Smt Chabi Halder & Ors vs The National Insurance Co. Ltd.& ...
2023 Latest Caselaw 84 Cal

04.01.2023
sayandeep
Sl. No. 18 & 19
Ct. No. 654
                                      FMA 552 of 2022
                                            With
                                       COT 63 of 2022

                                      Smt Chabi Halder & Ors.

                                           -Versus-

                            The National Insurance Co. Ltd.& Ors.


                        Mr. Jayanta Banerjee
                        Ms. Ruxmini Basu Roy
                                          ...for the appellants-claimants

                        Mr. Sanjay Paul
                              .....for the Respondent-Insurance Company

This appeal is preferred against the judgment and

award dated 23 April 2021 passed by learned Additional

District Judge cum Judge, Motor Accident Claims

Tribunal, 1st Court, Nadia in M.A.C Case no. 211 of

2012 granting compensation of Rs. 2,91,760/-in favour

of the claimants.

The brief fact of the case is that on 16 February

2012 at about 00:30 hours in the night the bus bearing

registration no. WB-51/9917 which was taking the

relatives of the bridegroom from Maheshnagar Ghat to

Fulbari and driven at a high speed overturned near

R.L.I at Uttar Nadir Dhar Para, Maheshnagar on the

road under Chapra Police Station. As a result of which

the victim and other relatives of the bridegroom

sustained severe injuries on their person. The victim

was admitted to Nadia District Hospital where he

succumbed to his injuries and died. On account of

sudden demise of the deceased-victim claimants being

the widow, children and parents of the deceased filed

application for compensation under Section 163A of the

Motor Vehicles Act, 1988.

The claimants in order to prove their case

examined two witnesses including widow of the

deceased (claimant no.3) and also proved number of

documents which has been marked as Exhibits 1 to 5

respectively.

The respondent no.1-insurance company did not

adduce any evidence.

Upon considering the materials on record and the

evidence adduced on behalf of the claimants the learned

tribunal granted compensation of Rs 2,91,760/-in

favour of the claimants.

Being aggrieved by and dissatisfied with the

impugned judgment and award the claimants have

preferred the present appeal.

The respondent no.1-insurance company

challenging the award of the learned tribunal has also

filed a cross objection being COT 63 of 2022.

Mr. Jayanta Banerjee, learned advocate for

appellants-claimants submits that there has been

arithmetical error in computation of the compensation

amount inasmuch as the learned Tribunal multiplied

the amount towards personal and living expenses of the

deceased with the multiplier in order to calculate the

total loss of dependency whereas it ought to have

multiplied the differential amount of notional income

and amount towards personal living expenses with the

multiplier for calculating the total loss of dependency

and accordingly he submits for modification of such

computation which is noticeably an arithmetical error

on the face of it. In the light of his aforesaid

submissions, he prayed for modification of the

impugned award.

Mr. Sanjay Pal, learned advocate for respondent

no. 1-Insurance company submits that Insurance

Company has precisely filed the cross-objection

challenging the award on the ground that though the

claimants filed application under Section 163A of the

Motor Vehicles Act, 1988 but the learned Tribunal

proceeded on wrong presumption as if the application

had been filed under Section 166 of the Motor Vehicles

Act, and accordingly error crept into such computation

which is not sustainable in the eye of law. He further

submits that since the application has been filed by the

claimants under Section 163A of the Motor Vehicles Act

hence the learned Tribunal was not prescribed to

investigate the fact of negligence of any party in the said

accident which is beyond the scope of the said

provisions and should have adhered to Second

Schedule to Section 163A of the Act for assessment of

compensation amount. In view of his above submissions

he prays for modification of the award in accordance

with law treating the application filed by the claimants

as an application under Section 163A of the Act.

In reply, Mr. Banerjee, learned advocate for

appellants-claimants submits that though the

claimants have quoted Section 163A of the Motor

Vehicles Act in the claim application but they have

made out a specific case of rash and negligent driving of

the driver of the offending vehicle. Further taking into

account the pleadings of the parties before it the

learned tribunal framed relevant issues pertaining to

such aspect of rash and negligent driving of the

offending vehicle and during hearing evidence has been

led by the claimants in support of such facts pleaded.

Thus from the materials on record it could be found

that the learned Tribunal has proceeded treating the

application of the claimants to be under Section 166 of

the Motor Vehicles Act. He further submitted that even

if the proceeding is described to be one under Section

163A of the Motor Vehicles Act mere caption of an

application cannot decide the real nature of the same

and in support of his contention he relied on the

decision of this Court passed in Smt. Upasi Singha &

Ors. Versus The Oriental Insurance Co. Ltd. & Ors.

reported in (2010)4 WBLR (CAL)552.

Before delving into the issue raised by the

appellants-claimants in the appeal with regard to

arithmetical error made by the learned Tribunal in

computation of the compensation amount, it is

pertinent to decide as the whether the application of the

claimants referred to as an application under Section

163A of the Act is to be treated as an application under

Section 166 of the Act or not. At the outset, it is found

that the claimants in column no. 23 of the claim

application has indicated it to be an application under

Section 163A of the Act and that they have not filed any

other application under Section 140 and/or 166 of the

Motor Vehicles Act before any Tribunal. Be that as it

may, it is relevant to note that the claimants in column

no. 23 of the claim application averred that the accident

occurred due to rash and negligent act of the driver of

the offending vehicle. The Insurance Company entered

appearance and filed written statement.

Upon considering the pleadings and other

materials on record, the learned Tribunal framed 8

issues of which issue Nos. 4 and 5 are relevant in the

context of the present discussion which is reproduced

hereunder:

"4. Did the victim die due to injuries received by him as a result of rash and negligent driving by the driver of the offending vehicle?

