Calcutta High Court (Appellete Side)
Mira Mondal & Anr vs The New India Assurance Co. Ltd. & Anr on 5 December, 2023
IN THE HIGH COURT AT CALUTTA
Civil Appellate Jurisdiction
05.12.2023
SL No.15
Court No. 551
Ali
FMAT (MV) 95 of 2023
With
IA No.:CAN/1/2023
Mira Mondal & Anr.
Vs.
The New India Assurance Co. Ltd. & Anr.
Mr. Amit Ranjan Roy
....for the appellants/claimants.
Mr. Animesh Das
................ for the appellant.
The instant appeal is preferred against the
judgment and award dated 28th July, 2022, passed
by the learned Judge, Motor Accident Claims
Tribunal, 2nd Court, Howrah, in M.A.C. Case no. 116
of 2009 under Section 166 of the M.V. Act
In Re.: CAN 1 of 2023
This is an application for condonation of
delay of 99 days in preferring the instant appeal.
Heard the learned advocates perused the
grounds mention in the body of the application
itself.
Considering the same, it appears to me that
the grounds are sufficient. Accordingly, the delay in
preferring the instant appeal is hereby condoned.
Appeal is formally admitted.
The application being CAN 1 of 2023 is
disposed of.
2
FMAT (MV) 15 of 2023
The contesting respondent/New India
Assurance Company Ltd. has already made their
appearance and respondent No. 2, owner of the
offending vehicle did not contest the matter before
the learned tribunal. Accordingly, the notices of
appeal upon the respondents are dispensed with.
A very short point is involved in this appeal.
The appellant has prepared the paper books
containing pleadings and proofs both oral and
documentary and file the same before this court for
speedy disposal of this matter. Considering the came
the calling for record from the LCR is dispensed
with.
The appeal is taken up for hearing.
The claimants has preferred an application
under Section 166 of the M.V. Act before the learned
tribunal for getting compensation on the ground
that they are the parents of a person aged about 26
years (deceased) who was bachelor and died due to
rash and negligent driving of the driver of the
offending vehicle duly insured under the policy of
the insurance company.
The insurance company has contested the
matter before the learned tribunal and after hearing
the parties and after receiving the evidences on
record, the learned tribunal has awarded a sum of
Rs. 3,50,000/- alongwith interest @ 7.5% per
annum from the date of filing of the claim
application.
Being aggrieved by and dissatisfied with the
said award the instant appeal has been preferred by
the claimants.
It is the argument on behalf of the
appellants that the calculation made by the learned
tribunal is totally erroneous. Moreover, the
observation of the Hon'ble Supreme Court passed in
Sarala Verma Vs. Delhi Transport Corporation
though followed but not properly calculated in the
calculation part. He further argued that it would be
revealed from the calculation that though the just
and proper compensation comes to Rs. 6,88,000/-
but he awarded only Rs. 3,50,000/- i.e. the claimed
amount. He again argued that by virtue of the
decision of the Hon'ble Supreme Court passed in
Nagappa Vs. Gurudayal Singh (2003)2 SCC 274,
the tribunal is bound to award the just and proper
compensation irrespective of the claim application of
the claimant. In this score, he prayed for just and
proper compensation.
Learned advocate appearing on behalf of the
respondent/insurance company submitted that the
claim has already been satisfied, the learned
tribunal has awarded the compensation according to
the claim of the claimants, i.e. Rs. 3,50,000/- was
awarded alongwith interest @ 7.5% per annum. He
argued that a huge amount of Rs. 6,92,000/- has
already been paid by the insurance company as per
the direction of the learned tribunal. At this
juncture, the instant appeal is infrustuous. He
further argued that the claim which was satisfied
cannot be again enhanced by virtue of provision of
Order 2 Rule 2 of CPC.
Heard the learned advocates perused the
materials on record. It appears to me that the
present claimants/appellants are the fateful parents
who lost their son aged about 26 years old who was
a bachelor. In assessing the compensation, the
learned tribunal has considered the income of the
deceased Rs. 4,000/- per month and assessed the
compensation. However, there are some
discrepancies in the assessment but though he
assessed the total compensation Rs. 66,88,000/-
but only awarded the claimed amount of Rs.
3,50,000/-. The opinion of the learned tribunal
regarding the restriction of the compensation only
on the basis of claim is erroneous.
The Hon'ble Supreme Court in the case of
Nagappa (Supra) has specifically pointed out that
the just and proper compensation has to be awarded
in a claim case under provision of M.V. Act. So in
my view, the claimants are entitled to get the just
and proper compensation. Accordingly, the award
passed by the learned tribunal and calculation
thereof is herby set aside and the just and proper
compensation is herby assessed as follows:-
Calculation of compensation
1. Monthly Income ..................................Rs.4,000/-
2. Annual Income (Rs.4,000 X 12)........... Rs. 48,000/-
3. 1/2 deduction (Bachelor)........ ..............Rs.24,000/-
4. Multiplier apply 17 (age-26 years)
Rs.24,000/- X 17)..........................Rs.4,08,000/-
5. Add: 40% Future prospects............Rs. 1,63,200/-
Rs.5,71,200/-
Rs. 30,000/-
Rs. 6,01,200/-
Less: already paid.........Rs. 3,50,000/-
Total balance amount......Rs. 2,51,200/-
After calculation the award comes to Rs.
6,01,200. The learned tribunal has already awarded
Rs. 3,50,000/- so the balance award comes to Rs.
2,51,200/-. The insurance company is directed to
calculate and pay the balance awarded amount
alongwith interest @ 6% per annum from the date of
filing of the claim application i.e. from 27.03.2009
within six weeks from the date of passing of the
order through the office of the learned tribunal.
The insurance company is directed to pay
the balance calculated amount alongwith with
appropriate interest as mentioned above vide two
separate equal account payee cheques in the name
of the claimants. The office of the learned tribunal
shall disburse the same in the name of the claimant
subject to ascertainment of payment of requisite
Court Fees, if any.
The instant FMAT (MV) 95 of 2023 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.)
