Calcutta High Court (Appellete Side)
Dipali Santra & Ors vs Sankar Chandra Paul & Anr on 12 October, 2023
12.10.2023 IN THE HIGH COURT AT CALCUTTA
Ct. no.654 CIVIL APPELLATE JURISDICTION
Sl. Nos.169 APPELLATE SIDE
sn
F.M.A. 152 of 2021
(CAN 2 of 2021 & CAN 3 of 2021)
Dipali Santra & Ors.
Vs.
Sankar Chandra Paul & Anr.
Mr. Soujanya Bandyopadhyay
..for the appellants-claimants
Mr. Sanjay Paul
Ms. Jaita Ghosh
..for the respdt.no.2-insurance Co.
This appeal is preferred against the judgement
and award dated 16th January, 2020 passed by
learned Judge, Motor Accident Claims Tribunal, 4th
Bench, City Civil Court, Calcutta in M.A.C. Case No.
246 of 2017 granting compensation of Rs.4,64,000/-
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 17th March,
2016 at about 10-30/11-00 hours while the victim
was proceeding on his bicycle towards Gourhata
More, at that time the offending vehicle bearing
registration no.WB-23D/3795 coming from opposite
direction in a rash and negligent manner dashed the
victim near Arambagh Hospital More, as a result of
which the victim sustained grievous injuries.
Immediately, the victim was removed to Arambagh
2
S.D. Hospital where he was declared brought dead by
the attending doctor. On account of sudden demise
of the victim, the claimants being the widow, minor
son and mother of the deceased filed application for
compensation of Rs.7,75,000/- together with interest
under Section 166 of the Motor Vehicles Act, 1988.
The claimants in order to establish their case
examined three witnesses and produced documents,
which have been marked as Exhibit 1 to 14
respectively.
The respondent no.2-insurance company
adduced evidence of one witness and produced
documents, which have been marked as Exhibits A
& B respectively.
By order dated 15th June, 2023, service of
notice of appeal upon the respondent no.1, owner of
the offending vehicle, has been dispensed with.
Upon considering the materials on record and
evidence adduced on behalf of the respective parties,
the learned Tribunal granted compensation of
Rs.4,64,000/- together with interest in favour of the
claimants under Section 166 of the Motor Vehicles
Act. 1988.
Being aggrieved by and dissatisfied with the
impugned judgment and award of the learned
Tribunal, the claimants have preferred the present
appeal.
Mr. Soujanya Bandopadhyay, learned advocate
for the appellants-claimants submits that the learned
Tribunal erred in determining the income of the
victim and failed to consider the evidence adduced by
the claimants in support of income of the victim. The
victim at the time of accident used to work in "Sainee
Colour Concern" and the husband of the proprietor
Souren Ghosh (PW-3) categorically deposed that the
victim used to receive salary of Rs.6,000/- per
month. Such evidence of PW-3 should be taken into
account for determining the income of the victim. He
further submits that the learned Tribunal failed to
consider the entitlement of the claimants towards
future prospect of 40% of annual income of the
victim in view of the decision of Hon'ble Supreme
Court in National Insurance Company Limited
versus Pranay Sethi and Others reported in (2017)
16 SCC 680. He fairly submits that since at the time
of accident the victim was 38 years of age, the
multiplier should be 15 instead of 16 adopted by the
learned Tribunal. Further the claimants are entitled
to general damages under the conventional heads of
Rs.70,000/- instead of Rs.80,000/- granted by the
learned Tribunal.
In reply to the contentions raised on behalf of
the appellants-claimants, Mr. Sanjay Paul, learned
advocate for the respondent no.2-insurance company
submits that the claimants have failed to prove the
income of the victim at Rs.6,000/- per month by any
cogent evidence. Referring to the Cross Examination
of PW-3, he submits that no document could be
produced by the witness showing that the victim was
an employee of "Sainee Colour Concern" or that the
victim used to receive salary of Rs.6,000/- per
month. In the absence of such documentary
evidence, the income determined by the learned
Tribunal should not be interfered with. So far as the
grant of compensation of future prospect and general
damages are concerned, he submits that the
proposition of Hon'ble Supreme Court laid down in
Pranay Sethi (supra) should be followed.
Having heard the learned advocates for the
respective parties, following issues have fallen for
consideration. Firstly, whether the learned Tribunal
erred in determining the income of the victim.
