Calcutta High Court (Appellete Side)
Durga Maity @ Lusi Maiti & Ors vs National Insurance Company Ltd. & ... on 3 October, 2023
03.10.2023 IN THE HIGH COURT AT CALCUTTA
Ct. no.654 CIVIL APPELLATE JURISDICTION
Sl. No. 14. APPELLATE SIDE
KB ,,
F.M.A. 307 of 2021
,
Durga Maity @ Lusi Maiti & Ors.
Vs.
National Insurance Company Ltd. & Anr.
Mr. Jayanta Kumar Mandal
...for the appellants-claimants.
,,
Mr. Rajesh Singh
... for the respondents-Insurance Co.
This appeal is preferred against the judgment and
award dated 28th January, 2020 passed by learned
Additional District Judge cum Judge, Motor Accident
Claims Tribunal, Fast Track, 2nd Court at Tamluk in MAC
Case No. 87 of 2014 granting compensation of
Rs.5,29,000/- together with interest in favour of the
claimants under Section 166 of the Motor Vehicles Act,
1988 .
As per the report of the Stamp Reporter dated 23rd
February, 2021, the appeal is preferred within the
statutory period of limitation.
Accordingly, the appeal is formally admitted and
registered.
Since the claim case was disposed of ex parte
against the owner of the offending vehicle, hence service
of notice of appeal upon the respondent no.2-owner of the
offending vehicle stands dispensed with.
With the consent of the parties, calling for of lower
court records and preparation of informal paper book is
dispensed with.
The brief fact of the case is that on 14th June, 2013
at about 1.30 p.m. while the victim was travelling on a
motor cycle bearing registration no. WB-01N/3272
keeping left side of the Amta-Muchighata road and when
he reached near Fokir Das school gate at that time the
offending vehicle bearing registration no.WB-11A/6016
coming from Amta Side towards Muchighata side with
high speed and in rash and negligent manner dashed the
victim as a result of which the victim sustained grievous
injuries on his head, chest and waist and was taken to
S.S.K.M. Hospital, Kolkata where he succumbed to his
injuries and died on 18th June, 2013. On account of
sudden demise of the victim the claimants, being the wife,
minor children and parents filed application for
compensation amount of Rs.10,00,000/- 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 marked as Exhibit 1 to 7 respectively.
The respondent no.1-insurance company did not
adduce any evidence.
Upon considering the materials on record and the
evidence adduced on behalf of the claimants, the learned
Tribunal granted compensation of Rs.5,29,000/- together
with interest under Section 166 of the Motor Vehicles Act,
1988.
Being aggrieved and dissatisfied with the impugned
judgment and award of the learned Tribunal, the
claimants have preferred the present appeal.
Mr. Jayanta Kumar Mandal, learned advocate for
appellants-claimants submits that the learned Tribunal
erred in determining the income of the victim at
Rs.3,000/- per month without considering the evidence
adduced in this regard on behalf of the claimants. He
submits that since the accident has taken place in the
year 2013 the income should be considered at Rs.4,000/-
per month. He further submits that the claimants are
also entitled to future prospect of 40% of the annual
income of the victim. In light of his submissions as above,
he prays for enhancement of the compensation amount.
Mr. Rajesh Singh, learned advocate for respondent
no.-1-insurance company opposes such prayer for
enhancement.
Having heard the learned advocates for respective
parties, the following issues have fallen for consideration.
Firstly, whether the learned Tribunal erred in determining
the income of the victim and secondly, whether the
claimants are entitled to an amount equivalent to 40% of
the annual income of the victim towards future prospect.
With regard to the first issue relating to
determination of income of the victim, it is found that the
learned Tribunal has considered the income of the victim
at Rs.3,000/- per month. Be that as it may, bearing in
mind the the economic fctors and the cost of essential
commodities prevailing in the year 2013, I am of the
opinion that an amount of Rs.4,000/- per month as
income of the victim would be reasonable and appropriate
in the facts and circumstances of the case.
Since the victim at the time of accident was
admittedly 28 years of age and was self employed, hence,
following the principles laid down by the Hon'ble Supreme
Court reported in National Insurance Company
Limited versus Pranay Sethi and Others reported in
(2017) 16 SCC 680, the claimants are entitled to an
amount equivalent to 40% of the annual income towards
future prospect.
Other factors have not been challenged in this
appeal.
Bearing in mind the aforesaid factors, calculation of
compensation is made hereunder.
Calculation of Compensation
Monthly income Rs.4,000/-
Annual income Rs.48,000/-
(Rs.4,000/- x 12)
Add: 40% of the annual income Rs.19,200/-
towards future prospect
Rs.67,200/-
Less: 1/4th towards personal and Rs.16,800/-
living expenses
Rs.50,400/-
Multiplier 17 Rs.8,56,800/-
(Rs.50,400/- x 17)
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.9,26,800/-
Thus the claimants are entitled to compensation of
Rs. 9,26,800/- together with interest @ 6% per annum
from the date of filing of the claim application till
payment. It is informed that the claimants have already
received an amount of compensation of Rs. 5,29,000/-
together with interest in terms of order of the learned
Tribunal. Accordingly, the claimants are entitled to
balance amount of Rs.3,97,800/- together with interest at
the rate of 6% per annum from the date of filing of the
claim application.
Respondent no.1-insurance company is directed to
deposit the balance amount of compensation and interest
as indicated above by way of a cheque before the learned
Registrar General, High Court, Calcutta together with
interest within six weeks.
Upon deposit of the aforesaid amount, Learned
Registrar General, High Court, Calcutta shall release the
same in favour of the claimants in equal proportion after
making payment of Rs.40,000/- in favour of the appellant
no.1-widow of the deceased towards spousal consortium,
upon satisfaction of their identity.
Appellant no.1, being the mother and natural
guardian of minor appellant nos.2 to 4 shall receive the
share of the minors and keep the same in a Fixed Deposit
of any nationalised bank or post office until attainment of
majority of the said minors.
With the above observations, the appeal stands
disposed of. The impugned judgment and award of the
learned Tribunal is modified to the above extent. No order
as to costs.
The order of the learned Tribunal granting liberty to
the insurance company to recover the compensation
amount from the owner of the offending vehicle is not
interfered with.
All connected applications, if any, are also disposed
of.
Interim order, if any, stands vacated.
Urgent certified photocopy of this order, if applied
for, be supplied to the parties expeditiously upon
compliance of all necessary legal formalities.
(Bivas Pattanayak, J.)
