Calcutta High Court (Appellete Side)
The Oriental Insurance Company ... vs Mamtaj Bibi & Ors on 22 March, 2023
22.03.2023
Ct. No.237
SL Nos.26
& 27
Rup
FMA 1588 of 2013
The Oriental Insurance Company Ltd.
Vs
Mamtaj Bibi & Ors.
With
COT 69 of 2017
Mamtaj Bibi & Ors.
Vs.
The Oriental Insurance Company Ltd.
Mr. Parimal Kr. Pahari.
... For the Appellant in FMA 1588 of 2013
Mr. Subir Banerjee,
Mr. Sandip bandhyapadhyay
Mrs. Ruxmini Basu Roy
... For Cross Appellant/Claimant Respondent
This appeal is directed against the judgment and
order passed by the learned Motor Accidental Claims
Tribunal, 4th Court Jalpaiguri on 15th January, 2013 under
Section 166 of the Motor Vehicle Act, 1988, whereby
learned Tribunal awarded compensation to the tune of Rs.
2,35,038/- after applying multiplier 11 and notional
income.
From the claim petition it is found that one Md.
Jamiruddin died in Motor accident by involvement of one
three wheeler Auto Van bearing No. WB 73/X- 1812 due to
rash and negligent driving on 23.10.2010 at about 12 noon
and for which Mekhliganj P.S. Case No.65 of 2010 dated
25.10.2010 under Sections 279/ 338 of the Indian Penal
Code was started and subsequently Section 304A was
added after death of the victim of Md. Jamirudin and after
investigation charge-sheet was filed.
So far as accidental death is concerned, I find that
the same was duly corroborated by P.W.2 (son of the
deceased) and P.W. 3 (eye witness). That apart, the
accidental death was further confirmed by the written
complaint, seizure list, charge-sheet and post-mortem
report.
The only issue in this appeal on behalf of the
Insurance Company is that the relevant point of time the
driver of the offending vehicle was possessing learner
license and in that case violation of policy was committed.
Accordingly, learned advocate on behalf of the Insurance
Company submitted that Insurance Company is not liable
to pay any compensation. On the other hand, learned
advocate on behalf of the respondent has filed a cross-
appeal, contending, inter alia, that learned Tribunal did not
consider the future prospect and general damages.
Pursuant to principle laid down by National Insurance
Co. Ltd vs. Pranay Sethi and Ors. reported in 2017 ACJ
2700.
From the evidence of P.W.2 it appears that income of
the deceased was Rs.1,500/- per month from his business,
but there is no specific evidence on record regarding nature
of business or any document thereof and that is why the
learned Tribunal rightly held the income of the deceased
was Rs.1,800/- per annum. It is true that learned Trial
Judge did not allow the future prospect and general
damages also erred in deducting 1/3rd towards living
expenses instead of 1/4th.
In the aforesaid view of the matter and the facts and
circumstances of the case, I modify the compensation
amount as follows:-
Monthly Income = Rs.1500/-
Annual Income (Rs.1500x12) = Rs.18,000/-
Add future prospects 10% =Rs. 1,800/-
(18,000 x 10%)= 1,800/- Rs.19,800
Less deduction 1/4th = Rs.4,950/-
of the amount (Rs.19,800/-)
= Rs.14,850/-
Multiplier 11 (Rs.14,850/-x 11) = Rs.1,63,350/-
Add Medical Expenditure
Granted by the Tribunal = Rs. 93,538/-
Rs.2,56,888/-
Add General Damages Rs. 70,000/-
Total Compensation of Rs.3,26,888/-
Therefore, the claimants are entitled total
compensation to the tune of Rs.3,26,888/- along with the
6% interest per annum.
It is submitted on behalf of the Insurance Company
that awarded amount of Rs.2,35,038/- has already been
deposited with the office of the learned Registrar General,
High Court, Calcutta. Appellant/Insurance Company is
directed to pay rest amount of Rs.91,850/- along with 6%
interest per annum from the date of filing of this
application till the date of deposit of this amount.
Appellant/Insurance Company is also directed to
pay interest at the rate of 6% per annum on the amount
of Rs.2,35,038/- from the date of filing of the application
till 17.05.2013.
Appellant/Insurance Company is directed to
deposit the rest amount with the learned Registrar
General, High Court, Calcutta within six weeks from date.
Learned Registrar General, High Court, Calcutta is
directed to disburse the amount to the four claimants in
equal share with proper identification and proof.
In view of the principle laid down in Oriental
Insurance Co. Ltd. Vs. Nanjappan & Ors. reported in
2004 ACJ 721 and also in a case of Shamanna & Ors.
V. The Divisional Manager, The Oriental Insurance
Co.& Ors. reported in AIR 2018 SC 3726, I find no
other alternative but to direct the appellant/Insurance
Company to pay the entire compensation to the
claimants/respondents and to recover it through
execution proceedings.
With the aforesaid observation, the FMA 1588 of
2013 along with COT 69 of 2017 stand 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.)
