Calcutta High Court (Appellete Side)

Ruma Mondal & Anr vs The National Insurance Co. Ltd. & ... on 3 February, 2023

                           IN THE HIGH COURT AT CALUTTA
                              Civil Appellate Jurisdiction
 3.02.2023
  SL No.13
Court No. 654
    Ali


                             F.M.A. 1297 of 2022
                            IA No:CAN/1/2022

                         Ruma Mondal & Anr.
                                  Vs.
                  The National Insurance Co. Ltd. & Anr.

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

This appeal is preferred against the

judgment and award dated 14th November, 2019

passed by learned Additional District Judge cum

Judge, Motor Accident Claims Tribunal, Fast Track,

2nd Court, Asansol, Paschim Bardhaman, in M.A.C.

Case no. 32 of 2016 granting compensation of Rs.

15,23,760/- together with interest under Section

166 of the Motor Vehicles Act, 1988.

The brief fact of the case is that on 2nd May,

2012 at about 9:00 PM while the victim was

returning to his home from Jasaidih village by riding

his Motor cycle bearing registration No. WB-

40U/3836 after attending his duty at C.L. Jambad

colliery (Bahula) and when he reached near

Barabani Rail gate the offending vehicle bearing

Registration No.DL-3CG/5108 (Ambassador Car)

dashed the victim as a result of which the victim

sustained serious injuries all over his body and was

immediately taken to S.D. Hospital, Asansol and

was admitted Central Hospital Dhanbad on the

subsequent date. The victim was also admitted to

AMRI, Kolkata on 05.05.2012. Thereafter the victim

was treated at several hospitals. However during his

treatment at Sanctoria Hospital he succumbed to

his injuries and died on 18.06.2012 at about 3 AM.

On account of sudden demise of the deceased-

victim, the claimants being the widow and minor

daughter filed application for compensation of

Rs.20,00,000/-under Section 166 of the Motor

Vehicles Act,1988.

The claimants in order to establish their

case has examined four witnesses and produced

documents which has been marked as Exhibits 1 to

7 respectively.

The respondent No. 1-insurance company

also adduced evidence of one doctor and produced

documents marked as Exhibit A and B respectively.

Upon considering the materials on record

and the evidence produced on behalf of the

respective parties the learned tribunal granted

compensation in favour of the claimants to the tune

of Rs.15,23,760/-together with interest under

Section 166 of the Motor Vehicles Act, 1988.

Being aggrieved by and dissatisfied with the

impugned judgment and award the claimants have

preferred the present appeal.

Mr Amit Ranjan Roy, learned advocate for

appellants-claimants submits that the learned

tribunal erred in considering the net income of the

deceased instead of gross income. He further

submits as per the decision of Hon'ble Supreme

Court in National Insurance Company Ltd. Vs.

Pranay Sethi and Ors. reported in 2017 ACJ

2700 the claimants are entitled to 40% of annual

income of the deceased towards future prospect

however the learned erred in granting 25% which

requires to be modified.

Mr. Sanjay Paul, learned advocate for

respondent No. 1-insurance company submits that

since the appellants-claimants did not produce the

salary slip showing deduction on different heads,

hence the learned tribunal was justified in taking

into account the net income of the deceased. In light

of the aforesaid submissions he opposes the prayer

for enhancement.

By order dated 25th July, 2022 service of

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

offending vehicle has been dispensed with.

Heaving heard the learned advocate for

respective parties, it is found that the appellants-

claimants have precisely raised two issues in the

present appeal, firstly that the learned tribunal

erred in determining the income of the deceased on

the basis of net income and secondly the claimants

are entitled to an amount equaling to 40% of the

annual income of the deceased towards future

prospect.

With regard to the first issue relating to

determination of income by the learned tribunal, it

is found that the learned tribunal has taken into

account the net income of the deceased-victim on

the basis of salary particulars (Exhibit-7) produced

by the claimants. On perusal of salary particulars it

appears that save and except gross payment and

net payment there are no such columns specifying

the heads of deductions. PW-3, Ranjan Chanda,

Personal Manager of ECL Jambad colliery, produced

the salary particulars of the deceased, however he

failed to clarify the amount of deduction that were

made from the gross payment of the deceased-

victim. The claimants have not taken any further

steps to clarify the situation. In the absence of such

cogent evidence, I do not find any infirmity in the

finding of the learned tribunal determining the

income of the deceased on his net income.

So far as the entitlement of future prospect is

concerned, it is found that the learned tribunal

allowed 25% of the annual income of the deceased

towards future prospect. Mr. Roy, learned advocate

for appellants-claimants asserted that the deceased

was in a permanent employment with the ECL. It is

relevant to note from the salary particulars (Exhibit-

7) that for the month of October, 2011 and April,

2012 the victim did not receive any payment due to

non-attendance. Thus, from the above factor it

manifest that the deceased was employed in no-

work-no pay basis which is temporary in nature.

Therefore, since the deceased at the time of accident

was 35 years of age and was in temporary

employment with the ECL, following the observation

of Hon'ble Supreme Court in Pranay Sethi's Case

(Supra) the claimants are entitled to additional

amount equaling to 40% of the annual income of the

deceased towards future prospect.

The other factors and findings of the learned

tribunal has not been challenged in the appeal.

In view of the above discussion the

calculation of compensation is made hereunder.

Calculation of compensation

Annual Income............................................ Rs.99,120/- Add: Future Prospects @ 40% of total Income..Rs.39,648/- Annual loss of Income.....................................1,38,768/- Less: Deduction of 1/3rd of the Annual Income (towards personal and living expenses)........... .......Rs.46,256/-

Rs.92,512/-

Adopting multiplier 16 ( Rs.92,512/- X 16)...Rs.14,80,192/- Add: General Damages.............................Rs.70,000/-