Calcutta High Court (Appellete Side)

The New India Assurance Co. Ltd vs Smt. Saraswati Sardar & Anr on 14 December, 2023

                  IN THE HIGH COURT AT CALCUTTA
                   CIVIL APPELLATE JURISDICTION
                          APPELLATE SIDE


PRESENT:
THE HON'BLE JUSTICE BIVAS PATTANAYAK

                             FMA 126 of 2018
                      The New India Assurance Co. Ltd.
                                  versus
                        Smt. Saraswati Sardar & Anr.


For the Appellant-Insurance       : Mr. Sanjay Paul, Advocate
Company

For the Respondent No.1-          : Mr. Krishanu Banik, Advocate

Claimant

Heard on : 24.04.2023

Judgment on : 14.12.2023

Bivas Pattanayak, J. :-

1. This appeal is preferred against the judgment and award dated 3rd

June, 2017 passed by learned Additional District Judge-cum-Judge, Motor

Accident Claims Tribunal, 4th Court, Alipore, South 24 Parganas in M.A.C.

Case No. 56 of 2009 granting compensation of Rs.4,15,000/- together

with interest in favour of the claimant under Section 163A of the Motor

Vehicles Act, 1988.

2. The brief fact of the case is that on 18th January, 2009 while the

victim, aged about 12 years, was returning home after completing her

dance class and when she got down from the bus at Duilya Transformer

More, the offending vehicle bearing registration no. WBI-8139 (truck)

dashed the victim from behind, as a result of which the victim sustained

severe injuries all over her body and succumbed to her injuries soon after

the accident. On account of sudden demise of the victim, the claimant

being the mother of the victim filed application for compensation of Rs.

3,05,000/- together with interest under Section 163A of the Motor Vehicles

Act, 1988.

3. The claimant in order to establish her case examined herself and

produced documents which have been marked as Exhibits-1 to 8

respectively.

4. The appellant-insurance company did not adduce any evidence.

5. Although respondent no.2, owner of the offending vehicle entered

appearance before the learned Tribunal and filed its written statement, but

subsequently did not contest the claim application and the case was

disposed of ex parte against it. In the aforesaid backdrop, service of notice

of appeal upon the said respondent stands dispensed with.

6. Upon considering the materials on record and the evidence adduced on

behalf of claimant, the learned Tribunal granted compensation of

Rs.4,15,000/- together with interest in favour of the claimant under

Section 163A of the Motor Vehicles Act, 1988.

7. Being aggrieved by and dissatisfied with the impugned judgment and

award of the learned Tribunal, the insurance company has preferred the

present appeal.

8. Mr. Sanjay Paul, learned advocate for appellant-insurance company

submitted as follows. The learned Tribunal failed to follow the Second

Schedule to the Act and determined income of the minor-victim at Rs.

36,000/- per annum whereas it ought to have considered the income of

the minor-victim at Rs. 15,000/- per annum. Further the learned Tribunal

has erred in granting future prospect in an application under Section 163A

of the Act, which is never included in the Second Schedule to the Act.

Referring to the decision of Hon'ble Supreme Court in Deepal Girishbhai

Soni and Others versus United India Insurance Co. Ltd., Baroda1, he

submitted that in an application under Section 163A of the Motor Vehicles

Act, the Second Schedule is to be strictly followed and the determination of

the compensation should be on the basis of structured formula provided in

the Second Schedule to the Motor Vehicles Act. Moreover, the learned

Tribunal granted exorbitant rate of interest on the amount of

compensation which is required to be scaled down. In light of his aforesaid

submissions, he prayed for modification of the impugned judgment and

award of the learned Tribunal.

9. In reply to the contentions raised on behalf of the appellant-insurance

company, Mr. Krishanu Banik, learned advocate for respondent no.1-

claimant submitted that the notional income of Rs. 36,000/- per annum

as considered by the learned Tribunal is correct in the case of minor

victim. To buttress his contention, he relied on the following decisions:

i. Kishan Gopal & Anr. versus Lala & Ors.2,

ii. Kurvan Ansari alias Kurvan Ali & Anr. versus Shyam Kishore

Murmu & Anr.3,

iii. Astabuddin Gazi @ Aftaruddin @ Aptabuddin @ Aarafatab &

Anr. versus Pranabananda Mondal & Anr. (F.M.A.T. 1427 of

2015).

