Kajal Ghosh vs National Insurance Company Ltd. & ...
2023 Latest Caselaw 1314 Cal

22.02.2023                IN THE HIGH COURT AT CALCUTTA
 Ct no. 654                CIVIL APPELLATE JURISDICTION
   Sl. 1
(sanjay)                          APPELLATE SIDE


                                     FMA 3222 of 2015

                                      Kajal Ghosh
                                          Vs.
                           National Insurance Company Ltd. & Anr.

                    Mr. Jayanta Kumar Mondal        ...for the appellant.

                    Mr. Afroz Alam
                     ...for the respondent No. 1/insurance company.

This appeal is preferred against the judgment and

award dated 27th March, 2014 passed by the learned

Judge, Motor Accident Claims Tribunal, at Durgapur,

District-Paschim Bardhaman in M.A.C Case no. 25 of

2010 granting compensation in favour of the claimant to

the tune of Rs. 1,00,000/- together with interest under

Section 166 of the Motor Vehicles Act, 1988.

The brief fact of the case is that on 14 th December,

2008 at about 10.30 PM while the victim was proceeding

towards Muchipara from Gosaintala on the footpath

through NH2 and when he reached near Muchipara, at

that time the offending vehicle bearing registration no.

WB-40E-8054 (Motor Cycle) coming from Asansol side

with high speed in rash and negligent manner dashed the

victim, as a result of which the victim sustained several

bleeding injuries over the body along with his right leg.

Soon after the accident the local people shifted the victim

injured to Sub-Divisional Hospital at Durgapur. The right

leg of the victim-injured was amputated and he was

referred to Burdwan Medical College and Hospital for

better treatment and thereafter he was shifted to

Dreamland Nursing Home where he was treated for a long

time. On account of such injury, medical treatment and

subsequent disablement, the victim filed application for

compensation of Rs.6,00,000/-under Section 166 of the

Motor Vehicles Act, 1988.

The claimant in order to establish his case

examined two witnesses and produced documents which

have been marked as Exhibits 1 to 9 respectively.

Respondent no.1-insurance company did not

adduce any evidence.

One witness was examined by owner of the

offending vehicle.

Upon considering the materials on record and the

evidence adduced on behalf of the respective parties, the

learned tribunal granted compensation of Rs. 1,00,000/-

together with interest under Section 166 of the Motor

Vehicles Act, 1988 in favour of the claimant.

Being aggrieved by and dissatisfied with the

impugned judgment and award the claimant has

preferred the present appeal.

Mr Jayanta Kumar Mondal, learned advocate for

appellant-claimant submits that since at the time of

accident the victim sustained severe injuries and his right

leg was amputated resulting in permanent disablement,

multiplier method is to be adopted for computing the

compensation amount. In support of his contention he

relies on a decision of the Hon'ble Supreme Court passed

in Kajal versus Jagdish Chand & Ors. reported in

2020 SAR (Civ) 530. He further submits that since at

the time of accident the victim was 36 years of age, hence

the following principles laid down in Sarla Verma &

Ors. versus Delhi Transport Corporation & Anr.

reported in 2009 ACJ 1298 multiplier of 15 should be

adopted. Moreover, he submits that the victim was a

garage mechanic at the time of accident and as such

income of Rs.5,000/- should be taken into account.

Further he submits that as per the disablement certificate

the victim sustained permanent disablement of 70%

which should be considered as extent of loss of future

earnings. Furthermore, he submits that the victim is also

entitled to an amount of equaling to 40% of future

prospect. The medical expenses of Rs.77,261/- has also

been proved by the claimant which should be taken into

account. So far as the non-pecuniary damages is

concerned he leaves the matter to the discretion of the

Court. He indicates that the meagre compensation

amount granted by the learned Tribunal is based on

conjecture that the claim case is doubtful. He further

draws the attention of the Court to the evidence of son of

opposite party no.2, registered owner of the offending

vehicle, who also categorically deposed in cross-

examination that the injured was dashed by the said

vehicle and, therefore, the involvement and rashness has

been proved by the claimant beyond doubt. Relying on

the decision of the Hon'ble Supreme Court in Sunita &

Ors. versus Rajasthan State Road Transport

Corporation & Anr. reported in 2019 (1) T.A.C. 710

(SC), he submits that in claim cases the standard of

proof is based on preponderance of probability and not

strict proof beyond all reasonable doubts which is

followed in a criminal case.

In view of the above submissions, he prays for

modification of the impugned judgment and award and

enhancement of compensation amount.

