Calcutta High Court (Appellete Side)
The Oriental Insurance Co. Ltd vs Nazir Noor Quadir & Ors on 11 December, 2023
11.12. 2023
item No.5 & 6
n.b.
ct. no. 551 FMA 177 of 2017
with
IA No. CAN 3 of 2019(Old No. CAN 8197 of 2019)
The Oriental Insurance Co. Ltd.
Vs.
Nazir Noor Quadir & Ors.
With
COT 34 of 2021
+
IA No. CAN 1 of 2023
Nazir Noor Quadir & Ors.
Vs.
The Oriental Insurance Co. Ltd.
Mr. Parimal Kumar Pahari
..... for the appellant.
Mr. Snehaisis Jana
.... For the respondent.
In Re. CAN 1 of 2023.
This is an application for condonation of delay in
preferring the cross objection. The report of the stamp
reporter shows that there are 1029 days delay in
preferring the instant cross appeal.
Heard the learned advocate for the
respondent/cross objector. The Insurance Company has
raised strong objection on the ground that no specific
ground for delay has been assigned in the application.
Heard the learned advocates, perused the materials
and also perused the body of the application being, CAN 1
of 2023. The ground of delay has specifically stated in the
body of the application and the grounds are appears to be
sufficient.
Accordingly, the delay in preferring the instant cross
appeal is condoned. Let appeal is taken for hearing along
with instant appeal.
The instant appeal has been preferred by the
Insurance Company against the award dated June 17,
2016 passed by the learned Judge, Motor Accident Claims
Tribunal, 2nd FTC Court, Burdwan in M.A.C. Case No.60 of
2013.
The present respondent/cross objector have
preferred the claim application before the learned Tribunal
on the ground that their predecessor was died in a road
traffic accident due to rash and negligent driving of the
offending vehicle duly insured under the policy of the
Insurance Company. The claim case was contested by the
Insurance Company by filing written statement.
After hearing the parties and after receiving the
evidences, the learned Tribunal has awarded sum of
Rs.18,80,000/- in favour of the claimants.
Being aggrieved by and dissatisfied with the instant
award, the appeal has been preferred. The Insurance
Company submits that the impugned judgment and award
passed by the learned Tribunal is not justified. It would
be revealed from the facts of the case that the deceased
was a pillion rider of motor cycle. The P.W. 1 deposed that
there was head on collusion between the offending Tata
Sumo and the motor cycle. The claimants did not made
party, the owner or insurer of the motor cycle but only
added the present appellant/Insurance Company to be the
insurer of the Tata Sumo.
He further argued that there are contributory
negligence on the part of the driver of the motor cycle. So,
the present Insurance Company is not liable to pay the
entire compensation as there was a head on collusion.
Both driver of the Tata Sumo as well as the motor cycle
are jointly responsible of the accident. He further argued
that the income of the deceased as assessed by the
learned Tribunal is not justified. The learned Tribunal
has failed to appreciate the real income of the deceased
only based upon the Form - 16 given by the employer the
income was assessed erroneously. He further argued that
the number of claimants in this case are five. Thus,
learned Tribunal has deducted 1/4 th towards the personal
expenses, but in this case the claimant no.1 is widow,
claimant no.2 is the mother, claimant no.3 is the father
and claimant nos. 4 and 5 are the sister and brother of
the deceased. The sister and brother are not entitled to
get the compensation. Accordingly, in this case, there are
only three legal claimants to get the compensation. So,
considering the number of claimants, the deduction
towards the personal expenses of the deceased would be
1/3rd instead of 1/4th. He further argued that the learned
Tribunal has applied multiplier to be 17. The decease was
31 years at the time of the accident. So, in this case the
miltiplier would be 16 instead of 17 according to Salara
Verma.
Learned advocate for the cross objector submits that
that the learned Tribunal has correctly assessed the
compensation but only failed to follow the direction of the
Hon'ble Supreme Court passes in Pranay Shetty. Thus,
the award was not added the future prospects as well as
the general damages. So, in this case the claimants are
entitled to get the general damages and future prospects.
