Calcutta High Court (Appellete Side)

Aparna Biswas & Ors vs The Oriental Insurance Co. Ltd. & Anr on 7 December, 2023

                            IN THE HIGH COURT AT CALUTTA
                               Civil Appellate Jurisdiction
 07.12.2023
SL No.7
Court No. 551
   Ali


                                FMA 932 of 2021
                                       With
                               IA No. CAN/1/2022

                           Aparna Biswas & Ors.
                                    Vs.
                The Oriental Insurance Co. Ltd. & Anr.

                   Mr. Amit Ranjan Roy
                                             ................ for the appellant.

                   Ms. Sucharita Paul
                                 ...for the respondent /Insurance Co.

The instant appeal has been preferred

against the Judgment and Award dated 29th

September, 2018 passed by learned Judge, Motor

Accident Claims Tribunal, 1st Court, Howrah, in

M.A.C. Case no. 352 of 2011/819 of 2014 under

Section 166 of the Motor Vehicles Act.

The brief facts of the case is that the present

appellant being the claimants have preferred an

application before the learned tribunal for getting

compensation on the ground that their predecessor

was died in a road traffic accident due to rash and

negligent driving of the driver of the offending

vehicle duly insured under the policy of the

Insurance Company.

The claim case was contested before the

learned tribunal by the insurance company.

After hearing the parties and after receiving

the evidences the learned tribunal has awarded a

sum of Rs. 3,87,500/- in favour of the claimants.

Being aggrieved by and dissatisfied with the

said award the present appeal has been preferred by

the claimants.

Learned advocate for the appellants submits

that the award passed by the learned tribunal is not

justified to the facts and circumstances of this case.

The case goes to show that one heavy truck

suddenly turned to the opposite side of the road

and dashed a car wherein the deceased of this case

was travelling alongwith other two passengers. By

such accident the two persons including the

deceased in the car has lost their life. The learned

tribunal in assessing the compensation has

considered that the driver of the car in which the

victim was travelling was also responsible for the

accident thus the compensation was apportionated

to be 70% : 30%. The observation of the learned

tribunal totally erroneous, the instant FIR was

lodged against the offending heavy vehicle but there

is no evidence on record to prove that the car in

which the deceased victim was travelling was any

way responsible in the accident but the learned

tribunal has erroneously observed that the car was

also responsible of 30%.

He further argued that the learned tribunal

has awarded compensation without following

guideline of the Hon'ble Supreme Court passed in

Pranay Sethi. In this case the future prospects and

general damages have to be awarded. He again

awarded the income of the deceased was calculated

to be s. 3,000/- so the income has to be assessed to

be Rs.4,000/-. Considering the date of the accident

i.e. 26.6.2011.

Learned advocate appearing on behalf of the

insurance company raised strong objection and

submits that the learned tribunal has considered

the entire materials on record including police

papers. He also received the evidences on doc. After

argument of the parties he has assessed the

compensation; there is no error in apportioning the

award to be 70% : 30%.

Heard the learned advocates perused the

materials on record also perused the observation of

the learned tribunal. It appears to me that in

assessing the compensation the learned tribunal

has framed as many as six issues. In deciding the

issue No. 3. The learned tribunal is of view that the

offending vehicle i.e. the truck is only responsible for

the accident and the accident was the outcome of

rash and negligent driving of the driver on the part

of the offending vehicle. The police case which

initiated on the basis of self-same accident ended in

charge-sheet wherein the driver of the offending

vehicle i.e. the truck was cited as solely responsible

for such accident. It further appears to me that in

deciding the issue No. 4, that whether the insurance

policy was valid or not or whether the offending

vehicle was insured under the valid insurance policy

through the insurance company. The learned

tribunal has misguided himself and came to an

opinion that the opposite party/insurance company

and the owner of the victim vehicle are both liable to

pay the compensation to the extent of 70% : 30%.

The observation appears to me without any basis

and without any evidence.

The Hon'ble Supreme Court in Usha

Rajkhowa & Ors vs. M/S Paramout Industries &

Ors. The Hon'ble Supreme Court has observed that:

Keeping these principles in mind, we find that there was absolutely no evidence to suggest that there was any failure on the part of the Car driver to take any particular care or that he had breached his duty in any manner. Such breach on his part had to be proved by Insurance Company a it was its burden and for that, the Punchanama of the spot, showing tyre marks caused by brakes, the Panchanama of the damaged car and the truck could have been brought on record. The Insurance Company has obviously failed to discharge its burden. We, therefore, respectfully follow the above mentioned judgment.

On perusing the observation of the Hon'ble

Supreme Court it appears to me that the learned

tribunal apportions the liability of the accident

erroneously and without any documents or

evidences thus such observation is turned down.

It further appears to me that the learned

tribunal has assessed the income of the deceased to

be Rs. 3,000/- per month. It is the regular practice

of the court that when a person died in a road traffic

accident between the years 2011-2014. The notional

income of the deceased has to be calculated to be

Rs. 4,000/- per month. So, in this case, I think it

necessary that the income of the deceased to be

calculated to be Rs. 4,000/- per month.

The claimants are also entitled to get the

future prospects and the general damages according

to the observation of the Hon'ble Supreme Court in

Pranay Sethi. In this case, the deceased was 42

years old at the time of accident and he was not

engaged in a permanent job so the future prospects

would be 25% of his establishment income. Learned

tribunal has adopted the multiplier to be 15; but in

considering the age of the victim to be 42 years and

also following the direction of the Hon'ble Supreme

Court in Sarla Verma. The applicable multiplier

would be 14.