Calcutta High Court (Appellete Side)

Smt. Bulbuli Das Adhikary & Anr vs The Oriental Insurance Company ... on 8 February, 2023

10
Court
No. 11
G.S.Das
          08.02.2023
                                             FMA 1226 of 2022
                                       Smt. Bulbuli Das Adhikary & Anr.
                                                      -Vs-
                                  The Oriental Insurance Company Ltd & Anr.

                       Mr. Amit Ranjan Roy
                                                ... for the Appellants
                       Ms. Sucharita Pal
                                                    ... for the Respondents

This appeal is preferred against the Judgment and

Award dated 18th of November, 2016 passed by the Learned

Judge, Motor Accident Claims Tribunal, 4th Court, Paschim

Medinipur in M.A.C. Case No. 144 of 2012 granting the

compensation of Rs. 4,41,500/- together with interest in

favour of the claimants under Section 166 of the Motor

Vehicles Act.

The brief facts of this case is that on 21 st February,

2012 at about 9.50 am while the victim was proceeding

towards Feko-ghat from his house at Kanpur by his motor

cycle for his personal work and when he reached near

Baharuna-chawk, at that time, the offending vehicle bearing

Registration No. WB 33A/5256 coming from Feko-ghat at a

high speed and in rash and negligent manner dashed the

victim. As a result of which the victim sustained grievous

injuries on his head and body. Immediately the local people

admitted the victim to Tapsia Primary Health Centre and

thereafter for better treatment he was shifted to M.M.C.H.

However, he succumbed to his injuries and on that very date

he died. On account of sudden demise of the victim, the

claimants being the widow and the minor son of the deceased

filed an application for compensation of Rs. 6,00,000/-

together with interest under Section 166 of the Motor

Vehicles Act, 1988.

The claimants in order to establish their case

examined three witnesses and produced documents which

have been marked as Exhibit 1 to 8 respectively.

The Respondent No.1/the Insurance Company did not

produce any evidence.

Upon considering the materials on record and the

evidence adduced on behalf of the claimants, the Learned

Tribunal granted compensation in favour of the claimants to

the tune of Rs.4,41,500/- together with interest.

Being aggrieved and dissatisfied with the impugned

Judgment and Award, the claimants have preferred the

present appeal.

Mr. Amit Ranjan Roy, Learned Advocate for the

appellants/claimants, submits that the Learned Tribunal

erred in determining the income of the deceased and failed to

appreciate and consider the certificate of income produced by

the employer of the deceased, which ought to have been

taken into account for determining the income of the

deceased. In support of his contention, he relies on a decision

of this Hon'ble Court in Royal Sundaram Alliance

Insurance Company Limited versus Sulekha Mondal

(Adhikary) & Ors. (FMA 3835 of 2016).

He further submits that the claimants/appellants are

also entitled to an additional amount equalling to 25% of the

annual income of the deceased towards future prospects in

view of the decision of the Hon'ble Supreme Court passed in

National Insurance Company Limited versus Pranay

Sethi & Others. reported in 2017 ACJ 2700.

Furthermore, he submits that in view of the decision

in Pranay Sethi's Case, the claimants/appellants are also

entitled to general damages under the conventional heads of

Rs.70,000/-.

In his usual fairness, he also submits that since at the

time of the accident the deceased was 42 years of age, in view

of observation of the Hon'ble Supreme Court in Sarla Verma

& Others versus Delhi Transport Corporation and

Another reported in 2009 ACJ 1298, the multiplier should

be 14 instead of 15 as adopted by the Learned Tribunal.

In reply to the contentions raised on behalf of the

appellants/claimants, Ms. Sucharita Pal, Learned Advocate

for the Respondent No.1/the Insurance Company, submits

that the claimants/appellants though adduced the evidence

of the employer of the deceased namely Tamash Kumar Das

Adhikary as P.W.3 for establishing the income of the

deceased, however, he failed to produce any document

showing payment of salary of Rs.6,000/- per month as

asserted by the claimants. Though P.W.3 produced income

certificate (Exhibit 8) but that has not been supported by

any cogent evidence and accordingly, the income of the

deceased arrived at by the Learned Tribunal of Rs.3,600/-

per month should be affirmed.

She further submits that the Learned Tribunal erred

in adopting multiplier of 15 instead of 14 since at the time of

the accident the deceased was 42 years of age.

Since the Respondent No.2/the owner of the offending

vehicle did not contest the claim application before the

Learned Tribunal, hence service of notice of appeal upon the

said respondent is dispensed with.

