Calcutta High Court (Appellete Side)

The New India Assurance Co. Ltd vs Smt. Munni Thapa & Anr on 13 January, 2023

                       IN THE HIGH COURT AT CALUTTA
                          Civil Appellate Jurisdiction
 13.01.2023
  SL No.6 & 7
Court No. 654
       Ali


                          F.M.A. 2035 of 2018
                IA No: CAN/1/2018 (Old No.CAN/5751/2018)
                      The New India Assurance Co. Ltd.
                                  versus
                        Smt. Munni Thapa & Anr.
                                 With
                           COT 72 of 2019
                             Munni Thapa
                                 versus
                  The New India Assurance Co. Ltd. & Ors.

                 Mr. Parimal Kumar Pahari
                           ...for the appellant in FMA 2035 of 2018
                            and for respondents in COT 72 of 2019

Mr. Jayanta Banerjee Mr. Sandip Bandyopadhyay Smt. Ruxmini Basu Roy ...for the appellant in COT 72 of 2019 and for respondents FMA 2035 of 2018.

This appeal is directed against the judgment

and award dated 3rd May 2018 passed by learned

District Judge cum Judge, Motor Accident Claims

Tribunal, Jalpaiguri in M.A.C Case no. 43 of 2018

granting compensation of Rs 54,23,600/-favour of

the claimant under Section 166 of the Motor

Vehicles Act,1988.

With the consent of the parties preparation

of informal paper books is dispensed with.

The brief fact of the case is that on 26th of

June 2015 at about 10 PM while the victim was

proceeding towards Telepara from Gairkata on a

motorcycle taking left side of the road in a normal

speed at that time the offending vehicle bearing

registration no.WB-57C/0098 (truck) coming from

the opposite direction in a rash and negligent

manner dashed the motorcycle of the victim as a

result of which the victim sustained severe injuries

all over his body and was immediately taken to

Birpara State General Hospital where the attending

doctor declared him dead. On account of sudden

demise of the deceased victim the claimant being the

mother of the deceased filed application for

compensation of Rs. 38,00,000/-under Section 166

of the Motor Vehicles Act, 1988.

The claimant in order to establish her case

examined three witnesses including the claimant

and proved documents which have been marked as

Exhibits 1 to 11 respectively.

The appellant-insurance company did not

adduce any evidence.

Upon considering the materials on record

and the evidence adduced by the claimant both oral

and documentary the learned tribunal granted

compensation of Rs 54,23,600/-favour of the

claimant.

Being aggrieved by and dissatisfied with the

impugned judgment and award the insurance

company has preferred the present appeal.

The respondent-claimant also filed cross-

objection against the impugned judgment and award

of the learned tribunal being COT 72 of 2019.

Mr Parimal Kumar Mandal, learned advocate

for appellant-insurance company submits that on

the relevant date of accident the victim along with

two pillion riders was driving the motorcycle which

contributed to the accident which is evident from

the fact disclosed in the first information report as

well as chargesheet and therefore as the victim was

himself guilty of contributory negligence hence the

claimant is debarred from claiming compensation to

the extent of negligence of the deceased-victim. He

further submits that at the time of accident the

deceased victim was 26 years of age and as such the

multiplier should be 17 instead of 18 adopted by the

learned tribunal. Furthermore he submits that the

learned tribunal erred in deducting 1/3rd of annual

income of the deceased-victim towards his personal

and living expenses which ought to have been 1/2

since the deceased died a bachelor. In light of his

aforesaid submissions he prays for modification of

the impugned judgment and award.

In reply to the contentions raised on behalf

of appellant-insurance company, Mr Jayanta

Banerjee, learned advocate for respondent no.1-

claimant submits that the insurance company has

neither made out any case of contributory

negligence before the learned tribunal nor has led

any evidence to establish such fact and therefore the

aspect of contributory negligence of the victim as

argued on behalf of appellant-insurance company is

far-fetched since it has not been proved in

accordance with law.

He further submits that gross pay of Rs

27,387/-per month appearing in the salary slip of

May 2015 which is the last salary drawn by the

victim just prior to the accident in the month of

June 2015 ought to have been considered however

the learned tribunal erroneously considered the net

pay. Moreover he submits that the claimant is

entitled to general damages of 30,000/- under the

conventional heads of funeral expense and loss of

estate. He further indicates that the learned tribunal

has not granted any interest on the compensation

amount from the date of filing of the claim

application till realisation rather the interest has

been granted as a default clause which needs to be

modified. In the light of above he prays for

appropriate order.

In spite of due service of notice of appeal

respondent no.2-owner of the offending vehicle did

not appear to contest the appeal.

Having heard the learned advocates of the

respective parties, it is found that the appellant-

insurance company has precisely thrown challenge

to the impugned judgment and award on three-fold

grounds firstly that the victim was guilty of

contributory negligence in the said accident;

secondly the learned tribunal erred in adopting

multiplier 18 instead of 17 and lastly the deduction

towards personal and living expenses of the

deceased-victim should be 1/2 of the annual income

of the deceased instead of 1/3rd.

