Jyotsna Roy & Anr vs The National Insurance Company ...
2023 Latest Caselaw 1432 Cal

                       IN THE HIGH COURT AT CALUTTA
                          Civil Appellate Jurisdiction
 27.02.2023
 SL No.20
Court No. 654
    Ali


                            F.M.A. 1619 of 2018
                        1A No. CAN 1 of 2022
                           Jyotsna Roy & Anr.
                                  Vs.
                  The National Insurance Company Ltd. & Anr.

                       Mr. Amit Ranjan Roy
                             ...for the appellants-claimants.
                       Mr. Sanjoy Paul
                       ...for the respondent No. 1-Insurance Co.

This appeal is preferred against the

judgment and award dated 16th September, 2017

passed by learned Additional District Judge cum

Judge, Motor Accident Claims Tribunal, 3rd Court,

Nadia at Krishnagar in M.A.C. Case No. 197 of 2016

granting compensation of Rs.4,41,500/- in favour of

the claimants together with interest under Section

166 of the Motor Vehicles Act, 1988.

The brief fact of the case is that on 11th

June, 2016 at about 2.50 AM while the victim was

standing with one Tapash Mondal beside the road

near Krishnagar Sashtitala More at that time the

offending vehicle bearing registration no. WB-

51A/0844(bus) coming from Krishnagar side in high

speed and in a rash and negligent manner dashed

the victim and said Tapash Mondal from behind, as

a result of which the victim sustained serious

injuries over his body. The local people immediately

shifted the victim and said Tapash Mondal to Nadia

District Hospital where the victim died after some

time. On account of sudden demise of the victim,

the claimants the widow and mother of the deceased

filed application for compensation of Rs.13,10,000/-

under Section 166 of the Motor Vehicles Act, 1988.

The claimants in order to establish their

case examined five witnesses and produced

documents which have been marked as Exhibits 1

to 9 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

claimants, the learned tribunal granted

compensation of Rs.4,41,500/- together with

interest in favour of the claimants under Section

166 of the Motor Vehicles Act, 1988.

         Since     respondent          no.2-owner     of       the

offending    vehicle      did    not    contest    the     claim

application, service of notice of appeal upon the said

respondent has been dispensed with by order dated

1st February, 2023.

Being aggrieved by and dissatisfied with the

impugned judgment and award passed by the

learned tribunal, the claimants have preferred the

present appeal.

Mr Amit Ranjan Roy, learned advocate

appearing on behalf of appellants-claimants submits

that the learned tribunal erred in not determining

the income of the deceased of Rs.12,000/- which

has been categorically deposed by PW-1 (wife of the

deceased), PW-4 (employer of the deceased) and PW-

5 (Co-worker). He further submits that such income

of the deceased deposed in the oral evidence finds

support from the documentary evidence, namely

salary certificate issued by the employer of the

deceased (Exhibit-8) as well as the particulars of

payments made to the employees (Exhibit-9).

However, the learned tribunal discounted the

relevant cogent evidence adduced by the claimants

without any plausible reason whereas it ought to

have accepted such evidence. In support of his

contentions he relies on the decision of Hon'ble

Supreme Court passed in Rajwati @ Rajjo & Ors.

reported in (2023) SAR (Civ) 216. He further

submits that the claimants are entitled to an

additional amount equalling to 40% of the annual

income of the deceased towards future prospect

since at the time of accident the victim was 26 years

of age. Furthermore, he submits that the claimants

are also entitled to general damages of Rs.70,000/-

under the conventional head. In his usual fairness

he submits that the multiplier should be 17 instead

of 18 adopted by the learned tribunal taking into

account the age of the deceased. In light of his

aforesaid submissions, he prays for enhancement of

the compensation amount.

In reply to the contentions raised on behalf

of the appellants-claimants, Mr. Sanjoy Paul,

learned advocate for respondent no.1-insurance

company submits that though the claimants in

order to establish the income of the deceased

examined PW-4 (Secretary of Jatiotabadi Mutia

Majdoor Union), PW-5 (Co-worker) and documentary

evidence in the form of salary certificate yet the

evidence are shrouded with suspicion to the extent

that the Secretary himself admitted in his cross-

examination that he has no document to show that

he is the Secretary of such Union and further no

papers to show the basis of salary certificate.

Further referring to the evidence of PW-5 (Co-

worker) he submits that the witness has admitted

that he has no document to show that he is a labour

under the Union. Accordingly, the evidence adduced

by the claimants in respect of income of the

deceased are far from being reliable. He further

submits that the decision of the Hon'ble Supreme

Court in Rajwati's Case (supra) referred to by the

claimants is distinguishable in as much as the

deceased victim in the said case was working as a

driver in the Limited company and the Hon'ble

Court has considered the salary certificate and Pay

Slip taking into account the nature of his job.

However, in the case at hand no such aspect has

been proved for applying the ratio of the decision of

Hon'ble Supreme Court. He also submits that since

at the time of accident the deceased was 27 years of

age hence the multiplier of 17 is to be applied. So far

as entitlement of future prospect and general

damages is concerned he submits that the

proposition laid down in National Insurance

Company Limited versus Pranay Sethi and

Others reported in 2017 ACJ 2700 be followed for

computation of compensation amount.

Having heard the learned advocates for the

respective parties, it is found that the claimants

have precisely raised the following grounds, firstly,

that the learned tribunal erred in determining the

income of the deceased; secondly, the claimants are

entitled to an additional amount equaling to 40% of

the annual income of the deceased towards future

prospect and lastly, that the claimants are entitled

to general damages under the conventional heads to

the tune of Rs.70,000/-.

With regard to the determination of income

of the deceased, it is found that the learned tribunal

determined the income of the deceased at Rs.

