Calcutta High Court (Appellete Side)

Smt. Manashi Maity & Ors vs National Insurance Co. Ltd. & Anr on 16 January, 2023

                       IN THE HIGH COURT AT CALUTTA
                          Civil Appellate Jurisdiction
 16.01.2023
SL No.9 & 10
Court No. 654
       Ali


                         F.M.A. 2180 of 2015

                         Smt. Manashi Maity & Ors.
                                  Vs.
                      National Insurance Co. Ltd. & Anr.
                                  With
                           FMA 2335 of 2014
                      National Insurance Co. Ltd.
                                   Vs.
                        Smt. Manashi Maity & Ors.




                 Mr. Jayanta Kumar Mandal
                            ...for the appellants FMA 2180 of 2015
                              and respondents FMA 2335 of 2014.

Mr. Parimal Kumar Pahari ......for the respondents FMA 2180 of 2015.

and appellant FMA 2335 of 2014.

Mr. Amit Baran Dash Ms. Ankana Sarkar .....for the respondent No. 2 FMA 2180 of 2015.

Mr. Amit Baran Dash Ms. Ankana Sarkar .....for the respondent No. 5 FMA 2335 of 2014.

FMA 2180 of 2015 with FMA 2335 of 2014.

The judgement and award passed on 28th

November 2013 by learned Additional District Judge

cum Judge, Motor Accident Claims Tribunal, 2nd

Court, Tamluk, Purba Medinipur in M.A.C Case

no.73 of 2017/ 116 of 2016 has been challenged by

the claimants as well as the insurance company by

preferring separate appeals.

Both these appeals are taken up together for

consideration and disposal analogously.

The brief fact of the case is that on 7 May

2009 at about 2 PM while the victim was standing at

Chandpur under Daspur Police station on the

extreme left side of Ghatal-Panskura Pitch Road for

going to Panskura on his motorcycle bearing

registration no. WB-34P/6636, at that time the

offending vehicle bearing registration no. WB-

34S/0655 (Maruti Car) which was coming from

Ghatal side in a rash and negligent manner dashed

the motorcycle from behind along with the victim, as

a result of which the victim fell down on the ground

and sustained serious injuries and died on the spot.

On account of sudden demise of the deceased-victim

the claimants being the widow, children and mother

of the deceased filed application under Section 166

of the Motor Vehicles Act, 1988 claiming

compensation of Rs. 48,00,000/-together with

interest.

During the pendency of the claim application

the mother of the deceased namely Smt Chhaya @

Chhaya Rani died and her name has been expunged

by the learned tribunal vide order no. 35 dated

17.5.2013.

The claimants in order to establish their

case examined three witnesses including widow of

the deceased and proved number of documents

which has been marked Exhibit 1 to 17

respectively.

The insurance company also adduced

evidence of two witnesses and proved documents

which have been marked as Exhibit A, B and C

respectively.

Upon consideration of the materials on

record and the evidence placed before it by the

respective parties the learned tribunal granted

compensation in favour of the claimants to the tune

of Rs. 26,18,060/- alongwith interest.

Mr. Jayanta Kumar Mandal, learned

advocate for the claimants submits that the learned

tribunal erred in taking into account the net income

of the deceased for the month of April 2009 whereas

it ought to have considered the income noted in

Form-16 issued in relation to deduction of tax by the

employer for the assessment year 2009-2010.

He further submits that since the deceased-

victim at the time of accident was in permanent job

with the Bajaj Allianze LIC Company Limited as

Business Development Manager, aged 37 years

hence the claimants are entitled to an amount

equalling to 50% of the annual income of the

deceased towards future prospect.

Moreover it is submitted that since at the

time of accident there were four numbers of

dependents of the deceased-victim hence 1/4th of

annual income of the deceased-victim should be

deducted towards personal and living expenses

instead of 1/3rd. He further indicates that though

the mother of the deceased died during the

pendency of the claim application yet such

subsequent happening of death is inconsequential

since determination of extent of personal and living

expenses depends on the number of dependents of

the deceased at the time of accident and not on any

subsequent happening. In support of his contention

he relied on the decision of Hon'ble Supreme Court

passed in Kirti Kumar & Anr Etc versus Oriental

Insurance Company Ltd reported in 2021 SAR

(Civ) 147.

He further submits that the claimants are

also entitled to general damages under the

conventional heads of funeral expenses, loss of

consortium, and loss of estate of Rs. 15,000, Rs.

40,000 and Rs.15,000/- respectively and further an

increase of 10% on the general damages since three

years have elapsed.

In the light of his above submissions he

prays for enhancement of the compensation

amount.

