Calcutta High Court (Appellete Side)

Aptabuddin @ Aarfatab & Anr vs Pranabananda Mondal & Anr on 31 March, 2023

31.03.2023                IN THE HIGH COURT AT CALCUTTA
 Ct no. 654                  CIVIL APPELLATE JURISDICTION
   Sl. 3
     (Ali)
                                   APPELLATE SIDE

                               F.M.A.T. 1427 of 2015
                           Astabuddin Gazi @ Aftaruddin @
                          Aptabuddin @ Aarfatab & Anr.
                                        versus
                             Pranabananda Mondal & Anr.

                    Mr. Ashique Mondal
                    Mr. Anup Kumar Bag ...for the appellants/claimants.

                    Mr. Rajdeep Bhattacharjee
                        ...for the respondent no. 2/insurance company.

This appeal is preferred against the judgment and

award dated 29th June, 2015 passed by learned Judge,

Motor Accident Claims Tribunal, Fast Track, 2nd Court,

Alipore, 24-Parganas (South) in M.A.C. Case no. 13 of 2010

granting compensation of Rs.2,90,000/-together with

interest in favour of the claimants under Section 166 of the

Motor Vehicles Act, 1988.

The brief fact of the case is that on 15th February,

2010 at about 3:45 PM while the victim, 7 years old minor

girl was returning home from school and when she reached

near Paschim Raghunathpur Bus Stop on Diamond Harbour-

Kakdwip Road at that time the offending vehicle bearing

registration no. WB-19/5211 (Tata -1109) coming in a high-

speed in rash and negligent manner dashed the victim from

behind resulting in death of the victim on the spot. On

account of sudden demise of the minor victim girl, the

parents filed application for compensation of Rs.5,00,000/-

under Section 166 of the Motor Vehicles Act, 1988 together

with interest.

The claimants in order to establish their case

examined three witnesses and produced documents which

have been marked as Exhibits 1 to 12 respectively.

The insurance company also adduced evidence of its

investigator and produced documents which were marked

Exhibit A and B respectively.

Upon considering the materials on record and the

evidence adduced on behalf of the respective parties, the

learned tribunal granted compensation of Rs. 2,90,000/-

together with interest under Section 166 of the Motor

Vehicles Act, 1988 in favour of the claimants.

Being aggrieved by and dissatisfied with the

impugned judgment and award the claimants have preferred

the present appeal.

Mr. Ashique Mondal, learned advocate for appellants-

claimants submitted that the learned Tribunal erred in

considering notional income of Rs.15,000/- in case of minor-

deceased whereas it ought to have applied minimum wages

for skilled labour as per the Kolkata Gazette published

during the year 2010. In support of his contention he relied

on a decision of the Hon'ble Supreme Court passed in Kajal

-Versus- Jagdish Chand & Ors. reported in (2020) 4 SCC

413 and Master Ayush -Versus- Branch Manager,

Reliance General Insurance Company Limited and Anr.,

reported in (2022)7 SCC 738. He also placed Kolkata

Extraordinary Gazette dated August 27, 2010. To

further buttress his contentions he relied on the decision of

Hon'ble Supreme Court passed in Kirti and Others versus

Oriental Insurance Co. Ltd reported in 2021 ACJ 1. He

also relied on the decision of this Court passed in Md Raju

& Anr versus United India Insurance Company Limited

& Anorther (FMA 1391 of 2019). He further submitted

that in Meena Devi versus Nunu Chand Mahato reported

in 2022 ACJ 2478 the Hon'ble Supreme Court accepted

notional income of Rs.30,000/- per annum as the income of

the minor-deceased.

Further relying on the decision of Hon'ble Supreme

Court in Kajal's case (supra) he indicated that in case of

minor-deceased for selecting multiplier the 2nd Schedule of

the Act should be taken into account but the learned

tribunal took into account average age of the parents of the

deceased for selecting multiplier.

As far as future prospect is concerned he relied on

the decision of Kajal's case (supra) as well as Master Ayush's

case (supra) where the Hon'ble Supreme Court has

considered 40% of the annual income towards future

prospect.

He further submitted that the general damages of

Rs.30,000/- under the conventional heads should also be

taken into account with escalation of 10% since 3 years

have already elapsed following decision in National

Insurance Company Limited versus Pranay Sethi and

Others reported in 2017 ACJ 2700.

In the light of his above submission, he prayed for

enhancement of the compensation amount.

In reply to the contention raised on behalf of the

appellants-claimants, Mr. Rajdeep Bhattacharya, learned

advocate for the respondent no.2-insurance company

submitted that since the deceased was a minor, the learned

tribunal rightly took into account notional income of

Rs.15,000/- per annum for assessment of compensation

which does not call for any interference. In support of his

contention he relied on the decision of the Hon'ble Supreme

Court passed in Rajendra Singh & Ors. versus National

Insurance Company Limited and Ors., reported in

(2020)7 SCC 256. Further relying on the decision of Meena

Devi (supra) he submits at best the notional income may be

considered at Rs.30,000/- in the facts of this case.

In view of the above submission he prays that the

order of the learned Tribunal to be affirmed.

By order dated January 31, 2023 service of notice of

appeal upon the respondent no.1, the owner of the offending

vehicle has been dispensed with since he did not contest the

claim application.

