Calcutta High Court (Appellete Side)

The Oriental Insurance Company ... vs Rina Mondal & Ors on 31 January, 2023

                        IN THE HIGH COURT AT CALUTTA
                           Civil Appellate Jurisdiction
 31.01.2023
  SL No.27
Court No. 654
    Ali


                            F.M.A. 413 of 2022
                IA No:CAN/1/2019 (Old No.: CAN/7279/2019)

                       The Oriental Insurance Company Ltd.
                                   Vs.
                        Rina Mondal & Ors.

                  Mr. Rajesh Singh
                              ...for the appellant-Insurance Co.
                  Mr. Jayanta Kumar Mandal
                                   ...for the respondents-claimants.

This appeal is directed against the judgment

and award dated 5th March, 2019 passed by learned

Additional District Judge, 1st court, Barasat, 24-

Parganas (North) in M.A.C. Case no. 23 of 2013

granting compensation of Rs. 6,41,200/- together

with interest under Section 163A of the Motor

Vehicles Act, 1988.

As per the report of the Additional Stamp

Reporter dated 19.8.2021 the appeal is preferred

within the statutory period of limitation.

Accordingly, the present appeal is formally

admitted and registered.

                        Since    respondent        no.6-owner     of     the

                offending    vehicle   did   not    contest     the    claim

application hence service of notice of appeal upon

the said respondent is dispensed with.

With the consent of both the parties, the

preparation of informal paper books and calling for

of lower court records is dispensed with.

The brief fact of the case is that on 13th

April, 2013 at about 8:30 AM while the victim was

working as a labour for constructing PWD road at

Tentulia PWD office at that time the offending

vehicle bearing registration no. WB-25E/8443 (JCB)

in a high-speed dashed the victim as a result of

which the victim sustained serious injuries and was

immediately taken to hospital where the attending

doctor declared him dead. On account of sudden

demise of the deceased-victim, the claimants being

the widow, minor children and parents of the

deceased filed application under Section 163A of the

Motor Vehicles Act,1988 for compensation.

The claimants in order to establish their

case examined two witnesses and produced

documents which are marked as Exhibits 1 to 9

respectively.

Appellant-insurance company also adduced

evidence of one witness and produced documents

marked as Exhibit A and B respectively.

Upon considering the materials on record

and the evidence produced on behalf of the

respective parties the learned tribunal granted

compensation in favour of the claimants to the tune

of Rs.6,41,200/- together with interest under

Section 163A of the Motor Vehicles Act, 1988. After

passing of the judgment the name of claimant No. 6-

mother of the deceased was expunged since she died

on 08.03.2018 prior to delivery of judgment and the

award was modified in favour of respondents-

claimants vide order no33 dated 15.03.2019 by the

learned tribunal

Being aggrieved by and dissatisfied with the

impugned judgment and award the insurance

company has preferred the present appeal.

Mr Rajesh Singh, learned advocate for

appellant-insurance company submits that though

the claimants filed the application under Section

163A of the Motor Vehicles Act yet the learned

tribunal erroneously made calculations on wrong

presumption that the application is one under

Section 166 of the Motor Vehicles Act. He further

submits that the learned tribunal granted future

prospect of 40% of the annual income of the

deceased-victim and also awarded general damages

of 70,000/- in favour of the claimants which is

palpably a wrong computation so far as application

under Section 163A of the Motor Vehicles Act is

concerned. Furthermore, he submits that the

computation of compensation in an application

under Section 163A of the Motor Vehicles Act should

be made in accordance with the Second Schedule to

the Act. In the light of his aforesaid submissions, he

prays for modification of the impugned judgment

and award.

Mr Jayanta Kumar Mandal, learned

advocate for respondent nos. 1 to 5-claimants

concurs with the submissions advanced on behalf of

appellant insurance company. Mr Mandal, learned

for respondents-claimants submits that the

multiplier should be 18.

Having heard the learned advocates for the

respective parties, it is found that the appellant-

insurance company has thrown challenge to the

impugned award of the learned tribunal on the

ground of erroneous computation of compensation

amount in an application under Section 163A of the

Motor Vehicles Act.

Upon going through the impugned

judgment, it is found that the learned tribunal has

granted an additional amount of 40% of the annual

income of the deceased towards future prospect and

also granted general damages under the

conventional heads of loss of estate, loss of

consortium and funeral expenses amounting to

Rs.70,000/-. However, in view of Second Scheduled

to Section 163A of the Motor Vehicles Act the

claimants are entitled to figures and amounts

against specific heads as mentioned in the Second

Schedule to the Act providing for structured formula

and therefore the computation of compensation

made by learned tribunal needs to be rectified.

Therefore, the grant towards future prospect of 40%

of annual income of the deceased is set aside and

the amount towards general damages is modified to

Rs.9,500/- under the conventional heads.

The learned tribunal has noted that as per

voter's identity card (Exhibit 7) the date of birth of

the victim is 15.5.1984. Therefore, the accident

having taken place on 13.4.2013, the victim was

aged 28 years 11 months. Thus, following the

Second Schedule to the Act and taking into account

the aforesaid age of the victim, the multiplier should

be 18 instead of 17.

In view of the above discussion the

calculation of compensation is made hereunder.

Calculation of compensation

Monthly Income..........................................Rs.3,000/- Annual Income.....(Rs.3,000/- X 12)............ Rs36,000/- Less: Deduction of 1/3rd of the annual Income ( towards personal and living expenses)........... Rs.12,000/-

Rs.24,000/-

Adopting multiplier 18 ( Rs.24,000/- X 18)....Rs.4,32,000/- Add: General Damages..................................Rs.9,500/- Total Compensation............................Rs.4,41,500/-

Thus, the claimants are entitled to Rs.

4,41,500/- together with interest at the rate of 6%

per annum from the date of filing of the claim

application (i.e 30.9.2013) till deposit. It is found

that the appellant-insurance company has deposited

statutory amount of Rs.25,000/- vide OD challan

no.3269 dated 29.1.2021 and an amount of Rs.

8,88,170/- vide OD challan no. 1635 dated

25.8.2022 with the Registry of this Court. Both the

aforesaid amount along with accrued interest shall

be adjusted against the entire compensation amount

and the interest indicated above.