Rimi Basak (Biswas) vs New India Assurance Co. Ltd
2023 Latest Caselaw 916 Cal

                        IN THE HIGH COURT AT CALUTTA
                           Civil Appellate Jurisdiction
  03.02.2023
   SL No.2
Court No. 654
     Ali


                           F.M.A.T. 973 of 2019
                        IA No: CAN/2/2022, CAM/3/2022
                               Rimi Basak (Biswas)
                                     Vs.
                               New India Assurance Co. Ltd.

                 Mr. Ashique Mandal
                       ...for the appellant-claimant.

                 Mr. Rajesh Singh
                        ...for the respondent No. 1-Insurance Co.

Mr Tapas Kumar Saha ..... for the substituted respondents.

This appeal is preferred against the

judgement and award dated 27th June, 2018 passed

by the learned Additional District Judge cum Judge,

Motor Accident Claims Tribunal, 3rd court,

Berhampore, Murshidabad in M.A.C Case no. 220 of

2010 (analogous with M.A.C Case no.195 of 2010)

under Section 166 of the Motor Vehicles Act

granting compensation of Rs. 29,23,036/-together

with interest in favour of the claimants of both the

claim cases.

On account of sudden demise of the victim,

two separate claim cases were filed application

under Section 166 of the Motor Vehicles Act, 1988.

One application was filed by the parents of the

deceased being M.A.C Case no.195 of 2010 and

another by the widow of the deceased being M.A.C

Case no.220 of 2010.

Both the aforesaid claim cases were heard

analogously by the learned tribunal and disposed of

by a single judgment.

During the pendency of this appeal the

parents of the deceased namely respondent no. 3 &

4 (applicant of M.A.C. Case no.195 of 2010) expired

and in their place three of their daughters namely

Jyotsna Basak, Usha Basak and Mousumi Basak

has been substituted in terms of order of this court

dated 7th November 2022.

The brief fact of the case is that on 24 April

2010 at about 5:30 AM while the victim was going to

Nashipur K.C.K. High Madrasa School driving a

motorcycle bearing registration no. WB-58C/6488

through Berhampore-Jangipore State Highway and

when he reached near Tiktikipara at that time the

offending vehicle bearing registration no. WB-

57/2175 (truck) in high-speed and in the rash and

negligent manner dashed the motorcycle of the

victim from behind as a result of which the victim

sustained severe injuries all over his body and died

at the spot. The claim cases as mentioned above

arose in relation to the death of the victim in the

said accident.

The claimants in MAC 195 of 2010 in order

to establish their case examined four witnesses and

produced documents which has been marked as

Exhibits 1 to 6 respectively. Appellant also deposed

in defence in M.A.C. Case no. 195 of 2010.

Upon considering the materials on record

and the evidence adduced on behalf of the respective

parties in the aforesaid claim cases, the learned

tribunal granted compensation of Rs. 29,23,036/-

together with interest in favour of the widow and

parents of the deceased in equal proportions.

Being aggrieved by and dissatisfied with the

impugned judgement and award the widow of the

deceased (claimant in M.A.C 220 of 2010) preferred

this appeal.

Mr Ashique Mandal, learned advocate for

appellant, widow of the deceased, submits that in

view of the decision of Hon'ble Supreme Court in

National Insurance Company Limited versus

Pranay Sethi and Others reported in 2017 ACJ

2700 the claimants is entitled to 50% of annual

income of the deceased-victim towards future

prospect, since at the time of accident the deceased

was in permanent employment and was 37 years

old. Further in view of the above decision of the

Hon'ble Court the claimants are also entitled to

general damages of Rs.70,000/- and increase of

10% on such amount. In his usual fairness he

submits that in view of decision of Hon'ble Supreme

Court passed in Sarla Verma and Others versus

Delhi Transport Corporation and Another

reported in 2009 ACJ 1298, the multiplier should

be 15 instead of 16 as adopted by the learned

tribunal. In the aforesaid backdrop, he prays for

enhancement of the compensation amount.

