Calcutta High Court (Appellete Side)
Hdfc Ergo General Insurance Co. ... vs Putul Begam & Anr on 4 October, 2023
04.10.2023 IN THE HIGH COURT AT CALCUTTA
Ct. no.654 CIVIL APPELLATE JURISDICTION
Sl.Nos.188-189 APPELLATE SIDE
KB ,,
FMA 716 of 2023
with
IA No. CAN 3 of 2019
(Old No. CAN 8819 of 2019)
with
IA No. CAN 4 of 2019
(Old No. CAN 8821 of 2019)
HDFC Ergo General Insurance Co. Ltd.
-Vs-
Putul Begam & Anr.
,,
with
COT 88 of 2019
Putul Begam
-Vs-
HDFC Ergo General Insurance Co. Ltd. & Anr.
Mr. Rajesh Singh
... For the appellant-insurance company.
Mr. Ashique Mondal
... For the respondent no. 1-claimant.
This appeal is preferred against the judgment and
award dated 16th September, 2017 passed by learned
Judge, Bench-III, City Civil Court, Calcutta in M.A.C.
Case No. 173 of 2013 granting compensation of
Rs.22,04,500/- together with interest in favour of the
injured-claimant under Section 166 of the Motor Vehicles
Act, 1988.
The brief fact of the case is that on 28th January,
2013 at about 14.30 hours the victim was proceeding as a
pillion rider on a motor cycle and when they reached near
Sahagari Kalitala at that time the offending vehicle
bearing registration no.WB-15B/7812 which was
proceeding on Udaynarayanpur-Amta Road in a rash and
negligent manner dashed the said motor cycle as a result
of which the victim as well as the motor cyclist sustained
serious multiple injuries on their persons and they were
shifted to B. B. Dhar Hospital. Thereafter, the victim was
taken to Sanjiban Hospital, Fuleswar where he was
admitted from 28.01.2013 to 21.02.2013 and 28.02.2013
to 16.03.2013. Due to injuries sustained in the said
accident, the victim became 100% blind and was disabled
totally. On account of the injury sustained and
subsequent disablement of the victim, an application for
was filed by the victim through his wife claiming
compensation of Rs.12,00,000/- together with interest
under Section 166 of the Motor Vehicles Act, 1988.
The claimant-victim in order to establish his case
examined his wife and three other witnesses and
produced documents which have been marked as
Exhibits 1 to 14 series respectively.
The appellant-insurance company also adduced
evidence of one witness and produced documents which
have been marked as Exhibits A to C respectively.
The owner of the offending vehicle did not contest
the claim application and the case proceeded ex parte
against him. Steps were taken in this appeal for causing
service upon the owner of the offending vehicle through
the department as well as personal service.
The affidavit of service filed by the appellant-
insurance company shows that the registered letter sent
to the owner of the offending vehicle to the address given
in the insurance policy has returned with endorsement
"left".
Upon considering the materials on record and the
evidence adduced on behalf of the respective parties, the
learned Tribunal granted compensation of Rs.22,04,500/-
together with interest in favour of the claimant-victim
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.
Challenging the impugned judgment and award of
the learned Tribunal, the claimant has also filed Cross
Objection being COT 88 of 2019.
Both the appeal as well as Cross Objection are
taken up for consideration and disposal.
Mr. Rajesh Singh, learned advocate for appellant-
insurance company at the outset submits that the
offending vehicle did not have valid permit on the relevant
date of accident and as such the insurance company
cannot be saddled with the liability to pay compensation.
Thus, the order of learned Tribunal directing the
insurance company to satisfy the award and then recover
the same from the owner of the offending vehicle is bad in
law and should be set aside in the interest of justice.
He further submits that the learned Tribunal
erred in determining the income of the victim at
Rs.6,000/- per month and failed to consider the evidence
of the employer who categorically deposed that he used to
pay Rs.200/- per day to the victim as wages. He indicates
that no person can work for thirty days in a month and,
therefore, considering the wages at the rate of Rs.200/-
per day and taking into account thirty days of work for
determining monthly income is beyond prudence and is
short of reasonability. In light of his aforesaid
submission, he prays for setting aside of the impugned
judgment and award and/or modification of the order
passed by the learned Tribunal.