With regard to the issue of contributory

negligence at the very outset it is found that the

insurance company neither has taken the plea of

contributory negligence of the deceased-victim in the

written statement nor has led any direct or

corroborative evidence to establish such fact. Mr

Pahari, learned advocate for appellant-insurance

company has strenuously argued that since the first

information report and the chargesheet discloses

that on the date of accident three persons were

moving in the motorcycle including the victim hence

he is guilty of contributory negligence which fact has

to be taken into account. It is a fact that as per the

written complaint and the chargesheet on the date

of accident the victim and two persons were moving

in the motorcycle. Be that as it may, the first

information report or the chargesheet is not

substantive evidence. The fact that on the relevant

date three persons including the victim were moving

in the motorcycle at best may give rise to guilt of

being party to violation of the traffic rules and

regulations but that cannot make the victim guilty of

contributory negligence unless it is established that

his very act of moving alongwith two others in the

motorcycle contributed either to the accident or to

the impact of the accident upon the victim. It is not

the case of insurance company that the accident

itself occurred as a result of three persons riding on

the motorcycle or that the accident could have been

averted if three persons were not riding on the

motorcycle. On the hand the evidence of eyewitness

PW2, Ratiram Oraon clearly shows that driver of the

offending vehicle was negligent in the said accident

which has remained unchallenged in cross-

examination. Therefore in the absence of any

evidence to show that the wrongful act on the part of

deceased victim contributed either to the accident or

to the nature of injuries sustained, the victim

cannot be held to be guilty of contributory

negligence. [See Mohammed Siddique & Another

versus National Insurance Company Limited &

Ors reported in I (2020) ACC 345 (SC)]. Accordingly

it goes without saying that the fact of contributory

negligence of deceased-victim has not been

established by the appellant-insurance company in

the proceeding before the learned tribunal by cogent

evidence.

The other two issues raised by the appellant-

insurance company namely with regard to multiplier

and deduction towards personal and living expenses

shall be dealt with later on while dealing with cross-

objection.

Now the cross objection is taken up for

consideration.

As far as the multiplier is concerned it is

found that the learned tribunal adopted multiplier of

18. However keeping in mind the observation of

Hon'ble Supreme Court passed in Sarla Verma and

Others versus Delhi Transport Corporation and

Another reported in 2009 ACJ 1298 as on the date

of accident the victim was 26 years of age hence a

multiplier of 17 is to be adopted for computation of

compensation amount as has been rightly argued by

learned advocate for appellant insurance company.

With regard to deduction towards personal

and living expenses of the deceased it is found from

the impugned judgment that learned tribunal has

deducted 1/3rd towards personal and living

expenses of the deceased. However following the

observation of Hon'ble Supreme Court in Sarla

Verma's case since the deceased died bachelor

hence an amount equalling to ½ of annual income of

the deceased should be deducted towards his

personal and living expenses.

So far as income of the deceased is

concerned the learned tribunal has considered the

net pay of the deceased-victim for the month of May

2015. The actual income is the income determined

upon deducting the tax component from the gross

pay. It is relevant to note that the gross pay of the

victim for the month of May 2015 is Rs. 27,387/-

and the income tax payable is zero. Accordingly the

actual income of the deceased-victim just prior to

the accident is Rs. 27,387/-which should be taken

into account.

Further the learned tribunal has not granted

any interest on the compensation amount. However

the claimant is entitled to interest at the rate of 6%

per annum on the compensation amount from the

date of filing of the claim application till deposit.

Now the calculation of compensation is

made hereunder.

Calculation of compensation

Monthly Income..........................................Rs.27,387/- Annual Income.....(Rs.27,387/- X 12)...........Rs3,28,644/- Add: Future Prospects @ 50% of total Income..Rs.1,64,322/- Annual loss of Income.................................Rs.4,92,966/- Less: Deduction of 1/2 of the Annual Income ( towards personal and living expenses)........... Rs.2,46,483/-

Rs.2,46,483/-

Adopting multiplier 17 ( Rs.2,46,483/- X 17)..Rs.41,90,211/- Add: General Damages....................................Rs.30,000/- Loss of estate.............Rs.15,000/- Funeral Expenses.......Rs.15,000/- Total Compensation............................Rs.42,20,211/-

Thus the claimant is entitled to get

compensation of Rs. 42,20,211/-along with interest

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

the claim application (27.1.2017) till deposit. It is

found that the appellant insurance company has

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

challan no. 1112 dated 31.7.2018 and has also

deposited an amount of Rs.62,18,380/- vide OD

challan no. 1592 dated 1.10.2018 in terms of order

dated 7 September 2018 with the Registry of this

Court. Accordingly both the aforesaid amounts

together with accrued interest shall be adjusted