Calcutta High Court (Appellete Side)

Dipali Rana & Anr vs National Insurance Co. Ltd. & Anr on 16 June, 2023

                         IN THE HIGH COURT AT CALUTTA
                            Civil Appellate Jurisdiction
16.06.2023
  SL No.26
Court No. 551
    Ali


                             F.M.A.T. 1098 of 2014

                                      Dipali Rana & Anr.
                                     Versus
                        National Insurance Co. Ltd. & Anr.

                 Mr. Pingal Bhattacharyya,
                 Mr. Rajdeep sinha
                                      ...for the appellant-claimant.

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

                            The instant appeal is directed against the

                judgment and order dated 19th May, 2014 passed by

                learned Additional District Judge, First Track 2nd

                Court, Tamluk, Purba Medinipur             in M.A.C. Case

                no. 144 of 2013 under Section 166 of the Motor

                Vehicles       Act,      granting    compensation      of

                Rs.3,69,500/- in favour of the claimant along with

                interest.

                         The brief fact of the case is that the

                appellant preferred the claim application under

                Section 166 of the Motor Vehicles Act due to sad

                demise of their predecessor, namely, Jhantu Rana

                who died in road trafficking accident on 29th August,

                2012.

                         The          respondent-insurance       company

contested the claim case before the learned tribunal

and after hearing the parties and after taking the

evidences of the claimant the learned tribunal has

passed the impugned order in favour of the present

appellant to the tune of Rs.3,69,500/- along with

interest @ 6% per annum.

Being aggrieved by and dissatisfied with the

impugned judgment and award the instant appeal

has been preferred.

Basically, there are only three points raised

in the instant appeal. Firstly; whether, the income of

the deceased which was adopted by the learned

tribunal to be the notional income is correct to the

facts and circumstances of the case. Secondly;

whether the future prospect would be considered in

this case by virtue of the judgment of Hon'ble

Supreme Court passed in Pranay Sethi, and

thirdly, whether the multiplier adopted by the

learned tribunal of this case is erroneous or not by

virtue of the judgment of Hon'ble Apex court passed

in Sarla Verma's Case.

Learned advocate for the parties are

consented to the law of land pronounced by Hon'ble

Apex Court in Pranay Sethi and Sarla Verma.

Perused the materials on record. In considering the

submission in respect of future prospect according

to the judgment of Hon'ble Apex Court passed in

Pranay Sethi future prospect would be 25% in this

case as the deceased was aged about 41 years at the

date of accident and he was self-employed.

The general damage of this case would be

70,000/- according to the direction of the Hon'ble

Apex Court passed in Pranay Sethi. It is also

admitted that the multiplier in this case would be 14

instead of 15 according to the judgment of Sarla

Verma.

The sole point of consideration at this stage

is left that whether the notional income adopted by

the learned tribunal i.e. Rs. 3,000/- per month of

the deceased would be justified.

Learned advocate for the respondent-

insurance company submitted before this court that

the impugned award passed by the learned tribunal

is not at all adverse to the point. Learned tribunal

has considered the materials on record including the

exibit-7; wherein it has been stated that the

deceased had a blacksmith shop and he had a shop

wherefrom he used to earn Rs. 5,000/- per month to

6,000/- per month. This fact was correctly

disbelieved by the learned tribunal.

Learned advocate for the insurance company

also pointed out that there is no cogent satisfactory

and believable documents before the learned

tribunal to hold that the deceased was earn Rs.

5,000/- per month or 6,000/- per month.

The claimant also did not file any income

proof, Trade Licence and rent paper/ownership

document for the purpose of his shop room etc. to

prove that he had a shop at that point of time. He

further pointed out that the observation of learned

tribunal in respect of the income of the deceased is

quite justified. However, he frankly submitted that

according to the prevalent practice adopted by this

Hon'ble Court the income of the deceased who died

between the years 2011 to 2014 would be 4,000/-

per month.

Learned advocate for the appellant

submitted that the income adopted by the learned

tribunal is erroneous. The claim application stated

the income of the deceased to be 5,000/- per month.

It is admitted that the deceased was a blacksmith

shop but not a daily labour having no document of

profession of income. He further pointed out that

P.W.-1 was successfully in her cross examination

and in her examination-in-chief. She specifically

stated that her husband used to earn Rs. 5,000/-

per month as a blacksmith. He again pointed out

that the certificate issued by the Pradhan was

marked by the learned tribunal as exibit-7 which

indicated the place of shop room of the deceased. He

further argued that the learned tribunal has

erroneously not considered the document i.e. exibit-

7. Thus, the income of the deceased must be

5,000/- per month at least.

Heard learned advocate and perused the

materials on record. This is an appeal preferred

against an order of the learned tribunal who passes

the order on the basis of an application under

Section 166 of the Motor Vehicles Act. In

considering the pleadings of the claimant it appears

that they stated that the deceased was a blacksmith

shop and he had a shop, the monthly income of the

deceased was stated to be 5,000/- per month. In

support of their claim P.W.-1 was deposed alongwith

documents including the certificate issued by the

Satish Samanta Gram Panchayet. The validity of the

document i.e. exibit-7 was challenged by the

insurance company. On perusing the exibit-7, it

appears that the Prodhan, Satish Samanta Gram

Panchayet Gopalpur, Mahishadal, Purba Medinipur

issued the certificate. The certificate was exhibited

as exibit-7 without objection of the insurance

company, however, at the time of argument

insurance company raised objection.

It is true that Pradhan of a Panchayet had

no authority to issue income proof certificate of a

person residing his Gram Panchayet. But at the

same time, it appears that the present deceased was

not a daily labour but he was a blacksmith shop. It

is immaterial whether the claimants are successfully

proof the income proof certificate or not but at the

same time it is true that the occupation of the

deceased was successfully proof. The deceased died

in the year 2012, at the time the monthly income of

the blacksmith shop cannot be less than Rs.

5,000/- .

Furthermore, this is a social beneficial

legislation where strict proof of evidence required

under the General Codes and Evidence Act is not

required. In these cases, it has to be looked into

whether the materials are convincing or not. Why a

person of vicinity tell lie? The certificate was issued

much prior to the date of examination. Thus in my

view, the learned tribunal was erroneous for not

believing the evidence of P.W.-3.

Considering the same, I am of the view that

the income of the deceased adopted by the learned

tribunal is not correct. The claimants have

successfully proved the income of the deceased and

no contrary document was adduced or proved by the

insurance company. Thus, in this case the income of

the deceased would be rightly be taken as 5,000/-

per month.

Considering the entire circumstances the

just compensation of the case is recasted

hereunder:-

Calculation of compensation

Monthly Income....................................Rs.5,000/- Annual Income...(Rs.5,000/- X 12)...... Rs.60,000/- Less: Deduction of 1/3rd of the Annual Income (towards personal and living expenses).........Rs.20,000/-

Rs.40,000/-

Add:Future prospect 25%.......................Rs 10,000/-

Rs. 50,000 Adopting multiplier 14( Rs.50,000/- X 14).Rs.7,00,000/- Add: General Damages...........................Rs.70,000/-

Rs. 7,70,000/-

Less: Awarded .......................... Rs.3,69,500/- Total Compensation......................Rs.4,00,500/-

The insurance company is directed to pay

the amount as stated above alongwith interest @ 6%

per annum from the date of filing of the claim

application within 50 days from the date of passing

of the award failing which the award shall carry

further interest @ 8% per annum till its actual

realization. The other portion of the impugned