Mr. Ashique Mondal, learned advocate for
respondent no.1-claimant submits that considering the
oral evidence of the employer and bearing in mind that
the victim was a carpenter by profession, the learned
Tribunal has assessed the income of the victim at
Rs.6,000/- per month which is reasonable and
appropriate in the facts and circumstances of the case
and should not be interfered with.
He further submits that the claimant is entitled to
future prospect of 40% of his annual income. Moreover,
he submits that due to the injuries sustained in the
accident the victim has become totally blind and thus he
requires future treatment in respect of which the claimant
is entitled to future medical expenses. Further learned
Tribunal has grant a meagre sum of Rs.50,000/- towards
pain and sufferings which in the circumstances of the
case needs to be increased. Furthermore, he submits that
since the victim is totally blind and the disability
certificate shows that he cannot travel without an escort,
the claimant is entitled to have certain amount of
compensation towards attendant charges which is not
considered by the learned Tribunal. To buttress his
contention, he relies on the following decisions of Hon'ble
Supreme Court:
(i) Jagdish versus Mohan and Others
reported in (2018) 4 SCC 571.
(ii) Kajal versus Jagdish Chand and Others
reported in (2020) 4 SCC 413.
(iii) Abhimanyu Pratap Singh versus Namita
Sekhon and Another reported in (2022) 8
SCC 489.
(iv) Sidram versus Divisional Manger, United
India Insurance Company Limited and
Another reported in (2023) 3 SCC 439.
In light of his aforesaid submissions, he prays for
enhancement of the compensation amount.
In reply to the contention raised by the
respondent no.-1-claimant in respect of entitlement of
attendant charges Mr. Singh, learned advocate for
appellant-insurance company submits that the decisions
of the Hon'ble Supreme Court of which reliance has been
placed towards attendant charges are factually
distinguishable, so far as the injuries sustained by the
victim in the said cases are concerned vis-à-vis the
injuries sustained by victim in the present case at hand
and, therefore, the ratio of such decisions are not
applicable to the facts of the case. He further submits
that each case has to be dealt with in its own merits.
Having heard the learned advocate for respective
parties, the following issues have fallen for consideration.
Firstly, whether the learned Tribunal was justified
in passing an order for pay and recovery on the ground
that the offending vehicle did not have valid route permit;
secondly, whether the learned Tribunal erred in
determining the income of the victim; thirdly, whether the
claimant is entitled to future prospect of 40% of his
annual income; fourthly, whether the claimant is entitled
to future medical expenses; fifthly, whether the claimant
is entitled to escalation under the head of pain and
sufferings and lastly, whether the claimant is entitled to
attendant charges.
With regard to the first issue relating to the
direction for pay and recovery, it is found that the learned
Tribunal after considering Screen print (Exhibit B),
Permit particulars (Exhibit C) has come to a categorical
finding that the offending vehicle did not have valid
permit on the date of accident (i.e. 28.01.2013) and
passed direction for pay and recovery. Bearing in mind
the catena of decisions of Hon'ble Supreme Court where
there is violation of terms and conditions of insurance
policy such direction for pay and recovery can be passed
and thus such direction does not call for interference.
With regard to the second issue relating to
determination of the income, it is found that the learned
Tribunal has determined the income of the victim at
Rs.6,000/- per month. The claimant-victim in order to
establish his income has examined his employer Sk.
Sarfaraj Ali as P.W.3 who in his evidence has deposed
that he used to pay Rs.200/- per day as wages to the
victim who worked as a carpenter under him. Mr. Singh,
learned advocate for appellant-insurance company has
raised the issue that a person cannot work for thirty days
in a month and as such taking into consideration the
evidence of P.W.3 the income of the victim at Rs.6,000/-
per month is over estimated. I find substance in the
submission of Mr. Singh in this regard. It is of general
prudence that a worker cannot work continuously for
thirty days in a month. In my opinion, at best a working
period of twenty five days in a month would be
appropriate in the facts and circumstances of the case
and therefore, the income of the victim should be
considered at Rs.5,000/- per month.
With regard to the third issue relating to
entitlement of future prospect, it is found that the victim
at the time of accident was admittedly less than thirty
years of age and was self-employed. Thus, following the
observation of the Hon'ble Supreme Court in National
Insurance Company Limited versus Pranay Sethi and
Others reported in 2017 ACJ 2700 the claimant is
entitled to an amount equivalent to 40% of his annual
income towards future prospect.
