Calcutta High Court (Appellete Side)

Reliance General Insurance Co. Ltd vs Soma Roy & Anr on 24 November, 2023

                          IN THE HIGH COURT AT CALUTTA
                             Civil Appellate Jurisdiction
  24.11.2023
 SL No.6
Court No. 551
    Ali


                              FMA 439 of 2016

                IA NO:CAN/1/2014 (Old No.:CAN/10957/2014),
                     CAN/3/2015 (Old No.:CAN/12118/2015),
                     CAN/4/2017 (Old No.:CAN/12124/2017).


                     Reliance General Insurance Co. Ltd.
                                    Vs.
                              Soma Roy & Anr.

                    Ms. Gopa Das Mukherjee
                                                    ....for the appellant.

                    Mr. Prosenjit Mukherjee,
                    Ms. Saptarshi Chakraborty,
                    Mr. Jahingir Hossain,
                    Mr. Arghya Kamal Das,
                    Ms. Tiyasa Ghosh
                                   ...for the claimants/respondents.

The instant appeal is preferred against the

Judgment and Award dated 27th June, 2014 passed

by learned Judge, Motor Accident Claims Tribunal,

Katwa in M.A.C. Case no. 42 of 2008 under Section

166 of the Motor Vehicles Act.

The brief facts of the case is that the wife of

the injured preferred an application before the

learned tribunal for getting compensation on the

ground that her husband was injured in a road

traffic accident due to rash and negligent driving of

the driver of the offending vehicle duly insured

under the policy of the Insurance Company. It is the

further ground that by such accident the husband

of the claimant became permanently disabled.

The claim case was contested by the

Insurance Company. After hearing the parties and

after receiving the evidences the learned tribunal

has awarded a sum of Rs. 10,88,627/- in favour of

the claimant alongwith interest @ 7% per annum

from the date of filing of the claim application.

Being aggrieved by and dissatisfied with the

said award the instant appeal has been preferred by

the Insurance Co.

Learned advocate for the appellant-

Insurance Company submits that the impugned

judgment passed by the learned tribunal is

erroneous. The learned tribunal has not considered

the medical papers and assessed disability in this

case to be 80% in conformity with the disability

certificate issued by the Government Medical Board.

She submits that by virtue of the judgment of the

Hon'ble Apex Court passed in Raj Kumar Vs. Ajay

Kumar the disability of a person and compensation

thereof has to be determined only upon the loss of

earning capacity. In all cases the percentage of

disability cannot be equated with the loss of income.

She also submitted that the 80% disability in this

case is not proper. According to the schedule-1 of

the Employees Compensation Act, 1923. The 80%

disability can only occur when there is an

amputation of limbs; in this case there is no

amputation, so the claimants are not entitled to get

compensation considering the loss of income of to be

80%. She further submits that the learned tribunal

has assessed the compensation fixing the multiplier

to be 17. In this case the injured was within the age

group of 30-35 years. So the correct multiplier

would be 16. It is further argued that the learned

tribunal has awarded 50% of admitted income

towards the future prospects of injured by virtue of

judgment of Hon'ble Supreme Court passed in

Santosh Devi and Sayed Sadiq but the position of

law has been very much clear by the judgment of

the Hon'ble Supreme Court Constitution Bench in

Pranay Sethi so the future prospects has to be

assessed according to the said direction.

Learned advocate appearing on behalf of the

respondents-claimants submits that the impugned

judgment passed by the learned tribunal suffers no

illegality. It has to been specifically pleaded by the

claimants before the learned tribunal that the

husband of the claimant was engaged in a business;

after such accident the entire business has been

closed, so the income of the claimant as well as the

entire family has been suffered considerably. The

fixing the income of the injured to be Rs. 3,000/-

per month is not proper. He further argued that the

disability of the injured was correctly assessed by

the learned tribunal to be 80% so he prayed for

rejection of the instant appeal.

Heard the learned advocate perused the

materials on record and also perused the LCR.

Initially, it appears to me that the wife of the

deceased-injured preferred the claim case before the

learned tribunal. During the trial the injured never

appeared before the learned tribunal. Moreover, the

wife of the injured i.e. the claimant has withdrew

some amount of Rs. 2,00,000/- from the Court.

Considering the entire aspects, this Court directed

the injured to appear personally with

claimant/respondent. By virtue of the direction of

this Court the claimant alongwith the injured

appeared before this Court. The injured sworn an

affidavit. I have personally seen the injured in Court.

In going to the merits of this case it appears

to me that the learned advocate for the Insurance

Company has raised strong objection regarding the

percentage of disability assessed by the learned

tribunal. It appears to me that the Sub divisional

Hospital, Bolpur, Birbhum has issued a disability

certificate in favour of the injured. At the time of

issuance of certificate, the percentage of permanent

disability was assessed to be 80%. It is true, in this

case the injured has sustained severe brain injury

by such he became disable to walk freely. The

disability certificate also mentioned that he cannot

travel without assistance or escort. The injured

when appeared before this Court, I have also seen

that the injured could not walk without the

assistance.

Considering the entire aspects, I think it

necessary that the functioning disability of the

injured was correctly assessed by the learned

tribunal to be 80%.

However, it appears that the learned

tribunal has erroneously assessed the compensation

by fixing the multiplier to be 17. In this case the

multiplier would be 16. Considering the age of the

deceased within the age group of 30-35 years. The

learned tribunal has also committed error in

assessing the future prospects. In this case

according to the direction of the Constitution Bench

of Hon'ble Supreme Court passed in Pranay Sethi;

in case of self employed person aged below 40 years;

40% of his establish income would be added as a

future prospects. It further appears that the learned

tribunal has assessed Rs. 5,000/- towards the

general damages including pain and suffering. In

this case the injured has suffered a severe accident

resulting that he was admitted in a hospital and

undergone a long treatment including operation.

Considering the same, I think it necessary the

injured/claimants are entitled to get Rs. 50,000/-

towards the non pecuniary damages. Accordingly, I

think it necessary to modify the award passed by the

learned tribunal by virtue of the observation made

above.

The just and proper compensation of this

case assessed as hereunder:-

Monthly income Rs. 3,000/-, yearly income

comes to Rs. 36,000/-. 40% is added towards the

future prospects so after adding Rs.14,400/- so the

yearly income comes to Rs. 50,400/-. 80% is the

earning disability so the 80% the yearly income

comes to Rs. 40,320/-. The applicable multiplier is

16 so after adopting the multiplier the compensation

comes to Rs. 6,45,120/-. The claimant/injured is

entitled to get further Rs.50,000/- towards the non

pecuniary heads so it comes to Rs.6,95,120/-. The

learned tribunal has awarded the cost of treatment

and medicine to the tune of Rs. 3,49,227/-.