Smt. Sibani Bouri & Ors vs The New India Assurance Co. Ltd. & ...
2023 Latest Caselaw 3631 Cal

05.06.2023
 Ct. no.654
 Sl. No.10
     ab/ss

                         IN THE HIGH COURT AT CALCUTTA
                       CIVIL APPELLATE JURISDICTION
                               (Appellate Side)

                                   FMAT 1215 of 2018


                               Smt. Sibani Bouri & ors.
                                        Vs.
                        The New India Assurance Co. Ltd. & anr.


                      Mr. Amit Ranjan Roy
                                        ...for the appellants-claimants


                      Mr. Rajdeep Bhattacharyya
                                         ..for the respondent-Insurance Co.

This appeal is preferred against the judgment and

award dated 15th June, 2018 passed by learned

Additional District Judge-cum-Judge, Motor Accident

Claims Tribunal, Fast Track, 2nd Court, Asansol, Paschim

Bardhaman in MAC Case No. 26 of 2016 (Old No. 23 of

2015) granting compensation of Rs.38,70,016/- together

with interest under Section 166 of the Motor Vehicles Act,

1988.

The brief facts of the case is that on 2nd January,

2015 at about 5 P.M. while the victim was proceeding

towards Haripur Bazar from his house at Parasia Colliery

Quarter by riding scooty bearing registration No. WB-

38AE/1305 and when he reached near Dashal More on

NH-60 (Raniganj Suri Road), the offending vehicle bearing

registration No. WB-37C/6511 (dumper) which was

driven in a rash and negligent manner dashed the said

victim's scooty from behind, as a result of which, the

victim sustained fatal injuries. Immediately, the local

people shifted the victim to Bahadur Health Centre where

the victim succumbed of his injuries and died. On

account of sudden demise of the victim, the claimants

being the widow, one major daughter and two minor

daughters filed application for compensation of

Rs.50,00,000/- 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 Exhibit-1 to 10, respectively.

The respondent No. 1-Insurance Company also

adduced the evidence of one witness and produced

document which has been marked as Exhibit- A series.

Upon considering the materials on record and the

evidence adduced on behalf of the respective parties, the

learned Tribunal granted compensation of Rs.38,70,016/-

together with interest 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. Amit Ranjan Roy, learned advocate for the

appellants-claimants submits that the learned Tribunal

erred in determining the age of the victim on the basis of

the photocopy of the Voters' Identity Card and oral

evidence of the wife of the victim (P.W.1) whereas it ought

to have considered the service records of the victim

namely, 'Form-B' being Exhibit- 10, which clearly shows

the date of birth of the victim to be 2nd February, 1973

and considering such date of birth, the age of the victim

at the time of accident comes to 42 years, thereby the

multiplier would be 14 instead of 11. He further submits

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

in National Insurance Company Limited versus

Pranay Sethi & Others reported in (2017) 16 SCC 680,

the claimants are entitled to an amount equivalent to

30% of the annual income of the deceased towards future

prospect. In the light of his aforesaid submissions, he

prays for enhancement of the compensation amount.

In reply to the contentions raised on behalf of the

appellants, Mr. Rajdeep Bhattacharyya, learned advocate

for the respondent No. 1-Insurance Company submits

that as per the oral evidence of the victim's wife (P.W.1),

the victim was 10 years older than her. In the affidavit-in-

chief, sworn on 4th May, 2017, P.W.1 has declared her age

to be 45 years. Considering such age of the P.W.1

appearing in the affidavit and her evidence that her

husband was 10 years older than her, the corollary goes

to show the age of the victim at the time of accident in the

year 2015 to be 50 years and such analogy gets support

from the Voters' Identity Card which records the age of

the victim to be 30 years as on 1st January, 1995. Thus,

the determination of the age by the learned Tribunal

considering such oral evidence of P.W.1 and the

photocopy of the Voters' Identity Card does not call for

interference. In the light of the aforesaid submissions, he

prays for dismissal of the appeal.

By order dated 2nd 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 and the case was

disposed of ex parte against him.

