Calcutta High Court (Appellete Side)
Anjali Dolai & Anr vs Oriental Insurance Company ... on 9 February, 2023
29
09.02.2023
Ct. No.237
pg.
IN THE HIGH COURT AT CALCUTTA
CIVIL APPELLATE JURICTION
APPELLATE SIDE
FMA 988 of 2016
Anjali Dolai & Anr.
Vs.
Oriental Insurance Company Limited & Anr.
Mr. Krishanu Banik
Mr. Snehasis Jana
... For the appellants/claimants
Mr. Abhik Nandi
... For the respondent no.1/Insurance Co.
This appeal is directed against the judgment and
award dated 30th April, 2013 passed by the learned Judge,
Motor Accident Claims Tribunal, Additional District Judge,
1st Fast Track Court, Paschim Medinipur, in connection
with MAC Case No.135 of 2011 whereby the learned
Tribunal awarded compensation to the tune of
Rs.1,54,500/-.
This is an appeal for enhancement of
compensation on the ground that the learned Tribunal
could not assess the monthly income of the minor in terms
of the principle laid down by the Hon'ble Apex Court.
The claim petition under Section 166 of the Motor
Vehicles Act, 1988 was filed on account of death of one
Tuli Dolai, aged about 12 years, in a motor accident
happened on 8th December, 2010 at about 5.30 a.m. by
2
the involvement of one Truck, bearing registration no.OR-
02C/4037. At the relevant point of time, the said truck
was coming from backside with high speed in rash and
negligent manner dashed the said Tuli Dolai and another.
As a result, Tuli Dolai and one Shampa Patra sustained
severe injury. They were shifted to Dantan Block Primary
Health Centre for treatment but both of them died. That is
why, claim petition was filed with a prayer for
compensation to the tune of Rs.4,00,000/-.
The application was contested by the Oriental
Insurance Company Limited by filing written statement
denying all material averments in the claim petition
contending, inter alia, that the claimants are not entitled
to any compensation.
To prove the case, the claimant examined as many
as two witnesses, namely, Anjali Dolai, mother of the
deceased, as PW-1 and one Parameswar Dolai as PW-2.
PW-1 corroborated the entire contents of the claim petition
but she has not seen the accident. PW-2 claimed himself
to be an eyewitness to the accident. He testified that he
saw the accident and lodged FIR before Dantan Police
Station. He deposed that the accident took place due to
rash and negligent driving of the driver of the offending
truck, bearing registration no.OR-02C/4037. In the cross-
examination, he has further deposed that at the relevant
point of time, the victim came near his house for having
their studies and he had seen the accident with his own
3
eyes. He along with the local people took the victim to the
hospital. He denied all the suggestions thrown at him
during cross-examination.
Learned Tribunal assessed the compensation on
the basis of a decision reported in (2003) 2 WBLR (Cal)
439 and also assessed the notional income of the child at
Rs.15,000/- per annum. Learned Tribunal relied on the
case decided by the Hon'ble Division Bench of this Court,
in case of an accident happened prior to the year 2003.
But, learned Tribunal was dealing with a case of a child of
12 years who met an accident in the year 2010.
However, so far as the accident is concerned, PW-2
specifically stated that the accident took place due to rash
and negligent driving of the truck, bearing registration
no.OR-02C/4037, and that was further fortified by the FIR
as well as charge sheet which was ultimately filed against
the driver of the truck under Sections 279/304A of the
Indian Penal Code in connection with Dantan Police
Station Case No.196 of 2010 dated 8th December, 2010,
i.e., in connection with the accident whereby Tuli Dolai
died. That apart, no argument has been advanced by the
learned advocates appearing on behalf of the parties to
this appeal on the issue of accident or rash and negligent
driving.
Now, coming to the compensation, I heard both the
learned advocates for the parties. Mr. Krishanu Banik,
learned advocate, appearing on behalf of the appellants/
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claimants has relied on case of Kishan Gopal & Anr. v.
Lala & Ors. reported in (2014) 1 SCC 244 as well as a
case of Kurvan Ansari alias Kurvan Ali v. Shyam
Kishore Murmu & Anr. reported in (2022) 1 SCC 317.
In the aforesaid decisions, the Hon'ble Apex Court
considered the fact that the rupee value has come down
drastically from the year 1994 when the notional income of
the non-earning member prior to the date of accident was
fixed at Rs.15,000/- and considering the support of the
child of ten years in future had he been alive was also
considered by the Hon'ble Apex Court and assessed
notional income accordingly.
In the aforesaid view of the matter, in our case, I
do not find any other option but to assess the annual
income of the child of 12 years at Rs.25,000/- per annum.
That apart, the appellants/claimants are also entitled to
future prospect as well as general damages in view of the
principle laid down by the Hon'ble Apex Court in National
Insurance Co. Ltd. v. Pranay Sethi & Ors. reported in
(2017) 16 SCC 680 = 2017 ACJ 2700.
In the aforesaid view of the matter, I need to assess
the compensation afresh as follows:-
Annual Income Rs. 25,000/-
Add: Future prospect (@ 40%) Rs. 10,000/-
-------------------
Rs. 35,000/-
Less: 1/2nd Deduction (personal expenses) Rs. 17,500/-
-------------------
Rs. 17,500/-
Multiplier by 15 (as per Second Schedule) x 15
Rs.2,62,500/-
Add: General Damages Rs. 30,000/-
-------------------
Total Compensation Rs.2,92,500/-
Less - Awarded by ld. Tribunal & received Rs.1,54,500/-
-------------------
ENHANCEMENT Rs.1,38,000/-
-------------------
For the reasons, it is seen that the
appellants/claimants are entitled to the total
compensation to the tune of Rs.2,92,500/-. It is reported
that the appellants/claimants have already received
Rs.1,54,500/- as awarded by the learned Tribunal.
Therefore, the appellants/claimants are entitled to
the balance compensation amount of Rs.1,38,000/- along
with interest @ 6% per annum from the date of filing of the
claim petition till the deposit of the amount.
Accordingly, the respondent no.1/Oriental
Insurance Company Limited is directed to deposit the
enhanced compensation amount of Rs.1,38,000/- along
with interest @ 6% per annum from the date of filing of the
claim petition till the actual deposit of the amount before
the office of the learned Registrar General of this Court,
within six weeks from the date of this order.
The appellant/claimant no.1 is entitled to
withdraw the balance award amount with interest.
The learned Registrar General is requested to
disburse the amount with interest to the appellant/
claimant no.1, Anjali Dolai, on proper identification and
proof.
With the above observations, the appeal, being
FMA 988 of 2016, is disposed of.
All pending applications, if there be any, stand
disposed of.
A copy of this order be forwarded to the learned
Tribunal immediately.
Urgent photostat certified copy of this order, if
applied for, be given to the parties, upon compliance of
necessary formalities.
(Bibhas Ranjan De, J.)
