Calcutta High Court (Appellete Side)

Sk. Tupai vs The National Insurance Co. Ltd. & ... on 24 February, 2023

                       IN THE HIGH COURT AT CALUTTA
                          Civil Appellate Jurisdiction
 24.02.2023
  SL No.11
Court No. 654
     Ali
                             F.M.A. 3616 of 2016
                 IA No.: CAN/1/2017 (Old No.:CAN/5564/2017)

                                      Sk. Tupai
                                        versus
                      The National Insurance Co. Ltd. & Anr.

                       Mr. Amit Ranjan Roy
                                  ...for the appellant-claimant.
                       Mr. Rajesh Singh
                            ....for the respondent-Insurance Co.

This appeal is preferred against the judgment

and award dated 16th January, 2016 passed by

learned Additional District Judge cum Judge, Motor

Accident Claims Tribunal, Fast Track, 1st Court,

Tamluk, Purba Medinipur in M.A.C. Case no. 183 of

2013 granting compensation of Rs.1,70,000/- in

favour of the claimant under Section 166 of the Motor

Vehicles Act, 1988.

The brief fact of the case is that on 21st July,

2012 at about 4 PM while the victim-injured, a 9 years

old student, was standing beside the Nandigram-

Chandipur Road at Nandigram College More near

Chaina Sporting Club, at that time the offending

vehicle bearing registration no. WB-29/4051 (Trekker)

coming from Chandipur side at a very high speed and

in a rash and negligent manner dashed the victim with

great force as a result of which the victim sustained

grievous injuries all over his body especially on his

right leg. The victim was treated at various medical

institutions and he suffered disablement on his right

leg to the extent of 80%. On account of such injuries,

medical treatment and consequent disablement the

victim through his natural guardian father filed

application for compensation of Rs.2,00,000/- together

with interest under Section 166 of the Motor Vehicles

Act, 1988.

The claimants in order to establish his case

examined three witnesses and produced documents

which have been marked as Exhibits 1 to 7/1

respectively.

Respondent no.1-insurance company did not

produce any evidence.

Upon considering the materials on record and

the evidence adduced on behalf of the claimant, the

learned tribunal granted compensation of

Rs.1,70,000/- together with interest in favour of the

claimant under Section 166 of the Motor Vehicles Act,

1988.

Being aggrieved by and dissatisfied with the

impugned judgment and award passed by the learned

tribunal, the claimant has preferred the present

appeal.

By order dated 7th February, 2023 service of

notice of appeal upon respondent no.2-owner of the

offending vehicle has been dispensed with since he did

not contest the claim application before the learned

tribunal.

Mr Amit Ranjan Roy, learned advocate for

appellant-claimant submits that in the said accident

the minor victim sustained 80% disablement, however

the learned tribunal erred in granting a lump sum

compensation without applying multiplier method for

computing the compensation amount. He further

submits that for the sake of calculation of

compensation a multiplier of 15 is to be adopted and

he further asserts that an income of Rs. 3,000/- per

month should be considered in the case of minor

victim. Moreover, he submits that the percentage of

disablement should be considered to be the extent of

loss of future earnings. So far as non-pecuniary

damages are concerned, he leaves the matter to the

discretion of the court. In light of his above

submissions he prays for enhancement of the

compensation amount.

Mr Rajesh Singh, learned advocate for

respondent no.1-insurance company submits that as

per the evidence on record and the observation of the

learned tribunal the disablement though of 80% but

the same is curable which should be taken into

account at the time of granting compensation. He

further draws the attention of the court to the fact that

as per evidence of the father of the victim he has

already received an amount of Rs. 40,000/- from the

owner of the offending vehicle which also needs to be

taken into account for assessment of compensation.

Having heard the learned advocates for the

respective parties, it is found that the claimant has

precisely raised the following grounds, firstly, that the

multiplier method is to be applied for computation of

compensation; secondly, income of the victim should

be considered at Rs.3,000/- per month; thirdly, the

percentage of disablement should be the extent of loss

of future earnings; fourthly, the learned tribunal erred

in granting meager sum towards non-pecuniary

damages and lastly, the claimant is entitled to future

prospect of 40% of annual income of the victim.