3,000/- per month since no cogent evidence in

support of the income of the deceased was produced

by the claimants.

Mr. Roy, learned advocate for appellants-

claimants referring to the evidence of PW-1 (wife of

the deceased), PW-4 (Secretary of the Union) and

PW-5(co-worker) as well as documentary evidence,

namely salary certificate (Exhibit-8) and pay

particulars (Exhibit-9) submits that the income

should be considered at Rs. 12,000/-per month PW-

4 in his examination in chief stated that the victim

used to earn Rs.12,000/- per month and that in

relation to the same he issued the income certificate.

However in cross examination he admitted that he

has no document to show he is a Secretary of

Jatiotabadi Mutia Majdoor Union and he also does

not remember the registration number. The witness

further stated that no such salary register in respect

of the employees is maintained by the Union. He

also admits that the certificate so issued is not

based on any papers. Considering such evidence the

reliability of the certificate issued by PW-4 becomes

questionable. Although PW-5 (Co-worker) tried to

corroborate the evidence of PW-4 so far as issuance

of the certificate is concerned but in cross

examination this witness claiming to be a labour,

also admitted the fact that he does not have any

evidence to show that he works under the Union.

Thus the evidence of PW- 5 also fails to lend support

to the evidence of PW-4 and the salary certificate

stating the income of the deceased to the tune of Rs.

12,000/-per month. Though the claimants have

produced salary particulars signed by PW-4 but PW-

4 himself in his cross examination admitted the fact

that no register is maintained in support of salary

disbursed to the employees. Therefore, the salary

particulars (Exhibit-9) also falls short of reliablility.

So far as the decision of Hon'ble Supreme court in

Rajwati's Case (supra) relied upon by the learned

advocate for appellants-claimants is concerned, it is

found that the deceased-victim in the said case was

working as a driver in PNC Infratech Ltd. and in the

claim proceeding the salary and pay slip were

produced which was taken into consideration by the

Hon'ble Supreme Court. The facts at hand and the

facts involved in the case before the Hon'ble

Supreme court is dissimilar and distinguishable and

therefore the ratio does not applies in the facts and

circumstances of the present case. Since the

accident has taken place in the year 2016

considering the price index prevailing during the

relevant period of time in the year 2016 when the

accident has taken place and also bearing in mind

catena of decision of this court the income of the

deceased-victim is considered at Rs.5,000/- per

month.

With regard to second issue relating to

future prospect since at the time of accident the

deceased-victim was 27 years of age and presumably

self-employed an additional amount equalling to

40% of the annual income of the deceased should be

taken into account towards future prospect

following the observation of Hon'ble Supreme Court

in Pranay Sethi's Case (Supra).

So far as general damages are concerned, it

is found that the learned tribunal granted as

Rs.9,500/- per month under the conventional

heads. Following the aforesaid observation of

Hon'ble Supreme Court in Pranay Sethi's case

(supra), the claimants are also entitled to general

damages under the conventional heads of loss of

estate, loss of consortium and funeral expenses to

the tune of Rs. 15,000/-, Rs. 40,000/- and Rs.

15,000/respectively.

Both the learned advocates have fairly

submitted that since at the time of accident the

deceased-victim was 27 years of age hence

multiplier of 17 should be applied.

The other factors and findings of the

learned tribunal has 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.5,000/- Annual Income..(Rs.5,000/- X 12).......Rs. 60,000/- Add: 40% of total Income towards future prospect......................Rs.24,000/- Annual loss of Income.......................Rs.84,000/-

Less: Deduction 1/3rd of the Annual Income towards personal and living expenses..........................Rs.28,000/-

Rs.56,000/-

Adopting multiplier 17 (Rs.56,000/- X 17)........................Rs.9,52,000/- Add: General Damages........................Rs.70,000/-

Loss of estate....Rs.15,000/- Loss of Consortium....Rs.40,000/- Funeral Expenses.......Rs.15,000/-

Total Compensation......................Rs.10,22,000/-

           Thus,      the      claimants     are   entitled     to

compensation          of    Rs.    10,22,000/-together        with

interest at the rate of 6% per annum from the date

of filing of the claim application till deposit. It is

found that the claimants have already received the

compensation of Rs.4,41,500/-granted by the

learned tribunal. However, no interest on the

compensation amount is received. Accordingly, the

claimants are entitled to balance amount of

compensation of Rs.5,80,500/- together with

interest at the rate of 6% per annum from the date

of filing of the claim application till deposit. The

claimants are also entitled to interest at the rate of

6% per annum on the compensation amount

granted by the learned tribunal from the date of

filling of the claim application till the deposit was

made before the learned tribunal.

Respondent no.1-insurance company is

directed to deposit the balance amount of

compensation of Rs.5,80,500/-together with interest

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

the claim application till deposit and the interest on

the compensation granted by the learned tribunal as

indicated above, by way of cheque before the learned

Registrar General, High Court, Calcutta within a

period of six weeks from date.

Appellants-claimants are directed to deposit

ad valorem court fees on the balance amount of

compensation, if not already paid.

Upon deposit of the balance amount of

compensation and the interest as indicated above,

learned Registrar General, High Court, Calcutta

shall release the aforesaid amount in favour of

appellants-claimants, after making payment of

Rs.35,000/- in favour of appellant no.1-widow of the

deceased towards spousal consortium (since

Rs.5,000 has already been received by appellant

No.-1), in equal proportion upon satisfaction of their

identity and payment of ad valorem court fees, on

balance amount if not already paid.

With the aforesaid observation, the appeal

stands disposed of. The impugned judgment and

award stands modified to the above extent. No order

is to cost.

All connected applications if any, stands

disposed of.

Interim order if any stands vacated.

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.)