Having heard the learned advocates for the

respective parties, it is found that the appellants have

raised two-fold grounds in the present appeal. Firstly,

that the learned Tribunal ought to have determined the

age of the victim on the basis of service records and

thereby should have adopted the multiplier of 14 instead

of 11 and secondly, the appellants-claimants are entitled

to an amount equivalent to 30% of the annual income of

the deceased towards future prospect.

So far as the determination of age of the victim is

concerned, the learned Tribunal basing on the oral

evidence of P.W.1, wife of the deceased and the photocopy

of the Voters' Identity Card, came to the conclusion that

the victim-deceased at the time of accident was more than

50 years. Be that as it may, it is pertinent to note that the

learned Tribunal without any plausible reason ignored to

take into consideration the service records (Exhibit 10)

showing the date of birth of the deceased to be 2nd

February, 1973. The aforesaid document, that is, the

service records (Exhibit 10) has been proved by P.W.3,

Assistant Manager (Personnel), Eastern Coalfields Ltd.

Such document and its authenticity has never been

challenged either in the cross-examination of P.W.3 or by

producing any contrary evidence. It is placed on record

that the original Voter's Identity Card of the victim was

never produced before the learned Tribunal. The

photocopy of Voter's Identity Card of the victim, though

identified by P.W.1., was never proved or admitted into

evidence. Thus, the date of birth disclosed in the service

records is very much acceptable. Considering the date of

birth appearing in the service records of the deceased (i.e.

2nd February, 1973) the age of the victim comes to 41

years 11 months on the date of accident on 2nd January,

2015. Therefore, the multiplier to be adopted should be

14 instead of 11, as adopted by the learned Tribunal

following the principle laid down by the Hon'ble Supreme

Court in Sarla Verma and Others versus Delhi

Transport Corporation Ltd. & Another reported in

(2009) 6 SCC 121.

So far as the second issue is concerned, since the

victim at the time of accident was a permanent employee

of Eastern Coalfields Ltd. and was aged between 40 to 50

years, hence following the principle laid down by the

Hon'ble Supreme Court in Pranay Sethi's case (supra), the

claimants are entitled to an amount equivalent to 30% 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, the calculation of

compensation is assessed as follows:

Calculation of Compensation

Annual income Rs. 4,50,595/-

Less: Deduction of 1/3 towards Rs. 1,50,198/-

personal and living expenses

Actual income Rs. 3,00,397/-

Add: 30% towards future prospect Rs. 90,119/-

      Actual loss of income                   Rs. 3,90,516/-

      Adopting the multiplier 14              Rs. 54,67,224/-
      (3,90,516x14)

      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. 55,37,224/-

Thus, the total amount of compensation comes to

Rs.55,37,224/-. It is informed that the claimants have

already received an amount of Rs.38,70,016/- together

with interest in terms of order of the learned Tribunal.

Accordingly, the appellants-claimants are entitled

to balance amount of Rs.16,67,208/- together with

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

claim application (13.02.2015) till deposit.

Respondent no.1-Insurance Company is directed to

deposit the balance amount together with interest 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 assessed, if not already paid.

Upon deposit of the aforesaid amount, learned

Registrar General of this Court shall release the said

amount in favour of the appellants-claimants in equal

proportion, after making payment of Rs.40,000/- in favour

of appellant no.1, widow of the deceased, towards spousal

consortium, upon satisfaction of their identity and

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

Appellant no.1, being the mother and natural

guardian of minor appellant nos. 3 and 4, shall receive the

share of the minors on their behalf and shall keep the

share of the minors in a fixed deposit scheme of any

nationalised bank or post office till attainment of majority

by the said minors.

With the above observations, the instant appeal

stands disposed of. The impugned judgment and award of

the learned Tribunal is modified to the above extent.

No order as to costs.

All connected applications, if any, stand disposed of.

Interim order, if any, stands vacated.

Urgent photostat certified copy of the order, if

applied for, be given parties on compliance of all

necessary legal formalities.

            <                      (Bivas Pattanayak, J.)