Swapna Bera & Ors vs The New India Assurance Co. Ltd. & ...
2023 Latest Caselaw 3229 Cal

 08.05.2023                  IN THE HIGH COURT AT CALCUTTA
 Ct. no.654                   CIVIL APPELLATE JURISDICTION
Item no.100                           (Appellate Side)
   sn/ss
                                        FMA 475 of 2021

                                  Swapna Bera & Ors.
                                          Vs.
                           The New India Assurance Co. Ltd. & Ors.

                       Ms. Seema Ghosh
                                          ...for the Appellants
                      Mr. Sanjoy Paul
                                          ..for the Insurance Co./
                                                   respondent no.1

This appeal is preferred against the judgement and

award dated 8th July, 2019 passed by the learned

Additional District Judge-cum-Judge, Motor Accident

Claims Tribunals, 3rd Court, Suri, Birbhum in MAC case

no.118 of 2015 granting compensation of Rs.35,51,500/-

together with interest in favour of the appellants-

claimants under Section 166 of the Motor Vehicles Act,

1988.

The brief fact of the case is that on 27th January,

2015 at about 09-55 hours while the victim was

proceeding to his office situated at Abdarpur riding his

bi-cycle through Panagarh-Moregram Highway and

when he reached FCI go-down at that time the

offending vehicle bearing registration number WB-

37C/4449 (truck) driven in a high speed and in rash

and negligent manner dashed the victim, as a result of

which the victim sustained severe injuries on his

person and died on the spot. On account of sudden

demise of the victim, the claimant being the widow, two

sons and married daughter filed application for

compensation of Rs.40,00,000/- together with interest

under Section 166 of the Motor Vehicles Act, 1988.

The appellants-claimants in order to establish their

cases examined three witnesses and produced documents

which have been marked as Exhibits 1 to 11

respectively.

The respondent no.1-insurance Company did not

adduce any evidence.

Upon considering the materials on record and

evidence adduced on behalf of the claimants, the learned

Tribunal granted compensation of Rs.35,51,500/-

together with interest in favour of the claimants under

Section 166 of the Motor Vehicles Act, 1988.

Being aggrieved by and dissatisfied with the

impugned judgement and award of the learned Tribunal,

the claimants have preferred the present appeal.

Ms. Seema Ghosh, learned advocate for the

appellants-claimants, submits that the learned Tribunal

erred in determining the income of the deceased by not

considering the statement of earnings and deductions

noted in Exhibit-11 which ought to have been considered

for assessment of just compensation. She further submits

that deduction towards personal and living expenses of

the deceased should be 1/4th instead of 1/3rd since the

number of dependants is 4(four). Furthermore, she

submits that the claimants are entitled to general

damages of Rs.70,000/- under the conventional heads. In

view of her aforesaid submissions, she prays for

enhancement of the compensation amount.

In reply to the contentions raised on behalf of the

appellants- claimants, Mr. Sanjay Paul, learned advocate

for the respondent no.1-insurance company submits that

the claimants have produced pay-slip of the deceased-

victim for the month of December, 2014, which should be

taken into account for determining the income of the

deceased-victim. He further submits that though the

victim was an employee of Food Corporation of India, yet

no such Form-16 has been produced by the claimants in

respect of the salary statement (Exhibit-11) and therefore

such income relating to labour incentive and labour O.T.

incentive should be ignored. He also indicated that P.W.2

has categorically stated that incentive cannot be treated

as a part of salary. He further submits that the daughter

of the deceased is married and she resides in her

matrimonial home and, therefore, she is not dependant

on the income of the deceased and thus deduction

towards personal and living expenses of the deceased of

1/3rd considered by the learned Tribunal should not be

interfered with.

By order dated 21st November, 2022 service of

notice of appeal upon respondent no.2, owner of the

offending vehicle, has been dispensed with.

Having heard the learned Advocates for the

respective parties the following issues have fallen for

consideration. Firstly, whether the learned Tribunal erred

in determining the income of the deceased-victim;

secondly, whether the deduction towards personal and

living expenses of the deceased should be 1/4th instead of

1/3rd of his annual income and lastly, whether the

claimants are entitled to general damages of Rs.70,000/-

under the conventional heads.

