Calcutta High Court (Appellete Side)

Smt.Sabita Pandit & Ors vs Bajaj Allianz General Insurance ... on 24 January, 2023

                       IN THE HIGH COURT AT CALUTTA
                          Civil Appellate Jurisdiction
 24.01.2023
SL No.1
Court No. 654
       Ali


                         F.M.A. 1620 of 2018
                 IA No: CAN/1/2019 (Old No:CAN/2316/2019)

                            Smt.Sabita Pandit & Ors.
                                   -Versus-
                 Bajaj Allianz General Insurance Co. Ltd. & Anr.

                       Mr. Saidur Rahaman
                                   ...for the appellants-claimants.

                       Mr. Soumalya Ganguly
                        ....for the respondent No. 1 Insurance Co.

This appeal is directed against the judgment

and award dated 22 August, 2017 passed by learned

Additional District Judge cum Judge, Motor

Accident Claims Tribunal, R.D Court, Paschim

Medinipur in M.A.C. Case no. 419 of 2013 granting

compensation of Rs. 4,10,000/-together with

interest in favour of the claimants under Section

166 of the Motor Vehicles Act, 1988.

The brief fact of the case is that on 17 June,

2013 at about 9 AM while the victim was proceeding

towards Khirpai through Ghatal-Khirpai Road at

that time the offending vehicle bearing registration

no. WB-39/9745(truck) coming from Khirpai side

with excessive high speed and in rash and negligent

matter dashed the victim with great force near

Bahara village, as a result of which victim sustained

severe injuries on his head, chest and all over his

body. The local people immediately shifted the victim

to Ghatal S.D. Hospital and thereafter he was

referred to S.S.K.M. Hospital but he succumbed to

his injuries and died on the way. On account of

sudden demise of the deceased-victim, the claimants

being the widow and children of the deceased filed

application under Section 166 of the Motor Vehicles

Act, 1988 claiming compensation of Rs.7,00,000/-.

The claimants in order to establish their

case examined three witnesses including claimant

no.1, widow of the deceased, and produced number

of documents which has been marked as Exhibit 1

to 4 respectively.

Upon considering the materials on record

and the evidence adduced on behalf of the

claimants, both oral and documentary, the learned

tribunal granted compensation of Rs.4,10,000/-

together with interest in favour of the claimants

under Section 166 of the Motor Vehicles Act, 1988.

Being aggrieved by and dissatisfied with the

impugned judgment and award the claimants have

preferred the present appeal.

Mr Saidur Rahaman, learned advocate for

appellants-claimants submits that the learned

tribunal erred in taking into account the monthly

income of the deceased of Rs. 4500/-whereas it

ought to have considered the income of the deceased

at Rs.12,000/-per month since the deceased during

his lifetime used to carry on the business of selling

bakery products.

He further submits that as per the voter's

identity card the age of the deceased at the time of

accident was 50 years 5 months which should form

the basis of adopting multiplier of 13 however the

learned tribunal erroneously considering the age of

the deceased victim of 55 years in the post-mortem

report adopted multiplier of 11.

Moreover, it is submitted that since at the

time of accident the deceased had four dependents

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 one-

fourth of his annual income instead of one-third.

He further submits that since at the time of

accident the deceased was more than 50 years of

age and was self-employed as such following the

observation of Hon'ble Supreme Court in National

Insurance Company Limited versus Pranay Sethi

and Others reported in 2017 ACJ 2700 an

additional amount equalling of 10% of the annual

income of the deceased should be taken into

account towards future prospect.

Furthermore, it is submitted that the

claimants are also entitled to general damages of Rs.

70,000/-under the conventional heads.

In view of his above submissions, he prays

for enhancement of the compensation amount.

In reply to the contentions raised on behalf

of the appellants-claimants, Mr Soumalya Ganguly,

learned advocate for respondent no.1-insurance

company submits that although in her oral evidence

PW1, widow of the deceased, deposed that her

deceased-husband used to sell bakery products and

was a partner of Kalimata Food Product yet during

the proceedings before the learned tribunal not a

single scrap of paper relating to business or

partnership of the deceased has been produced by

the claimants. He further submits that PW1, widow

of the deceased, also stated that the deceased was

holding a PAN card issued by the Income Tax

Department however no such statement of income

has been submitted before the court in support of

income of the deceased. Therefore, the income

determined by the learned tribunal should be

affirmed.

He further submits that the learned tribunal

has rightly taken into consideration the age of the

deceased appearing in the post-mortem report and

has based such age for adopting multiplier which

does not call for interference.

In light of his aforesaid submissions, he

prays that the appeal be dismissed.

        Since     respondent      no.2-owner     of     the

offending   vehicle   did   not    contest     the    claim

application before the learned tribunal and the case

was disposed of exparte against him hence service of

notice of appeal upon the said respondent is

dispensed with.

