Smt. Chaina Roy & Ors vs The Oriental Insurance Company ...
2023 Latest Caselaw 1268 Cal

    31
20.02.2023
Ct. No.237
    pg.
                       IN THE HIGH COURT AT CALCUTTA
                          CIVIL APPELLATE JURICTION
                                APPELLATE SIDE

                              FMA 1236 of 2013
                                      with
                   IA No. CAN 1 of 2013 (CAN 5292 of 2013)
                           (Application not in the file)

                             Smt. Chaina Roy & Ors.
                                       Vs.
                 The Oriental Insurance Company Limited & Anr.


                    Mr. Amit Ranjan Roy
                         ... For the appellants/claimants

                    Mr. Sanjay Paul
                          ... For the respondent no.1/Insurance Co.


                    This appeal is directed against the judgment and

             award dated 11th January, 2013 passed by the learned

             Judge, Motor Accident Claims Tribunal, District Judge,

             Nadia, in connection with MAC Case No.50 of 2010

             whereby the learned Tribunal awarded compensation to

             the tune of Rs.3,21,500/-.


                    The claim petition under Section 166 of the Motor

             Vehicles Act, 1988 was filed on account of death of one

             Sudhir Roy in a road traffic accident happened on 23rd

             January, 2010 at about 10.30 a.m., while Sudhir Roy was

             returning home from Gangnapur Market. At the relevant

             point of time, one Bus, bearing registration no.WB-

             51/9114, coming with high speed from the side of

             Majhergram, dashed the victim Sudhir Roy. As a result,

             Sudhir Roy sustained severe injury. He was taken to

             Ranaghat Sub-Divisional Hospital wherefrom he was
                        2




referred   to   SSKM       Hospital,   Kolkata.   Ultimately,   he

succumbed to his injuries on the same day. It is alleged

that the accident took place due to rash and negligent

driving of the offending bus and at the time of death, the

victim Sudhir Roy was aged about 48 years having

monthly income of Rs.6,000/- per month to run his family

consisting of five members. Accordingly, the claimants,

i.e., legal heirs of the deceased Sudhir Roy filed the claim

petition with the prayer for compensation to the tune of

Rs.6,24,000/-.


       Owner did not contest the claim petition but the

Oriental Insurance Company Limited with whom the bus

was insured contested the case by filing written objection

denying all material averments of the claim petition

contending, inter alia, that the claimants were not entitled

to any compensation, as prayed for.


       To prove the case, the claimants examined as

many as three witnesses, namely, Chaina Roy, the wife of

the deceased, as PW-1, one Suresh Ch. Roy as PW-2 and

one Ashhish Hira as PW-3. PW-1 has corroborated the

entire facts alluded in the claim petition. She denied the

suggestion thrown at her by the Insurance Company.


       PW-2 testified that he saw the accident occurred

on 23rd January, 2010 at about 10.30 a.m. while he along

with his elder brother, i.e., Sudhir Roy, since deceased,

together were returning home from Gangnapur Bazar. At

that time the offending bus, bearing registration no.WB-
                     3




51/9114, coming with high speed dashed Sudhir Roy. As a

result, Sudhir Roy sustained severe injury. He was taken

to SSKM Hospital, Kolkata where he succumbed to his

injuries on the same day. From his cross-examination, I do

not find any substantive statement to contradict the

evidence adduced in examination-in-chief.


       PW-3 tried to establish the income of the deceased.

He testified that monthly income of Sudhir Roy was

Rs.6,000/- as he paid tax to Panchayat.


       In course of evidence, First Information Report,

charge sheet, insurance policy, post-mortem report etc

were admitted in evidence and marked as exhibits.


       Learned Tribunal after evaluating the evidence

assessed monthly notional income of the deceased at

Rs.3,000/- as no document has ever been produced before

the Court in support of his business.


       In course of argument, Mr. Amit Ranjan Roy,

learned advocate, appearing on behalf of the appellants/

claimants   has   submitted   that   the    claimants   have

succeeded to prove the accidental death of Sudhir Roy by

the involvement of the bus, bearing registration no.WB-

51/9114.


