Calcutta High Court (Appellete Side)

National Insurance Co. Ltd vs Jayanti Maiti Rauth @ Jayanti on 3 February, 2023

                         IN THE HIGH COURT AT CALUTTA
                            Civil Appellate Jurisdiction
 03.02.2023
  SL No.6
Court No. 654
    Ali


                            F.M.A. 727 of 2022
                         IA No:CAN/2/2022
                           National Insurance Co. Ltd.
                                      Vs.
                            Jayanti Maiti Rauth @ Jayanti
                               Maity Rauth & Ors.

                 Ms. Sucharita Paul
                      ...for the appellant-Insurance Co.

                 Mr. Jayanta Kumar Mandal
                            ...for the respondents-claimants.

This appeal is preferred against the

judgment and award dated 14th December, 2021

passed by learned Judge, Motor Accident Claims

Tribunal, 1st court, Tamluk, Purba Medinipur in

M.A.C Case no. 527 of 2016 granting compensation

of Rs. 25,06,296/- together with interest in favour of

the claimants under Section 166 of the Motor

Vehicles Act, 1988.

The brief fact of the case is that on 24

August 2016 at about 8:30 PM while the victim was

standing on extreme left of footpath of Brajalalchak-

Chaitanyapur pitch road near Chaklalpur Bus

Stoppage at that time the offending vehicle bearing

registration no. WB-29/4666 (mini-truck) coming

with excessive high-speed dashed the victim with

great force, as a result of which the victim sustained

injuries all over his body and head. Immediately, the

victim was taken to Haldia S.D. Hospital,

Basudevpur, Haldia and thereafter he was shifted to

Indus Nursing Home, at Andul Road, Howrah on

25.8.2016. The victim was under treatment at

different hospitals till he succumbed to his injuries

on 21.10.2016 at Barrackpore Medicare & Recovery

Centre Ltd. On account of sudden demise of the

victim, the claimants being the widow, minor

daughter and mother of the deceased filed

application for compensation of Rs.20,00,000/-

together with interest under Section 166 of Motor

Vehicles Act, 1988.

The claimants in order to establish their

case examined five witnesses and produced

documents which has been marked Exhibits 1 to

22 respectively.

The appellant- insurance company did not

adduce any evidence.

Upon considering the materials on record

and the evidence adduced on behalf of the

claimants, the learned tribunal granted

compensation of Rs. 25,06,296/- together with

interest in favour of the claimants under Section

166 of the Motor Vehicles Act, 1988.

Being aggrieved by and dissatisfied with the

impugned judgment and award of the learned

tribunal, the insurance company has preferred the

present appeal.

Mrs Sucharita Paul, learned advocate for

insurance company submits that the learned

tribunal erred in determining the income of the

deceased on the basis of salary for the month of

June 2016 whereas it ought to have considered that

the deceased was working in Haldia Logistic Private

Limited company on no work no pay basis which is

evident from the oral evidence of PW5 as well as the

salary slips. She submits that as per the salary slips

the income of the deceased-victim varied from

month to month since his income depended on the

number of days, he attended his job and therefore

the practicable approach for determination of

annual income of the deceased-victim should be

total income of twelve months, prior to death, less

professional tax paid. Moreover the general damages

should be awarded as per decision of Hon'ble

Supreme Court in National Insurance Company

Limited versus Pranay Sethi and Others reported

in 2017 ACJ 2700. In light of her aforesaid

submissions, she prays for modification of the

impugned judgment and award.

In reply to the contentions raised on behalf

of the appellant-insurance company, Mr Jayanta

Kumar Mandal, learned advocate for respondents-

claimants submits that since the salary for the

month of June 2016 is based on the maximum days

attended by the deceased, such income should be

taken into account for computation of just

compensation as has been rightly considered by the

learned tribunal. In view of his aforesaid

submissions, he prays that the award passed by the

learned tribunal should be affirmed and the appeal

be dismissed.