Having heard the learned advocates for the

respective parties, it is found that the appellants-

claimants have preferred to present appeal precisely

on the following grounds. Firstly, that the learned

tribunal erred in determining the income of the

deceased; Secondly, the multiplier should be 13

instead of 11; Thirdly, the deduction towards

personal and living expenses should be one-fourth

instead of one-third; Fourthly, the claimants are

entitled to general damages under the conventional

heads of Rs.70,000/-and lastly, the claimants are

entitled to future prospects.

With regard to determination of income, it is

found that the learned tribunal determined the

income of the deceased-victim at Rs.4,500/- per

month on the ground that the claimants failed to

produce cogent documentary evidence in support of

their assertion of income of Rs.12,000/- per month

of the deceased-victim. The claimants in order to

establish the income of the deceased has examined

widow of the deceased PW1 Sabita Pandit and one

Laxmikanta Santra as PW3. In her evidence-in-chief

PW1, widow of the deceased, deposed that her

deceased-husband was a businessman by

profession and used to sell bakery products like

biscuits, bread and cakes to different shops and was

also a partner of Kalimata Food Product. In cross-

examination PW1 stated that her husband held PAN

card issued by Income Tax Department which she

shall file before the court. PW3 also stated that the

deceased used to sell bakery products. Be that as it

may, no such documentary evidence was produced

before the tribunal in support of the income of the

deceased as stated by the witnesses. Since the

claimants have asserted that the deceased-victim

had business and was a partner of Kalimata Food

Product it was incumbent upon them to produce

relevant documents relating to business of the

deceased which they have failed to do. Thus, the

income of the deceased stated by the claimants in

the claim application as well as in their evidence

cannot be accepted in the absence of necessary

documents as has been rightly observed by the

learned tribunal. Since the accident has taken place

in the year 2013 bearing in mind the price index

prevalent at the material point of time the income of

the deceased of Rs. 4500/- per month as determined

by the learned tribunal appears to be appropriate

and hence does not call for interference.

With regard to the multiplier, it is found that

the learned tribunal considering the voter's card and

the post-mortem report of the deceased held that the

age of victim at the time of accident falls in between

50 years and 55 years. Mr Ganguly, learned

advocate for respondent no.1-insurance company

has argued that the age of the victim appearing in

the post-mortem report is to be accepted. The

doctors prescribe the age in the post-mortem report

on the basis of analysis which can be appropriate

but cannot be accurate. Therefore, the age

prescribed in the post-mortem report can be

accepted in the absence of Ration Card, Birth

Certificate, Passport, Aadhar Card and Voter's

Identity Card. When the self-declared age is

available in the Voter's identity card issued by a

concerned Government Department the same shall

be taken into consideration for determining the age

of the deceased and there is no justification to reject

the said contemporaneous document disclosing the

age placed before the court. As per the voter's

identity card the age of the victim as on 1st

January, 1995 was 32 years as appearing from the

impugned judgement. Since the accident has taken

place on 17 June 2013 the age of the victim on the

relevant date of accident is 50 years 5 months.

Following the observation of Hon'ble Supreme Court

in Sarla Verma's Case (supra) the multiplier

should be 13 instead of 11.

As regards the deduction towards personal

and living expenses is concerned, it is found from

the impugned judgment that learned tribunal has

deducted one-third of the annual income of the

deceased towards his personal and living expenses

however since the number of dependents of the

deceased is four, hence following the proposition of

Hon'ble Supreme Court in Sarla Verma's Case

(supra) the deduction towards personal and living

expenses of the deceased should be one-fourth

instead of one-third.

It is found that the deceased at the time of

accident was more than 50 years of age and was

self-employed hence following the observation of

Hon'ble Supreme Court in Pranay Sethi's Case

(supra) an additional amount equalling to 10% of

the annual income of the deceased is to be taken

into account for calculation of compensation.

Further the claimants are also 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 in view of the aforesaid decision in

Pranay Sethi's Case (supra).

Bearing in mind the aforesaid factors the

calculation of compensation is made hereunder.

Calculation of compensation

Monthly Income..........................................Rs.4,500/- Annual Income.....(Rs.4,500/- X 12)............ Rs54,000/- Add: Future Prospects @ 10% of total Income..Rs.5,400/- Annual loss of Income.................................Rs.59,400/- Less: Deduction of 1/4th of the Annual Income ( towards personal and living expenses)........... Rs.14,850/-

Rs.44,550/-

Adopting multiplier 13 ( Rs.44,550/- X 13)...Rs.5,79,150/- 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.6,49,150/-

Thus, the total compensation amount comes to Rs.

6,49,150/-. Admittedly the claimants have received

an amount of Rs. 4,10,000/-together with interest

as granted by the learned tribunal. Accordingly, the

claimants are entitled to balance amount of

compensation of Rs. 2,39,150/-along with interest @

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

compensation of Rs. 2,39,150/-along with interest @

6% per annum from the date of filing of the claim