Calcutta High Court (Appellete Side)

Sourav Saha vs National Insurance Co. Ltd. & Anr on 4 July, 2023

04.07.2023
 Ct. 654
 D/L 23
   ab

                    IN THE HIGH COURT AT CALCUTTA
                      CIVIL APPELLATE JURIDICTION
                            APPELLATE SIDE

                                FMA 669 of 2021

                                  Sourav Saha
                                      -Vs-
                       National Insurance Co. Ltd. & Anr.


             Mr. Muktakesh Das
                                       ... for the appellant-claimant

             Mr. Saibalendu Bhowmik
                    ... for the respondent No. 1 -insurance company

This appeal is preferred against the judgment and

award dated 11th February, 2020 passed by the learned

Judge, Motor Accident Claims Tribunal, 4th Court,

Nadia at Krishnagar in MAC Case No. 570 of 2009

granting compensation of Rs. 4,08,200/- together with

interest in favour of the claimant-injured under Section

166 of the Motor Vehicles Act, 1988.

As per the report of the Additional Stamp reporter

dated 19.04.2021, the appeal is preferred within the

statutory period of limitation in view of the order passed

by the Hon'ble Supreme Court in Suo Motu Writ (C) No. 3

of 2020 dated 23.03.2020 and 08.03.2021 respectively.

Accordingly, the appeal is formally admitted and

registered.

Lower court records have already been received

and upon examination found to be complete and in

order.

With the consent of the learned advocates for the

respective parties, preparation of informal paper books

is dispensed with.

Since the respondent no. 2 did not contest the

claim application, service of notice of appeal upon the

said respondent is dispensed with.

The brief fact of the case is that on 31st

December, 2008 at about 3.00 p.m. while the victim

was proceeding towards Krishnagar from Bethuadahari

through NH-3 by motorcycle bearing registration no.

WB-52G/2209 as a pillion rider and when he reached

near the saw mill at village Singhati, the offending

vehicle bearing registration no. WB-52A/6278 (Tata

Indica) in a rash and negligent manner dashed the

motorcycle from behind, as a result of which the victim

fell down on the road and sustained injuries on his two

legs and other parts of the body. The victim was

medically treated at different hospitals and his right leg

was amputated. On account of injuries sustained by the

victim and subsequent disablement, the victim filed

application for compensation of Rs. 5,00,000/- under

Section 166 of the Motor Vehicles Act, 1988.

The appellant-claimant in order to establish his

case examined four witnesses including himself and

produced documents, which have been marked as

Exhibits 1 to 10 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 claimant, the learned

Tribunal granted compensation of Rs. 4,08,200/-

together with interest from the date of filing of the claim

application, i.e. 23.12.2009 to 02.12.2011 and from

09.04.2019 till the date of judgment in favour of the

claimant under Section 166 of the Motor Vehicles Act,

1988.

Being aggrieved by and dissatisfied with the

impugned judgment and award, the appellant-claimant

has preferred the present appeal.

Mr. Muktakesh Das, learned advocate for the

appellant-claimant submits that the learned Tribunal

erred in adopting multiplier 16 instead of 18. He further

submits that the claimant is entitled to future prospect

of 40% of the annual income, which has not been taken

into account by the learned Tribunal. Futhermore he

submits that the claimant is entitled to non-pecuniary

damages under pain and sufferings since he had to

undergo amputation of his right leg. Moreover, he

submits that the learned Tribunal without any

reasonable ground allowed interest for certain period

but not to the extent of the entire period of pendency of

the application till payment and thus calls for

modification. In the light of the aforesaid submissions,

he prays for enhancement of the compensation amount.

In reply to the contentions raised on behalf of the

appellant-claimant, Mr. Saibalendu Bhowmik, learned

advocate for the respondent no.1-insurance company

concedes that the multiplier should be 18. So far as the

future prospect is concerned, he submits that the

decision of the Hon'ble Supreme Court passed in

National Insurance Company Limited versus

Pranay Sethi and Others reported in 2017 ACJ 2700

should be followed. With regard to compensation under

pain and sufferings, he leaves the matter to the

discretion of the Court. As regards interest granted by

the learned Tribunal, he indicates that the learned

Tribunal has reasonably considered the negligence of

the claimant in pursuing the claim application resulting

in delay in disposal of the application and thereby

granted interest from the date of application till the

issues were framed and thereafter granted interest from

the date when the claimant produced witnesses before

the Tribunal. The intervening period being adjourned at

the instance of the claimant has been rightly left out by

the learned Tribunal.