By order dated 17 August 2022 the service

of notice of appeal upon respondent no.4-owner of

the offending vehicle has been dispensed with.

Having heard the learned advocates for the

respective parties, it is found that the appellant

insurance company has thrown challenge to the

award of the learned tribunal on the following

ground firstly, learned tribunal made erroneous

determination of income of the deceased and

secondly, the general damages should be

Rs.70,000/-.

With regard to the aforesaid issue raised in

the appeal, it is found that the learned tribunal

considered the salary of Rs. 13,332/- of the

deceased for the month of June 2016. The claimants

in order to establish the income of the deceased

examined one Sital Das as PW5 who produced

salary slips of the deceased-the victim marked

Exhibit 22 (collectively). PW5, deposed that the

deceased was an assistant welder in Haldia Logistic

Private Limited and was employed on no-work-no pay

basis. From the salary slips it manifest that the

deceased used to be paid by the company on the

basis of number of days attended by him. Further

the salary slips shows that the income of the

deceased fluctuated from month to month. In order

to determine the annual income of the deceased it

will be prudent and practicable to compute such

income of the deceased-victim by taking the monthly

income of last twelve months prior to the accident

on August, 2016. Thus, the income of the deceased

from August 2015 to July 2016 comes to

Rs.1,50,738. The salary slips shows that an amount

of Rs.1320/-has been paid towards professional tax.

Therefore, the income of the deceased should be the

total income less the tax component which comes to

Rs. 1,49,418/-.

With regard to general damages, in view of

the above decision in Pranay Sethi's case (supra)

the claimants are also entitled to general damages

under the conventional heads of loss of estate of

Rs.15,000/-, loss of consortium of Rs.40,000/- and

funeral expenses of Rs.15,000/-

The other factors and findings of the learned

tribunal has not been challenged in the appeal.

Accordingly, the calculation of compensation

is made hereunder.

Calculation of compensation

Annual Incom..(Rs.1,50,738/-less 1,320/-) .......Rs. 1,49,418/-

Add: 40% of total Income

towards future prospect...................Rs.59,767/-(approx) Annual loss of Income....................Rs.2,09,185/- Less: Deduction 1/3rd of the Annual Income towards personal and living expenses............Rs.69,728/-(approx.) Rs.1,39,457/-

Adopting multiplier 16 ( Rs.1,39,457/- X 16)..................Rs.22,31,312/- Add: General Damages...........................Rs.70,000/-

Loss of estate....Rs.15,000/-

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

Add: Medical Expenses...... ......................Rs.64,000/- Total Compensation...........................Rs.23,65,312/-

Thus, the claimants are entitled to

compensation of Rs. 23,65,312/- 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 appellant-insurance company has

deposited statutory amount of Rs. 25,000/- vide OD

no. 246 dated 22.4.2022 and an amount of Rs.

25,06,296/- vide OD challan no.1516 dated

16.8.2022 in terms of order dated 27.4.2022 with

Registry of this Court. Both the aforesaid deposits

along with accrued interest be adjusted against the

entire compensation amount and the interest

therein.

Appellant- insurance company is directed to

deposit the balance amount of compensation, if any,

together with interest at the rate of 6% per annum

from the date of filing of the claim application (i.e

29.11.2016) till deposit, by way of cheque before the

learned Registrar General, High Court, Calcutta

within a period of six weeks from date.

Respondents-claimants are directed to

deposit ad valorem court fees on the compensation

amount assessed, if not already paid.

Upon deposit of the balance amount of

compensation, if any, and the interest as indicated,

the learned Registrar General, High Court, Calcutta

shall release the amount of compensation in favour

of respondents-claimants, after making payment of

Rs.40,000/-to respondent no.1 (widow of the

deceased) towards spousal consortium, in equal

proportions upon satisfaction of their identity and

on payment of ad valorem court fees on the