Jamuna Biswas & Ors vs United India Insurance Co. Ltd & ...
2023 Latest Caselaw 203 Cal

09.01.2023
sayandeep
Sl. No. 18
Ct. No. 654
                               FMAT(MV) 496 of 2022

                                  Jamuna Biswas & Ors.

                                          -Versus-

                            United India Insurance Co. Ltd & Anr.


                      Mr. Jayanta Banerjee
                      Ms. Ruxmini Basu Roy
                                                      .....for the appellants
                      Mr. Guddu Singh
                                                 .....for the respondents

This appeal is directed against the Judgment and

award dated 28th June, 2022 passed by learned

Additional District Judge cum Judge Motor Accident

Claims Tribunal, Fast Track, 2nd Court, Krishnanagar,

Nadia in MAC case No. 166 of 2019 granting

compensation of Rs. 6,31,600/- in favour of the

claimants along with interest.

The report of the Additional Stamp Reporter dated

19.12.2022 shows that the appeal is filed within

statutory period of limitation.

Accordingly, the appeal is formally admitted and

registered.

Since respondent no.2-owner of the offending

vehicle did not contest the claim application and hence

service of notice of appeal upon respondent no.2-

offending vehicle is dispensed with.

With the consent of the parties calling for Lower

Court records and preparation of informal paper books

is dispensed with.

Now this appeal is taken up for consideration.

The brief fact of the case is that on 7th March

2019 at about 18:30 hrs. while the victim was returning

to his house on bicycle from Haripur Bazar and when

he reached near Haripur Kanapoyati more the offending

vehicle bearing registration No. WB-51B/3986 (truck)

lost control and hit the victim from behind, as a result

of which the victim was fell down on the road and

sustained injuries and died on the spot. On account of

sudden demise of the deceased victim, the claimants

being widow, sons and father of the deceased filed

application for compensation under Section 166 of the

Motor Vehicles Act claiming compensation to the tune

of Rs. 9,000,00/.

The claimants in order to establish their case

examined three witnesses including claimant no.1,

widow of the deceased and proved number of

documents which has been marked as Exhibits 1 to 8

respectively.

The respondent no. 1-insurance Company did not

adduce any evidence.

Upon consideration of materials on record and

the evidence adduced on behalf of the claimants, the

learned Tribunal granted compensation in favour of the

claimants to the tune of Rs. 6,31,600/- together with

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

filing of the claim application till payment under Section

166 of the Motor Vehicles Act, 1988.

Being aggrieved and dissatisfied with the

impugned Judgment and award the claimants preferred

the present appeal.

Mr. Jayanta Banerjee, learned advocate for

appellants-claimants submits that the learned Tribunal

ought to have considered income of the deceased to the

extent of Rs. 6,000/- per month bearing in mind the

price index prevalent during the year 2019 when the

accident has taken place. He in his usual fairness

submits that the multiplier of 16 adopted by the learned

tribunal should be 15. In light of his aforesaid

submissions, he prays for enhancement of the

compensation amount.

In reply to the contention raised on behalf of the

appellants-claimants, Mr. Guddu Singh, learned

advocate for respondent no.1-insurance Company

submits that in the absence of necessary relevant

documents in support of income, the learned Tribunal

has rightly considered the income of the deceased at the

rate of Rs. 4,500/- per month which does not call for

any interference. He concurred with the submissions

advanced on behalf of the appellants-claimants that the

multiplier in the present case should be 15 instead of

16.

Having heard learned advocates of the respective

parties, it is found that this appeal precisely hinges on

the ground that the learned Tribunal has erroneously

determined the income on the deceased at the rate of

Rs. 4,500/- per month.

The claimants in the claim application has stated

the profession of the deceased as mason and his

monthly income is Rs. 9,000/- per month. There is no

such documentary evidence in support of such claim. In

the case of Ramchandrappa versus Manager, Royal

Sundram Allaince Company Limited reported in

(2011) 13 SCC 236 the Hon'ble Supreme Court

observed as follows.

" 14.We hasten to add that in all cases and in all circumstances, the tribunal need not accept the claim of the claimant in the absence of supporting material. It depends on the facts of each case. In a given case, if the claim made is so exorbitant or if the claim made is contrary to the ground realities, the tribunal may not accept the claim and may proceed to determine the possible income by resorting to some guesswork, which may include the ground realities prevailing at the relevant point of time............."

Bearing in mind the observation of the Hon'ble

Court as above, the possible income of deceased-victim

may be determined resorting to some guesswork.

Therefore considering the price index prevalent during

the year 2019 when the accident has taken place and

also keeping in mind catena of decision of this Court

considering the income at the rate of Rs. 5,000/- per

month in case of accident occurring after 2015, I am of

the view that an amount of Rs. 5,000/- per month

should be apposite to take into account as monthly

income of the deceased-victim for computation of the

compensation amount.

The other findings of the learned tribunal have

not been challenged in this appeal.

Now the calculation of compensation is made

hereunder:

Calculation of compensation

Monthly income......................................Rs.5,000/- Annual Income.....(Rs.5000/- X 12)..........Rs. 60,000/- Add: Future Prospects @ 40% of total Income.......................................................Rs.24,000/- Annual loss of Income.....................................................Rs.84,000/- Less: Deduction 1/4th of the Annual Income towards personal and living expenses .Rs.21,000/-

Rs.63,000/-

Adopting multiplier 15 (Rs.63,000/-X15).Rs.9,45,000/- Add: General Damages.............................Rs.70,000/- Loss of estate....Rs.15,000/-

Loss of Consortium....Rs.40,000/-

Funeral Expenses.......Rs.15,000/-

Total Compensation...........Rs.10,15,000/-

Thus the total compensation amount comes to

Rs. 10,15,000/-. It is informed that the claimants have

received an amount of Rs. 6,31,600/- along with

interest as granted by the learned tribunal. Accordingly

the claimants are entitled to the balance amount of Rs.

3,83,400/- together with interest at the rate of 6% per

annum from the date of filing of the claim application

till deposit.

Respondent no. 1-insurance Company is directed

to deposit the balance amount of Rs. 3,83,400/- along

with interest at the rate of Rs. 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.

Appellants-claimants are directed to deposit ad

valorem Court fees on the enhanced amount, if not

already paid.

Upon deposit of the aforesaid amount learned

Registrar General, High Court, Calcutta shall release

the aforesaid amount in favour of the claimants in equal

proportion after making payment of Rs. 40,000/- as

spousal consortium to appellant no. 1, widow of the

deceased, and upon satisfaction of their identity and

payment of ad valorem court fees, if not already paid.

Appellant no.1, mother and natural guardian of

minor appellant no.2, shall receive the share of the said

minor on his behalf and shall keep the share of the

minor in fixed deposit scheme of any nationalized Bank

or Post Office till attainment of majority by the said

minor.

With the aforesaid observations, the appeal

stands disposed of. The impugned Judgment and award

of the learned Tribunal stands modified to the above

extent. There shall be no order as to costs.

All connected applications, if any, stand disposed

of.

Interim orders, if any shall stand vacated.

Urgent photostat certified copy of this order, if

applied for, be given to the parties upon compliance of

all necessary legal formalities.

(Bivas Pattanayak, J.)