Calcutta High Court (Appellete Side)
National Insurance Company ... vs Mamtaj Begum & Ors on 18 May, 2023
12 & 18.05.
13 2023 FMA 3627 of 2014
Ct With
237 IA No: CAN 2 of 2023
rup
National Insurance Company Limited
versus
Mamtaj Begum & Ors.
With
COT 51 of 2014
Mamtaj Begum & Anr.
Versus
National Insurance Company Limited & Anr.
Mr. Afroze Alam.
.... For the claimants in FMA
3627 of 2014 and respondents in Cot
51 of 2014.
Mr. Amit Ranjan Roy.
... For the appellants in
COT 51 of 2014 and respondent
in FMA 3627 of 2014.
CAN 2 of 2023
Learned advocate appearing on behalf of the
appellants in cross-objection has not pressed the
application and accordingly stands dismissed.
FMA 3627 of 2014
This appeal has been preferred assailing the
judgment and award passed by the Motor Accident
Claims Tribunal, 3rd Court, Howrah, in connection
with Motor Accident Claim Case No. 427 of 2011
under Section 166 of the Motor Vehicle Act whereby
learned Tribunal awarded compansation to the tune of
Rs. 10,60,500/-.
The instant appeal has been preferred at the
instance of National Insurance Company Limited on
the ground that deduction of 50% towards personal
expenses should have been considered at the time of
calculation of compensation.
On behalf of the claimants one cross appeal has
been filed assailing the judgment particularly the
calculation of the compensation after aplying
multiplier 11 and for not considering the future
prospect i.e. 40% of the income in terms of age of the
victim as well as general damages.
The application under Section 166 of the Motor
Vehicle Act was filed on account of death of one Fazlul
Kadir Md. Safi in a motor accident on 30.08.2011 at
about 5.15 P.M. while deceased was travelling by
Scorpio Car bearing No. WB-30C/8098 after finishing
their meal at Gourhari Hotel situated by the side of
Bombay Raod near Deulbarh. At the time of accident
the Scorpio Car was in stationary condition and one
dumper lorry bearing No. WB-29/5222 proceeding
from Panskura side towards Kolaghat side with high
speed dashed the Scorpio Car with great force. In
effect Fazlul Kadir Md. Safi sustained severe injury
and ultimately died in the hospital. That is why
claimants filed this application with a prayer for
compensation to the tune of Rs.12,00,000/-.
National Insurance Company Limited contested
the claim petition by filing written objection denying
all averments of the claim petition contending, inter
alia, claimants are not entitled to any compensation
as prayed for.
In course of trial mother of the victim (Mamtaj
Begum) was examined as PW-1 who corroborated the
entire contents of the claim petition and proved the
documents viz. Certified Copy of FIR, Charge-Sheet,
Seizure List, PM Report, Insurance Policy, IT Return
Acknowledgment, Trade Licnece, PAN Card, Voter
Card ect. and those were admitted in evidence as
exhibit 1 to 12.
One Sk. Mafujul Ali, was examined as PW-2 who
claimed himself to be an eye witness to the accident
which took palce on 30.08.2011 at 5.15 P.M. over
N.H. 6 near Gourhari Hotal, Deulbarh under
Panskura Police Station and he lodged the FIR to
police.
Learned Tribunal after evaluation of the evidence
together with documents on record, recorded his
finding that due to rash and negligent driving of the
vehicle bearing No. WB-29/5222 which was duly
insured with the National Insurance Company Limited
at the relevant point ot time. Accordingly, learned
Tribunal awarded compensation of Rs.10,60,500/-.
I find no reason to contradict the view taken
by the learned Tribunal in respect of accidental death
of Fazlul Kadir Md. Safi in a motor accident due to
rash and negligent driving of the vehicle bearing No.
WB-29/5222.
So far as calculation of compensation is
concerned, I find that learned Tribunal rightly
assessed the monthly income of Rs.12,000/- in terms
of IT Return for the assesment year 2009-10. But
learned Tribunal deducted 1/3 in stead of 50% on
account of personal expenses of the deceased. That
apart learned Judge also erred in applying multiplier
11 on the age of parent instead of 17 in terms of the
age of the victim.
Finally learned Tribunal did not consider the
future prospect as well as general damages in terms of
principle laid down in the case National Insurance
Co. Ltd vs. Pranay Sethi and Ors. reported in 2017
ACJ 2700.
In the aforesaid view of the matter I propose to
modify the award as follows:
Total Income yearly = Rs.146,860/-
After deduction of 50% Rs.73,430/-
for personal expenses
40% future prospect (73,430 x 40%) = + Rs.29,372/-
Add total loss of compensation ____________
Rs. 1,02,802/-
Multiplier 17 (age 28) x 17
______________
Rs.17,47,634/-
Add General Damages +Rs.30,000/-
________________
Total compensation Rs.17,77,634/-
Tribunal awarded a sum of (-) Rs.10,60,500/-
Enhanced amount Rs. 7,17,134/-
Therefore claimants are entitled to Total
compensation to the tune of Rs.17,77,634/- along
with interest.
It appears from record and submission made by
learned advocate appearing on behalf of the National
Insurance Company Limited that the
appellant/Insurance Company deposited the entire
awarded anount along with interest before the office of
the learned Registrar General of this Court. It is also
appearing from the record that the claimants have
already withdrawn Rs.5,00,000/- out of the aforesaid
awarded amount.
The National Insurance Company is further
directed to deposite the enhanced amount of Rs.
7,17,134/- along with 6% interest from the date
(8.12.2011) of filing of the claim petition till the
deposit of the amount, within six week from date,
before the office of the learned Registrar General of
this Court.
Learned Registrar General is requested to
disburse the balance amount along with accrued
interest thereon, after adjustment of the amount
already been withdrawn and also disburse the
enhanced anount of Rs. 7,17,134/- to the respondent
no.1 (Mamtaj Begum).
With the aforesaid observation FMA 3627 of
2014 along with COT 51 of 2014 stand disposed
of. Pending applications, if there be any, also stand
disposed of.
Let a copy of the judgment along with Tribunal
records, if any, be transmitted to the learned Tribunal at
once.
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.)