So far as future medical expenses are concerned it
is found that there is no such medical evidence that the
victim requires any further treatment in the future. In the
aforesaid backdrop, I am not inclined to grant any
compensation towards future medical expenses.
With regard to the compensation under the head of
pain and sufferings it is found that the learned Tribunal
has granted an amount of Rs.50,000/-. Admittedly, the
petitioner for treatment of his injuries had to be
hospitalised for a considerable period. It is not in dispute
that due to the injuries sustained the petitioner had
become blind. Bearing in mind the aforesaid aspect, the
compensation under the pain and sufferings is to be
increased under such head. Thus, the claimant is entitled
to an amount of Rs.1,50,000/- towards pain and
sufferings.
With regard to attendant charges, Mr. Mondal,
learned advocate for respondent no.1-claimant has
strenuously argued relying on Jagdish (supra), Kajal
(supra), Abhimanyu Pratap Singh (supra) and Sidram
(supra) that since the victim after the accident has
become 100% blind and cannot move without an escort,
he is entitled to attendant charges. The facts of the cited
decisions are dealt with for the sake of precise decision.
In Jagdish (supra), both the hands of the victim
became disfunctional and he was unable to eat food or go
to toilet. The facts involved in the said decision is
distinguishable and does not apply to the present case.
In Kajal (supra), the victim girl suffered from
serious injuries resulting in damage to her brain. Due to
the reason of head injury, the IQ of the victim became
very low and she suffered from hysteria and severe
urinary incontinence. Therefore, the facts involved in the
said decision is also distinguishable.
In Abhimanyu Pratap Singh (supra), the claimant-
victim was a UKG student who suffered injuries in the
accident resulting in complete paralysis of both lower
limbs and partial movement of hands. He lost all sense of
nature calls and needed all time attendants for daily
routine work. Thus, the facts involved in the said decision
is also different from the case at hand.
In Sidram (supra), the victim suffered from
"Paraplegia" due to the accident which is distinguishable
from the case at hand.
Be that as it may, due to the injuries sustained in
the said accident, the victim became blind. The
disablement certificate shows that he requires escort for
his movement. Bearing in mind the aforesaid, a lump
sum amount of Rs.50,000/- is allowed towards attendant
charges.
The calculation of compensation is made
hereunder:
Calculation of Compensation
Monthly income Rs.5,000/-
Yearly income Rs.60,000/-
(Rs.5,000/- x 12)
Add: 40% of the yearly income Rs.24,000 /-
towards future prospect
Rs.84,000/-
Loss of earnings: 100% loss Rs.84,000/-
of income
Multiplier 17 Rs.14,28,000/-
(Rs.84,000/- x 17)
Add: Medical Expenses Rs.3,18,500/-
Add: Pain & Sufferings Rs.1,50,000/-
Add: Attendant Charges Rs.50,000/-
Total Rs.19,46,500/-
Thus, the claimant-victim is entitled to
compensation of Rs.19,46,500/- together with interest at
the rate of 6% per annum from the date of filing of the
claim application till payment.
It is found that the insurance company has
deposited an amount of Rs.28,26,355/- vide OD Challan
No.407 dated 04.06.2018 and also deposited the
statutory amount of Rs.25,000/ vide OD Challan No.3000
dated 25th January, 2018 with the registry of this Court.
The respondent no.1-claimant is directed to deposit
ad valorem court fees on the amount of compensation
assessed, if not already paid.
The appellant Putul Begam, wife of the victim filed
application praying for order granting compensation in
the name of her husband, Sk Mashidul @ Sk Masidul
being CAN 4 of 2019 (Old No. CAN 8821 of 2019).
In view of the prayer in the aforesaid application,
learned Registrar General, High Court, Calcutta is
directed to release Rs.19,46,500/- together with interest
in favour of the injured-claimant Sk Mashidul @ Sk
Masidul upon satisfaction of his identity and payment of
ad valorem court fees, if not already paid.
Upon satisfaction of the entire compensation, if any
amount is left over, the same shall be refunded to the
insurance company.
With the aforesaid observations, the appeal as well
as the cross objection stand disposed of. The impugned
judgment and award of the learned Tribunal is modified
to the above extent. No order as to costs.
CAN 4 of 2019 (Old No. CAN 8821 of 2019)
stands disposed of.
All other 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.)
