Calcutta High Court (Appellete Side)

Bijuli Mejhan & Ors vs The Oriental Insurance Co. Ltd. ... on 4 July, 2023

04.07.2023                IN THE HIGH COURT AT CALCUTTA
Ct. no.654                 CIVIL APPELLATE JURISDICTION
Item no.22                        (Appellate Side)
   sn
                                  FMA 574 of 2021

                                Bijuli Mejhan & Ors.
                                         Vs.
                          The Oriental Insurance Co. Ltd. Ors.

             Mr. Amit Ranjan Roy
             Ms. Afrin Nahar
                         ...for the appellants-claimants

             Ms. Gopa Das Mukherjee
                       ..for the respdt.no.1-insurance Co.

                   This appeal is preferred against the judgment

             and award dated 20th January, 2020 passed by the

             learned Additional District Judge-cum-Judge, Motor

             Accident Claims Tribunal, Fast Track, 2nd Court,

             Asansol, Paschim Bardhaman in MAC case no.25 of

             2016 (52 of 2016) granting compensation of Rs

             13,32,213/- together with interest in favour of

             claimants under Section 166 of the Motor Vehicles

             Act, 1988.

                   The brief fact of the case is that on 30th July,

             2014 at about 4 p.m. while the victim was standing

             besides N.S.B. Road, Raniganj near Ankur Nursing

             Home in order to cross the road at that time the

             offending vehicle bearing registration no. WB-38/AC-

             6847 (motor cycle) in a rash and negligent manner

             dashed the victim, as a result of which the victim fell

             down on the road and sustained serious injuries all

             over his body. Immediately, the local people admitted
                           2




the victim to Kunustoria Area Hospital for treatment.

As the condition of the victim deteriorated he was

referred to Central Hospital, Kalla, for treatment

where the attending doctor declared him as brought

dead. On account of sudden demise of the deceased,

the widow, sons and daughter of the deceased filed

application for compensation of Rs. 26,00,000/-

together with interest under Section 166 of the Motor

Vehicles Act, 1988.

      The claimants in order to establish their case

examined three witnesses and produced documents,

which have been marked as Exhibits 1 to 9 (series)

respectively.

      The appellant-insurance Company did not

adduce any evidence.

      By an order dated 27th March, 2023, service of

notice of appeal upon the respondent no.2, owner of

the offending vehicle, has been dispensed with since

he did not contest the claim application.

Upon considering the materials on record and

evidence adduced by the claimants, the learned

Tribunal granted compensation of Rs.13,32,213/-

together with 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 of the learned

Tribunal, the claimants have preferred the present

appeal.

Mr. Amit Ranjan Roy, learned advocate for the

appellants-claimants submits that the learned

Tribunal erred in adopting the multiplier of 8 instead

of 9. He further submits that since the number of

dependents is 6, the deduction towards personal and

living expenses of the deceased should be 1/4th

instead of 1/3rd considered by the learned Tribunal

in view of the decision of Hon'ble Supreme Court in

Sarla Verma versus Delhi Transport Corporation

Limited & Ors. reported in 2009 ACJ 1298.

Moreover, he submits that since at the time of

accident the victim was 59 years of age and was in

permanent employment, in view of the decision 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 amount equivalent to 15% of the

annual income of the deceased towards future

prospects instead of 10% granted by the learned

Tribunal. In the light of his aforesaid submissions, he

prays for enhancement of the compensation amount.

In reply to his aforesaid submissions, Ms.

Gopa Das Mukherjee, learned advocate for the

respondent no.1-insurance company referring to the

pay slip of the deceased (Exhibit-9-series) submits

that since the net salary of the victim fluctuated from

month to month, hence, he was not on permanent

employment with Eastern Coalfield Limited. She

further submits that in his cross-examination PW-1,

son of the deceased, has deposed that his father did

not have duty on each day and there was no fixed

salary and frequently absented from his duty which

clearly indicates that the job of the victim was

temporary in nature. In view of the aforesaid

materials, she submits that the learned Tribunal

rightly allowed 10% of the annual income of the

deceased towards future prospect, which should not

be interfered with.