Opposing the prayer for enhancement, Mr Afroz

Alam, learned advocate appearing for the respondent

no.1-insurance company submits that since the

involvement of the offending was not proved and there

was also delay of two months in lodging the FIR hence

holding the case of the claimant as doubtful the learned

Tribunal granted Rs.1,00,000/- as compensation which

does not call for interference and should be affirmed.

In spite of service of notice of appeal none appears

on behalf of the respondent no.2-owner of the offending

vehicle.

Having heard the learned advocates for the

respective parties, it is found that the appellant-claimant

has thrown challenge to the award precisely on following

grounds, firstly, that the learned Tribunal erred in

doubting the case of the claimant of involvement of the

offending vehicle and rash and negligent act of the driver

without any cogent reason; secondly, since the victim

sustained permanent disablement in the said accident

multiplier method should be adopted for computation of

compensation; thirdly, the income of the victim should be

considered at Rs.5,000/ per month, fourthly, the

assessment of compensation should be made taking into

account 70% of the disablement as the extent of future

loss of earnings; fifthly the claimant is entitled to medical

expenses of Rs.77,261/-; sixthly the claimant is entitled

to non-pecuniary damages and lastly, the victim-claimant

is entitled to 40% of his annual income towards future

prospect.

With regard to the first issue pertaining to

involvement of the offending vehicle and the rash and

negligent act of the driver, it is found that the victim

(PW1) in his evidence has categorically stated that on the

relevant date of accident he was dashed from behind by

the offending vehicle being registration no.WB-40E-8054

(Motor cycle) in high speed and in negligent manner. The

involvement of the vehicle bearing registration no. WB-

40E-8054 is further been stated by the victim in his

cross-examination. Thus evidence of PW1 (victim)

regarding involvement of the offending vehicle and the

rash and negligent act of the driver of the said vehicle has

remained unchallenged in cross-examination. In the

proceedings before the learned tribunal, the victim

produced copy of FIR (Exhibit 1) and charge-sheet

(Exhibit 2) which shows seizure of the offending vehicle

as well as its involvement and corroborates the evidence

of the victim (PW1). OPW1, Sujit Kumar Banerjee, son of

the registered owner of the vehicle and driver of the

vehicle also deposed in his evidence that the victim met

with the accident while walking by the side of the road

and was dashed by him. It is strenuously argued on

behalf of the insurance company that delay in lodging

FIR has made the claim case doubtful. Undisputedly,

there is delay of two months in lodgment of the written

complaint. Now it is to be seen whether such delay in

lodging FIR makes the claim case doubtful. At this stage

it would be profitable to refer to the decision of Hon'ble

Supreme Court passed in Ravi versus Badrinarayan &

Others reported in 2011 (1) T.A.C 867 (SC) wherein the

Hon'ble Court observed as follows.

"20. It is well settled that the delay in lodging FIR cannot be a ground to doubt the claimant's case. Knowing the Indian conditions as they are, we cannot expect the common man to first rush to the Police Station immediately after an accident. Human nature and family responsibilities occupy the mind of kith and kin to such an extent that they give more importance to get the victim treated rather than rush to the Police Station. Under such circumstances, they are not expected to act mechanically with promptitude in lodging the FIR with the Police. Delay in lodging the FIR thus, cannot be the ground to deny justice to the victim. In cases of delay, the Courts are required to examine the evidence with a closer scrutiny and in doing so; the contents of the FIR should also be scrutinized more carefully. If Courts finds that there is no indication of fabrication or it has not been concocted or engineered to implicate innocent persons then, even if there is a delay in lodging the FIR the claim case cannot be dismissed merely on that ground."

Bearing in mind the aforesaid observation of the

Hon'ble Supreme Court and as in the present case at

hand there is no indication of fabrication or concoction or

engineering of the FIR hence the delay in lodging the FIR

per se cannot be a ground for disbelieving the case of the

claimant. It is relevant to note that the FIR maker, wife of

victim, has given explanation that due to treatment of her

husband there has been delay in lodging the FIR. Thus,

such delay in lodging FIR does not affect the claim case. I

find substance in the submissions of Mr Mandal relying

on Sunita's Case (supra) that in claim cases the standard

of proof is based on preponderance of probability and not

strict proof beyond all reasonable doubts which is

followed in a criminal case. In view of the above

discussion it manifest that the offending vehicle was

involved in the accident and on the relevant date it was

driven in rash and negligent manner resulting in injury to

the victim.