Having heard the Learned Advocate for the respective

parties, it is found that the appellants/claimants have

thrown challenge to the Award passed by the Learned

Tribunal precisely on the following grounds, firstly, that the

Learned Tribunal erred in determining the income of the

deceased without appreciating the income certificate;

Secondly, that the claimants are entitled to an additional

amount equalling to 25% of the annual income of the

deceased and lastly, the claimants are entitled to general

damages of Rs.70,000/- under the conventional heads.

With regard to the determination of income of the

deceased, it is found that the Learned Tribunal has

determined the income of the deceased at Rs.3,600/- per

month. Mr. Roy, Learned Advocate for appellants/claimants

strenuously argued that the income of the deceased should

be considered at Rs.6000/- per month as appearing in the

income certificate (Exhibit 8). In order to establish the income

of the deceased, the claimants have examined his employer,

who is also the elder brother of the deceased namely Tamash

Kumar Das Adhikary as PW3, who proved the Income

Certificate (Exhibit 8). PW3 deposed that he used to pay

Rs.6000/- per month to the deceased. However, in his cross-

examination, he sated that he has no register to show that he

used to pay Rs.6,000/- per month to the deceased as

remuneration. It is relevant to note that in his cross-

examination, PW3 has deposed that he maintained all the

registers of the said shop which in all probability suggests

that he maintained the register for payment of remuneration

paid to the employees. Accordingly, in the absence of such

(Exhibit 8) looses relevance. Be that as it may, in the case of

Ramchandrappa versus Manager, Royal Sundram

Allaince Company Limited reported in (2011) 13 SCC

236 the Hon'ble Supreme Court observed as follows.

"14.We hasten to add that in all cases and in all circumstances, the tribunal need not accept the claim of the claimant in the absence of supporting material. It depends on the facts of each case. In a given case, if the claim made is so exorbitant or if the claim made is contrary to the ground realities, the tribunal may not accept the claim and may proceed to determine the possible income by resorting to some guesswork, which may include the ground realities prevailing at the relevant point of time............."

Bearing in mind the aforesaid observation of Hon'ble Court

and considering the price index prevalent during the said

period and also keeping in mind the catena of decision of this

Court where the income has been considered at Rs.4,000/-

per month in the event the accident had taken place in the

year 2012, I am inclined to consider the income of the

deceased at Rs.4,000/- per month. The facts of the cited

decision in the case of Sulakha Mondal (Adhikary) is

dissimilar to the facts in hand.

With regard to the future prospects, it is found that

the Learned Tribunal did not grant any amount towards the

future prospects. However, in view of the observation of the

Hon'ble Supreme Court in Pranay Sethi's case, since at the

time of the accident the deceased was 42 years of age and

was under a temporary employment, an amount equalling to

25 per cent of the annual income of the deceased should be

taken into consideration for future prospects.

So far as the general damages are concerned, it is

found that the Learned Tribunal has granted Rs.9,500/- on

such heads. However, bearing in mind the decision of the

Hon'ble Supreme Court in Pranay Sethi's case, the claimants

are entitled to general damages under the conventional heads

of loss of estate, loss of consortium and funeral expenses of

Rs. 15,000/-, Rs.40,000/- and Rs.15,000/- respectively.

Both Learned Advocate for the respective parties have

fairly submitted that since at the time of accident the

deceased was 42 years of age, hence in view of Sarla Verma's

Case, the multiplier should be 14 instead of 15 as identified

by the Learned Tribunal.

The other factors and findings of the Learned Tribunal

has not been challenged.

Keeping in mind the above factors, the calculation of

compensation is made hereunder.

Income                            Rs.4,000/-
Add 25% future prospect      +    Rs.1,000/-
                                  __________
                                  Rs. 5,000/-

                                  ___________
                                  Rs.60,000/-(per annum)
Less 1/3rd for personal
Expenses                     -    Rs.20,000/-
                                  ___________
                                  Rs. 40,000/-
Multiplier                             14
                                  ___________
                                  Rs. 5,60,000/-
Add general damages          +    Rs. 70,000/-
                                  _______________

                                  Rs.6,30,000/-
Less Principal award
Received                     -    Rs.4,41,500/-
                                  ______________
Enhanced amount              =    Rs.1,88,500/-

Thus, the claimants are entitled to compensation of

Rs.6,30,000/-. It is informed that the claimants have already

received the compensation amount of Rs.4,41,500/- together

with interest as granted by the Learned Tribunal.

Accordingly, the claimants are entitled to the balance

amount of compensation of Rs.1,88,500/- together with

interest at the rate of 6 per cent per annum on enhanced

amount from the date of filing of the claim application

(30.4.2012) till deposit.

The Respondent/Insurance Company is directed to

deposit the balance amount of compensation of

Rs.1,88,500/- together with interest at the rate of 6 per cent