Mr. Parimal Kumar Pahari, learned advocate

for insurance company submits that since the victim

on the relevant date was driving the motorcycle in a

high speed without using helmet and holding

effective driving licence hence was guilty of

contributory negligence in the said accident and as

such the claimants are debarred from claiming

compensation to the extent of negligence of the

deceased victim in the said accident.

He further submits that the driver of the

offending vehicle on the relevant date of accident

was not holding effective and valid license to drive

such vehicle which is evident from details of driving

licence (Exhibit A) proved by OPW1, Dealing Officer

of National Insurance Company Limited. As per

Exhibit A the licence of the driver of the offending

vehicle was valid till 23.1.2003. The accident having

taken place on 7.5.2009 manifest that the driver of

the offending vehicle on the relevant date was not

holding valid and effective driving licence and

therefore the insurance company cannot be saddled

with the liability to make compensation.

Mr. Amit Baran Das, learned advocate for

owner of the offending vehicle submits that as per

the seizure list (Exhibit 5) the police authority

seized the driving licence of the driver of the

offending vehicle which shows validity of driving

licence till 20 July 2009 and therefore on the

relevant date of accident the driver was holding an

effective driving licence. He further submits that the

vehicle was covered under the insurance policy

which has not been disputed by the insurer and

accordingly the order of the learned tribunal

directing the insurance company to make payment

of the compensation amount should be affirmed.

Mr. Mandal, learned advocate for claimants,

in reply to contentions raised on behalf of the

insurance company, submits that nothing has been

pleaded or proved by the insurance company with

regard to contributory negligence and as such the

argument advanced in this regard by learned

advocate for insurance company is not at all tenable

in the eye of law.

At the outset it is noted that during the

pendency of appeal widow of the deceased expired.

Having heard the learned advocates of

respective parties, I now proceed to decide the

issues involved in the appeal. Before dealing with

the aspect of enhancement of the compensation

amount as raised by the claimants it will be apposite

to deal with two-fold grounds raised by the

insurance company firstly, the contributory

negligence of the deceased victim in the said

accident and secondly, the driver of the offending

vehicle not having valid driving licence on the date of

accident.

With regard to the first issue of contributory

negligence of the deceased victim, it is found that

the insurance company in its written statement

contended that the victim was plying his motorcycle

in a very high speed and in negligent manner

without looking at the rearview and all on a sudden

when he saw the alleged offending vehicle

approaching from behind and blowing horn in order

to overtake, the victim lost control of his motorcycle

and fell down on the stone chips stacked on the left

side of the road and got injured and died. Although

OPW1, Kalobaran Das, Dealing Officer of the

insurance company deposed that the victim was

negligent in driving his motorcycle due to which the

accident took place but in cross-examination he

deposed that he has got no personal knowledge

regarding the case. It is relevant to note that the

said witness of the insurance company is not an

eyewitness to the incident. Accordingly his evidence

with regard to the manner of occurrence is

inconsequential. In order to avail all defences

available the insurance company filed application

under Section 170 of the Motor Vehicles Act however

during the proceeding before the learned tribunal it

neither adduced the evidence of the driver of the

offending vehicle nor of any independent eyewitness

to establish the plea of contributory negligence of

the victim in the said accident. The claimants

adduced the evidence of one Saurabh Hait as PW3

who deposed that the accident was caused due to

rash and negligent driving on the part of driver of

the offending vehicle and that he has witnessed the

accident. Such evidence of the eyewitness PW3 has

remained unchallenged in cross-examination. Mr.

Pahari, learned advocate for insurance company has

strenuously argued that since the victim on the date

of accident was not wearing the helmet and was

without effective driving licence as such he

contributed to the accident. It is relevant to note the

claimants produced the driving licence of the victim

(Exhibit 10) which shows that he was holding

effective driving licence. Although no helmet was

seized from the place of occurrence such aspect does

not ipso facto prove that that the victim was without

helmet in the absence of evidence of any eye-

witness. Be that as it may, the aforesaid argument

falls short of merit in view of the fact that the

aspects indicated can 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 without helmet in the

motorcycle contributed either to the accident or to

the impact of the accident upon the victim. To be

precise there are no direct or corroborative evidence

in support of contributory negligence of the victim.

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 insurance

company before the learned tribunal.

With regard to the second issue raised by

the insurance company regarding the driver of the

offending vehicle not having valid and effective

driving licence, it is found that two documents has

been placed into service one being the seizure list

(Exhibit 5) by the claimants and other being the

particulars of driving licence of the driver of the

offending vehicle (Exhibit A) by the insurance

company. As per Exhibit A the driving licence being

no. WB 11016606 of the driver of the offending

vehicle namely Pradip Kumar Barman was valid till

23 January 2003. The seizure list (Exhibit 5) shows

that the investigating agency seized driving licence

of the driver Pradip Kumar Barman being no. WB

1101 6606 which was valid up to 20 July 2009.

