Calcutta High Court (Appellete Side)

Ashalata Das & Ors vs United India Insurance Co. Ltd. & ... on 30 January, 2023

                 IN THE HIGH COURT AT CALUTTA
                         Civil Appellate Jurisdiction
 30.01.2023
  SL No.14
Court No. 654
    Ali


                           F.M.A.T. 555 of 2021
                            IA No:CAN/1/2022
                       Ashalata Das & Ors.
                                   Vs.
                  United India Insurance Co. Ltd. & Anr.

                 Mr. Subhankar Mandal
                             ....for the appellant-Insurance Co.

                 Mr. Sanjay Paul
                          ...for the respondent No.1-Insurance Co.

This appeal is directed against the judgment

and award dated 24 March 2017 passed by learned

Additional District Judge cum Judge, Motor

Accident Claims Tribunal, 4th Court, Paschim

Medinipur in M.A.C Case no. 40 of 2015 under

Section 166 of the Motor Vehicles Act, 1988 granting

compensation of Rs. 19,91,532/-together with

interest in favour of the claimants.

The brief fact of the case is that on 17

September, 2014 at about 10:30 AM while the victim

was proceeding towards the market and reached

near Fatehpur Bus Stand at that time the offending

vehicle bearing registration no. WB-33C/2764 (Bus)

coming from opposite direction in excessive high-

speed and in rash and negligent matter dashed the

victim, as a result of which the victim sustained

grievous injuries all over his body and head. The

local people immediately shifted the victim to

Mundamari Nivedita Nursing Home but as his

condition deteriorated he was shifted to M.M.C.H

wherefrom he was referred to S.S.K.M. Hospital,

Kolkata where he succumbed to his injuries and

died on 23.9.2014 at about 1:45 AM. On account of

sudden demise of the victim, the claimants being the

widow, son and mother filed application under

Section 166 of the Motor Vehicles Act, 1988 claiming

compensation of Rs. 25,00,000/-together with

interest.

The claimants in order to establish their

case examined two witnesses including son of the

deceased and produced number of documents which

are marked as Exhibits 1 to 8 respectively.

The respondent no.1-insurance company did

not adduce any evidence.

Upon considering the materials on record

and the evidence produced on behalf of the

claimants, the learned tribunal granted

compensation of Rs. 19,91,532/-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 appellants-

claimants have preferred the present appeal.

Mr Subhankar Mandal, learned advocate for

appellants-claimants submits that the learned

tribunal erred in adopting multiplier of 13 instead of

14 since at the time of accident the victim was 45

years eight months old. He further submits that the

deceased-victim at the time of death was a

permanent employee under Department of Land &

Land Reforms, Government of West Bengal and

therefore the claimants are entitled to an additional

amount equalling to 30% of the annual income of

the deceased victim. Moreover, the claimants are

also entitled to general damages under the

conventional heads of Rs.70,000/-. In light of his

aforesaid submissions, he prays for enhancement of

the compensation amount.

In reply, Mr Sanjay Paul, learned advocate

for respondent no.1-insurance company opposes the

prayer for enhancement of compensation amount.

By order dated 19 January 2023 service of

notice of appeal upon respondent no.2-owner of the

offending vehicle has been dispensed with since he

did not contest the claim application before the

learned tribunal.

Having heard the learned advocate for the

respective parties, it is found that the appellants

claimants in the present appeal has precisely raised

three-fold grounds, firstly, that the multiplier should

be 14 instead of 13; secondly, the claimants are

entitled to an additional amount of 30% of annual

income of the deceased-victim towards future

prospect and lastly the claimants are entitled to

general damages of Rs.70,000/-under the

conventional heads.

With regard to the first issue regarding

multiplier, it is found that the learned tribunal

adopted multiplier of 13. However, since at the time

of death the victim was aged 45 years and eight

months, 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 multiplier should

be 14 instead of 13.

As regards future prospect, it is found that

the victim at the time of accident was permanent

employee under the Department of Land and Land

Reforms Office, Government of West Bengal and was

45 years and eight months old and therefore in view

of the decision of Hon'ble Supreme Court passed in

National Insurance Company Limited versus

Pranay Sethi and Others reported in 2017 ACJ

2700 an additional amount equalling to 30% of the

annual income of the deceased-victim should be

taken into account for assessment of compensation.

With regard to the general damages following

the observation of Hon'ble Supreme Court in Pranay

Sethi's Case (supra) the claimants are entitled to

general damages under the conventional heads of

funeral expense, loss of consortium and loss of

estate amounting to Rs.15,000/-, Rs.40,000/- and

Rs.15,000/- respectively.

Keeping in mind the above factors, the

calculation of compensation is made hereunder.

Calculation of compensation

Monthly Income..........................................Rs.17,808/- Annual Income.....(Rs.17,808/- X 12).........Rs2,13,696/- Add: Future Prospects @ 30% of total Income..Rs.64,109/-Approx.

Annual loss of Income.................... Rs.2,77,805/-Approx Less: Deduction of 1/3rd of the Annual Income (towards personal and living expenses)........... Rs.92,602/-Approx Rs.1,85,203/-

Adopting multiplier 14 ( Rs.1,85,203/- X 14)...Rs.25,92,842/- Add: General Damages............................. Rs.70,000/-

Total Compensation............................Rs.26,62,842/

Thus, the total compensation comes to

Rs.26,62,842/-.Admittedly the claimants have

received an amount of Rs.19,91,532/-together with

interest as awarded by the learning tribunal.

Accordingly, the claimants are entitled to balance

amount of compensation of Rs.6,71,310/-along with

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

of filing of the claim application (i.e 19.1.2015) till

deposit.

Respondent no.1-insurance company is