Calcutta High Court (Appellete Side)

The New Assurance Co. Ltd vs Smt. Sahana Bibi & Ors on 22 June, 2023

                                   1


              IN THE HIGH COURT AT CALCUTTA
                           Appellate Side
Present: -      Hon'ble Mr. Justice Subhendu Samanta.
                     F.M.A No. - 668 of 2012


                       IN THE MATTER OF

                    The new Assurance Co. Ltd.
                                 Vs.
                      Smt. Sahana Bibi & Ors.

For the Appellant           : Mr. Gopa Das Mukherjee, Adv.


For the Respondent          :   Mr. Krishanu Banik, Adv.


Judgment on                 : 22.06.2023



Subhendu Samanta, J.

The instant appeal is directed against an award passed

u/s 163 A of Motor Vehicles Act by the Motor Accident Claims

Tribunal -cum- Additional District Magistrate Fast Track 3rd

Court Tamluk, Purba Medinipur in MAC Case No. 21 of 2010.

The brief fact of the case is that the predecessor of the

claimants/respondents namely Golam Ajahar Sk. on 4th

February 2007 at about 02:00 P.M. was going to Nandigram as

a helper of a Mini Truck being No. - WB/290634 from

Teropekhya to Nandigram. The said vehicle was running with

extreme high speed endangering to human life and safety.

When the said vehicle reached at Bayal village it capsiezed on

the left side on the road as a result the victim sustains serious

injury all over his body and succumbed to his injuries on the

way to the hospital. Thus, the claim case was preferred before

the Learned Tribunal u/s 163(A) of Motor Vehicles Act. The

Learned Tribunal after hearing the parties and after taking

evidences allowed the claim case directing the present

appellant to pay compensation to the claimant/respondents

amounting to Rs. 400000/-

Being aggrieved and dissatisfied with that award the

instant appeal has been preferred by the insurance company.

Learned Advocate for the Insurance company appellant

submitted before this court that the award passed by the

Learned Tribunal is wholly arbitrary whimsical and bad in law.

No quantum of assessment was made by the Learned Tribunal

in passing the impugned award. She further raised an

objection that the applicable multiplier of this case would be

11. Considering the age of the deceased as 54 according to the

PM report. The Learned Advocate for the appellant also

submitted that the present victim being the helper/khalasi of

the mini track is entitled to compensation according to

Workmen Compensation Act 1923.

Learned Advocate for the claimant respondents raised

strong objection and submitted that the Learned Tribunal did

not make the assessment for providing just compensation to

the claimants but in this case the sole bread earner of the

family of the claimant/respondent has died in a road traffic

accident and the claimants preferred an application u/s 163 A

of the Motor Vehicles Act. The Learned Tribunal was created

under the provisions of Motor Vehicles Act to provide just and

proper compensation to the heirs of the victim of a RTA. He

further submitted that the applicable multiplier of this case

would be 13 according to the voter identity card of the

deceased.

Apart from computation of just and proper

compensation, the single point left to decide in this appeal is

"when there is no document to prove of the age of the

victim except voter Identity Card and PM report, which

document would taken to be the reliable document for

assessing the applicable multiplier of a compensation

case".

Learned Advocate for the respondent cited a decision

reported in 2008 ACJ 386, Jenali & Ors Vs. National

Insurance Company Limited, wherein the Division Bench of

this court has held that the voter identity card is being

prepared in due discharge of the official duty of senior officers

thus the voter identity card is admissible in evidence in terms

of section 35 of the Evidence Act.

He also cited a decision of Madras High Court passed in

the case of Divisional Manager Vs. K. Veeralakshmi wherein

in calculating just and proper compensation in a Motor

Accident Claim Case, the Hon'ble Madras High Court did not

rely upon the age mentioned in the post mortem report.

Finally the Learned Advocate for the respondent cited a

decision of the Division Bench of this Hon'ble Court passed in

Paritosh Saha and others Vs. Oriental Insurance Company

Limited. Wherein the Division Bench of this court has decided

the same question raised before this court here and has held

that the voter identity card is an official document which can

only be ascertained to be true though a different age was

mentioned in the post mortem report.

Heard the Learned Advocate perused the citations

advanced by the Learned Advocate for the respondent it is true

that the post mortem was conducted by an experienced

Autopsy surgeon who right down the age of the deceased only

on the basis of his experience. It is also admitted that no

ossification test to ascertain the actual age of the deceased was

conducted by the Autopsy Surgeon at the time of post mortem

over the dead body of the deceased. Moreover, the victim of

road traffic accident case usually appeared in the hospital not

in a normal condition. At that time the experienced eye of a

doctor can be misguided thus it is not scientific. On the other

hand the voter identity card of a person was prepared by the

various officers of the Election Commission of India in a set

rules. They usually recorded the self assessment age of a

person at the time of preparation of the voter identity card.

There is a very few chance of manipulation of the age as at the

time of preparation of voter identity card. There would have not

personal gain of the person applying the voter identity card by

suppressing his actual age.

Considering the entire facts and circumstances and

considering the ratio of the judgment passed by the Hon'ble

Apex Court as well as this court I am of a view that in absence

of any other reliable document regarding proof of age, the age

mentioned in the voter identity card should be treated as more

reliable than the post mortem report. The multiplier of a

compensation case should be assessed according to the age of

the deceased written in the voter identity card.

In this case according to the post mortem report the age

of the deceased was 54 at the time of accident but according to

the voter identity card his age was 33 on 01.01.1995, the date

of accident is on 4th February 2007 thus according to the voter

identity card the age of the deceased was 45 years at the day of

accident. Thus considering the age of the deceased in voter

identity card the deceased come under the age group of 45 to

50. According to the judgment of Hon'ble Supreme Court made

in Sarla Verma & Ors Vs. Delhi Transport Corporation and

Another. Reported in 2009 ACJ 1298 the multiplier to be

adopted for determining the compensation should be 13.

Just and proper compensation of this case is assessed

hereunder:

Monthly income (notionally) Rs. 3000/-

Yearly Income (3000 X 12) Rs. 36000/-

Deduction (1/4th of Yearly Income) Rs. 9000/-

__ _____________ Rs.27,000/-

Future Prospects (25% over the Income according to 'Pranay Sethi')

Rs. 6,750/-

______________ Rs. 33,750/-

Multiplier (13 according to 'Sarala Verma') (33,750 X 13) = Rs. 4, 38,750/-

General Damages                               Rs. 70,000/-
                                             ___________
Total                                        Rs. 5, 08,750/-

The appellant insurance company is directed to pay

compensation to the claimants through the office of the

Tribunal along with 6% interest per annum from the date of

filing of the claim application vide separate equal account

payee cheques in the name of the each claimants within 50

days from the date of passing the award failing which the

award shall carry further 9% interest per annum till its actual

realisation.

The respondent No. 1 is at liberty to withdraw the

cheques in favour of the minor claimants and shall deposit the

same in the post office or any Nationalised Bank and she is at

liberty to withdraw the interest accrued therein for the welfare