With regard to determination of income of the

deceased, it is found that the learned Tribunal

determined the income of the deceased at the rate of

Rs.35,000/- per month. The claimants in their

application have stated the monthly income of the victim

to be Rs.40,000/- per month along with incentive of not

less than Rs.30,000/- per month. P.W.1, Prasanta Bera,

son of the deceased, deposed that his father Haru Bera at

the time of accident used to earn Rs.40,000/- per month

along with incentive of not less than Rs.30,000/- per

month. It is strenuously argued on behalf of the

appellants-claimants that amount of labour incentive

noted in the salary statement should be taken into

account for determining the income of the deceased. Per

contra, it is argued on behalf of the respondent no.1-

Insurance Company that the income appearing in pay slip

for December, 2014 should be taken into account since

no Form-16 has been produced disclosing any income

under the head of labour incentive. It is a fact that the

claimants have neither produced the income tax return of

the deceased nor have produced the Form-16 issued by

his employer. Be that as it may, the claimants have

proved the statement of earnings and deductions for the

period from January, 2014 to December 2014 (Exhibit

11) by adducing the evidence of P.W.2, Somnath Roy,

Manager (Legal), F.C.I, Suri, Birbhum. The statement of

earnings and deductions for the aforesaid period precisely

shows earnings of the victim and deduction for 12

months prior to his death in the month of January, 2015.

Such statement being an official document produced and

proved by P.W.2, who is Manager (Legal) should be taken

into account since its authenticity and genuineness is

never under challenge.

The income of the deceased for the month of

January, 2014 to December, 2014 as per details of

earnings and deductions (Exhibit 11) is reproduced

hereinbelow:-

January, 2014 Attendance Day allowance Rs.2,602 Basic Rs.16,390 D.A. Rs.12,679 H.R.A. Rs.1,639 Labour incentive Rs.13,271 Labour O.T. incentive Rs.3,788

Lunch subsidy Rs.250 Transport allowance Rs.531 Washing allowance Rs.127 Total Rs.51,277 Rs.51,277 Deduction : Income Tax Rs.25,000 Professional Tax Rs.200 Rs.25,200

Actual Income Rs.26,077 February, 2014 Attendance Day allowance Rs.1,609 Basic Rs.16,240 D.A. Rs.12,563 H.R.A. Rs.1,689 Labour incentive Rs.17,377 Labour O.T. incentive Rs.11,365 Lunch subsidy Rs.250 Transport allowance Rs.480 Washing allowance Rs.115 Total Rs.61,688 Rs.61,688 Deduction : Income Tax Rs.11,500 Professional Tax Rs.200 Rs.11,700

Actual Income Rs.49,988 March, 2014 Attendance Day allowance Rs.2,681 Basic Rs.16,890 D.A. Rs.13,066 H.R.A. Rs.1,689 Labour incentive Rs.15,878 Labour O.T. incentive Rs.15,141 Lunch subsidy Rs.250 Transport allowance Rs.531 Washing allowance Rs.127 Total Rs.66,253 Rs.66,253 Deduction : Income Tax Rs.1119 Professional Tax Rs.200 Rs.1319

Net Income Rs.64,934 April, 2014 Attendance Day allowance Rs.2,652 Basic Rs.16,240 D.A. Rs.12,272 H.R.A. Rs.1,689 Labour incentive Rs.63,922 Labour O.T. incentive Rs.25,645 Lunch subsidy Rs.250 Transport allowance Rs.509 Washing allowance Rs.123 Total Rs.1,23,302 Rs.1,23,302 Deduction : Income Tax Rs.3589 Professional Tax Rs.200 Rs.3,789

Actual Income Rs.1,19,513 May, 2014 Attendance Day allowance Rs.2,652 Basic Rs.16,890

D.A. Rs.12,763 H.R.A. Rs.1,689 Labour incentive Rs.53,206 Labour O.T. incentive Rs.22,926 Lunch subsidy Rs.250 Transport allowance Rs.526 Washing allowance Rs.127 Total Rs.1,11,029 Rs.1,11,029 Rs.5,706 Deduction : Income Tax Rs.200 Professional Tax Rs.5,906

