Calcutta High Court (Appellete Side)
National Insurance Company ... vs Baisali Samadder & Ors on 25 January, 2023
07
25.01.2023
Ct. No.237
pg.
IN THE HIGH COURT AT CALCUTTA
CIVIL APPELLATE JURICTION
APPELLATE SIDE
FMA 1447 of 2009
with
CAN 2 of 2022
with
CAN 3 of 2022
National Insurance Company Limited
Vs.
Baisali Samadder & Ors.
with
COT 69 of 2022
Baisali Samadder & Ors.
Vs.
National Insurance Company Limited & Anr.
Mr. Rajesh Singh
... For the appellant/Insurance Co. in FMA
1447 of 2009 & respondent no.1/
Insurance Co. in COT 69 of 2022
Mr. Dilip Kumar Chatterjee
Mr. Krishanu Banik
... For the respondents/claimants/applicants
in FMA 1447 of 2009 & Cross Appellants
in COT 69 of 2022
In re: COT 69 of 2022
The cross-appeal, being COT 69 of 2022, has been
filed by the claimants but the original appeal is not in the
record. Learned advocate on behalf of the claimants has
submitted an office copy of COT 69 of 2022, which is being
treated as original and taken up for hearing treating the
same as on day's list along with FMA 1447 of 2009 for
disposal.
In re: CAN 2 of 2022
This application was filed by the respondents/
claimants but the original application is not in the record.
Learned advocate on behalf of the respondents/claimants
has submitted a copy which is being treated as original.
This application has been moved with a prayer for
recording attainment of majority of minor son of the
deceased, Titash Samadder, being the respondent/
claimant no.2.
Heard both sides.
Perused the Aadhaar Card of respondent/claimant
no.2, Titash Samadder, and the prayer is allowed.
Department is directed to make necessary note in
the cause title of the Memorandum of Appeal.
The application, being CAN 2 of 2022, stands
disposed of.
In re: CAN 3 of 2022
This application was filed by the respondents/
claimants but the original application is not in the record.
Learned advocate on behalf of the respondents/claimants
has submitted a copy which is being treated as original.
This is an application with a prayer for recording
the death of the respondent/claimant no.3, Charubala
Samadder, mother of the deceased, supported by one
death certificate dated 28th August, 2014.
Heard both sides and perused the death certificate.
Accordingly, the prayer for recording the death of
respondent/claimant no.3, Charubala Samadder, is
allowed.
The Department is directed to expunge the name of
the respondent/claimant no.3, Charubala Samadder, from
the cause title of the Memorandum of Appeal.
The application, being CAN 3 of 2022, stands
disposed of.
In re: FMA 1447 of 2009
The judgment and order dated 28th November,
2008 in connection with MAC Case No.315 of 2004 under
Section 166 of the Motor Vehicles Act, 1988 passed by the
learned Judge, Motor Accident Claims Tribunal, 10th
Additional District Judge, Alipore, South 24-Parganas, has
been challenged in this appeal.
The claim petition was filed on account of death of
one Tapan Samadder in a motor accident occurred on 5th
May, 2004 at about 13.40 hours by the involvement of a
Bus, bearing registration no.WB-19/1850. At that time,
the deceased Tapan Samadder was proceeding with his
scooter with a pillion rider, when the aforesaid bus
running with high speed and in rash and negligent
manner dashed the said scooter. As a result, Tapan
Samadder fell on the road and sustained severe injury. He
was shifted to Behala Vidyasagar Hospital where he
succumbed to his injuries. At the time of death, the victim
was aged about 35 years six months having income of
Rs.8,491/- from his tailoring business. Legal
representatives of the deceased filed the claim petition for
compensation to the tune of Rs.10,86,848/-.
Owner of the offending vehicle, bearing registration
no.WB-19/1850, did not contest the claim petition but the
insurer of the offending bus, National Insurance Company
Limited, contested the case by filing written statement
denying all material averments of the claim petition
contending, inter alia, that the claimants are not entitled
to any compensation from the Insurance Company.
To prove the case, the claimants examined as
many as two witnesses, namely, Smt. Baisali Samadder,
the wife of the deceased, as PW-1 and Tapan Das, claimed
himself to be an eyewitness to the accident, was examined
as PW-2. PW-1 corroborated the entire contents of the
claim petition, including amount of compensation. In
course of her evidence, 17 number of documents were filed
and admitted in evidence as Exhibit 1 to 17, including
attested copy of First Information Report, seizure list, post-
mortem report, death certificate, registration certificate,
insurance certificate, driving licence, voters identity card,
PAN card and income tax return for the year 2004-2005
etc.
