Calcutta High Court (Appellete Side)

National Insurance Co.Ltd vs Nurbanu Bibi & Ors on 16 November, 2023

16.11.2023               IN THE HIGH COURT AT CALCUTTA
Ct. no.654                CIVIL APPELLATE JURISDICTION
Item no.1                          (Appellate Side)
   Sn/KB


                                   F.M.A.240 of 2023
                                     CAN 2 of 2023

             ,




                            National Insurance Co.Ltd.
                                       Vs.
                                Nurbanu Bibi & Ors.

             ,,




                   Ms. Sucharita Paul
                              ... for the appellant- insurance Co.

                   Mr. Amit Ranjan Roy
                              ..for the respondents-claimants

This appeal is preferred against the judgment

and award dated 20th June, 2022 passed by the

learned Additional District Judge-cum-Judge, Motor

Accident Claims Tribunals, 2nd Court, Katwa, Purba

Bardhaman in MAC case no.123 of 2016 granting

compensation of Rs.10,78,000/- 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 9th July,

2016 at about 6-30 p.m. while the victim was going

on a motor cycle as pillion rider through Katwa-

Burdwan road and when he reached near Santa

Village the offending vehicle bearing registration no.

WB-43/1290 (Tata Sumo) dashed the motor cycle on

which the victim was proceeding, as a result of which

the victim sustained severe injuries and died after

some time of the accident. On account of sudden

demise of the victim, the claimants being the widow,

minor daughters, minor sons and parents of the

deceased filed application for compensation of

Rs.8,00,000/- together with interest under Section

166 of the Motor Vehicles Act, 1988.

The claimants in order to establish their case

examined two witnesses and produced documents,

which have been marked as Exhibits 1 to 10/a

respectively.

The appellant-insurance Company did not

adduce any evidence.

Since the owner of the offending vehicle

(respondent no.8) has not contested the claim

application, hence service of notice of appeal upon

the said respondent stands dispensed with.

Upon considering the materials on record and

evidence adduced on behalf of the claimants, the

learned Tribunal granted compensation of

Rs.10,78,000/- together with interest in favour of the

claimants under Section 166 of the Motor Vehicles

Act.

Being aggrieved by and dissatisfied with the

impugned judgment and award of the learned

Tribunal, the insurance company has preferred the

present appeal.

Before delving with the merits of the appeal, it

is pertinent to consider the application filed by

respondents-claimants for recording attainment of

majority of the respondent no.2, Meherunnesha

Khatun and respondent no.3, Zinnat Nesa Khatun,

being CAN 2 of 2023.

Mr. Amit Ranjan Roy, learned advocate for the

respondents-claimants submits that the respondent

no.2, Meherunnesha Khatun and the respondent

no.3, Zinnat Nesa Khatun have attained majority and

as such their attainment of majority be recorded in

the Memorandum of Appeal.

Ms. Sucharita Paul, learned advocate for the

appellant-insurance company does not raise any

objection.

It is contended in the application that the date

of birth of Meherunnesha Khatun (respondent no.2)

is 1st April, 2001 and Zinnat Nesa Khatun

(respondent no.3) is 6th December, 2002. As per the

Aadhar Card of the respondent no.2, her date of birth

is 1st April, 2001. The date of birth of the respondent

no.3 has been wrongly stated in the application as

6th December, 2002 which, as per Aadhar Card, is 4th

January, 2003. Be that as it may, it is found that

both the respondent nos. 2 & 3 attained majority at

the time of disposal of the claim application. Since

such fact has not been placed before the learned

Tribunal, to avoid future complication, the

application for attainment of majority of the

respondent nos. 2 & 3 needs to be allowed.

Accordingly, the application for attainment of

majority of respondent nos. 2 & 3 stands allowed.

Department concerned is directed to note the

attainment of majority of respondent no.2,

Meherunnesha Khatun and respondent no.3, Zinnat

Nesa Khatun in the Memorandum of Appeal, as

aforesaid.

The application being CAN 2 of 2023 stands

disposed of.

