Calcutta High Court (Appellete Side)
Fultun Bewa & Ors vs The New India Assurance Company ... on 2 February, 2023
07
02.02.2023
Ct. No.237
pg.
IN THE HIGH COURT AT CALCUTTA
CIVIL APPELLATE JURICTION
APPELLATE SIDE
FMA 908 of 2008
with
IA No. CAN 2 of 2017 (CAN 10792 of 2017)
Fultun Bewa & Ors.
Vs.
The New India Assurance Company Ltd. & Anr.
Mr. Krishanu Banik
... For the appellants/claimants
Ms. Gopa Das Mukherjee
... For the respondent no.1/Insurance Co.
In re: IA No. CAN 2 of 2017 (CAN 10792 of 2017)
This application has been moved with a prayer for
recording attainment of majority of minor sons of the
deceased, Asharuddin Sk. @ Ashiruddin Sk., being the
appellant/claimant nos.2, 3 and 4.
Heard both sides.
Perused the Aadhaar Cards of appellants/
claimants and the prayer is allowed.
Department is directed to make necessary notes in
the cause title of the Memorandum of Appeal.
The application, being CAN 2 of 2017 (CAN 10792
of 2017), stands disposed of.
In re: FMA 908 of 2008
This appeal is directed against the judgment and
award dated 30th August, 2007 passed by the learned
2
Judge, Motor Accident Claims Tribunal, 1st Court, Malda,
in connection with MAC Case No.151 of 1994 whereby the
learned Judge awarded compensation to the tune of
Rs.1,35,000/-.
The claim petition under Section 166 of the Motor
vehicles Act, 1988 was filed on account of death of one
Asharuddin Sk. @ Ashiruddin Sk. in a motor accident
occurred on 19th December, 1993 at about 3 p.m. by the
involvement of a Mini Truck, bearing registration no.WB-
61/0205. On 19th December, 1993, Asharuddin Sk. @
Ashiruddin Sk. along with other labours went to harvest
paddy at Gazole and at the time of returning home, they
were travelling with a mini truck, bearing registration
no.WB-61/0205. When they were reached near
Chitkamahal at about 3 p.m., the said truck lost its
control over the vehicle which capsized. As a result,
Asharuddin Sk. @ Ashiruddin Sk. died on spot. After the
accident Gazole Police Station Case No.73 of 1993 dated
19th December, 1993 under Sections 279/338/304A of the
Indian Penal Code was started and ended with charge
sheet against the driver of the mini truck. That is why the
claim petition was filed with a prayer for compensation to
the tune of Rs.1,80,000/- in terms of the age of the
deceased as 32 years having income of Rs.1,000/- per
month as a labour.
Both the owner of the offending vehicle and the
Insurance Company of the vehicles contested the claim
3
petition by filing their respective written statements
denying all material allegations of the claim petition
contending, inter alia, that the claimants are not entitled
to any compensation, as prayed for.
To prove the case, claimants examined two
witnesses, i.e., wife of the deceased as PW-1 who
corroborated the entire contents of the claim petition and
also testified in the same tune during her cross-
examination. One Md. Taimur Hossain examined as PW-2,
who claimed himself to be the eyewitness of the incident,
testified that on 19th December, 1993 he was standing at
Chitkamahal Bus Stand, he found a mini truck, bearing
registration no.WB-61/0205, coming from Gazole side
towards Malda at a very high speed and suddenly capsized
near the said Chitkamahal Bus Stand. Some persons were
travelling in the vehicle, including Asharuddin Sk. @
Ashiruddin Sk. who died on spot. In cross-examination, he
further corroborated by saying that Asharuddin Sk. @
Ashiruddin Sk. died in the accident and others received
injuries.
In course of their evidence, certified copy of First
Information Report, post-mortem report and accident
information report were admitted in evidence as Exhibit 1
to 4. It is further seen from the record that on behalf of the
claimants, one photocopy of the insurance policy has also
been filed in respect of the vehicle, bearing registration
no.WB-61/0205.
