Calcutta High Court (Appellete Side)
The New India Assurance Co. Ltd vs Smt. Swati Banerjee & Ors on 11 January, 2023
28 & 29
11.01.2023
Ct. No.237
pg.
IN THE HIGH COURT AT CALCUTTA
CIVIL APPELLATE JURICTION
APPELLATE SIDE
FMA 3712 of 2013
with
IA No. CAN 4 of 2018 (CAN 7057 of 2018)
with
CAN 5 of 2019 (CAN 5630 of 2019)
with
CAN 6 of 2022
The New India Assurance Co. Ltd.
Vs.
Smt. Swati Banerjee & Ors.
with
COT 53 of 2013
Smt. Swati Banerjee & Ors.
Vs.
The New India Assurance Co. Ltd.
Ms. Gopa Das Mukherjee
... For appellant no.1/Insurance Co. in FMA
3712 of 2013 & respondent in COT 53 of
Mr. Rachit Lakhmani
Mr. Viswarup Acharyya
... For the claimants in FMA 3712 of 2013
& Cross-appellant in COT 53 of 2013
Mr. Parimal Kumar Pahari
... For the respondent no.7 in
FMA 3712 of 2013
This appeal is directed against the judgment and
award dated 30th July, 2012 passed by the learned Judge,
Motor Accident Claims Tribunal, Additional District Judge,
Fast Track Court No.2, Tamluk, Purba Medinipur, in
connection with MAC Case No.336 of 2007/61 of 2008
whereby the learned Judge awarded compensation to the
tune of Rs.25,00,000/- though calculated final awarded
sum of Rs.33,70,500/-.
The claim petition arose out of an application filed
under Section 166 of the Motor vehicles Act, 1988 on
account of death of one Anirban Banerjee in a motor
accident occurred on 2nd June, 2005 at about 5.30 to 6.00
p.m. while the victim was proceeding with a Hero Honda
Motor Cycle, bearing registration no.WB-74E/1381, from
Sevok Road towards Hillcart Road. At the relevant point of
time, one Tata Bus, bearing registration no.WB-71/7110,
approaching towards Siliguri from Alipurduar side with
high speed, dashed the motor cycle from behind. In effect,
said Anirban Banerjee and his colleague sustained severe
injury on their person. Both of them were taken to Sunrise
Nursing Home wherefrom he was referred to North Bengal
Medical College and Hospital where Anirban Banerjee was
declared dead. It is alleged that the accident took place
due to rash and negligent driving of the Tata Bus, bearing
registration no.WB-71/7110. It is further stated in the
claim petition that at the relevant point of time the victim
was aged about 34 years and 6 months and he was an
employee of Micro Mation Private Limited as a Regional
Manager (East) and he got salary of Rs.16,500/- per
month from his employer. Besides his salary, he also got
commission and thereby used to earn Rs.18,000/- per
month. Legal heirs of the deceased, i.e., widow of the
deceased and minor daughter, filed the claim petition with
a prayer for compensation to the tune of Rs.25,00,000/-.
Both New India Assurance Company Limited and
Oriental Insurance Company Limited in respect of both the
vehicles entered appearance and contested the claim
petition by filing their respective written statements
denying all material averments in the claim petition
contending, inter alia, that the claimants are not entitled
to abnormal and unjustified claim and Insurance
Companies are not liable to pay any compensation.
To prove the case, the claimants examined three
witnesses, namely, Swati Banerjee, widow of the deceased,
as PW-1. Amal Kumar Das, being the pillion rider of the
Hero Honda Motor Cycle, was examined as PW-2, claiming
himself to be an eyewitness to the accident and one Rajan
Koheli, an employee of Micro Mation Private Limited
company, examined as PW-3. In course of their evidence, a
good number of documents were admitted as Exhibit 1 to
8, including certified copy of the First Information Report,
charge sheet, seizure list, post-mortem report, PAN card,
insurance certificate, bank statement etc.
Learned Judge of the Tribunal after considering
the entire evidence on record together with exhibited
documents, returned his finding that accidental death of
Anirban Banerjee was due to rash and negligent driving of
the bus and awarded compensation to the tune of
Rs.25,00,000/- out of Rs.33,70,500/- after assessing
monthly income of Rs.16,500/-. Learned Tribunal directed
only the New India Assurance Company Limited in respect
of the offending bus to pay the entire compensation.
This appeal has been preferred only on two
grounds, i.e., the driver of the bus did not possess valid
driving licence and, therefore, the New India Assurance
Company Limited is not liable to pay compensation and on
further ground that the claimants are entitled to future
prospect to the extent of 40% of the income of the
deceased instead of 50% in terms of fixed salary of the
deceased at the time of accidental death. In support of her
contention, Ms. Gopa Das Mukherjee relied on National
Insurance Co. Ltd. v. Pranay Sethi & Ors. reported in
(2017) 16 SCC 680 = 2017 ACJ 2700.
In opposition to that, Mr. Rachit Lakhmani,
learned advocate, appearing on behalf of the claimants/
cross-appellants has referred to a driving licence showing
validity of the licence from 22nd April, 2003 to 21st April,
2006, i.e., the licence was valid on the date of accident
happened on 2nd June, 2005. Mr. Lakhmani has further
contended that the deceased was a permanent employee of
Micro Mation Private Limited and in this regard he has
referred to the evidence of PW-3 who deposed on behalf of
Micro Mation Private Limited duly authorized by the
Executive Director of the company.
With regard to the accidental death of Anirban
Banerjee, I have perused the evidence of PW-2 who was a
pillion rider of the motor cycle at the time of accident. He
has specifically stated about the manner of accident due to
rash and negligent driving of the bus. Considering that
evidence together with the certified copy of FIR, charge
sheet and seizure list, learned Judge of the Tribunal
rightly returned his finding that Anirban Banerjee died in
a motor accident by the involvement of bus, bearing
registration no.WB-71/7110, due to rash and negligent
driving and the bus was duly insured with the New India
Assurance Company Limited.