Heard the learned advocates. Perused the materials
on record; perused the impugned judgment passed by the
learned Tribunal. It appears that on the basis of said
accident initially no FIR was lodged. Thereafter, one court
complaint was received by the police station and on the
basis of which Madhabdehi P.S. case no.3 of 2010 dated
12.1.2010 was initiated. The investigation of the police is
ended in charge-sheet. On perusing the police papers and
the evidence on record, it appears that the deceased was a
pillion rider of motor cycle and the accident happened due
to head oncollusion between the two vehicles, but the
police investigation concluded that the driver of the Tata
Sumo was solely responsible for the accident because the
Tata Sumo was driving in a rash and negligent manner
and dashed the motor cycle. Police submitted charge-
sheet assailing the driver of the Tata Sumo to be solely
accused of this case.
Considering the materials, it appears to me that the
Insurance Company did not produce any witness to
negate the claim of the claimants also the owner of Tata
Sumo do not depose before the learned Tribunal. P.W. 2
was the driver of the motor cycle, but deposed that the
accident was held, but he specifically stated that the Tata
Sumo dashed the motor cycle. P.W. 2 i.e. the driver also
received the injuries of his person.
Considering the entire materials, I think it
necessary to observethat the submission of the Insurance
Company regarding the contributory negligence has no leg
to stand upon. However, it appears that the learned
advocate for the Insurance Company has raised a correct
point be observed that the claimant no.1 is the widow,
claimant no.2 and the 3 are the parents of the deceased,
the claimants nos. 4 and 5 of the sister and brother of the
deceased. In this case, accordingly to Mohamadan Law,
claimant no.1 and 2 and 3 are the only legal heirs. In
their presence, the claimant nos. 4 and 5 being the
"residuries" are not entitled to get any compensation.
Accordingly, in this case, considering the number of the
claimants to be 3 the deduction towards the personal
expenses would be 1/3rd. The multiplier adopted by the
Tribunal was 17. In this case, the multiplier would be 16
following the judgment of Hon'ble Supreme Court passed
in Sarala Verma as well as the Pranay Shetty. The
deceased was not in permanent job, and under the age of
40 years, claimants are entitled to get 40% of his actual
salaried income towards the future prospects. The
claimants are also entitled to get Rs.70,000/- towards the
general damages. Accordingly, it appears to me that award
passed by the learned Tribunal need be modified.
Thus, proper compensation of this case is hereby
recusted as follows:
1. Annual income Rs. 1,65,000/-
2. Future prospect 40% Rs.66,000/-
Rs.2,31,000/-
3. 1/3rd deduction personal Rs.1,54,000/-
Exp. (2,31,000-77,000)
4. Multiplier 16 Rs.24,64,000/-
(1,54,000 X16)
5. Add General Damages Rs.70,000/-
Rs.25,34,000/-
6. Already awarded Rs.24,76,346/
Balance Rs.57,654/-
The Insurance Company is directed to pay the above
mentioned awarded sum along with 6% interest per
annum from the date of claim application i.e. June 11,
2012 within six weeks from the date passing of this order
through the officer of the learned Registrar General, High
Court, Calcutta. The officer of the learned General, High
Court, Calcutta shall calculate the award passed by this
Court today. It appears that the Insurance company has
already deposited a sum of Rs.24,76,364 by virtue of OD
challan 1936 dated 7.11.2016(Rs.25,000/-) and vide OD
challan no.2815 dated 12.1.2017 (Rs.24,51,346).
It appears that the deposit of huge amount has
already been made by the Insurance Compan which must
have carried some interest. The Office of the learned
Registrar General, High Court, Calcutta is directed to
disburse the same in the name of the three claimants by
three equal account payee cheque. After such disbursal
let it be informed to the Insurance Company by the
claimants. After receiving such information, the Insurance
Company shall issue the cheques through the office of the
learned Registrar General, High Court, Calcutta within six
weeks to comply the order of this court regarding balance
award.
The claimants are directed to received the awarded
sum after satisfying to the office of the learned Registrar
General, High Court, Calcutta that the deficit court fees
has sufficiently paid.
Accordingly, FMA 177 of 2017 and COT 34 of 2021
stand disposed of.
Connected applications, if any, are consequently
disposed of.
All parties shall act on the server copy of this order
duly downloaded from the official website of this Court.
( Subhendu Samanta, J.)
