Calcutta High Court (Appellete Side)
Bela Talukdar & Anr vs United India Insurance Co. Ltd. & ... on 2 January, 2023
28
02.01.2023
Ct. No.237
pg.
IN THE HIGH COURT AT CALCUTTA
CIVIL APPELLATE JURICTION
APPELLATE SIDE
FMA 23 of 2009
with
IA No. CAN 2 of 2020 (CAN 1964 of 2020)
(Application not in the file)
Bela Talukdar & Anr.
Vs.
United India Insurance Co. Ltd. & Ors.
Mr. Jayanta Kumar Mandal
Ms. Sima Ghosh
... For the appellants/claimants
Mr. Dipta Bhanu Datta
Mr. Aslam Khan
... For the respondent/Insurance Company
This appeal is directed against the judgment and
award dated 17th September, 2005 passed by the learned
Judge, Motor Accident Claims Tribunal, Fast Track 1st
Court, Suri, Birbhum, in MAC Case No.135 of 2002,
whereby the learned Tribunal granted compensation to
the tune of Rs.3,00,000/- and directed the owner of the
offending vehicle to pay the claim by issuing account
payee cheque in the names of the claimants.
On 25th April, 1999, one Ramesh Takukdar
sustained injury in an accident while he was travelling by
a Jeep bearing registration no.WB-54/4281 due to rash
and negligent driving of the Jeep and for that reason the
accident took place after striking against the back of
another vehicle. Victim died on the spot. That is why the
2
claim petition under Section 166 of the Motor Vehicles Act
1988 was filed for compensation of Rs.3,00,000/-. It was
alleged that the victim was dealing in business of truck
and used to earn Rs.4,000/- per month from the business.
It was further alleged that after the accident, Md. Bazar
P.S. Case No.41 dated 25th April, 1999 under Sections
279/338/304A/427 of the Indian Penal Code was started
and charge sheet was submitted against the driver of that
Jeep.
In course of the trial, claimants, being the widow
and the mother of the deceased, examined two witnesses,
i.e., the widow as PW-1 who stated all the factum of
accident and she corroborated the entire facts stated in
the claim petition and prayed for compensation to the tune
of Rs.3,00,000/-. PW-2 claiming himself to be an eye-
witness stated that on the alleged date of accident, he was
standing in front of R.T. Office, Suri to avail a vehicle. He
along with the victim boarded at the offending Jeep
bearing WB-54/4281. The driver of the Jeep was known to
him. The said Jeep dashed behind the Truck standing at
the left side of the road. As a result, the victim Ramesh
Takukdar sitting in the front seat of the Jeep sustained
injury and died on the spot.
In course of their evidence, a good number of
documents were admitted in evidence as Exhibit 1 to 7.
After considering the entire evidence, particularly,
the evidence of PW-2, learned Tribunal considered the
3
victim as gratuitous passenger as the vehicle was a private
one according to the Insurance Policy (Ext.-7).
After careful perusal of the evidence of PW-2 as
well as considering the Insurance Policy (Ext.-7), I am also
agreeable with the learned Tribunal that the offending
vehicle was a private vehicle according to the policy and
victim was travelling as passenger in the said vehicle and,
therefore, the victim was gratuitous passenger.
Mr. Jayanta Kumar Mandal, learned advocate
appearing on behalf of the appellants/claimants did not
argue on the point of income of the deceased and
multiplier. Learned advocate for the appellants/claimants
has submitted that the learned Tribunal did not grant any
future prospect and general damages as per the decision fo
the Hon'ble Apex Court in Sarala Verma (Smt.) & Ors. v.
Delhi Transport Corporation & Anr. reported in (2009) 6
SCC 121.
Learned advocate appearing on behalf of the
appellants/claimants has further submitted that the
learned Tribunal did not allow the compensation to be
paid by the Insurance Company even if the victim was a
gratuitous passenger in view of the settled principle laid
down by the Hon'ble Apex Court in National Insurance
Co. Ltd. v. Baljit Kaur & Ors. reported in (2004) 2 SCC
1.
On careful scrutiny of the judgment passed by the
learned Tribunal, I find that the learned Tribunal rightly
4
assessed the notional income in favour of the claimants
and apply the multiplier 13 correctly for the age group
from 46 to 50 years.
In view of Sarala Verma (supra), appellants/
claimants are entitled to future prospect to the extent of
25 per cent of the income and also entitled to general
damages of Rs.77,000/- including 10 per cent increase as
per the decision of National Insurance Co. Ltd. v. Pranay
Sethi & Ors. reported in 2017 ACJ 2700.
In the aforesaid view of the facts and
circumstances, I determine the compensation as follows:-
Annual Income (Rs.3,000/- x 12) Rs. 36,000/-
Add: Future prospect 25% Rs. 9,000/-
------------------
Rs. 45,000/-
Less: 1/3rd Deduction (personal expenses) Rs. 15,000/-
------------------
Rs. 30,000/-
------------------
Rs.3,90,000/-
Add: General Damages Rs. 77,000/-
(Rs.70,000/- + 10%) ------------------
Total Rs.4,67,000/-
------------------
In the aforesaid view of the matter, the appellants/
claimants are entitled to compensation of Rs.4,67,000/-
along with interest @ 6% per annum from the date of filing
of the claim petition, i.e., on 30th September, 2002 till the
deposit of the same.
Accordingly, the respondent no. 1/United India
Insurance Company Limited is directed to deposit the
awarded amount of Rs.4,67,000/- along with interest @
6% per annum from the date of filing of the claim petition,
i.e. on 30th September, 2002, 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 appellants/claimants are entitled to withdraw
the compensation amount with interest, subject to
payment of additional ad valorem court fees on the
amount of Rs.1,67,000/- (Rs.4,67,000/- - Rs.3,00,000/-)
before the learned Tribunal.
The respondent no. 1/United India Insurance
Company Limited is at liberty to recover the entire
awarded sum with interest from the owner of the vehicle,
bearing registration no. WB-54/4281, through execution
proceeding in terms of the observations of the Hon'ble
Apex Court in Shamanna & Ors. v. The Divisional
Manager, The Oriental Insurance Co. Ltd. & Ors.
reported in AIR 2018 SC 3726 and Oriental Insurance
Co. Ltd. v. Nanjappan & Ors. AIR 2004 SC 1630 : (2004)
13 SCC 244.
The learned Registrar General is requested to
disburse the amount to the appellants/claimants in equal
share on proper identification.
With the observation, the appeal, being FMA 23 of
2009, stands 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.)