Although the documents produced by the insurance

company Exhibit A shows validity of driving licence

till 23 January 2003 but there are no documents to

show that since thereafter the licence has expired or

was never renewed. Therefore in the absence of such

evidence the seizure list showing validity upto 20

July 2009 is appropriate to take into consideration

which clearly shows that the driver of the offending

vehicle was holding effective driving licence on the

relevant date of accident on 7th May, 2009.

Thus it is found that both the grounds

raised by the insurance company in the present

appeal falls short of merit.

Now I revert to the grounds of enhancement

raised by the claimants namely the determination of

income, future prospect, deduction towards personal

and living expenses of the deceased, amount

towards general damages, and increment of such

general damages.

With regard to the determination of income

it is found that the learned tribunal has taken into

consideration the payslip for the month of April

2009 and taken into account the net pay revealing

therefrom amounting to Rs 21,739/-. Be that as it

may Form-16 (Exhibit 16) which is issued on 30th

April 2009, just prior to the death of the deceased,

in the month of May 2009 shows details of salary of

the deceased and tax paid for the assessment year

2009-2010. The certification under the income tax

act being a statutory document should be taken into

consideration [(See Malarvizhi and Others versus

United India Insurance Company Limited and

Another reported in 2020 (1) T.A.C 328 (SC)]. The

actual income of the deceased-victim is to be

determined by deducting the tax component from

the gross income. As per Form 16 (Exhibit 16) the

gross income of the deceased-victim is Rs.4,83,662/-

and the income tax paid is Rs.49,854/- and tax on

employment is Rs.1,650/-.Thus the actual income of

the deceased-victim should be Rs.4,83,662 less Rs.

49,854/-and Rs.1,650/- which comes to

Rs.4,32,158/-.

Further since the deceased-victim at the

time of accident was a permanent employee and was

aged 37 years hence following the observation of

Hon'ble Supreme Court in National Insurance

Company Limited versus Pranay Sethi and

Others reported in 2017 (4) T.A.C 673(S.C) an

amount equalling to 50% of the annual income of

the deceased should also be taken into account

towards future prospect.

As far as the deduction towards personal

and living expenses of the deceased-victim is

concerned it is found from the impugned judgment

that the learned tribunal deducted 1/3rd of the

annual income of the deceased towards his personal

and living expenses. It is relevant to note that during

the pendency of the claim application one of the

dependents namely the mother died. However, such

subsequent death after the accident is

inconsequential since determination of extent of

personal and living expenses depends on the

number of dependents of the deceased at the time of

accident and not on any subsequent happening. I

find substance in the submissions of Mr Mandal,

learned advocate claimants relying on the decision

of Hon'ble Supreme Court passed in Kirti Kumar's

case (supra) in this regard. Since the number of

dependents of the deceased at the time of accident is

four hence following the observation of Hon'ble

Supreme Court in Sarla Verma and Others versus

Delhi Transport Corporation and Another

reported in 2009 ACJ 1298 the deduction towards

personal and living expenses of the deceased should

be 1/4th instead of 1/3rd.

So far as the general damages are concerned

in view of Pranay Sethi's case the claimants are

entitled to general damages under the conventional

heads of loss of estate, loss of consortium and

funeral expenses of Rs. 15,000/-, Rs. 40,000/-, and

Rs. 15,000/- respectively. The claimants are also

entitled to an increase of 10% on the general

damages since three years have elapsed following

the priciples laid down in the above decision of the

Hon'ble Supreme Court.

Bearing in mind the above factors the

calculation for compensation amount is made

hereunder.

Calculation of compensation

Annual Income {Rs. 4,83,662/- less Rs.49,854(I.Tax) and Rs.1,650/-(P.Tax)} ....Rs. 4,32,158/-

Add: Future Prospects @ 50% of total Incom ..Rs.2,16,079/-

Annual loss of Income ...Rs.6,48,237/-

Less: Deduction 1/4th of the Annual Income towards personal and living expenses .... Rs.1,62,059/-

Rs.4,86,178/-

Adopting multiplier 15 ( Rs.4,86,178/- X 18) ... Rs.72,92,670/-

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% increase
 on conventional heads                  ...Rs.7,000/-
Total Compensation                      ...Rs.73,69,670/-





        Thus     the   total   compensation   comes    to

Rs.73,69,670/-. Admittedly no amount has been

received by the claimants. Accordingly the claimants

are entitled to compensation of Rs. 73,69,670/-

along with interest at the rate of 6% per annum from

the date of filing of the claim application till deposit.

Insurance Company is directed to deposit

the compensation amount of Rs.73,69,670/- along

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

date of filing of the claim application till deposit by

way of cheque with the Registrar General, High

Court, Calcutta within a period of six weeks from

date.