Calcutta High Court (Appellete Side)

Mirza Golam Aspia vs The National Insurance Company ... on 13 October, 2023

13.10.2023
 Ct. 654
 D/L 165
    ab

                    IN THE HIGH COURT AT CALCUTTA
                      CIVIL APPELLATE JURIDICTION
                            APPELLATE SIDE

                              FMA 468 of 2021
                                    With
                  CAN 2 of 2017 (Old No. CAN 1284 of 2017)
                    CAN 3 of 2017 (Old No. 8704 of 2017)

               Sanjida Khatun minor represented by her father
                              Mirza Golam Aspia
                                     -Vs-
               The National Insurance Company Limited & Anr.


             Mr. Amit Ranjan Roy,
             Mr. Md. Zakir Hossain
                                            ... for the appellant-claimant

             Mr. Rajesh Singh
                    ... for the respondent No. 1-insurance company

This appeal is preferred against the judgment and

award dated 29th September, 2015 passed by the

learned Judge, Motor Accident Claims Tribunal, Special

Court, Burdwan in MAC Case No. 13 of 2009 (361 of

2009) granting compensation of Rs. 1,40,000/- together

with interest in favour of the minor victim under Section

166 of the Motor Vehicles Act, 1988.

The brief fact of the case is that on 2nd August,

2009 at about 8.30 hours while the victim was standing

on the left side of Burdwan-Bankura Road at

Nischintapur bus stand for going to her relative's house

with her father, at that time the offending vehicle

bearing registration No. WB-41/1385 (Tata 807 Truck)

proceeding from Burdwan towards Bankura in a rash

and negligent manner dashed the victim, as a result of

which the victim sustained severe injuries and was

admitted to Burdwan Medical College & Hospital and

thereafter she was admitted to Royd Nursing Home,

Kolkata and Saviour Clinic, Kolkata. Due to injuries

received in the said accident, the minor victim

sustained disablement. On account of injuries

sustained and subsequent disablement, the minor

victim through her father filed application for

compensation of Rs. 3,50,000/- under Section 166 of

the Motor Vehicles Act, 1988.

The claimant in order to establish her case

examined two witnesses and produced documents,

which have been marked as Exhibits 1 to 8

respectively.

The respondent no.1-insurance company did not

adduce any evidence.

By order dated 5th December, 2022, service of

notice of appeal upon the respondent no. 2-owner of the

offending vehicle has been dispensed with since he did

not contest the claim application.

Upon considering the materials on record and the

evidence adduced on behalf of the claimant, the learned

Tribunal granted compensation of Rs. 1,40,000/-

together with interest in favour of the claimant 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 claimant has preferred the present appeal.

Mr. Amit Ranjan Roy, learned advocate for the

appellant-claimant submits that the learned Tribunal

erred in determining the annual income of the minor

victim at Rs. 15,000/- per annum whereas it ought to

have considered the annual income of the minor victim

at Rs. 30,000/- per annum. He further submits that the

minor claimant is also entitled to an amount equivalent

to 40% of the annual income towards future prospect.

Moreover since the minor victim has lost five fingers of

the left foot, certain amount should also be granted

towards loss of marriage prospect. In the light of his

aforesaid submissions, he prays for modification of the

impugned judgment and award of the learned Tribunal.

In reply to the contentions raised on behalf of the

appellant-claimant, Mr. Rajesh Singh, learned advocate

for the respondent no. 1-insurance company submits

that the learned Tribunal after considering the facts and

circumstances of the case has allowed non-pecuniary

damages of Rs. 20,000/- and further the minor victim

has been continuing all her activities including studies

and the disablement certificate indicates that she can

travel without any assistance and, therefore, further

escalation on the head of non-pecuniary damages is not

required in the facts and circumstances of the case.

Having heard the learned advocates for the

respective parties, following issues have fallen for

consideration. Firstly, whether the learned Tribunal

erred in determining the annual income of the minor

victim; secondly, minor victim is entitled to an amount

equivalent to 40% of the annual income towards future

prospect and lastly, whether the minor victim is entitled

to any amount towards loss of marriage prospect.

With regard to the first issue relating to

determination of annual income, it is found that the

learned Tribunal has determined the annual income of

the minor victim at Rs. 15,000/- per annum. However,

bearing in mind the decision of the Hon'ble Supreme

Court passed in Kishan Gopal versus Lala reported in

(2014) 1 SCC 244, the annual income of the victim is

considered at Rs. 30,000/- per annum.

With regard to future prospect is concerned,

admittedly the victim at the time of accident was a

minor aged 10 years. Following the observations of the

Hon'ble Supreme Court made in National Insurance

Company Limited versus Pranay Sethi and others

reported in 2017 ACJ 2700, the minor claimant is

entitled to an amount equivalent to 40% of the annual

income towards future prospect.

Coming to the last issue relating to loss of

marriage prospect, admittedly due to injuries sustained

in the said accident, the victim lost five fingers of her

left foot. Bearing in mind the aforesaid fact, an amount

of Rs. 20,000/- is granted towards loss of marriage

prospect.

The other factors have not been challenged in this

appeal.

Bearing in mind the above factors, calculation is

made hereunder:

Calculation of Compensation

Yearly income Rs.30,000/-

Add: 40% of the annual income Rs.12,000/-

towards future prospect Total income Rs.42,000/-

Loss of earnings: 40% of the Rs.16,800/-

total income Multiplier 15 Rs.2,52,000/-

       (Rs.16,800/- x 15)
       Add: Pain and suffering           Rs.20,000/-
       Add: Medical expenses             Rs.30,000/-
       Add: loss of marriage prospect    Rs.20,000/-

       Total compensation                Rs.3,22,000/-

It is informed that the appellant-claimant has

already received an amount of Rs. 1,40,000/- together

with interest in terms of the order of the learned Tribunal.

Accordingly, the claimant is entitled to balance amount of

compensation of Rs. 1,82,000/- together with interest @

6% per annum from the date of filing of the claim

application (07.11.2009) till payment.

Respondent no. 1-Insurance Company is directed to

deposit the balance amount of compensation together

with interest as above before the learned Registrar

General, High Court, Calcutta by way of a cheque within a

period of six weeks from date.

Mr. Amit Ranjan Roy, learned advocate for the

appellant-claimant submits that the minor claimant has

attained her majority and cheque be issued in her favour.