Having heard the learned advocates for the

respective parties, the following issues have fallen for

consideration. Firstly, whether the learned Tribunal

erred in adopting multiplier of 8 instead of 9.

Secondly, whether the deduction towards personal

and living expenses should be 1/4th instead of 1/3rd

adopted by the learned Tribunal and lastly, whether

the claimants are entitled to future prospect of 15%

of the annual income of the deceased instead of 10%.

With regard to the first issue relating to

multiplier, it is found that the learned Tribunal has

adopted multiplier of 8. However, since at the time of

accident, admittedly, the victim was 59 years of age,

bearing in mind the observations of the Hon'ble

Supreme Court in Sarla Verma (supra), the multiplier

to be adopted in the present case should be 9 instead

of 8 adopted by the learned Tribunal.

With regard to the second issue relating to

deduction towards personal and living expenses of

the victim, it is found that the learned Tribunal has

deducted 1/3rd of the annual income of the deceased

towards his personal and living expenses. However,

following observations of the Hon'ble Supreme Court

in Sarla Verma (supra) since the number of

dependants is 6, the deduction towards personal and

living expenses should be 1/4th instead of 1/3rd.

Coming to the last issue relating to future

prospect, it is found that at the time of accident the

victim was 59 years of age. Form "B" issued by the

Eastern Coalfield Limited in respect of the victim

Sona Majhi (Exhibit-8) proved by PW3 Dinabandhu

Mondal, Assistant Manager (Personnel) containing

service records of the victim reveal that he was a

permanent employee of Eastern Coalfield Limited. In

view of the above materials, the arguments advanced

on behalf of the insurance company that since there

was fluctuation in the net salary of the victim from

month by month or that the son of the victim

deposed his father did not attend his duty regularly,

hence, he was a temporary employee, does not stand

reason. Keeping in mind the age of the victim and his

permanent employment with Eastern Coalfield

Limited, following the observations of the Hon'ble

Supreme Court in Pranay Sethi (supra), the claimants

are entitled to an amount equivalent to 15% of the

annual income of the deceased towards future

prospect.

The other factors have not been challenged in

this appeal.

Bearing in mind the above factors, calculation

is made hereunder:

Calculation of Compensation

Annual Income Rs.2,15,150/-

Less: 1/4th towards personal Rs.53,787/-

and living expenses Total income Rs.1,61,363/-

Add: 15% of total income Rs. 24,204/-

towards future prospect Rs.1,85,567/-

        Multiplier 9                             Rs.16,70,103/-
        (Rs.1,85,567/- x 9)
        Add: General damages                     Rs.70,000/-
         Loss of estate: Rs.15,000/-
         Loss of consortium: Rs.40,000/-
         Funeral expenses: Rs.15,000/-
        Total amount                             Rs.17,40,103/-

Thus, the claimants are entitled to compensation

of Rs.17,40,103/- together with interest @ 6% per

annum from the date of filing of the claim application

(07.04.2015) till payment. It is informed that the

claimants have already received an amount of

Rs.13,32,213/- together with interest in terms of the

order of the learned Tribunal. Accordingly, the

claimants are entitled to balance amount of

compensation of Rs.4,07,890/- together with interest

@ 6% per annum from the date of filing of the claim

application (07.04.2015) till payment.

The respondent no.1-insurance company is

directed to deposit the balance amount of

compensation and the interest as indicated

hereinabove by way of a 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 assessed, if not already paid.

Upon deposit the balance amount and the

interest, the learned Registrar General, High Court,

Calcutta shall release the aforesaid amount in favour

of the appellants-claimants in equal proportion upon

payment of ad valorem court fees, if not already paid,

and on satisfaction of their identity.

With the aforesaid observations, the appeal

stands disposed of. The impugned judgement and

award is modified to the above extent. No order as to