Having heard the learned advocates for the respective

parties, it is found that the appellants-claimants have

thrown the challenge to the award precisely on four

grounds; firstly, that the learned Tribunal erred in

determining the income of the deceased without taking into

consideration the minimum wages payable to a skilled

labour prevalent at the relevant point of time, secondly, the

learned Tribunal erred in selecting the multiplier basing on

the average age of the parents of the deceased instead of

adhering to 2nd Schedule of the Act and not considering the

age of the deceased, thirdly, the claimants are entitled to

future prospect at the rate of 40% of the annual income of

the deceased and lastly, the claimants are entitled to

general damages under the conventional head to the tune of

Rs.30,000/- with escalation of 10% .

With regard to the first issue relating to

determination of income of the deceased (Minor), it is

found that the learned Tribunal has considered income of

Rs.15,000/- per annum of the minor victim.

Although in Kajal's Case (supra) and Master Ayush's

Case (supra) the Hon'ble Supreme Court has considered the

income of the minor on the basis of minimum wages payable

to skilled labour yet it is found that the facts are

distinguishable with the case at hand and moreover both

the cases arose out of injury case and not from death case.

The Hon'ble Supreme Court in Rajendra's Case

(supra) did not accept the ratio in Kajal's Case due to

aforesaid reasons.

In Satender's Case (supra) the Hon'ble Supreme court

observed as follows.

"12. In cases of young children of tender age, in view of certainties amount, neither their income at the time of death nor the prospects of the future increase in their income nor chances of advancement of their carrier are capable of proper determination on estimated basis. The reason is that at such an early age the uncertainties in regard to their academic pursues achievements in carriers and thereafter advancement in life are so many that nothing can be assumed with reasonable certainty. Therefore,

neither the income of the deceased child is capable of assessment on estimated basis nor the financial loss suffered by the parents is capable of mathematical computation."

From the aforesaid observation of the Hon'ble Court

it is evident that assessment of income of a minor-deceased

is incapable to be made on estimated basis.

During the course of hearing both the learned

advocates of the appellants-claimants as well as respondent

No. 2 insurance company has relied on the decision of

Meena Devi (supra). In the aforesaid report the Hon'ble

Supreme Court has applied its decision passed in Kishan

Gopal versus Lala reported in (2014) 1 SCC 244 and

accepted notional income of Rs.30,000/- as income of a

child aged 12 years student of class 5 studying in a private

school. Bearing in mind the observation of the Hon'ble

Supreme Court in Meena Devi (supra) I am of the view that it

would be reasonable to accept the notional income of

Rs.30,000/- in case of minor deceased. For such reason the

ratio in Md. Raju (supra) passed by the score is not applied

to the present case.

The report in Kirti (supra) is factually different since

the case before the Hon'ble Supreme Court related to

determination of income of a home-maker and thus is

distinguishable in facts.

With regard to multiplier, it is found that the learned

Tribunal selected multiplier considering the age of the

parents. However, in view of the decision of the Hon'ble

Supreme Court passed in Pranay Sethi (Supra) and

subsequent decision of Hon'ble Supreme Court in M/s.

Royal Sundaram Alliance -Versus- Mandala Yadagari

Goud, reported in (2019) 5 SCC 554, it is now settled that

age of the deceased is to be taken into consideration for

selecting multiplier. Following the observation the Hon'ble

Supreme court in Kajal's case the 2nd Schedule of the Act

should be considered for selecting the multiplier. As per the

2nd Schedule since at the time of accident admittedly the

victim was 7 years old, the multiplier of 15 should be taken

into account.

With regard to future prospect I find substance in the

submission of Mr. Mondol that an amount equaling to 40% of

the annual income of the deceased minor should be taken in

to account. Accordingly, bearing in mind the facts and

circumstances of the case, the claimants are entitled to an

amount equaling 40% of the annual income of the minor

deceased towards future prospect.

So far as the general damages are concerned,

following the observation of the Hon'ble Supreme Court in

Pranay Sethi's case (supra) the claimants are entitled to

damages amounting to Rs.30,000/- and 10% escalation on

the aforesaid general damages.

The other finding of the learned Tribunal has not been

challenged in the present appeal.

The compensation is calculated as hereunder.

Calculation of compensation

Income ...........................Rs. 30,000/-

Add: 40% future prospect .....Rs. 12,000/-

Rs. 42,000/-

Adopting multiplier 15 ( Rs. 42,000/-x 15) .......... Rs.6,30,000/-

Add: General Damages .........................Rs. 30,000/- Add: 10% escalation...............................Rs. 3,000/- Total Compensation................. Rs 6,63,000/-

It is informed that the claimants have already received

an amount of Rs.2,90,000/- together with interest as per

order of the learned Tribunal. Accordingly, the claimants are

entitled to the balance amount of compensation of

Rs.3,73,000/- (in equal proportion) together with interest at

the rate of 6 per cent per annum from the date of filing of

the claim application (i.e. 07.04.2010) till deposit.

The respondent no.2-insurance company is directed

to deposit the aforesaid balance amount of compensation of

Rs.3,73,000/- (in equal proportion) together with interest at

the rate of 6% per annum from the date of filing of the claim

application (i.e. 07.04.2010) till deposit by way of Cheque