5. Was the driver of the offending vehicle bearing No. WB-51/9917 (Omni bus) riving the vehicle in rash and negligent manner as to endangering public safety and human life?"

After framing of such issues, evidence has been

led by the claimants in the form of both oral and

documentary in support of fact of negligence of the

driver of the offending vehicle in the said accident.

Further the learned tribunal on the basis of such

evidence led by the claimants has also decided the

above issues holding that the accident occurred due to

rash and negligent driving of the driver of the bus.

Therefore, from the commencement of the trial on

framing of issues it is pertinent to note that the learned

Tribunal proceeded assuming the application to be one

under Section 166 of the Motor Vehicles Act. There is

no iota of material placed showing that upon framing of

the issues no. 4 and 5, which is relevant for the

purpose, any objections were raised from the side of the

Insurance Company. Thus the Insurance Company has

taken part in the proceedings with the knowledge that

such issues have been framed in the proceedings. This

Hon'ble Court in Smt. Upasi Singha & Ors. (supra)

observed as hereunder:

"6.After going through the materials on record, we, however, find that although the proceeding was described as one under Section 163A of the Act, the learned Tribunal

specifically framed issue as to whether the drivers of the two vehicles involved were negligent and the parties led evidence and even argument was advanced at the time of trial on such issue. It further appears that the learned counsel appearing on behalf of the Insurance Companies even admitted the negligence on the part of the drivers of the offending vehicles.

7. It is now settled law that mere caption of an application cannot decide the real nature of the same and if it appears that the Court dealing with such application has jurisdiction to grant appropriate relief under a different provision of statute, such wrong caption cannot be a ground for rejection of the proceeding."

Bearing in mind the observations of this Court as

above and also the materials relating to proceedings

before the Tribunal it is very much clear that the

learned Tribunal from the very initiation of trial

considered the said application to be under Section 166

of the Motor Vehicles Act and proceeded in accordance

thereof. I find substance in the submission of Mr.

Banerjee, learned advocate for appellants-claimants,

that mere describing an application under Section 163A

of the Act cannot be a ground to reject grant of

appropriate relief in the facts and circumstances of the

case when the Court dealing with such application has

jurisdiction to grant appropriate relief. Thus the

challenge thrown to the award of the learned Tribunal

by respondent no.1-insurance company in the aforesaid

context does not hold good.

Now I revert back to arithmetical error indicated

by Mr. Banerjee, learned advocate for the appellants-

claimants with regard to computation of compensation

amount. Upon perusal of the impugned Judgment and

award it is found that the learned tribunal while

assessing total loss of dependency has multiplied the

amount of personal and living expenses of the deceased

with the multiplier, which is an arithmetical error on

the face of record. The multiplier should have been

multiplied with the differential amount of notional

income and the amount towards personal and living

expenses of the deceased.

The other findings of the learned Tribunal has not

been challenged namely income assessed, the amount

towards future prospect, the multiplier, the amount of

deduction towards personal and living expenses of the

deceased and general damages.

Keeping in mind the aforesaid calculation is made

hereunder:

Calculation of compensation

Monthly income....................................Rs.3,300/- Annual Income (Rs.3,300/- X 12)..........Rs. 39,600/- Add: Future Prospects @ 40% of total Income......................................Rs.15,840/- Annual loss of Income...........................Rs.55,440/- Less: Deduction 1/4th of the Annual Income

towards personal and living expenses.. Rs.13,860/-

Rs.41,580/-

Adopting multiplier 16 ( Rs.41,580/- X 16)............................ Rs.6,65,280/- Add:General Damages.........................Rs.70,000/- Loss of estate....Rs.15,000/-

Loss of consortium..Rs.40,000/-

Funeral Expenses.......Rs.15,000/- Total Compensation...........................Rs.7,35,280/-

Thus the total compensation amount comes to

Rs. 7,35,280/-. It is informed that the claimants have

already received an amount of Rs. 2,91,760/- as

awarded by the learned Tribunal but no interest was

granted. Accordingly the claimants are entitled to the

balance amount of Rs. 4,43,520/- along with interest at

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

claim application till deposit.

It is relevant to note that learned Tribunal has

allowed interest on the awarded sum. Since appellants-

claimants submits that they have not received interest

component on the awarded sum, hence the claimants

are also entitled to interest on the awarded sum of Rs.

2,91,760/- along with interest at the rate of 6% per

annum from the date of filing of the claim application

till the deposit of awarded sum was made before the

learned Tribunal, if not already received.

The respondent no. 1-insurance Company is

directed to deposit the balance amount of Rs.

4,43,520/-along with interest at the rate of 6% per

annum from the date of filing of the claim application

till deposit and further shall deposit the interest on the

amount awarded by the learned Tribunal as indicated

above (if not already paid), by way of cheque before

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 enhanced amount of

compensation, if not already paid.

The learned Registrar General upon deposit of the

aforesaid amount shall release the said amount in

favour of appellants-claimants in equal proportion, after

making payment of Rs. 40,000/- towards spousal

consortium to appellant no.1, widow of the deceased, on

satisfaction of their identity as well as payment of

advalorem court fees, if not already paid.

With the aforesaid observation, the appeal as well

as the cross objection stands disposed of. The

impugned Judgment and award of the learned Tribunal

stands modified to the aforesaid extent. There shall be

no order as to costs.

All connected applications, if any, stand disposed

of. Interim order, if any, stands vacated.

Urgent photostat certified copy of this judgment,

if applied for, be given to the parties upon compliance of

necessary legal formalities.

(Bivas Pattanayak, J.)