Smt. Rina Mitra & Anr vs The Shriram General Insurance ...
2023 Latest Caselaw 817 Cal

                          IN THE HIGH COURT AT CALUTTA
                             Civil Appellate Jurisdiction
 31.01.2023
  SL No.1
Court No. 654
    Ali


                            F.M.A.T. 1197 of 2016

                          Smt. Rina Mitra & Anr.
                                      Vs.
                The Shriram General Insurance Company Ltd. & Anr.

                     Mr. Jayanta Banerjee
                     Mr. Sandip Bandyopadhyay
                     Ms. R. Basu Roy
                                     ...for the appellants-claimants.

                     Mr. Rajesh Singh
                             ....for the respondent no. 1-Insurance Co.

This appeal is preferred against the

judgment and award dated 23rd December, 2015

passed by the learned Judge, Motor Accident Claims

Tribunal, 1st Court, Howrah in M.A.C Case no. 521

of 2010 granting compensation of Rs.16,70,500/-

alongwith interest in favour of the claimants under

Section 166 of the Motor Vehicles Act, 1988.

The brief fact of the case is that on 3

October 2010 at about 12 hours while the victim

was proceeding by a motorcycle bearing registration

no. WB-12N/0638 through NH-6 towards Midnapore

side keeping left side at that time the offending

vehicle bearing registration no. WB-41D/2348 in the

rash and negligent manner dashed the victim near

Nowpala, as a result of which the victim sustained

severe injuries all over his body and died. On

account of sudden demise of the victim, the

claimants being the parents filed application under

Section 166 of the Motor Vehicles Act,1988 claiming

compensation of Rs.25,00,000/-along with interest.

The claimants in order to prove their case

examined three witnesses including mother of the

deceased and produced documents which has been

marked Exhibits 1 to 16 respectively.

Respondent no.1-insurance company did not

adduce any evidence.

Upon considering the materials on record

and the evidence produced by the claimants the

learned tribunal granted compensation of

Rs.16,70,500/- alongwith 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 claimants have

preferred the present appeal.

Mr Jayanta Banerjee, learned advocate for

appellants-claimants submits that the learned

tribunal erred in considering the post-mortem report

for determining the age of the deceased-victim

whereas it ought to have taken into account the age

of the victim as per his voter's identity card. The

multiplier should be based on the age of the victim

as per the voter's identity card and not post-mortem

report. In support of his contention he relies on the

decision of this Court passed in Sri Paritosh Saha

& Ors. versus The Oriental Insurance Co. Ltd &

Anr reported in (2015) 1 WBLR (Cal) 477.

He further submits that since the deceased

was in permanent employment and was of 30 years

of age at the time of accident, hence following the

observation of Hon'ble Supreme Court in National

Insurance Company Limited versus Pranay Sethi

and Others reported in 2017 ACJ 2700 the

claimants are entitled to an additional amount

equalling to 50% of the annual income of the

deceased-victim towards future prospect.

He further submits that in view of the

aforesaid decision of the Hon'ble Court, the

claimants are also entitled to general damages of

Rs.30,000/-under the conventional heads of funeral

expenses and loss of estate.

In light of his aforesaid submissions, he

prays for enhancement of the compensation

amount.

In reply to the contentions raised on behalf

of appellants-claimants, Mr Rajesh Singh, learned

advocate for respondent no.1-insurance company

submits that the learned tribunal has rightly relied

on the post-mortem report for determining the age of

the deceased-victim since the voter's card does not

disclose the date of birth and only the year of birth

has been stated therein. Furthermore, it is the

incumbent duty of the claimants to establish the age

of the victim and since the victim was employed as

Assistant Librarian the claimants could have easily

produced documents of service to verify such age of

the victim claimed in the claim application, which

they have failed.

He further submits that there is no iota of

evidence that the deceased-victim was in permanent

job and therefore the future prospect is to be

assessed taking into account such factor.

By order dated 13th January, 2023 the

service of notice of appeal upon respondent no.2-

owner of the offending vehicle has been dispensed

with.

Having heard the learned advocates for the

respective parties, it is found that the appellants-

claimants have precisely raised three issues firstly

that the determination of the age of the victim at the

time of accident should be on the basis of voter's

identity card instead of post-mortem report;

secondly that the claimants are entitled to additional

amount of 50% of the annual income of the

deceased towards future prospect and lastly that the

claimants are entitled to general damages.

With regard to the age of the deceased, two

documents have been produced before the learned

tribunal namely the voter's identity card of the

deceased (Exhibit 5) and post-mortem report

(Exhibit 8). The learned tribunal has taken into

account the age of the victim to be 32 years as noted

in the post-mortem report. The doctors prescribe the

age in the post-mortem report on the basis of

scientific analysis which can be appropriate but

cannot be accurate. Therefore, the age prescribed in

the post-mortem report can be accepted in the

absence of Ration Card, Birth Certificate, Passport,

Aadhar Card and voter's identity card. When the

self-declared age is available in the voter's identity

card issued by a concerned Government Department

the same shall be taken into consideration for

determining the age of the deceased and there is no

justification to ignore the said contemporaneous

document disclosing the age placed before the court.