With regard to the first issue as to whether the

multiplier method should be applied, it is found that

the learned tribunal has computed the compensation

under the heads of pain and sufferings, medical

expenses and other incidental charges and future

medical expenses and granted a lump sum amount in

favour of the claimant. From the patient discharge

record (Exhibit 6) the victim sustained Open Gustilo

IIIB tibia fracture on right and had to be operated.

PW3 Dr Alok Datta who proved the discharge

certificate deposed that the victim underwent

Orthopedic Surgery at the hospital on 22.07.2012 for

fixing fractured bone along with soft tissues (Plastic

coverage) to ensure thorough survivability. PW-2, Dr

Haradhan Barman, Chairman of the Medical Board

which issued disability certificate, stated in his

evidence before the court that on examination of the

victim the board found 80% physical disability and he

proved the disability certificate (Exhibit-5). The

disability certificate shows that the victim sustained

disablement of 80%. Considering the medical evidence

showing extent of injuries of the victim as indicated

above and the 80% disablement as revealing from the

disability certificate, I am of the view that multiplier

method is to be applied for computation of

compensation amount. Admittedly, the victim at the

time of accident was 9 years old. Therefore following

the Second Schedule of the Act the multiplier to be

adopted for calculation of compensation should be 15.

With regard to the income of the minor-victim,

Mr Roy, learned advocate for appellant-claimant

strenuously argued that an amount of Rs.3,000/- per

month should be considered as income for assessment

of compensation. Be that as it may, in my view an

amount of Rs. 2,500/- be appropriate to take into

account as the monthly income of the minor victim for

computation of compensation amount.

As far as the loss of future earnings is

concerned, considering the extent of injury that the

victim sustained Open Gustilo IIIB tibia fracture on

right and he underwent Orthopedic Surgery at the

hospital for fixing fractured bone along with soft

tissues (Plastic coverage) to ensure thorough

survivability and ultimately resulted in 80% disability I

am of the view that the percentage of future loss of

earnings should be 80%.

So far as the non-pecuniary damages are

concerned bearing in mind the extent of injury and the

operative measures undergone by the minor victim an

amount of Rs. 80,000/- shall be appropriate in the

facts and circumstances of the case.

With regard to future prospect, since the

victim was a minor at the time of accident an amount

equalling to 40% of the annual income be taken into

account towards future prospect.

Mr Singh, learned advocate for respondent-

insurance company tried to impress upon the court

that the amount of Rs. 40,000/- paid to the victim by

the owner of the offending vehicle should be adjusted

and taken into account in granting compensation.

However, I am not inclined to take such amount into

consideration since from the evidence of PW1, father of

the minor victim, it is appearing that on humanitarian

ground the owner of the offending vehicle during his

visit to the house of the victim gave an amount of Rs.

40,000/-.

The other factors and findings of the learned

tribunal have not been challenged in the present

appeal. Keeping in mind the aforesaid factors the

calculation of compensation is made hereunder:

Calculation of compensation Monthly Income...................................Rs.2,500/- Annual Income..(Rs.2,500/- X 12).......Rs. 30,000/-

Add: 40% of total Income towards future prospect......................Rs.12,000/- Annual loss of Income.........................Rs.42,000/- Loss of future earnings of 80%............Rs. 33,600/-

Adopting multiplier 15 ( Rs.33,600/- X 15)...Rs.5,04,000/-

Non pecuniary Expenses...................Rs.80,000/- Medical & Future medical Expenses Rs.1,40,000/-

Total Compensation..........Rs.7,24,000/-

Thus, the total compensation comes to Rs.

Rs.7,24,000/-.Admittedly, the claimant has received

an amount of Rs. 1,70,000/- together with interest as

granted by the learned tribunal. Accordingly the

claimant is entitled to balance amount of Rs.

5,54,000/- together with interest at the rate of 6% per

annum from the date of filing of the claim application

(i.e 20.12.2012) till deposit.

Respondent no.1-insurance company is

directed to deposit the balance amount of

compensation of Rs.5,54,000/-together with interest

before the learned Registrar General, High Court,

Calcutta within a period of six weeks from date.