4
After careful perusal of the entire materials on
record, it is found that the learned Tribunal assessed the
compensation at Rs.1,35,000/- and the owner of the
vehicle was asked to pay the compensation to the
claimants.
Mr. Krishanu Banik, learned advocate, appearing
on behalf of the appellants/claimants has submitted that
he has preferred this appeal mainly on two grounds. One
is that the appellants/claimants are also entitled to future
prospect of 40% in terms of age of the deceased as well as
general damages of Rs.70,000/- in view of the principles
laid down by the Hon'ble Apex Court in Sarala Verma
(Smt.) & Ors. v. Delhi Transport Corporation & Anr.
reported in (2009) 6 SCC 121 as well as in the case of
National Insurance Co. Ltd. v. Pranay Sethi & Ors.
reported in (2017) 16 SCC 680 = 2017 ACJ 2700.
That apart, Mr. Banik has further contended that
the Insurance Company has initial liability to pay the
entire compensation to the appellants/claimants and to
recover the same from the owner of the offending vehicle.
In opposition, Ms. Gopa Das Mukherjee, learned
advocate, appearing on behalf of the respondent no.1/
New India Assurance Company Limited has supported the
judgment passed by the learned Tribunal.
The judgment passed by the learned Tribunal
reflects that the learned Tribunal assessed the monthly
5
income of Rs.1,000/- and after applying multiplier 16
rightly, assessed compensation at Rs.1,28,000/- along
with Rs.2,000/- towards funeral expenses and Rs.5,000/-
towards loss of consortium, totaling Rs.1,35,000/-. But, in
view of the principle laid down in Sarala Verma (supra) as
well as Pranay Sethi (supra), I have no other option but to
add future prospect of 40% of income in terms of age of
the deceased as well as general damages of Rs.70,000/-.
That apart, learned Tribunal deducted 1/3rd of the income
towards personal expenses instead of 1/4th in terms of
family members of the deceased.
In the aforesaid view of the matter, I propose to
modify the award as follows:-
Monthly Income Rs. 1,000/-
Annual Income (Rs.1,000/- x 12) Rs. 12,000/-
Add: Future prospect 40% Rs. 4,800/-
-------------------
Rs. 16,800/-
Less: 1/4th Deduction (personal expenses) Rs. 4,200/-
-------------------
Rs. 12,600/-
Multiplier by 16 (as per age of the victim) X 16
Rs.2,01,600/-
Add: General Damages Rs. 70,000/-
------------------
Total Rs.2,71,600/-
-------------------
In the aforesaid view of the matter, the appellants
claimants are entitled to the compensation to the tune of
Rs.2,71,600/- along with interest @ 6% per annum from
the date of filing of the claim petition, i.e., on 16th
December, 1994 till the deposit of the same.
Accordingly, the respondent no.1/New India
Assurance Company Limited is directed to deposit the
compensation amount of Rs.2,71,600/- along with interest
@ 6% per annum from the date of filing of the claim
petition, i.e. on 16th December, 1994 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/New India Assurance
Company Limited is at liberty to recover the entire
awarded sum with interest from the owner of the vehicle,
bearing registration no. WB-61/0205, through execution
proceeding in terms of the observations of the Hon'ble
Apex Court in Shamanna & Ors. v. The Divisional
Manager, The Oriental Insurance Co. Ltd. & Ors.
reported in AIR 2018 SC 3726 and Oriental Insurance
Co. Ltd. v. Nanjappan & Ors. AIR 2004 SC 1630 : (2004)
13 SCC 244.
The appellants/claimants are entitled to withdraw
the awarded amount with interest, subject to payment of
additional ad valorem court fees on the amount of
Rs.91,600/- (Rs.2,71,600/- - Rs.1,80,000/-) before the
learned Tribunal.
The learned Registrar General is requested to
disburse the amount to the appellants/claimants in equal
share on proper identification as the minors have already
attained majority by lapse of time.
With the observation, the appeal, being FMA 908 of
2008, 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.)
