Calcutta High Court (Appellete Side)
Smt. Neeraj Niraj Singh & Ors vs National Insurance Company Ltd. & ... on 16 March, 2023
31 16.03.
Ct 2023 FMA 1193 of 2012
237
rup
Smt. Neeraj Niraj Singh & Ors.
Versus
National Insurance Company Ltd. & Anr.
Mr. Krishnu Banik, ... For the appellants
Mr. Rajesh Singh. ... For the respondents
The appeal is directed against the judgment and
award passed by learned Motor Accident Claims
Tribunal, 5th Court, Howrah in connection with MAC
Case No. 287 of 2006, whereby learned Tribunal awarded
a sum of Rs.7,62,170/- as compensation.
Feeling aggrieved the instant appeal has been
preferred on the ground that learned Tribunal did not
consider the income tax return for the assessment year
2004-05, whereas learned Tribunal took average income
from the two income tax returns for the assessment year
2004.05 and assessment year for the period from
01.04.2005 to 31.03.2006. That apart the appeal has
been preferred also claiming future prospect and general
damages of Rs.70,000/- in view of the decision of the
Hon'ble Apex Court in the case of National Insurance
Co. Ltd vs. Pranay Sethi and Ors. reported in 2017
ACJ 2700.
It is not disputed that one Shyam Sundar Singh, a
man of 37 years, died in an motor accident on
20.02.2006 by the involvement of vehicle bearing No.
WB-03/8360 due to rash and negligent driving on NH-6
near Nibra Lalbari under Domjur Police Station. On the
relevant date at about 18.45 hours the accident took
place due to rash and negligent driving of the offending
vehicle and said Shyam Sundar Singh sustained severe
injury and succumbed to injuries. The fact of accidental
death due to rash and negligent driving of the offending
vehicle has been substantiated by the evidence of PW-2
who witnessed the accident and that accident was
reported to Domjur P.S where a case No. 38/2006 dated
20.02.2006 under Section 279/338/427/304A I.P.C was
started and after investigation charge-sheet was
submitted against driver of the said offending vehicle.
In course of evidence, certified copy of the FIR,
Charge-sheet, Postmortem Report, Insurance Policy, IT
return etc. were admitted in evidence. No specific
argument has been advanced before this court on the
issue of accidental death of Shyam Sundar Singh by the
involvement of the offending vehicle bearing No. WB-
03/8360 due to rash and negligent driving.
In course of evidence two I.T returns filed and
marked as Exhibit- 10 and Exhibit 10/1. Learned Judge
of the Tribunal considered the average income showing in
two IT returns as Exhibit 10 and Exhibit-10/1 for the
assessment year 2004-05 and assessment year for the
period from 01.04.2005 to 31.03.2006.
Mr. Krishnu Banik, learned advocate appearing on
behalf of the appellant/claimant assailed the judgment
only on the issue of considering average income from two
IT returns. According to Mr. Banik, learned Tribunal
ought to have considered the income tax return for the
assessment year 2004-05 (exhibit 10).
Mr. Rajesh Singh, learned advocate appearing on
behalf of the Insurance Company has referred to Exhibit
10/1 showing income of Rs.88999/- for the period from
01.04.2005 to 31.03.2006 which was the income of the
deceased prior to his death on 20.02.2006.
I find substance in the argument advanced by Mr.
Singh. In assessing compensation it is the duty of the
court to consider the income prior to death of the victim.
In this case, Exhibit 10/1 clearly shows that Shyam
Sundar Singh earned Rs. 88,999/- for the period from
01.04.2005 to 31.03.2006 just prior to his death.
Therefore, I do not find any reason to discard the income
appearing in income tax return exhibit 10/1.
In the aforesaid view of the matter, I find it
necessary to modify the compensation according to
income of the deceased as per income tax return for the
period from 01.04.2005 to 31.03.2006 as follows:
. Annual Income Rs. = Rs.89,000/-
2. Future Prospect be assessed 25% i.e = Rs. 22,250/-
3. Total Rs. 1,11,250/-
4.1/3 deduction personal (1,11,250-37,083) Rs. 74,167/-/-
living expenses
5. Use Multiplier (Rs.74,167 x 14) Rs. 10,38,338/-
6. Add General Damages Rs. 70,000/-
Total ________________
Rs. 11,08,338/-
7. Less awarded amount Rs. 7,62,170/-
(Already received)
________________
Enhanced amount Rs. 3,46,168/-
It is reported that claimants have already received
amount of Rs.7,62,170/-. Now claimants are entitled to
enhanced compensation of Rs.3,46,168/- along with
interest at the rate of 6% per annum from the date (i.e.
7.8.2006) of filing the claim application till the deposit of
the amount.
The claimants are also entitled to 6% interest per
annum on the awarded amount of Rs.7,62,170/- from
the date (i.e. 7.8.2006) of filing claim application till the
deposit of the amount before the Tribunal by the
Insurance Company.
Accordingly, National Insurance Company Ltd. is
directed to deposit the enhanced amount of
Rs.3,46,168/- along with interest of 6% per annum from
the date (7.8.2006) of filing of the claim application till
the deposit of the amount. Insurance Company is further
directed to pay the interest @6% per annum on the
awarded amount (by Tribunal) from the date of filing
claim petition till the date of deposit of the awarded
amount before the Tribunal, subject to adjustment of the
amount, if paid, towards interest.
Insurance company is directed to deposit the
aforesaid amount before the office of the learned
Registrar General within six weeks from date.
Therefore, the claimants are entitled to the
amount deposited by the Insurance Company subject to
the payment of ad valorem court fees on the amount of
Rs.1,08,338/-.
Learned Registrar General is requested to disburse
the amount to the claimants along with interest in equal
share and proportion as the minor have already attained
the age of majority by lapse of time, upon proper
identification and proof.
With the aforesaid observation, the FMA 1193 of
2012 stand disposed of.
Pending applications, if there be any, stand also
disposed of.
Let a copy of this order along with Tribunal records
shall be transmitted back to the learned Tribunal
immediately.
Urgent certified copy of this order, if applied for, be
given to the appearing parties as expeditiously as
possible upon compliance with the all necessary
formalities.
(Bibhas Ranjan De, J.)