Actual Income Rs.1,05,123 June, 2014 Attendance Day allowance Rs.586 Basic Rs.32,614 D.A. Rs.5,631 H.R.A. Rs.2,924 Labour incentive Rs.9,686 Labour O.T. incentive Rs.55,170 Lunch subsidy Rs.250 Transport allowance Rs.631 Washing allowance Rs.153 Total Rs.1,07,645 Rs.1,07,645 Deduction : Income Tax Rs.9,020 Professional Tax Rs.200 Rs.9,220

Actual Income Rs.98,425 July, 2014 Attendance Day allowance Rs.2,379 Basic Rs.30,365 D.A. Rs.5,723 H.R.A. Rs.2,924 Labour incentive Rs.1,635 Labour O.T. incentive Rs.44,624 Lunch subsidy Rs.250 Transport allowance Rs.662 Washing allowance Rs.158 Total Rs.88,720 Rs.88,720 Deduction : Income Tax Rs.11,168 Professional Tax Rs.200 Rs.11,368

Actual Income Rs.77,352 August, 2014 Attendance Day allowance Rs.595 Basic Rs.33,738 D.A. Rs.6,359 H.R.A. Rs.2,924 Labour incentive Rs.18,379 Labour O.T. incentive Rs.55,964 Lunch subsidy Rs.250 Transport allowance Rs.662 Washing allowance Rs.158 Total Rs.1,19,029 Rs.1,19,029 Deduction : Income Tax Rs.23,802 Professional Tax Rs.200 Rs.24,002

Actual Income Rs.95,027

September, 2014 Attendance Day allowance Rs.2,379 Basic Rs.29,240 D.A. Rs.5,511 H.R.A. Rs.2,924 Labour incentive Rs.4,887 Labour O.T. incentive Rs.56,366 Lunch subsidy Rs.250 Transport allowance Rs.641 Washing allowance Rs.153 Total Rs.1,02,351 Rs.1,02,351 Rs.18,191 Deduction : Income Tax Rs.200 Rs.18,391 Professional Tax

Actual Income Rs.83,960 October, 2014 Attendance Day allowance Rs.1,848 Basic Rs.31,489 D.A. Rs.7,106 H.R.A. Rs.2,924 Labour incentive Rs.30,812 Labour O.T. incentive Rs.18,032 Lunch subsidy Rs.250 Transport allowance Rs.686 Washing allowance Rs.158 Total Rs.93,305 Rs.93,305 Deduction : Income Tax Rs.19,757 Professional Tax Rs.200 Rs.19,957

Actual Income Rs.73,348 November, 2014 Attendance Day allowance Rs.1,904 Basic Rs.30,456 D.A. Rs.6,873 H.R.A. Rs.3,012 Labour incentive Rs.nil Labour O.T. incentive Rs.nil Lunch subsidy Rs.250 Transport allowance Rs.664 Washing allowance Rs.153 Total Rs.43,312 Rs.43,312 Deduction : Income Tax Rs.5962 Professional Tax Rs.200 Rs.6,162

Actual Income Rs.37,150 December, 2014 Attendance Day allowance Rs.635 Basic Rs.34,753 D.A. Rs.7,843 H.R.A. Rs.3,012 Labour incentive Rs.nil Labour O.T. incentive Rs.nil Lunch subsidy Rs.250 Transport allowance Rs.686 Washing allowance Rs.158 Total Rs.47,337 Rs.47,337 Deduction : Income Tax Rs.5861

Professional Tax Rs.200 Rs.6061

Actual Income Rs.41,276

From the aforesaid statement, the actual amount of

income for the period from January, 2014 to December,

2014 is as follows:

      January, 2014                     Rs.26,077
      February, 2014                    Rs.49,988
      March, 2014                       Rs.64,934
      April, 2014                       Rs.1,19,513
      May, 2014                         Rs.1,05,123
      June, 2014                        Rs.98,425
      July, 2014                        Rs.77,352
      August, 2014                      Rs.95,027
      September, 2014                   Rs.83,960
      October, 2014                     Rs.73,348
      November, 2014                    Rs.37,150
      December, 2014                    Rs.41,276

      Total annual Income               Rs.8,72,173

Although P.W.2 stated in cross-examination that

incentive is not a part of salary yet from the statement of

earnings and deductions (Exhibit 11) it goes without

saying that the incentive is part of income of the

deceased.