1 AIR 2004 SC 2107 2 (2014) 1 SCC 244 3 (2022) 1 SCC 317

10. Mr. Paul, learned advocate for appellant-insurance company, in reply,

submitted that the decision of Hon'ble Supreme Court in Kishan Gopal

(supra) and of this court in Astabuddin Gazi (supra) are in respect of an

application under Section 166 of the Act and does not apply to the case at

hand since the present application is one under 163A of the Act. Further

the findings in Kurvan Ansari @ Kurvan Ali (supra) is a departure from

principle of law laid down in Deepal Girishbhai Soni (supra).

11. Having heard learned advocates for respective parties and also keeping

in mind the Second Schedule to the Act, following issues have fallen for

consideration:

i. Whether the learned Tribunal erred in determining the income of

minor-victim.

ii. Whether the multiplier of 15 adopted by the learned Tribunal is

correct.

iii. Whether the learned Tribunal erred in granting future prospect.

iv. Whether the learned Tribunal erred in granting general damages

of Rs. 10,000/-.

v. Whether the learned Tribunal allowed interest on the

compensation amount at excessive rate.

12. At the very outset before deciding the points in issue, it would be

appropriate to examine as to whether in an application under Section

163A of the Motor Vehicles Act, the Second Schedule to the Act is to be

strictly followed and there can be deviation from it. The aforesaid question

fell for consideration before the three-Judges Bench of the Hon'ble

Supreme Court in Deepal Girishbhai Soni (supra) and the Larger Bench of

the Hon'ble Supreme Court in the above decision clearly laid down the

proposition that Section 163A of the Act which has an overriding effect,

provides for special provisions as to payment of compensation which is

required to be determined on the basis of structured formula.

13. Bearing in mind the above observation of the Hon'ble Supreme Court

in Deepal Girishbhai Soni (supra), I now proceed to decide the points in

issue in this appeal.

Issue No.1: Whether the learned Tribunal erred in determining the

income of minor-victim.

14. With regard to the first issue relating to determination of income of

the minor-victim, it is found that the learned tribunal determined the

income of the minor-victim at Rs. 3,000/- per month meaning thereby

Rs.36,000/- per annum. The Second Schedule to the Act provides for

notional income of Rs.15,000/- per annum in case of non-earning person.

The income of the minor-victim of Rs.36,000/- per annum determined by

the learned Tribunal appears to be a deviation from the Structured

formula provided in the Second Schedule to the Act. This Hon'ble Court

has consistently considered the notional income of Rs. 15,000/- per

annum in case of a minor-victim in an application under Section 163A of

the Act in Smt. Pato Mondal versus The New India Assurance

Company Limited & Anr. (F.M.A. No. 1805 of 2006) and other appeals

and Sri Shama Prasad Roy @ Nemai Roy @ Nemay Roi versus

National Insurance Company Ltd (F.M.A. No. 407 of 2012). Further the

report in respect of Kishan Gopal (supra) and Astabuddin Gazi (supra)

(FMAT 1427 of 2015) relates to claim petition under Section 166 of the

Motor Vehicles Act, thus the ratio is not applicable to the case at hand

since it is filed under Section 163A of the Motor Vehicles Act. The decision

rendered by Hon'ble Supreme Court in Kurvan Ansari @ Kurvan Ali (supra)

though passed in respect of an application under Section 163A of the Act

but has not considered the decision of the Larger Bench of the Hon'ble

Supreme Court in Deepal Girishbhai Soni (supra) which clearly holds that

determination of compensation in an application under Section 163A of

the Act should be made on the basis of structured formula of the Second

Schedule to the Motor Vehicles Act. I find substance in the submission of

Mr. Paul, learned advocate for appellant-insurance company that findings

in Kurvan Ansari @ Kurvan Ali (supra) is a departure from principle of law

laid down in Deepal Girishbhai Soni (supra). In view of the above

discussion, the notional income of Rs. 15,000/- per annum of the minor-

victim should be taken into consideration in an application under Section

163A of the Act.