I find substance in the submission of Mr Banerjee in

this regard relying on the decision of this court

passed in Sri Paritosh Saha (supra) wherein

disapproving the finding of the learned tribunal it

observed that the learned tribunal fell in error in

overlooking the fact that the voter's identity card

was an official document possibly based on a

victim's own declaration of age. As per the voter's

identity card (Exhibit 5) the year of birth of the

deceased is 1980. The accident having taken place

on 3 October 2010 the age of the victim falls within

30 years and 31 years. Therefore, following the

observation of Hon'ble Supreme Court made in

Sarla Verma and Others versus Delhi Transport

Corporation and Another reported in 2009 ACJ

1298 the multiplier to be adopted for determining

the compensation amount should be 17.

The second aspect relates to entitlement of

future prospect. The respondent no.1-insurance

company has precisely thrown challenge to such

entitlement to the extent of percentage to be taken

into account since there is no evidence that the

victim at the time of accident was in permanent

employment. In order to appreciate such contention,

it would be proficient to refer to the evidence of PW3

and the documents produced in support of

employment. As per the evidence of PW3, Literate

Peon, the deceased was employed as Assistant

Librarian in Bankim Bhawan Gabeshana Kendra,

Naihati. This witness produced Acquittance Roll for

the month of July, August and September 2010

marked as Exhibits 11, 12 and 13 respectively. It is

found from the above Acquittance Rolls that the pay

structure of the deceased included following heads

namely present pay, special pay or allowance,

dearness allowance, house rent allowance, medical

allowance and his pay-band and grade pay is also

reflected from the said Acquittance Roll. Thus, the

structure of pay appearing in the Acquittance Roll

shows that the deceased-victim was in permanent

employment. Thus, since the deceased at the time of

accident was aged between 30 years and 31 years

and was in permanent employment, following the

observation of Hon'ble Supreme Court in Pranay

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

an additional amount equalling to 50% of the

annual income of the deceased towards future

prospect.

Further in view of the above decision in

Pranay Sethi's case (supra) the claimants being

the parents are entitled to general damages under

the conventional heads of funeral expenses and loss

of estate of Rs.15,000/- and Rs.15,000/-

respectively.

The other findings and factors arrived at by

the learned tribunal has not been challenged in the

appeal. Keeping in mind the aforesaid the

calculation of compensation is made hereunder.

Calculation of compensation

Monthly Income..........................................Rs.16,330/- Annual Income.....(Rs.16,330/- X 12)............ Rs1,95,960/- Add: Future Prospects @ 50% of total Income..Rs.97,980/- Annual loss of Income.................................Rs.2,93,940/- Less: Deduction of 1/2 of the Annual Income ( towards personal and living expenses)........... Rs.1,46,970/-

Rs.1,46,970/-

Adopting multiplier 17 ( Rs.1,46,970/- X 17)...Rs.24,98,490/- Add: General Damages..................................Rs.30,000/- Total Compensation............................Rs.25,28,490/-

Thus the total compensation amount comes

to Rs.25,28,490/-. Admittedly the claimants have

received the amount of Rs.16,70,500/-. It is

informed that the claimants have not received any

interest on the amount of compensation granted by

the learned tribunal. Accordingly, the claimants are

entitled to balance amount of compensation of

Rs.8,57,990/-together with interest at the rate of 6%

per annum from the date of filing of the claim

application (i.e 26.11.2010) till deposit. The

claimants are also entitled to interest at the rate of

6% per annum on the compensation granted by the

learned tribunal from the date of filing of the claim

application (i.e 26.11.2010) till deposit was made

before the learned tribunal, if not already received.

Respondent no.1-insurance company is

directed to deposit the balance amount of

compensation of Rs.8,57,990/- along with interest

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

the claim application (i.e 26.11.2010) till deposit and

the interest on the amount of compensation granted

by the learned tribunal as indicated in the foregoing

paragraph, if not already paid, by way of cheque

before the learned Registrar General High, Court,

Calcutta within a period of six weeks from date.

Appellants-claimants are directed to deposit

ad valorem court fees on the balance amount of

compensation, if not already paid.

Upon deposit of the balance amount of

compensation along with interest as indicated above

and the interest on the compensation amount

granted by learned tribunal, if not paid, the learned

Registrar General, High Court, Calcutta shall release

the same in favour of the claimants in equal

proportions and upon satisfaction of their identity

and deposit of ad valorem court fees, if not already

paid.

With the aforesaid observation the appeal

stands disposed of. The impugned judgment and

award of the learned tribunal is modified to the

above extent. No order is to cost.

All connected applications, if any, stands

disposed of.

Interim order, if any, stands vacated.

Urgent photostat certified copy of the order if

applied for the given to the parties upon compliance

of all necessary legal formalities.

(Bivas Pattanayak, J.)