In course of argument, Mr. Rajesh Singh, learned
advocate, appearing on behalf of the appellant/Insurance
Company assailed the income tax return for the year
2004-2005 relied on behalf of the respondents/claimants
in course of trial. Mr. Singh has submitted that the claim
petition was filed on 29th July, 2004 and the income tax
return was submitted by the wife of the deceased on 14th
July, 2004, after the death of Tapan Samadder. Mr. Singh
has further submitted that no other income tax return has
been filed by the respondents/claimants showing
submission of return by the deceased himself for any
previous year. Thereby Mr. Singh has submitted that the
scope of manipulation cannot be ruled out. He has also
submitted that the learned Tribunal ought to have
considered the notional income of Rs.3,000/- per month
for computing dependency compensation.
Mr. Krishanu Banik, learned advocate, on behalf of
the respondents/claimants/cross-appellants has
submitted that Income Tax Return for the assessment year
2004-2005 showing income for the period from 1st April,
2003 to 31st March, 2004. In support of his contention, he
relied on the trade licence issued by Kolkata Municipal
Corporation against the name of Tapan Samadder.
To eschew the prolixity, I need not go to the
discussion on the issue of accidental death of Tapan
Samadder by the involvement of bus, bearing registration
no.WB-19/1850. More so, from the evidence of PW-2
together with the FIR, seizure list and charge sheet, I find
that the accident took place due to rash driving of the bus,
bearing registration no.WB-19/1850, and charge sheet
was submitted, after the accident, against the driver of the
said bus.
The only issue in this appeal is in respect of the
income of the deceased at the time of death. From the
income tax return for the assessment year 2004-2005, I
find that it was filed by the wife of the deceased on 14th
July, 2004 just 15 days prior to the filing of the claim
petition on 29th July, 2004.
In that view of the matter, I am unable to accept
the said income tax return to compute the dependency
compensation in terms of the claim petition filed by the
legal representatives of the deceased as no other income
tax return for the previous assessment year was ever filed
before the learned Tribunal. But considering the trade
licence of tailoring business of the deceased, I assess the
income of Rs.50,000/- per annum instead of notional
income of Rs.36,000/- per annum.
One cross-appeal, being COT 69 of 2022, was filed
by the claimants, though not admitted. The claimants/
cross-appellants made a prayer for future prospect and
general damages of Rs.70,000/-.
Considering all facts and circumstances discussed
above, I determine the compensation in terms of the
settled principle laid down by the Hon'ble Apex Court, as
follows:-
Annual Income Rs. 50,000/-
Add: Future prospect (@ 40%) Rs. 20,000/-
-------------------
Rs. 70,000/-
Less: 1/3rd Deduction (personal expenses) Rs. 23,333/-
-------------------
Rs. 46,667/-
Multiplier by 15 (as per age of the victim) x 15
Rs.7,00,005/-
Add: General Damages Rs. 70,000/-
Rs.7,70,005/-
Less - Rs.50,000/- already paid u/s 140 Rs. 50,000/-
Rs.7,20,005/-
Less: Already withdrawn by the claimants Rs.3,50,000/-
-------------------
Balance compensation Rs.3,70,005/-
-----------------
For the reasons, it is seen that the
respondents/claimants/cross-appellants are entitled to
the total compensation to the tune of Rs.7,70,005/- out of
which respondents/claimants already received
Rs.50,000/- under Section 140 of the Motor Vehicles Act,
1988. Therefore, the respondents/claimants/cross-
appellants are entitled to the total compensation to the
tune of Rs.7,20,005/-.
It is reported that the entire awarded amount of
Rs.9,10,000/- as directed by the learned Tribunal has
been deposited by the appellant/National Insurance
Company Limited before the office of the learned Registrar
General by two separate deposits and the
respondents/claimants have already withdrawn
Rs.3,50,000/- from the office of the learned Registrar
General.
Therefore, the respondent/claimant nos.1 and 2,
i.e., widow and son of the deceased, are entitled to the
balance amount of Rs.3,70,005/- along with interest @ 6%
per annum from the date of filing of the claim petition, i.e.,
on 29th July, 2004 till the date of withdrawal from the
office of the learned Registrar General.
That apart, the respondent/claimant nos.1 and 2
are also entitled to the interest @ 6% per annum on
Rs.3,50,000/- from the date of filing of the claim petition,
i.e. on 29th July, 2004 till the date of withdrawal, i.e., 6th
January, 2011, of the said amount.
The learned Registrar General is requested to
disburse the amount to the respondent/claimant nos.1
and 2, i.e., Baisali Samadder and Titash Samadder, in
equal share on proper identification.
Learned Registrar General is also requested to
refund the excess amount, if any, to the
appellant/National Insurance Company Limited after the
disbursement of the amount to the respondent/claimant
nos.1 and 2.
With the above observations, the appeal, being
FMA 1447 of 2009, is disposed of.
COT 69 of 2022, being not admitted, stands
dismissed.
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.)