Mr Rajesh Singh, learned advocate for

respondent no.1-insurance company submits that

the multiplier should be 15 instead of 16. He further

indicates that the share of the substituted

respondents namely the daughters should be

restricted to the share of the mother (since

deceased).

Mr Tapas Kumar Saha, learned advocate

appearing on behalf of substituted respondents

namely the daughters admits that the share of the

daughters be restricted to the share that would have

fallen in favour of mother (since deceased).

Since the owner of the offending vehicle did

not contest the claim application and the case was

dismissed exparte against him, hence service of

notice of appeal upon the said respondent is

dispensed with.

Having heard the learned advocates for the

respective parties, it is found that the appellant in

the present appeal has raised the following issues,

firstly, entitlement of claimants of 50% of annual

income of the deceased towards future prospect and

secondly, entitlement of claimants to general

damages of Rs.70,000/- with increase of 10% on the

said amount.

It is found from the impugned judgment that

the learned tribunal did not grant any amount

towards future prospect. However, following the

observation of Hon'ble Supreme Court in Pranay

Sethi's case (supra) since at the time of accident

the deceased was 37 years of age and was in

permanent employment as a teacher in High

Madrasa School under Government of West Bengal,

hence the claimants are entitled to an additional

amount equalling to 50% of the annual income of

the deceased towards future prospect.

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/- and an increase of

10% on such amount as three years have elapsed.

It is contended by the advocates for respective

parties that the multiplier adopted should be 15

instead of 16. Since at the time of accident the

deceased was aged 37 years, following the

observation of Hon'ble Supreme Court in Sarla

Verma's case (supra) the multiplier should be 15

instead of 16 as adopted by the learned tribunal.

The other factors and findings of the learned

tribunal has not been challenged in the appeal.

The calculation of compensation is made

hereunder.

Calculation of compensation

Monthly Income.................................Rs.22,762/- Annual Income..(Rs.22,762/- X 12).Rs. 2,73,144/- Add: 50% of total Income towards future prospect...............Rs.1,36,572/- Annual loss of Income........................Rs.4,09,716/- Less: Deduction 1/3rd of the Annual Income towards personal and living expenses.............Rs.1,36,572/-

Rs.2,73,144/-

Adopting multiplier 15 ( Rs.2,73,144/- X 15).....................Rs.40,97,160/- Add:General Damages........................Rs.70,000/- Loss of estate....Rs.15,000/-

Loss of Consortium....Rs.40,000/- Funeral Expenses.......Rs.15,000/- Add: 10% towards increase in general damages..........Rs.7,000/-

Total Compensation.........Rs.41,74,160/-

Thus the total compensation amount is

calculated to Rs. 41,74,160/-. Admittedly the

appellant (widow of the deceased) and the deceased-

respondents (parents of the deceased) received an

amount of Rs.29,23,036/-together with interest as

granted by the learned tribunal. Accordingly, the

appellant and the substituted respondents are

entitled to receive the balance amount of

compensation of Rs.12,51,124/- together with

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

of filing of the claim application till deposit. The

aforesaid balance amount of compensation shall be

apportioned in the following manner 2/3rd in favour

of appellant (widow of the deceased), and 1/9th each

in favour of three substituted respondents.

Respondent no.1-insurance company is

directed to deposit the balance amount of

compensation of Rs.12,51,124/- together with

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

of filing of the claim application till deposit by way of

cheque before the learned Registrar General, High

Court, Calcutta within a period of six weeks from

date.

Appellant is directed to deposit ad valorem

court fees on the enhanced compensation amount, if

not already paid.

Upon deposit of the enhanced amount of

compensation, learned Registrar General, High

Court, Calcutta shall release the aforesaid amount

in the proportion as indicated above, after making

payment of Rs. 44,000/-to appellant (widow of the

deceased) towards spousal consortium, in favour of

appellant and substituted respondents upon

satisfaction of their identity and payment of ad

valorem court fees, if not already paid.

With the aforesaid observation, the appeal

stands disposed of. The impugned judgement and

award of the learned tribunal is modified to the

above extent. No order as 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.)