So far as the personal and living expenses of the

deceased is concerned, it is found that the learned

Tribunal deducted 1/3rd of the annual income of the

deceased towards his personal and living expenses. Mr.

Sanjay Paul, learned Advocate for the appellant-

Insurance Company has indicated that since claimant

No.4 is the married daughter of the deceased, hence

should not be considered to be dependent on the income

of the deceased. The records show that the claim

application has been filed by the widow, two sons and one

married daughter. It is not in dispute that claimant no.4,

daughter of the deceased, is married and she resides at

Gayespur, P.S. Kalyani, Dist. Nadia which is different

from the place of abode of the other claimants, namely

the widow and the sons of the victim. It is not the case of

the claimants that at the time of accident the daughter

was unmarried and subsequently she got married after

the accident. Such being the position, I do not find any

impropriety in the determination of the learned Tribunal

in deducting 1/3rd of the annual income of the deceased

towards personal and living expenses of the deceased.

With regard to entitlement of general damages

under the conventional heads it is found that the learned

Tribunal has granted Rs.9,500/- under the general

damages. However, following the decision of the Hon'ble

Supreme Court in National Insurance Company

Limited versus Pranay Sethi and Others reported in

2017 ACJ 2700, the claimants are entitled to general

damages under the conventional heads of loss of estate,

loss of consortium and funeral expenses to the tune of

Rs.15,000/-, Rs.40,000/- and Rs.15,000/- respectively.

Bearing in mind the above factors, calculation of

the compensation is made as hereunder :-

Calculation of Compensation

Annual Income be assessed as Rs.8,72,173/- Add: Future prospect @ 15% of annual income of victim Rs.1,30,826/- (approx) Rs.10,02,999/-

Less : Personal and living expenses (1/3rd) Rs.3,34,333/-

Rs.6,68,666/-

Multiplier '11' Rs.73,55,326/- Add : General damages Rs.70,000/-

Loss of estate : Rs.15,000/-

Loss of consortium: Rs.40,000/- Funeral expenses : Rs.15,000/-

                            Total :          Rs.74,25,326/-

,

Thus, the total compensation amount comes to

Rs.74,25,326/-. It is informed that the claimants have

received Rs.35,51,500/- together with interest.

Accordingly, the claimants are entitled to the balance

amount of Rs. 38,73,826/- together with interest @ 6%

per annum from the date of filing of the claim application

till deposit.

The respondents-claimants are directed to deposit

ad valorem court fees on the balance amount of

compensation assessed, if not already paid.

The respondent no.1-Insurance Company is directed

to deposit of the aforesaid amount and interest indicated

by way of cheque before the learned Registrar General,

High Court, Calcutta within a period of six weeks from

date.

Upon deposit of the aforesaid amount learned

Registrar General, High Court, Calcutta shall disburse the

amount in favour of the claimants after making payment

of Rs.35,000/- in favour of the appellant no.1, widow of

the deceased towards loss of consortium (since Rs.5,000/-

has already been received by the appellant no.1 towards

such head) in the proportion that appellant No.1-widow of

the deceased shall receive 1/2 (half) of the balance

compensation amount and rest shall be divided equally

amongst rest appellant Nos. 2, 3 and 4 respectively, upon

satisfaction of their identity and payment of ad valorem

court fees, if not already paid.

With the above observations, the instant appeal

stands disposed of. The impugned judgment and award of

the learned Tribunal is modified to the above extent.

All connected applications, if any, stand disposed of.

Interim order, if any, stands vacated.

Urgent photostat copy of this order be given to the

parties upon compliance of necessary legal formalities.

      <                            (Bivas Pattanayak, J.)