Ms. Sucharita Paul, learned advocate for

appellant-insurance company at the very outset fairly

submits that though in the present appeal ground

has been taken that on the relevant date of accident

the said offending vehicle did not have valid route

permit and the investigator of the insurance

company has collected the documents but the same

has not been produced before the learned Tribunal at

the time of evidence. She further submits that the

learned Tribunal erred in determining the income of

the victim at Rs.6,000/- per month in the absence of

cogent evidence been adduced in support of the

same. The income of the victim at best may be

considered at Rs.5,000/- per month bearing in mind

the catena of decisions of this Court. Moreover, since

the number of dependants of the victim is 6 and

there being no evidence of dependency of the father,

the deduction towards personal and living expenses

of the deceased should be 1/4th instead of 1/5th

adopted by the learned tribunal. Further, she

submits that there has been delay of 9 days in

lodging the F.I.R., which raises doubt in the

claimants' case. In light of her aforesaid submission,

she prays for setting aside and/or modification of the

impugned judgement and award passed by the

learned tribunal.

Mr. Amit Ranjan Roy, learned advocate for

respondents-claimants submits that as per the

Minimum Wages Act applicable in the State of West

Bengal the wage of unskilled labour is Rs.211/- per

day. Further, the Hon'ble Supreme Court considered

Rs.100/- per day as income of an unskilled labour in

the year 2008. The avocation of the victim has

remained unchallenged in evidence. Thus, the

accident having taken place in the year 2016, the

income of the victim determined by the learned

tribunal at Rs.6,000/- per month is reasonable and

should not be interfered with. He files copy of

Notification No. 80-Law/MW/2W-32/13(Pt-II), dated

08.03.2019 of the Labour Department, Government

of West Bengal published in the Kolkata Gazette and

minimum wages rate chart as on 01.04.2016, which

are taken on record. So far as the deduction towards

personal and living expenses of the deceased is

concerned, he submits that as there were more than

6 dependents including his father, hence the learned

tribunal has rightly deducted 1/5th of the annual

income of the victim towards his personal and living

expenses. Furthermore, he submits that the delay of

9 days in lodging F.I.R. has been duly explained

thereof and as such it does not affect the claimants'

case. In light of his aforesaid submission, he prays

that the impugned judgement and award of the

learned tribunal should be affirmed.

In reply to the submissions made on behalf of

the respondents-claimants, Mrs. Sucharita Paul,

learned advocate for appellant-insurance company

submits that save and except oral evidence of P.W.1,

widow of the deceased, there are no other evidence in

proof of the profession of the victim working as a

mason and, therefore, the wages scheduled under

the Minimum Wages Act is not applicable in the facts

and circumstances of this case.

Having heard the learned advocates for

respective parties, following issues have fallen for

consideration.

Firstly, whether the offending vehicle had valid

route permit on the relevant date of accident.

Secondly, whether the learned tribunal erred in

determining the income of the victim at Rs.6,000/-

per month. Thirdly, whether the learned tribunal

erred in deducting 1/5th of annual income of the

victim towards his personal and living expenses and

lastly, whether the claimants case is affected by the

delayed F.I.R.

With regard to the first issue relating to validity

of route permit of the vehicle, it is found that during

the course of investigation the route permit of the

offending vehicle was seized by the investigating

agency. However, the insurance company which in

appeal challenges the validity of the route permit of

the offending vehicle has not led any evidence

disputing the same. Accordingly, the ground

challenging the route permit of the offending vehicle

is short of merit.

So far as the second issue with regard to the

determination of income of the victim is concerned, it

is found that the learned tribunal has determined the

income of the victim at Rs.6,000/- per month. In the

claim application as well as in her evidence the

widow of the deceased namely Nurbanu Bibi (PW-1)

has stated that the victim at the time of accident was

a mason by profession and used to earn Rs.6,000/-

per month. Save and except the evidence of P.W.1,

widow of the deceased, there are no other evidence in

support of the avocation of the victim. In view of the

above, I find substance in submission of Mrs. Paul,

learned advocate for appellant-insurance company

that the wages scheduled under the Minimum Wage

Act does not apply to the present case. Be that as it

may, bearing in mind the prices of essential

commodities and the economic factors prevailing in

the year 2016 the income of Rs.5,000/- per month of

the victim would be reasonable and appropriate in

the facts and circumstances of the case.