Secondly, whether the claimants are entitled to an
amount equivalent to 40% of the annual income of
the victim towards future prospect. Thirdly, whether
the multiplier should be 15 instead of 16 adopted by
the learned Tribunal. Lastly the claimants are
entitled to general damages of Rs.70,000/- under the
conventional heads.
With regard to the first issue relating to
determination of income of the deceased, it is found
that the learned Tribunal has determined the income
of the victim at Rs.6,000/- per month. The claimants
in their claim application have contended that the
victim at the time of accident used to work in "Sainee
Colour Concern" and used to receive salary of
Rs.6,000/- per month. In order to establish the
income of the victim, the claimants have adduced the
evidence of one Souren Ghosh (PW-3), husband of
the proprietor of "Sainee Colour Concern". Though,
PW-3 in his evidence in chief deposed that the victim
used to work in their shop and received salary of
Rs.6,000/- per month, however, in cross examination
he admitted that he has no document to show that
the victim was an employee in "Sainee Colour
Concern" or the victim used to receive Rs.6,000/- per
month. He also admitted that there is no Attendance
Register of the employee of the said concern. Such
being the position of evidence of PW-3 cannot be
accepted in the absence of documentary evidence of
employment and income of the victim in the said
concern. Accordingly, the claimants have failed to
establish the avocation and income of the victim. Be
that as it may, since the accident has taken place in
the year 2016, bearing in mind the economic factors
and prices of essential commodities prevalent at that
time, the income of the victim at Rs.5,000/- per
month should be reasonable and appropriate in the
facts and circumstances of this case.
With regard to the second issue relating to
entitlement of future prospect, it is found that the
learned Tribunal did not grant future prospect while
assessing the compensation. At the time of the
accident, the victim was 38 years of age and
presumably self-employed and hence following
following the observations of the Hon'ble Supreme
Court in Pranay Sethi (supra) the claimants are
entitled to an amount equivalent to 40% of the
annual income of the victim towards future prospect.
So far as the multiplier is concerned, it is
found that the learned Tribunal adopted multiplier of
16. However, since the victim at the time of accident
was 38 years of age, following the observations in
Sarla Verma and Others versus Delhi Transport
Corporation and Another reported in 2009 (6) SCC
121, the multiplier should be 15 instead of 16
adopted by the learned Tribunal.
So far as the general damages are concerned, it
is found that the learned Tribunal has granted
Rs.80,000 under the general damages. However,
following the observations in Pranay Sethi (supra),
the claimants are entitled to general damages under
the conventional heads of loss of estate, loss of
consortium and funeral expenses to the tune of Rs.
15,000/-, Rs.40,000/- and Rs.15,000/- respectively.
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.5,000/-
Annual income Rs.60,000/-
(Rs.5,000/- x 12)
Add: 40% of the annual income Rs.24,000/-
towards future prospect
Rs.84,000/-
Deduction: 1/3rd towards personal Rs.28,000/-
and living expenses
Rs.56,000/-
Multiplier 15 Rs.8,40,000/-
(Rs.56,000/- x 15)
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.9,10,000/-
Thus, the appellants-claimants are entitled to
compensation of Rs.9,10,000/- together with interest
@ 6% per annum from the date of filing of the claim
application (18.04.2017) till payment.
It is informed that the claimants have already
received a sum of Rs.4,64,000/- together with
interest in terms of the order of the learned Tribunal.
Accordingly, the claimants are entitled to balance
amount of compensation of Rs.4,46,000/- together
with interest @ 6% per annum from the date of filing
of the claim application (18.04.2017) till payment.
The respondent no.2-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 within a period of six weeks
from date.
Appellants-claimants are directed to deposit
court fees on the balance amount of compensation
assessed, if not already paid.
Upon deposit of balance amount of
compensation and interest, learned Registrar
General, High Court, Calcutta shall release the
aforesaid amount in equal proportion in favour of the
appellants-claimants, 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 and payment of balance
court fees, if not already paid.
The appellant no.1, being the mother and
natural guardian of the minor appellant no.2, shall
receive the share of the said minor and shall keep the
same in a fixed deposit scheme of any nationalized
bank or post office till attainment of majority of the
said minor.
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.
All connected applications, if any, are also
disposed of.
Interim order, if any, stands vacated.
Let a copy of this order along with the Lower
Court Records be sent to the learned Court below for
information in accordance with the rules.
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.)
