Calcutta High Court (Appellete Side)
T Tagori Bewa & Ors vs The Oriental Insurance Co. Ltd & ... on 22 February, 2023
In the High Court at Calcutta
(Civil Appellate Jurisdiction)
Appellate side
C
S/L No. 4
FMAT 745 of 2012
22.02.2023
Ct-237 o
With
(RD) u
CAN 1 of 2023
r
t Tagori Bewa & Ors
Vs.
The Oriental Insurance Co. Ltd & Anr.
N
.
Mr. Amit Ranjan Roy, Advocate
.... For the Appellant
S
l Mr. Sanjay Paul, Advocate
... for the respondents/Insurance company
/ In re: CAN 1 of 2023
C
Ld. Advocate appearing on behalf of the claimants
L
filed the application for condonation of delay of 279
days, in filing appeal.
Heard
Considering the reasons assigned in the petition of
condontion of delay is sufficient to condon the delay of
279 days in preferring appeal.
Thus, petition of condonation is delay is allowed.
Appeal stands admitted and be registered.
The application being no. Can 1 of 2023 stand
dispensed of.
In re:- FMAT 745 of 2012
Ld. Advocate, Mr. Amit Ranjan Roy, appearing on
behalf the appellants/ claimants is present. On prayer
service of notice upon the owners/respondent no. 3 & 4
is disposed with on the ground that none of the owners
appeared before the Motor Accident Claim Tribunal to
contest the claim petition.
Ld. Advocate, Mr. Sanjay Paul, entered appearance
on behalf of the Oriental Insurance company Limited/
Respondent no. 1 & 2.
In these circumstances, the appeal, being otherwise
ready, is taken up for hearing.
This is an appeal directed against the judgment and
award passed by Motor Accident Claims Tribunal,
Additional District Judge, 4th Court, Nadia, in
connection with Motor Accident Claim Case no. 30 of
2008 under Section 163A of the Motor Vehicles Act,
1988 (hereinafter referred to as MV Act) whereby Ld.
Judge awarded compensation of Rs. 1,79,500/-.
Being dissatisfied with the award the instant appeal
has been preferred for enhancement of the award.
The claim petition under Section 163A of the M.V.
Act was filed on account of death of Abdul Alim Sk. On
26.12.2007 at about 03.00 hours in a motor accident by
the involvement of two vehicles being no. WB 73A/ 4271
(bus) & the vehicles no. WB 03/6859(truck). It is alleged
that on the relevant date and time the bus was
proceeding towards Siliguri through NH-34 lost its
control due to high speed and dashed the truck, coming
from the opposite direction. As a result, Abdul Alim Sk.,
driver of the truck, sustained severe injury and admitted
to Beharampur General Hospital, where he succumbed
to his injuries. Victim was a driver by occupation having
income of Rs. 4,00,000/- per annum. Thereby,
claimants filed claim petition with a prayer for
compensation of Rs. 4,00,000/-.
Owner of the vehicles did not contest but Oriental
Insurance Company, being the insurer of both the
vehicles, contested the claim petition by filing a written
objection denying all material averments of the claim
petition contending inter alia, that claimants are not
entitled to any compensation being exorbitant, as sought
for.
To prove the claim, claimants examined three witness
namely Tagori Bewa, widow of deceased, was examined
as PW-1 who corroborated the claim petitions and in
course of her evidence certified copy of FIR, charge
sheet, Insurance Policy, Post Mortem report etc. were
admitted in evidence. One Anamul Sk. was examined as
PW-2, who corroborated the accident occurred on
26.12.2007 at about 03.00 a.m. by the involvement of a
bus which dashed against the truck which was being
driven by the deceased. He further testified that accident
took place as the bus lost its control owing high speed.
He introduced himself as a Khalasi of the truck. Rabiul
Islam, owner of the truck, was examined as PW-3. He
also corroborated the accident and employment of the
deceased.
After evaluation of the evidence Ld. Tribunal assessed
compensation on the notional income of Rs. 15,000/-
per annum and after apply multiplier 17 and also
considering general damages of Rs. 9,500/- according to
2nd schedule of Section 163A of the M.V Act.
Mr. Roy in course of argument contended that Ld.
Tribunal should have considered notional income of Rs.
3,000/- per month, at least, in view of minimum wages.
Mr. Paul, in his usual fairness, did not raise any
dispute regarding income.
However, considering all facts and circumstances as
well as opinion of the Ld. Tribunal, I am of the humble
view that notional income of Rs. 3,000/- per month
should be justified for assessment of compensation.
It is needless to mention that, evidence of PW-2 and
PW-3 together with the certified copy of FIR, charge
sheet and post mortem report, clearly proved that Abdul
Alim Sk. was a driver of the truck and he died in an
accident by the involvement of bus and the truck. Both
the vehicles are admittedly insured with Oriental
Insurance Company Limited and therefore, I do not find
any reason to discuss on the issue of composite
negligence or apportionment of claim.
In the aforesaid view of the matter, I proposed to
modify the award below:-
Monthly income Rs. 3,000/-
Annual income X12
______________________
Rs. 36,000/-
Less 1/3rd deduction Rs. 12,000/-
______________________
Rs. 24,000/-
Multiplier X 17
_______________________
Rs. 4,08,000/-
General damage Rs. 9,500/-
________________________
Rs. 4,17,500/-
Less award already Rs. 1,79,500/-
_______________________
Enhance amount Rs. 2,38,000/-
According to modified award claimants are entitled to
compensation of Rs. 4,17,500/-. Mr. Roy has submitted
that claimants have already received the amount of Rs.
1,79,500/- awarded by the Tribunal. Therefore,
claimants are entitled to balance amount of
compensation of Rs. 2,38,000/- along with interest on
the amount of Rs. 1,79,500/- from the date of the filing
of the application till the deposit of amount by the
Insurance Company before the claim tribunal, subject to
payment of ad velorem court fees on the amount of Rs.
17,500/-.
Respondents/ Insurance Company is directed to
deposit balance amount of Rs. 2,38,000/- along with
interest @ 6% per annum from the date of filing of the
application till the date of deposit of the amount before
the office of the Ld. Registrar General.
Respondent/Insurance Company is also directed to
deposit the interest @ 6% per annum on the amount of
Rs. 1,97,500/- from the date of filing claim petition till
the date of deposit of the amount before the Motor
Accident Claims Tribunal.
Respondent/ Insurance Company is directed to
deposit all the aforesaid amount within 6 weeks from
date.
Ld. Registrar General is requested to disburse the
amount to the claimants in equal share.
With the aforesaid observation appeal being no. FMAT
745 of 2012 stands disposed.
All pending application, if there be any, stand
disposed of accordingly.
The Tribunal Records along with a copy of this order
be transmitted back immediately.
Urgent Photostat certified copy of this order, if applied
for, be supplied to the parties upon compliance with all
requisite formalities.
(Bibhas Ranjan De)