With regard to the deduction towards personal

and living expenses of the deceased, it is found that

the learned tribunal has deducted 1/5th towards

personal and living expenses of the deceased.

Though the number of claimants including the father

of the victim is 7, however, there are no such

evidence of dependency of the father upon the

income of his deceased son. In the absence of such

evidence, the father of the victim cannot be

considered as dependant. Thus, the number of

dependents of the deceased at the time of accident is

6. Following the observation of Hon'ble Supreme

Court in Sarla Verma versus Delhi Transport

Corporation and Another reported in (2009) 6 SCC

121, the deduction towards personal and living

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

1/5th.

Coming to the last issue relating to delayed

F.I.R., it is found that the accident has taken place

on 9th July, 2016 and the F.I.R. has been lodged on

18th July, 2016. Thus there is delay of 9 days in

lodging the F.I.R. Although there is delay yet there

are no evidence of fabrication or concoction or

engineering of the F.I.R. From the written complaint

(Exhibit-2), it is found that for performing the last

rites of the deceased there has been delay in lodging

of the F.I.R.

The Hon'ble Supreme Court observed in Ravi

versus Badrinarayan and Others reported in 2011

(1) T.A.C. 867 (S.C.) as follows:-

"20. It is well settled that the delay in lodging FIR cannot be a ground to doubt the claimant's case. Knowing the Indian conditions as they are, we cannot expect the common man to first rush to the Police Station immediately after an accident. Human nature and family responsibilities occupy the mind of kith and kind to such an extent that they give more importance to get the victim treated rather than rush to the Police Station. Under such circumstances, they are not expected to act mechanically with promptitude in lodging the FIR with the Police. Delay in lodging the FIR thus, cannot be the ground to deny justice to the victim. In cases of delay, the Courts are required to examine the evidence with a closer scrutiny and in doing so; the contents of the FIR should also be scrutinized more carefully. If Court

finds that there is no indication of fabrication or it has not been concocted or engineered to implicate innocent persons then, even if there is a delay in lodging the FIR the claim case cannot be dismissed merely on that ground."

Bearing in mind the aforesaid proposition of

the Hon'ble Supreme Court, since there are no

evidence of fabrication or concoction or engineering

of the F.I.R. the delay of 9 days in lodging the F.I.R.

does not affect the claimants' case.

Other factors have not been challenged in this

appeal.

Bearing in mind the aforesaid, calculation of

compensation is made hereunder.


                Calculation of Compensation

       Monthly income                            Rs.5,000/-
       Annual income                             Rs.60,000/-
       (Rs.5,000/- x 12)
       Add: 25% of the annual income             Rs.15,000/-
            towards future prospect
                                                 Rs.75,000/-
       Less: 1/4th deduction towards             Rs.18,750/-
             personal and living expenses
                                                 Rs.56,250/-
       Multiplier 14                             Rs.7,87,500/-
       (Rs.56,250/- x 14)
       Add: General damages                      Rs.70,000/-
             Loss of estate: Rs.15,000/-
             Loss of consortium: Rs.40,000/-
             Funeral expenses: Rs.15,000/-
       Total compensation                        Rs.8,57,500/-


      Thus      the     claimants       are      entitled     to

compensation of Rs.8,57,500/- together with interest

@ 6% per annum from the date of filing (i.e.

02.11.2016) of the claim application till payment.

It is found that the insurance company in

terms of order of this Court has deposited a sum of

Rs.14,65,346/- vide OD Challan no. 65 dated 10th

April, 2023 and has also deposited statutory amount

of Rs.25,000/- vide OD Challan no. 3153 dated 21st

December, 2022. Both the aforesaid deposits

together with accrued interest be adjusted against

the entire compensation amount and the interest

thereon.