R vs T Smt.Sikha Vhomik & Ors
2023 Latest Caselaw 8 Cal

                 C
 S/L No. 6
             o                FMA 265 of 2013
02.01.2023
Ct-297       u
(PA.RD)                United India Assurance Co. Ltd.
             r
                                       Vs.
             t          Smt.Sikha Vhomik & Ors.
                                      With
             N
                                COT 91 of 2022
             .

             2            Smt. Sikha Vhomik & Ors.
             2                         Vs.
             S

United India Assurance Co. Ltd & Anr. l

1 Mr. Guddu Singh, Advocate

... for the Appellant/Insurance Company.

             /    Mr. Krishanu Banik, Advocate
             C
             L

... for the respondent/Claimant

Mr. Krishanu Banik, Advocate

..... for the appellant/Claimant COT 91/2022

Mr. Guddu Singh, Advocate

......for the respondent/Insurance Company COT 91/2022

COT 91 of 2022 is being treated as day's list for

effective disposal of the FMA 265 of 2004.

The appeal being no. FMA 265 of 2004 is directed

against the judgment and award passed by the

Motor Accident Claim Tribunal, Alipore, South 24

Parganas in connection with Motor Accident Claims

Case No. 306 of 2003 under Section 166 of the

Motor Vehicles Act, with a prayer for compensation

to the tune of Rs. 12,00,000/- only, on account of

death of one Pravash Bhowmick in a Motor

accident occurred on 11.08.1998 at about 10.00

hours by the involvement of a bus bearing register

no. WBS 2420 which was running rashly and in

negligent manner. The accident took place on

Ashutosh Mukher Raod PS Bhawanipore. After the

accident injured Pravash Bhowmick was shifted to

SSKM Hospital where he was declared brought

dead.

Bhawanipore PS case no. 402 dated 11/08.1998

under Section 279/338/304A/427 of the Indian

Penal Code was started against the driver of the

bus which was covered under a valid policy of the

United India Insurance Company limited.

In course of trial, claimants examined three

witness namely Sikha Bhowmick, wife o f deceased

as PW-1, Surendra Prasad as PW-2 and one

Dipendra Kumar Bose as PW-3. In course of their

evidence a good number of documents viz. attested

copy of FIR, MCR, copy of disposal order, copy of

admit card, salary certificate issued by M/s.

Bhowmick agency, copy of licence, provisional

identity card, registration certificate of the

offending bus and Insurance Policy, were admitted

in evidence.

Ld. Tribunal after considering the evidence on

record awarded 12,00,000/- out of 13,28,700/- in

terms claim of the petition.

In opposition to that, claimants filed COT being

no.

91 of 2022 with a prayer for adding future

prospect i.e. 50% of the income and general

damage of Rs. 70,000/- to the total awarded

compensation of Rs. 13,28,700/-. In support of

his contentation he relied on Smt. Sarla

Verma and other vs. Delhi Transport

Corporation & another (2009) 6 SCC

121 and National Insurance Company

Ltd. Vs. Pranay Sethy and others (2017)

16 SCC 680.

In this appeal only point for consideration is

whether tribunal rightly assessed monthly income

of the deceased at the time of death.

Ld. Advocate, Mr. Guddu Singh appearing on

behalf of the appellant/ insurance company has

referred to the evidence of PW-2 and has tried to

establish that deceased was not at all employed

under M/s. Bhowmik Agency at the time of his

death. Mr. Singh has pointed out few

contradictions among the statements made by PW-

2 in course of his evidence. Alternatively, Mr. Singh

has argued that the salary of Rs. 9,700/- per

month was taxable in the year 1998 when Pravash

Bhowmick died in motor accident.

In opposition to that, Ld. Advocate Mr. Krishanu

Banik, appearing on behalf of the claimant/

respondent, has referred to the salary certificate

and salary register showing payment of monthly

salary of Rs. 9,700/- to the deceased Pravash

Bhowmick. Mr. Banik has tried make this Court

understand that at the relevant point of time the

salary of deceased was not taxable income.

Though no argument was advanced in respect of

the accident alleged in this case but from the

evidence I find that Pravash Bhowmick died of

motor accident by the involvement of a bus bearing

registration no. WBS 2420 which was running with

high speed and in negligent manner.

We should keep in our mind that we are dealing

with a case under beneficial legislation where

principle of strict proof does not apply. Be that as it

may, from the evidence of PW-2 and exhibited

documents namely salary register and salary

certificate, I am unable to disbelieve the fact of

employment of deceased and salary of Rs. 9,700/-

drawn by the deceased from M/s. Bhowmick

Agency.

So far as deduction of tax is concerned, I am also

unable to accept the argument of Mr. Banik that

the salary of Rs. 9,700/- was not taxable income.

From the income tax slab rates for assessment year

1998-1999 was nil up to income of Rs. 40,000/-,

Rs. 40,001 to 60,000/- was 10% and income tax

slab Rs. 60,001/- to 1,50,000/- carried 20% tax.

Here in our case, after calculating the income per

annum of the deceased is found Rs. 1,16,400/-.

Thereby, 20% of the amount shall be liable to be

deducted towards tax and it comes to Rs. 23,280/-.

After deduction monthly income it comes to Rs.

7,760/-.

In terms of Aforesaid discussion, I determine the

compensation in following terms:-

    Monthly Income                     : 7,760/-

    Annual Income (7760X12)           : 93,120/-

    Future Prospects @ 40%            :37,248/-
                                      ______________
                                         1,30,368/-
    After 1/3rd deduction towards

    personal living expenses          : 86,912.00/-

Multiplier:- '17' (86,912 X 17) : 14,77,504/-

    General damages                   : 70,000/-

    Total Award                          : 15,47,504/-

It is reported that Claimants have already received

5,00,000/- by the order of this Court.

In this regard, Mr. Banik has submitted that

claimants fare entitled to interest on the withdrawn

amount of Rs. 5,00,000/- from the date of filing of

the claim petition.

Claimants are entitled to rest amount of

compensation of Rs, 10,47,504/- along with

interest @ Rs. 6% per annum from the date of filing

of the claim petition till the date of deposit of the

amount by the appellant/ Insurance Company

before the Ld. Registrar General of this Court.

Accordingly, appellant Insurance Company is

directed to deposit the rest amount after

adjustment of the amount already deposited along

with interest @ 6% per annum from the date of the

filing of the claim petition till the date of the

deposit of the amount before the office of the Ld.

Registrar General. Appellant Insurance Company is

further directed to deposit the interest @ 6% per

annum on the amount of Rs. 5,00,000/- already

withdrawn by the claimants, from the date of filing

of the claim petition till the date of withdrawal.

Ld. Registrar General is requested to disburse the

amount among all three (3) claimants as minor

claimant Praheli Bhowmick has already attained

age of majority by the lapse of time in equal share.

Ld. Registrar General is requested to disburse the

amount to the claimant on proper identification

and proof.

Let the records of the tribunal along with a copy of

this order, be send back at once.

F.M.A 265 of 2004 with COT 91 of 2022 is being

disposed of without any order as to cost.

All pending application, if there be any, stand

disposed of.

Urgent Photostat certified copy of this order, if

applied for, be supplied to the parties upon

compliance with all requisite formalities.

(Bibhas Ranjan De)

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