       I have gone through the evidence of PW-2 together

with the charge sheet admitted in evidence. PW-2 has

specifically stated that at the time of accident, he was

returning with the deceased Sudhir Roy, his elder brother.
                          4




From the charge sheet (Ext.-6), it is found that after the

accident, Gangnapur Police Station Case No.20 of 2010

dated 23rd January, 2010 under Sections 279/304 of the

Indian Penal Code was started and after investigation,

charge sheet was filed against the Subhendu Naskar, the

driver of the bus bearing registration no.WB-51/9114.

Therefore, I do not find any reason to disbelieve the

accidental death of Sudhir Roy by the involvement of the

bus, bearing registration no.WB-51/9114, which was

insured with the Oriental Insurance Company Limited.


       With regard to the income of the deceased, I have

gone through the entire evidence of PW-1 and PW-3

wherefrom     I   find   that   the   deceased   used   to   earn

Rs.6,000/- per month from his rice/paddy business and

he also used to pay tax to the Panchayat. That apart, he

had ten cottahs of land, but in course of evidence, no

single scrap of paper was ever produced showing either

business of rice/paddy or payment of tax to Panchayat. In

these circumstances, I find that the learned Tribunal

rightly assessed the income at Rs.3,000/- per month

notionally.


       Both the learned advocates appearing on behalf of

the parties to this appeal could not disagree with the

principle laid down by the Hon'ble Apex Court in case of

National Insurance Co. Ltd. v. Pranay Sethi & Ors.

reported in (2017) 16 SCC 680 = 2017 ACJ 2700.
                       5




        Accordingly, the principle laid down by the Hon'ble

Apex Court in Pranay Sethi (supra), the appellants/

claimants are entitled to 25% of the income of the

deceased as future prospect in terms of age of the

deceased, deduction for personal expenses should be 1/4th

instead of 1/3rd in terms of family members of the

deceased and appellants/claimants are also entitled to

general damages of Rs.70,000/- along with 10% increment

every three years.


        In view of the principle set forth above, I propose to

determine compensation as follows:-


  Monthly Income                                    Rs. 3,000/-

  Annual Income (Rs.3,000/- x 12)                   Rs. 36,000/-

  Add: Future prospect (@ 25%)                      Rs. 9,000/-
                                                    -------------------

Rs. 45,000/-

Less: 1/4th Deduction (personal expenses) Rs. 11,250/-

------------------- Rs. 33,750/-

----------------- Rs.4,38,750/-

Add: General Damages Rs. 77,000/-

------------------- Rs.5,15,750/- Total Compensation Rs.3,21,500/-

Less: Awarded by ld. Tribunal & received

-------------------

                            ENHANCEMENT             Rs.1,94,250/-
                                                    ------------------


        For     the   reasons,   it    is     seen      that     the

appellants/claimants      are    entitled      to      the      total

compensation to the tune of Rs.5,15,750/-. It is reported

that the appellants/claimants have already received

Rs.3,21,500/- as awarded by the learned Tribunal but no

interest was granted under Section 171 of the Motor

Vehicles Act, 1988.

Therefore, the appellants/claimants are entitled to

the balance compensation amount of Rs.1,94,250/- along

with interest @ 6% per annum from the date of filing of the

claim petition, i.e., on 20th February, 2010 till the deposit

of the amount. The appellants/claimants are also entitled

to interest @ 6% per annum on the amount of

Rs.3,21,500/- from the date of filing of the claim petition,

i.e., on 20th February, 2010 till 25th February, 2013.

Accordingly, the respondent no.1/Oriental

Insurance Company Limited is directed to deposit the

enhanced amount of Rs.1,94,250/- along with interest @

6% per annum from the date of filing of the claim petition,

i.e. on 20th February, 2010 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 respondent no.1/Insurance Company is also

directed to deposit interest @ 6% per annum on the

amount of Rs.3,21,500/-, which was deposited by the

Insurance Company and already withdrawn by the

claimants, from the date of filing of the claim petition, i.e.,

on 20th February, 2010 till 25th February, 2013, before the

office of the learned Registrar General of this Court, within

six weeks from date.

The appellants/claimants are entitled to withdraw

the entire awarded amount with interest.

The learned Registrar General is requested to

disburse the entire amount along with interest to the

appellants/claimants in equal share on proper

identification and proof, subject to attainment of majority

of the appellant/claimant no.4, Papia Roy, in the mean

time.

With the above observations, the appeal, being

FMA 1236 of 2013, stands disposed of.

All pending applications, if there be any, stand

disposed of.

Records of the learned Tribunal along with a copy

of this order be transmitted back 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.)