With regard to the driving licence, I have perused
the document referred to by Mr. Lakhmani and I find that
the driving licence was valid at the time of accident and
that apart it was further corroborated by the seizure list
(Ext.-3) wherein it was written that the driving licence of
the driver of the offending bus was valid up to 21st April,
2006. Therefore, the ground raised by the learned
advocate for the appellant/New India Assurance Company
Limited is found to be without any merit.
Coming to the second ground of appeal, I find that
on behalf of the New India Assurance Company Limited
Ms. Gopa Das Mukherjee, learned advocate, raised an
issue of percentage of future prospect. According to her,
the future prospect should be considered at the rate of
40% instead of 50% in terms of fixed salary. But on careful
perusal of the evidence of PW-3, an employee of Micro
Mation Private Limited, I find that he specifically testified
in his evidence that he came before the Court with the
letter of authorisation by the Executive Director of the
company. He further stated that as per direction, he
produced salary slip for the month of May, 2005 along
with their bank statement duly attested by the Executive
Director along with service record and original pay slip for
the month of May, 2005 of the deceased Anirban Banerjee.
Both the documents were marked as Exhibit-6 and
Exhibit-7. In cross-examination, he denied the suggestion
of fabrication thrown to him.
In Pranay Sethi (supra), permanent job has been
interpreted by a test as follows:-
"In case of a deceased who had held a
permanent job with inbuilt grant of annual
increment, there is an acceptable certainty."
It has been further held by the Hon'ble Apex Court
in Pranay Sethi (supra) as follows:
"We are inclined to think that there can be
some degree of difference as regards the percentage
that is meant for or applied to in respect of the
legal representatives who claim on behalf of the
deceased who had a permanent job than a person
who is self-employed or on a fixed salary."
From the ratio of Pranay Sethi (supra), it can
easily be assumed that percentage of future prospect
depends on permanent job or self-employed or on fixed
salary. According to Pranay Sethi (supra), person holding
permanent job is entitled to higher percentage than a
person holding fixed salary or self-employed. From the
Exhibit-6, I cannot say that the deceased was drawing
fixed salary. There was specifically mentioned about the
date of increment and deceased's salary was increased on
and from 1st April, 2005. Therefore, according to the ratio
of Pranay Sethi (supra), claimants are entitled to future
prospect to the extent of 50% of the salary of the deceased
who was aged about 34 years and 6 month at the time of
death.
So far as the multiplier is concerned, the deceased
was aged about 34 years 6 months at the time of death
involving the multiplier 16 instead of 17 according to the
ratio of Sarala Verma (Smt.) & Ors. v. Delhi Transport
Corporation & Anr. reported in (2009) 6 SCC 121.
Needless to mention that the claimants filed a
cross appeal, being COT 53 of 2013 with a prayer for
compensation assessed by the learned Tribunal at
Rs.33,70,500/- though the learned Tribunal awarded a
sum of Rs.25,00,000/- in terms of claim in the petition
under Section 166 of the Motor Vehicles Act, 1988.
It is trite law that the learned Tribunal is duty
bound to award just compensation irrespective of claim of
the claimants. Therefore, award of compensation does not
depend upon the claim. In the circumstances, I find no
reason to reduce the award from Rs.33,70,500/- to
Rs.25,00,000/- only in terms of claim of Rs.25,00,000/-.
However, considering all the facts and
circumstances as discussed above, I find it necessary to
determine the award afresh as under:-
Monthly Income Rs. 16,500/-
Annual Income (Rs.16,500/- x 12) Rs. 1,98,000/-
Add: Future prospect (@ 50%) Rs. 99,000/-
-------------------
Rs. 2,97,000/-
Less: 1/3rd Deduction (personal expenses) Rs. 99,000/-
-------------------
Rs. 1,98,000/-
Multiplier by 16 (as per age of the victim) x 16
Rs.31,68,000/-
Add: General Damages Rs. 70,000/-
Total Rs.32,38,000/-
Less - Awarded by ld. Tribunal Rs.25,00,000/-
ENHANCEMENT Rs. 7,38,000/-
-------------------
For the reasons, it is seen that the claimants are
entitled to the total compensation to the tune of
Rs.32,38,000/- along with interest @ 6% per annum from
the date of filing of the claim petition, i.e. on 21st
November, 2007 till the deposit of the amount.
It is reported that the appellant/New India
Assurance Company Limited already deposited
Rs.25,00,000/- before the learned Registrar General of
this Court and the claimants already withdrew
Rs.10,00,000/- from the said amount.
Therefore, the claimants are entitled to the
enhanced amount of Rs.7,38,000/- along with interest @
6% per annum from the date of filing of the claim petition,
i.e., on 21st November, 2007 till the deposit of the amount
and the already deposited balance amount with all
accrued interest.
Accordingly, the appellant/ New India Assurance
Company Limited is directed to deposit the enhanced
compensation amount of Rs.7,38,000/- along with interest
@ 6% per annum from the date of filing of the claim
petition, i.e. on 21st November, 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.
Therefore, the claimants are entitled to withdraw
the already deposited balance amount along with all
accrued interest and the enhanced compensation with
interest.
The learned Registrar General is requested to
disburse the already deposited balance amount along with
all accrued interest and the enhanced compensation with
interest to be deposited by the appellant/New India
Assurance Company Limited within six weeks from date to
the claimants in equal share on proper identification.
With the above observation, the appeal, being FMA
3712 of 2013 and the Cross-Objection, being COT 53 of
2013, are 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.)
