Calcutta High Court (Appellete Side)
Subal Murmu vs The Oriental Insurance Co. Ltd. & ... on 6 January, 2023
23
06.01.2023
Ct. No.237
pg.
IN THE HIGH COURT AT CALCUTTA
CIVIL APPELLATE JURICTION
APPELLATE SIDE
FMA 595 of 2010
with
IA No. CAN 2 of 2018 (CAN 4113 of 2018)
(Application not in the file)
Subal Murmu
Vs.
The Oriental Insurance Co. Ltd. & Anr.
Mr. Jayanta Banerjee
Mr. Sandip Bandyopadhyay
Ms. Ruxmini Basu Roy
... For the appellant/claimant
Mr. Parimal Kumar Pahari
... For the respondent no.1/Insurance Co.
This appeal is directed against the judgment and
award passed on 9th July, 2008 by the learned Judge,
Motor Accident Claims Tribunal, 4th Court, Paschim
Medinipur, in connection with MAC Case No.247 of 2007
whereby the learned Judge awarded compensation to the
tune of Rs.3,00,000/-.
The claim petition arose out of an application filed
under Section 166 of the Motor vehicles Act, 1988 on
account of injury sustained by the claimant Subal Murmu
in a motor accident occurred on 24th January, 2007 at
about 3.30 p.m. by the involvement of one Truck, bearing
registration no.WB-11A/6909, due to rash and negligent
driving of the said truck. As a result, he sustained severe
injury in his both legs and ultimately both his legs were
2
amputated in OMM Orthopaedic Hospital at Suxi Bagar,
Cuttack under famous Orthopaedic add Professor P.T.
Rao. At the time of accident, Subal Murmu was a mason
by profession having income of Rs.5,000/- per month and
aged about 48 years. The claimant/injured claimed
compensation to the tune of Rs.5,00,000/-.
As the Truck was duly insured with the Oriental
Insurance Company Limited, the claim petition was
contested by the Insurance Company by filing written
statement denying all averments in the claim petition
contending, inter alia, that the Insurance Company is not
liable to pay any compensation.
To prove the case, the claimant/injured himself
examined as PW-1. In course of his evidence, he has
corroborated the entire averments of the claim petition
regarding the manner of accident and amputation of both
legs.
In course of his evidence, First Information Report,
seizure list, charge sheet which was filed against the driver
of the bus, referral card, discharge certificate and
Disability Certificate were admitted as Exhibit 1 to 6.
After considering the entire evidence on record, the
learned Tribunal opined that the accident took place due
to fault on the part of the claimant/injured. It was
observed by the learned Tribunal that the accident took
place at the pitch road and there was no scope on the part
3
of the claimant/injured to go to the crossing point and the
claimant/injured also failed to prove that he was standing
on the bus stoppage. Learned Tribunal considering the
failure to prove the income and other facts and
circumstances in the case, granted compensation to the
tune of Rs.3,00,000/- without assessing pecuniary
damages.
From the evidence on record, including the
documents exhibited in this case, there is no scope to
draw any presumption even that accident took place due
to any fault on the part of the appellant/claimant. The
appellant/claimant has specifically stated in his evidence
that on the alleged date of accident on 24th January, 2007
at about 3.30 p.m. he was standing at Amtala Bus
Stoppage near Kshudiram Park and at the time the
offending truck coming with high speed and in rash and
negligent manner dashed him with force. As a result, he
sustained injury on his both legs. Ultimately, he had to
undergone amputation of both the legs. He also denied in
the cross-examination as follows:-
"Not a fact that the driver of vehicle had no
fault for such accident but suddenly I appeared
from roadside to the leaving portion of the pitch
Road and it was a four point road and for my fault
this accident took place."
That apart, from the exhibited documents,
particularly, the FIR, seizure list and charge sheet, it
cannot be presumed by any stretch of imagination that the
4
accident took place due to fault on the part of the
appellant/claimant. Therefore, it took me aback that how
the learned Tribunal observed that the accident took place
due to negligence on the part of the claimant.
So far as the income of the petitioner is concerned,
it is true that the appellant/claimant could not produce
any evidence to substantiate his profession as mason but
notional income of Rs.3,000/- per month can be taken for
assessing the pecuniary damages in this case in terms of
severe injury, i.e., amputation of both legs.
In the aforesaid view of the matter, I modify the
award as follows:-
Monthly Income Rs. 3,000/-
Annual Income (Rs.3,000/- x 12) Rs. 36,000/-
Add: Future prospect (@ 25%) Rs. 9,000/-
-------------------
Rs. 45,000/-
Less: Deduction 20% (since the claimant Rs. 9,000/-
was disabled to the extent of 80%) -------------------
Total loss of Income Rs. 36,000/-
Multiplier by 14 (as per age of the victim) x 14
Rs.5,04,000/-
-------------------
That apart, the appellant/claimant is also entitled
to compensation towards non-pecuniary heads. From the
documents, it is seen that he was admitted in hospital for
three months.
Considering all facts and circumstances, the
appellant/claimant is entitled towards loss of earning to
Rs.9,000/-, towards pain and sufferings to Rs.1,00,000/-
and Rs.1,00,000/- towards future medical expenses and
loss of expectation of life.
For the reasons, it is seen that the
appellant/claimant is entitled to the total compensation to
the tune of Rs.7,13,000/- (Rs.5,04,000/- + Rs.9,000/- +
Rs.1,00,000/- + Rs.1,00,000/-) along with interest @ 6%
per annum from the date of filing of the claim petition, i.e.
on 23rd April, 2007 till the deposit of the amount.
It is reported that the appellant/claimant has
already received Rs.3,00,000/- as awarded by the learned
Tribunal without any interest.
Therefore, the appellant/claimant is entitled to the
balance amount of Rs.4,13,000/- (Rs.7,13,000/- -
Rs.3,00,000/-) along with interest @ 6% per annum from
the date of filing of the claim petition, i.e., on 23rd April,
2007 till the deposit of the amount.
Accordingly, the respondent no.1/Oriental
Insurance Company Limited is directed to deposit the
enhanced amount of Rs.4,13,000/- along with interest @
6% per annum from the date of filing of the claim petition,
i.e. on 23rd April, 2007 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/Insurance Company is also
directed to deposit interest @ 6% per annum on the
awarded amount of Rs.3,00,000/- by the learned Tribunal
from the date of filing of the claim petition, i.e., on 23rd
April, 2007 till the date of receipt of the amount by the
appellant/claimant, before the office of the learned
Registrar General of this Court.
The appellant/claimant is entitled to withdraw the
balance award amount with interest, subject to payment of
additional ad valorem court fees on the amount of
Rs.2,13,000/- (Rs.7,13,000/- - Rs.5,00,000/-) before the
learned Tribunal.
The learned Registrar General is requested to
disburse the entire amount to the appellant/claimant on
proper identification.
With the above observation, the appeal, being FMA
595 of 2010, is 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.)
