Calcutta High Court (Appellete Side)
Laila Bewa & Ors vs M/S. Oriental Insurance Co. Ltd. & ... on 28 July, 2023
28.07.2023
Ct. 654
D/L 63
ab
IN THE HIGH COURT AT CALCUTTA
CIVIL APPELLATE JURIDICTION
APPELLATE SIDE
FMA 132 of 2023
Laila Bewa & Ors.
-Vs-
M/s. Oriental Insurance Co. Ltd. & Anr.
Ms. Sima Ghosh
... for the appellants-claimants
Mr. Parimal Kumar Pahari
... for the respondent no.1-insurance company
This appeal is preferred against the judgment and
award dated 30th July, 2016 passed by the learned
Additional District Judge-cum-Judge, Motor Accident
Claims Tribunal, 4th Court, Berhampur, Murshidabad
in MAC Case No. 71 of 2013 granting compensation of
Rs. 1,59,500/- together with interest in favour of the
claimants under Section 163A of the Motor Vehicles
Act, 1988.
The brief fact of the case is that on 23rd
December, 2012 while the victim and others were
travelling by the offending vehicle bearing registration
No. WB-73A/2407 (Luxury Bus) from Kolkata to
Berhampore at that time the driver of the offending
vehicle lost control and hit a road side tree and
capsized. As a result of the said accident, the victim
sustained severe injuries and was shifted to NRS
Medical College & Hospital, Kolkata where the victim
succumbed to his injuries and died on 25th December,
2012. On account of sudden demise of the victim, the
claimants being the widow, son, two minor sons, one
minor daughter and the mother of the deceased filed
application for compensation of Rs. 4,00,000/- under
Section 163A of the Motor Vehicles Act, 1988.
The claimants in order to establish their case
examined two witnesses and produced documents,
which have been marked as Exhibits 1 to 6
respectively.
The respondent no. 1-insurance company did not
adduce any evidence.
By order dated 8th February, 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.
After passing of the award, the appellant no. 6,
Fatema Bewa expired on 10th September, 2016 and by
the aforesaid order passed in CAN 2 of 2022, her name
has been expunged from the memorandum of appeal.
Upon considering the materials on record and the
evidence adduced on behalf of the claimants, the
learned Tribunal granted compensation of Rs.
1,59,500/- together with interest in favour of the
claimants under Section 163A of the Motor Vehicles
Act, 1988.
Being aggrieved by and dissatisfied with the
impugned judgment and award, the claimants have
preferred the present appeal.
Ms. Sima Ghosh, learned advocate for the
appellants-claimants submits that the learned Tribunal
erred in determining the income of the deceased at Rs.
15,000/- per annum whereas it ought to have
determined the income at Rs. 3,000/- per month since
at the time of accident, the victim was a labour under a
mason by profession. In the light of the aforesaid
submissions, she prays for enhancement of the
compensation amount.
Mr. Parimal Kumar Pahari, learned advocate for
the respondent no. 1- insurance company opposes such
prayer for enhancement of the compensation amount.
The only issue raised in the present appeal is
whether the learned Tribunal erred in determining the
income of the deceased.
With regard to the aforesaid issue, it is found that
the learned Tribunal has determined the income at Rs.
15,000/- per annum. However, considering that the
victim was a labour under a mason, monthly income is
determined at Rs. 3,000/- per month.
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)
Less: 1/3rd towards personal Rs. 12,000/-
and living expenses
Rs. 24,000/-
Multiplier 15 Rs. 3,60,000/-
(Rs. 24,000/- x 15)
Add: General Damages Rs. 9,500/-
Loss of estate: Rs. 2,500/-
Loss of consortium: Rs.5,000/-
Funeral expenses: Rs.2,000/-
Total compensation Rs. 3,69,500/-
Thus, the appellant nos. 1 to 5 (claimants) are
entitled to compensation of Rs. 3,69,500/- together with
interest @ 6% per annum from the date of filing of the
claim application (19.12.2013) till payment.
It is informed that the claimants have already
received the awarded sum of Rs. 1,59,500/- together
with interest in terms of the order of the learned
Tribunal.
Accordingly, the appellant nos. 1 to 5 (claimants)
are entitled to balance amount of compensation of Rs.
2,10,000/- together with interest @ 6% per annum from
the date of filing of the claim application (19.12.2013)
till payment.
The respondent no.1-insurance company is
directed to deposit the balance amount of compensation
and the interest indicated hereinabove by way of a
cheque before the learned Registrar General, High
Court, Calcutta within a period of six weeks from date.
The appellant nos.1 to 5 (claimants) are 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 indicated hereinabove,
the learned Registrar General, High Court, Calcutta
shall release the aforesaid amount in favour of the
appellant nos.1 to 5 (claimants), after making payment
of Rs. 5,000/- in favour of the appellant no. 1, widow of
the deceased towards spousal consortium, in equal
proportion and upon satisfaction of their identity and
payment of ad valorem Court fees, if not already paid.
The appellant no. 1, being mother and natural
guardian of minor appellant nos. 3, 4 and 5 shall
receive the share of the minors on their behalf and shall
keep the same in a Fixed Deposit Scheme of any
Nationalized Bank or Post Office till attainment of
majority by the said minors.
With the aforesaid observations, the appeal
stands disposed of. The impugned judgment and award
of the learned Tribunal stands modified to the above
extent. No order as to costs.
All the connected applications, if any, stand
disposed of.
Interim order, if any, stands vacated.
Urgent photostat copy of this order, if applied for,
be given to the parties upon compliance of necessary
legal formalities.
( Bivas Pattanayak, J.)