With regard to the question as to whether

multiplier method should be adopted in the facts and

circumstances of the case, it is found that the claimant

has produced the disability certificate (Exhibit 5) which

has been objected to at the time of tendering. However, no

such evidence has been led from side of the insurance

company to thwart the findings of the disability

certificate. As per the disability certificate the victim

sustained 70% permanent disablement due to

amputation of his right leg. The evidence of PW2,

Manager of Dreamland Nursing Home also shows that the

victim sustained amputation of his right leg. Therefore,

since the victim sustained permanent disability as a

result of injury sustained in the accident, hence following

the observation of the Hon'ble Supreme Court in Kajal's

case (supra), multiplier method should be adopted in the

facts and circumstance of the case for assessment of

compensation amount. Admittedly, the victim was 36

years of age at the time of accident and therefore, in view

of Sarla Verma's case (supra) a multiplier of 15 should be

adopted.

So far as the income of the victim is concerned,

though the victim produced certificate of proficiency and

training certificate but has failed to produce any

document relating to his profession. Be that as it may,

considering the price index prevalent at the relevant point

of time of accident in the year 2008, I am of the opinion

that income of Rs.3,000/- per month should be apposite

in the facts and circumstances of the case.

With regard to as the extent of loss of future loss

of earnings, since it is found that the victim sustained

permanent disablement in the said accident, hence it is to

be seen whether such disablement of 70% will extend to

future loss of earnings or not. From the evidence adduced

by the victim it manifest that right leg of the victim was

amputated due to injury sustained in the said accident

resulting in disablement of 70%. The discharge certificate

of Dreamland Nursing Home also shows of amputation of

right leg. Considering the nature of the injury, in my view,

the extent of future loss of earnings should be considered

at 70%.

With regard to pecuniary damages, the claimant

by adducing the evidence of PW2, Pravat Kumar

Mukherjee, Manager Dreamland Nursing Home proved

the discharge certificate and the medical expenses

incurred at Dreamland Nursing Home amounting to

Rs.77,261/- which has not been disputed by the

insurance company and accordingly the claimant is

entitled to such medical expenses.

So far as non-pecuniary damages are concerned

since the victim had to undergo operative measures and

amputation of leg, I am of the view that an amount of

Rs.1,50,000/- should be given to the victim under such

said head.

With regard to the last issue relating to future

prospect, undisputedly the victim at the time of accident

in the year 2008 was aged between 36 years and was self-

employed, following the observation of Hon'ble Supreme

Court in National Insurance Company Limited versus

Pranay Sethi & Others reported in 2017 ACJ 2700 the

claimant is entitled to an additional amount equaling to

40% of his annual income towards future prospect.

The compensation is calculated as hereunder.

Calculation of compensation

Income per month ...............Rs. 3,000/- Annual Income .............Rs.3,000 x 12....Rs. 36,000/-

Add: Future Prospect of 40% of annual income of the victim......................Rs. 14,400/-

Rs. 50,400/-

Adopting multiplier 15( Rs.50,400/- x 15) Rs.7,56,000/-

70% Loss of earnings ............................ Rs.5,29,200/-

Add: Medical Expenses ......Rs. 77,261/-

Rs.6,06,461/-

Add: Non-pecuniary Damages..............Rs. 1,50,000/-

Total Compensation.......... Rs. 7,56,461/-

It is found that the claimant-victim has already

received Rs. 1,00,000/- together with interest as per

order of the learned Tribunal. Accordingly, the claimant is

entitled to the balance amount of compensation of

Rs.6,56,461/- together with interest at the rate of 6 % per

annum from the date of filing of the claim application (i.e.

11.02.2010) till deposit.

The respondent no.1-insurance company is

directed to deposit the aforesaid balance amount of

compensation of Rs.6,56,461/- together with interest at

the rate of 6% per annum from the date of filing of the

claim application (i.e. 11.02.2010) till deposit by way of

cheque before the learned Registrar General, High Court,

Calcutta within a period of six weeks from date.

Appellant-claimant is directed to deposit ad

valorem court fees on the balance amount of

compensation assessed, if not already paid.

Upon deposit of the balance amount of

compensation together with interest as indicated above,

learned Registrar General, High Court, Calcutta shall

release the said amount in favour of appellant-claimant

on satisfaction of his identity and payment of ad valorem

court fees on the balance amount of compensation

assessed, if not already paid.

With the aforesaid observation, the appeal stands

disposed of. The impugned judgment and award of the

learned tribunal is modified to the above extent. No order

as to cost.

All connected applications, if any, stands disposed

of.

Interim orders if any, stands vacated.

Let a copy of this order along with Lower Court

records be forwarded to the learned Tribunal for

information.

Urgent photostat certified copy of this order if

applied for the given to the parties upon compliance of all

necessary legal formalities.

(Bivas Pattanayak, J.)