Having heard the learned advocates for the

respective parties, following issues have fallen for

consideration. Firstly, whether the multiplier should be

18 instead of 16; secondly, whether the future prospect

of 40% of the annual income of the claimant-injured

should be taken into consideration; thirdly whether the

claimant is entitled to non-pecuniary damages under

the head of pain and sufferings and lastly, whether the

claimant is entitled to interest from the date of filing of

the claim application till payment.

With regard to the first issue relating to

multiplier, it is found that the learned Tribunal has

adopted multiplier 16. However, following the

observations of the Hon'ble Supreme Court made in

Sarla Verma and others versus Delhi Transport

Corporation and another reported in 2009 ACJ 1298

since at the time of accident, the victim was more than

18 years old, the multiplier should be 18 instead of 16.

So far as the future prospect is concerned, since

at the time of accident the victim was aged more than

18 years, hence an amount equivalent to 40% of the

annual income of the victim should be taken into

consideration towards future prospect.

With regard to the issue relating to non-pecuniary

damages under the head of pain and sufferings, it is

found that the learned Tribunal has granted Rs.

5,000/-. However, bearing in mind that the victim had

undergone amputation of his right leg, I am inclined to

grant Rs. 50,000/- towards non-pecuniary damages

under the head of pain and sufferings.

The last issue relates to interest on compensation

amount. Mr. Das, learned advocate for the claimant has

strenuously argued that the interest on compensation

should be allowed from the date of the claim application

till realization of the amount. Per contra, Mr. Bhowmik,

learned advocate for the respondent no. 1-insurance

company has argued that due to laches on the part of

the claimant, there was delay in disposal of the claim

application and taking note of the same, the learned

Tribunal has rightly granted interest for part period.

Upon going through the lower court records, it is found

that issues were framed on 02.12.2011 but

adjournment was sought for on several dates by the

claimant and ultimately on 01.10.2013 one witness was

examined on behalf of the claimant. Thereafter on

several dates adjournment was sought for on behalf of

the claimant and ultimately, on 04.12.2018 the learned

Tribunal directed the claimant to show cause as to why

the claim case shall not be dismissed for default. The

claimant filed show cause on 09.04.2019 and thereafter

witnesses were examined on different dates. The learned

Tribunal taking note of the aforesaid aspect has granted

interest from the date of filing of the claim application,

i.e. 23.12.2009 to 02.12.2011 and from 09.04.2019 till

passing of the award. Bearing in mind the aforesaid, the

period indicated by the learned Tribunal entitling

interest does not call for any interference.

The other factors have not been challenged in this

appeal.

Bearing in mind the above factors, calculation is

made hereunder:

Calculation of Compensation

Monthly income Rs. 3,000/-

          Annual income                        Rs. 36,000/-
          (Rs.3,000/- x 12)
          Add: Future prospect @ 40%           Rs. 14,400/-
               of the total income
                                               Rs. 50,400/-
          70% loss of income due to            Rs. 35,280/-
          disablement of 70%
          Multiplier 18                        Rs. 6,35,040/-
          (Rs. 35,280/- x 18)
          Add: Pain and sufferings             Rs. 50,000/-
          Total amount                         Rs. 6,85,040/-

        Thus,      the    total     compensation     comes      to

Rs.6,85,040/-. It is informed that the claimant has

already received the compensation amount of

Rs.4,08,200/- together with interest in terms of the

order of the learned Tribunal. Accordingly, the

appellant-claimant is entitled to balance amount of

compensation of Rs.2,76,840/- together with interest @

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

application i.e. 23.12.2009 to 02.12.2011 and from

09.04.2019 till the date of payment.

The respondent no.1-insurance company is

directed to deposit the balance amount of compensation

together with interest as indicated above by way of a

cheque before the learned Registrar General, High

Court, Calcutta within a period of six weeks from date.

The appellant-claimant is directed to deposit ad

valorem court fees on the balance amount of

compensation assessed, if not already paid.

Upon deposit of the balance amount of

compensation and the interest, the learned Registrar

General, High Court, Calcutta shall release the

aforesaid amount in favour of the appellant-claimant