Issue No.2: Whether the multiplier of 15 adopted by the learned

Tribunal is correct.

15. With regard to the second issue relating to multiplier, it is found that

the learned Tribunal has adopted the multiplier of 15. In this regard,

reference may be made to the decision of the Hon'ble Supreme Court in

case of Reshma Kumari and Others versus Madan Mohan and

Another4 wherein the Hon'ble Supreme Court held as follows:

"43.2. In cases where the age of the deceased is upto 15 years, irrespective of the Section 166 or Section

4 (2013) 9 SCC 65

163-A under which the claim for compensation has been made, multiplier of 15 and the assessment as indicated in the Second Schedule subject to correction as pointed out in Column (6) of the table in Sarla Verma should be followed."

Further in paragraph 40 of the decision of the Hon'ble Supreme Court in

Sarla Verma (Smt) and Others versus Delhi Transport Corporation

and Another5, it is found that a table has been prepared upon noticing

several decisions which is reproduced hereunder for convenience:

"40. The multipliers indicated in Susamma Thomas, Trilok Chandra and Charlie (for claims under Section 166 of MV Act) is given below in juxtaposition with the multiplier mentioned in the Second Schedule for claims under Section 163-A of MV Act (with appropriate deceleration after 50 years):

Age of the Multiplier Multiplier Multiplier Multiplier Multiplier deceased scale as scale as scale in specified actually envisaged adopted Trilok in Second used in in by Trilok Chandra Column in Second Susamma Chandra as the Table Schedule to Thomas clarified in Second MV Act (as in Charlie Schedule seen from to the MV the Act quantum of compensati on)

(1) (2) (3) (4) (5) (6)

yrs

yrs

yrs

yrs

5 (2009) 6 SCC 121

yrs

36 to 40 12 14 15 16 15 yrs

41 to 45 11 13 14 15 14 yrs

46 to 50 10 12 13 13 12 yrs

51 to 55 9 11 11 11 10 yrs

yrs

yrs

yrs

The header of column (6) reads as "Multiplier actually used in Second

Schedule to MV Act (as seen from the quantum of compensation)". The

aforesaid proposition has also been followed by this Hon'ble Court in

catena of decisions. Admittedly the victim is 12 years of age, thus, bearing

in mind the aforesaid, the multiplier for a victim of road accident who was

aged below 15 years would be 20.

Issue No.3: Whether the learned Tribunal erred in granting future

prospect.

16. With regard to the third issue relating to entitlement of future

prospect in an application under Section 163A of the Act, it is found that

the learned Tribunal has granted Rs. 1,35,000/- towards future prospect.

Needless to mention that Second Schedule to the Act does not provide for

future prospect and, therefore, the grant of compensation under future

prospect by the learned Tribunal is liable to be set aside.

Issue No.4: Whether the learned Tribunal erred in granting general

damages of Rs. 10,000/-.

17. So far as the general damages under the heads of funeral expenses

and loss of estate are concerned, it is found that the learned Tribunal has

granted Rs. 5,000/- each under such heads. As per Second Schedule to

the Act, the compensation under general damages namely loss of estate

and funeral expenses should be Rs. 2,500/- and Rs. 2,000/- respectively.

Issue No.5: Whether the learned Tribunal allowed interest on the

compensation amount at excessive rate.

18. Coming to the last issue relating to grant of interest on the

compensation amount, it is found that the learned Tribunal has allowed

interest @ 10% per annum. Be that as it may, bearing in mind the

prevailing banking rate of interest, the compensation amount shall carry

interest @ 6% per annum from the date of filing of the claim application till

the date of realisation.

19. In view of the above discussion, the calculation of compensation is

made hereunder:

Calculation of Compensation

Notional yearly income Rs. 15,000/-

           Less: 1/3rd on account of       Rs. 5,000/-
           personal and living expenses
           of the victim (Rs.15,000 x
           1/3)
                                           Rs. 10,000/-

Compensation after multiplier Rs. 2,00,000/-

           of 20 is applied
           (Rs. 10,000/- x 20)
           Loss of estate                Rs. 2,500/-
           Funeral expenses              Rs. 2,000/-