Calcutta High Court (Appellete Side)
Smt. Bhagabati Malik & Ors vs The New India Assurance Co. Ltd on 30 January, 2023
03 30.01.
Ct 2023 FMA 97 of 2002
273 IA No. CAN 1 of 2008 (Old No. CAN 5442 of 2008)
rup CAN 2 of 2015 (Old No. CAN 2486 of 2015)
(Applications not here)
Smt. Bhagabati Malik & Ors.
Versus
The New India Assurance Co. Ltd.
Mr. Krishnu Banik, ... For the appellants
Mr. Parimal Kumar Pahari. ... For the respondent
The appeal is directed against the judgment passed
by Motor Accident Claims Tribunal, Burdwan on
13.08.2001 in connection with Motor Accident Claim case
No. 189 of 1998, whereby learned Tribunal awarded 1,
92,000/- as compensation for death of one Susanta
Malik in a motor accident on 19.06.1998.
The legal heirs of the deceased Susanta Malik filed
the claim application under Section 163A of the Motor
Vehicle Act before the learned Tribunal with a prayer for
compensation to the tune of Rs. 4,20,000/-. It was
alleged that on 19.06.1998 at about 7.00 A.M. Sk.
Susanta Malik was going to Rashulpur to sell hens, at
that time one Lorry bearing No. WB 153878 proceeding
with high speed, dashed the said Susanta Malik, who
sustained severe injury and taken to hospital where he
has succumb to his injuries. At the time of accidental
death Susants Malik was aged about 35 years having an
income of Rs. 3000/- per month from his business.
The respondent/New India Assurance Company
Limited contested the application by filing written
statement denying all averments of the claim petition
contending, inter alia, that claimants are not entitled to
any compensation whatsoever.
To prove the case, widow of the deceased, Bhagabati
Malik was examined as PW-1 in this case. During
evidence she deposed every contention of the claim
petition, including the profession and income of her
husband at the time of accidental death. In course of her
evidence FIR, PM report, Insurance Policy were admitted
in evidence as exhibits 1 to 3. After analyzing evidence
on record, learned Tribunal assessed the monthly income
at Rs. 1500/- and assessed entire compensation after
applying multiplier, to the tune of Rs. 1,92,000/-.
In course of argument Mr. Krishnu Banik, learned
advocate appearing for the appellants has submited that
there is oral evidence on record to prove the income of the
deceased, at the time of death, from his business of
selling hens. In support of his contention he relied upon
a case of National Insurance Company Ltd. Vs. Sujata
Manna and Ors. reported in 2017 (3) T.A.C. 710 (Cal)
as well as the case of Smt. Bilasini Mondal vs.
National Insurance Company Limited and Another
reported in 2003 (2) T.A.C. 435 (Cal), wherein Hon'ble
Division Bench of this court reiterated that oral evidence,
if otherwise trustworthy, can be taken into consideration
by the Tribunal to assess the monthly income of the
deceased.
In opposition Mr. Parimal Kumar Pahari, learned
advocate appearing for the respondent/Insurance
Company submits that after amendment of the Motor
Vehicles Act in the year 1994, the income per annum was
fixed as Rs.15000/- per annum, and it is further
submitted that monthly income may be considered as Rs
2000/- per month in view of the members of the family of
the deceased.
From the evidence of PW-1, together with
documentary evidence adduced in this case, I find that
Susanta Malik died in a motor accident by the
involvement of one lorry bearing No. WB-15/3872 due to
its rash driving on 19.06.1998 at about 7.00 AM. On this
issue no argument has been advanced by the parties to
this appeal.
So far as the income of the deceased is concerned I
find that at the time of accidental death Susanta Malik
was aged about 35 years, and he used to earn to
Rs.3000/- per month from his business of selling hens,
and these averments of the claim petition has been duly
corroborated by the evidence of PW-1, widow of deceased,
and at the time of accidental death of Susanta Malik his
family was consisted of his wife, his two sons and one
daughter.
Considering all facts and circumstances, I find it
justify to assess the monthly income at Rs.2500/- per
month and I determine the compensation as follows:
1. Monthly Income be assessed as Rs. = Rs.2,500/-
2. Annual Income be assessed as = Rs. 30,000/-
(Rs.2500/- x 12)
3.1/3rd deduction (Rs.30,000- Rs.10,000/-)= Rs.20,000/-
4. Multiplier as per age of 16 = Rs.3,20,000/-
(Rs.20,000//X6)
5. General damages =Rs. 9,500/-
_______________
Rs. 3,29,500/-
6. Less awarded amount Rs. 1,92,000/-
Rs. 1,27,500/-
Therefore, the claimants are entitled to
compensation of Rs.3,29,500 along with interest.
It is reported that claimants are already received
Rs.. 1, 92,000/- from the learned Tribunal and now
claimants are entitled to balance amount of Rs.
1,27,500/- along with interest at the rate of Rs.6% per
annum from the date (i.e. 26.06.1998) of filing of the
claim application till the deposit of that amount before
the office of the Registrar General.
Claimants are also entitled to get interest at the rate
of Rs.6% per annum on the amount of Rs. 1, 92,000/-
from the date of (i.e. 19.10.2001) filing of the application
till the date of receipt of the amount.
Respondent/ The New India Assurance Co. Ltd is
directed to pay the balance amount of Rs. 1,27,500 along
with interest at the rate of Rs.6% per annum from the
date (i.e. 26.06.1998) of filing of the claim petition till the
date of deposit before the office of the Registrar General.
The respondent/insurance company is also directed
to pay interest at the rate of Rs.6% per annum on the
amount of Rs. 1,92,000/ from the date 26.06.1998 till
19.10.2001.
The respondent/insurance company is directed to
pay that amount within 6(six) weeks from the date.
Learned Registrar General is requested to disburse
all the amount deposited by the Insurance Company to
the claimants in equal share as all three (03) minor have
attained the age of majority by elapse of time.
With the aforesaid observation, the FMA 97 of
2002 stands disposed of.
Pending applications, if there be any, stands also
disposed of.
Let a copy of this order along with Tribunal records
shall be transmitted back to the learned Tribunal
immediately.
Urgent certified copy of this order, if applied for, be
given to the appearing parties as expeditiously as
possible upon compliance with the all necessary
formalities.
(Bibhas Ranjan De, J.)
