getting

compensation from the insurance company on the

ground that the son of the claimant No. 1 was died

in a road traffic accident due to rash and negligent

driving of the driver of the offending vehicle. The

claim case was contested by the insurance company

before the learned tribunal.

The learned tribunal after hearing the

parties and after recording the evidences thereon

has awarded a sum of Rs.1,64,500/- towards the

compensation and directed the present contesting

respondent herein to pay the 75% of the said

compensation and rest 25% has to be paid by the

owner of the other offending vehicle i.e. pick-up van.

Being aggrieved by and dissatisfied with the

impugned award the present appellant has been

preferred or enhancement of the award.

Learned advocate for the appellant

submitted before this court that the impugned

award passed by the learned tribunal considering

the income of the deceased to be notionally to be Rs.

15,000/- per annum is erroneous. The learned

tribunal should have considered the claim

application wherein the income of the deceased was

stated to be Rs.2000/- per month. The deceased was

a Khalasi of the pick-up van so in the year 2009 his

income was not less than Rs. 2,000/-. The learned

tribunal has failed to appreciate the facts and

circumstances of this case and came to an

erroneous finding. So, he prayed for just and proper

compensation considering the income of the

deceased to be Rs. 2,000/- per month.

Learned advocate appearing on behalf of the

Bajaj Allianz General Insurance Co. Ltd has

submitted before this court that the learned tribunal

has passed the award correctly. The learned tribunal

in deciding the issue Nos. 3 and 4 has categorically

observed that the present deceased was not at all

Khalasi in the pick-up van at the time of accident.

He pointed out the evidence of PW-1 wherein the

mother of the deceased has been specifically stated

that her son including the other two persons where

travelling through the pick-up van and they were

boarded at Malda. Learned advocate for the

insurance company also pointed out the FIR

wherein the presence of three persons in the pick-up

van was mentioned. He argued that the observation

of the learned tribunal on the basis of such finding

is very much correct and cannot be denied in this

appeal.

Heard the learned advocate perused the

materials on record in considering the submission of

the learned advocate for the appellant it appears to

me that the instant claim application was filed

stating the deceased to be the Khalasi of the pick-up

van. The learned tribunal has observed that the

owner of the pick-up van has never appeared

instead he was made party in this proceeding.

Learned tribunal is also of the view that the

materials on record shows that the deceased was

not the Khalasi. After hearing the submission of the

learned advocate for the insurance company, it

appears to me that the observation of the learned

tribunal in respect of the occupation of the deceased

and income thereof is not at all bad. There is no

perversity in the impugned award in respect of the

observation of the leaned tribunal regarding the

occupation and income of the deceased. Actually,

there are no materials before the learned tribunal for

which he hold the notional income of the deceased

to be Rs. 15,000/- per annum according to 163-A of

the M.V. Act. However, I find no merit on that

respect.

The tribunal has adopted the multiplier of

16 on the basis of the age of the PW-1 i.e. the

claimant No. 1 (mother of the deceased), the

approach of the learned tribunal to assess the

compensation on the basis of multiplier adopted on

the basis of age of the parents of the deceased is not

correct. The multiplier should be assessed according

to the age of the deceased. From the certificate of

birth filed before the learned tribunal of the

deceased it appears that the date of birth of the

deceased is 3rd September, 1985. The accident was

happened on 27th May, 2009. Thus, the deceased

was within the age group of 21-25 at the time of

accident; so in this case the multiplier should be 17

instead of 16. It is further observed that the

compensation was divided between two insurance

companies in the ratio of 75% to 25%. Admittedly,

the owner and insurer of the pick-up van did not

appear in this proceeding so according to the

observation of the Hon'ble Supreme Court the third

party should not be suffered to get the

compensation from the non-contesting owner but it

is the observation of the Hon'ble Supreme Court in

different occasion that the contesting insurer shall

have to pay the entire compensation and they shall

recover the portion of compensation as assessed by

the tribunal from the other owner or the insurer of

the vehicle through a separate proceeding.

Considering the same, I think it necessary to modify

the award passed by the learned tribunal

For just and proper compensation of this

case; the annual income of the deceased was

calculated to be Rs.15,000/- per month. 1/3rd is

deducted to his personal expenses so the yearly

dependency comes to Rs.10,000/- per annum, the

applicable multiplier in this case is 17. After

multiplying the multiplier the award comes to

Rs.1,70,000/-,the general damages added Rs.

4,500/-so after adding the general damages the

award comes to Rs. 1,74,500/-.

The claimant has already received the award

amounting to Rs.1,23,375/- so the balance amount

comes to Rs.51,125/-.

The contesting Bajaj Allianz General

Insurance Co. Ltd. is directed to pay the balance

compensation amounting to Rs. 51,125/- alongwith

interest @ 6% per annum from the date of filing of

the claim application within eight weeks from the

date of passing of this order with the office of the

learned Registrar General, High Court, Calcutta. On

such deposit the claimants are at liberty to receive

the same according to the prevalent rules.

It is ordered that the contesting respondent

i.e. Bajaj Allianz General Insurance Co. Ltd. is at

liberty to recover the 25% of the compensation

amount from the owner or the insurer of the pick-up

van duly involved in the said accident through a

separate proceeding.

The instant FMA 267 of 2012 is disposed

of.

All connected applications, if any, stand

disposed of.

Interim orders, if any, stand vacated.

Parties to act upon the server copy and

urgent certified copy of this order be provided on

usual terms and conditions.

(Subhendu Samanta, J.)