Calcutta High Court (Appellete Side)

The National Insurance Co. Ltd vs Durga Mudi & Ors on 16 October, 2023

16.10.2023                    IN THE HIGH COURT AT CALCUTTA
Ct. no.654                     CIVIL APPELLATE JURISDICTION
Sl. Nos.165-166                        APPELLATE SIDE
    sn
                                       F.M.A. 359 of 2019
                                CAN 1 of 2019 (old CAN 827 of 2019)


                                 The National Insurance Co. Ltd.
                                            Vs
                                     Durga Mudi & Ors.
                                           With

                                      COT 71 of 2019

                                  Durga Mudi & Ors.
                                           Vs.
                          The National Insurance Co. Ltd. & Anr.

                      Mr. Sanjay Paul
                      Ms. Jaita Ghosh
                                   ..for the appellant-Insurance Co.

                      Mr. Jayanta Banerjee
                      Mr. Sandip Bandhopadhyay
                      Mr. Argha Bhattacharjee
                                 ..for the respondents-claimants

This appeal is preferred against the judgement

and award dated 31st July, 2018 passed by learned

Judge, Motor Accident Claims Tribunal, Fast Track,

1st Court, Paschim Medinipur in M.A.C. Case No. 407

of 2014 granting compensation of Rs.44,32,573/-

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 26th March,

2014 in between 11-30 a.m to 12-00 noon while the

victim was proceeding towards Khatra from Sahebbar

riding his bi-cycle for attending his job as a teacher

in the school and when he reached near Mez

Harigera Poultry Farm at that time the offending

vehicle bearing registration no.WB-34H/1818 (Tata

Indica) coming from Sahebbar in a rash and

negligent manner dashed the victim from behind, as

a result of which he fell down on the road and

sustained grievous injuries. Immediately, the victim

was taken to Khatra 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 and two sons of the

deceased filed application for compensation of

Rs.38,00,644/- together with interest under Section

166 of the Motor Vehicles Act, 1988.

The claimants in order to establish their case

examined claimant no.1 and two other witnesses and

produced documents, which have been marked as

Exhibit 1 to 14/A (series) respectively.

The appellant-insurance company did not

adduce any evidence.

Since the respondent no.4, owner of the

offending vehicle, did not contest the claim

application and the case was disposed of ex parte

against him, hence, service of notice of appeal upon

the said respondent stands dispensed with.

Upon considering the materials on record and

evidence adduced on behalf of the claimants, the

learned Tribunal granted compensation of

Rs.44,32,573/- together with interest 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 appellant-insurance company preferred

the present appeal.

Challenging the impugned judgment and

award of the learned Tribunal, the claimants have

also preferred a cross objection being COT 71 of

2019.

Both the appeal as well as the cross objection

are taken up together for consideration and disposal.

Mr. Sanjoy Paul, learned advocate for the

appellant-insurance company submits that there is

delay of more than one month in lodging the FIR

which raises doubt in the claim case. He further

submits that the learned Tribunal erred in granting

future prospect of Rs.7,28,429/- whereas it ought to

have granted 15% of the annual income of the victim

towards future prospect. He fairly submits that the

general damages should be Rs.70,000/- instead of

Rs.62,000/-.granted by the learned Tribunal. In the

light of his aforesaid submissions, he prays for

setting aside the impugned judgment and award

and/or modification of the same.

Mr. Jayanta Banerjee, learned advocate for the

respondent nos. 1, 2 & 3 (claimants) submits that

the delay in lodging the FIR has been duly explained

and as such delay per se would not make claim of

the claimants doubtful. He also submits that the

general damages should be Rs.70,000/- instead of

Rs.62,000/-. In the light of his aforesaid

submissions, he prays for enhancement of the

compensation amount.

Having heard the learned advocates for the

respective parties, following issues have fallen for

consideration. Firstly, whether the delay in lodging

the FIR makes claim case doubtful; secondly,

whether the claimants are entitled to future prospect

of 15% of the annual income of the victim instead of

Rs.7,28,429/- and lastly, whether the claimants are

entitled to general damages of Rs.70,000/- instead of

Rs.62,000/- granted by the learned Tribunal.

With regard to the first issue relating to delay

in lodging the FIR, it is found that the FIR has been

lodged on 28th April, 2014, which is after more than

one month of the occurrence on 26th March, 2014.

The delay in lodging the FIR has been duly explained

by the widow of the deceased (FIR maker) that due to

sudden demise of her husband and for reasons for

mental agony, there has been delay in lodging of the

FIR. Further there is no evidence of fabrication or

concoction or engineering of FIR. The Hon'ble

Supreme Court observed in Ravi versus

Badrinarayan and Others reported in 2011 (1)

T.A.C. 867 (S.C.) as follows:-

"20. It is well settled that the delay in lodging FIR cannot be a ground to doubt the claimant's case. Knowing the Indian conditions as they are, we cannot expect the common man to first rush to the Police Station immediately after an accident. Human nature and family responsibilities occupy the mind of kith and kind to such an extent that they give more importance to get the victim treated rather than rush to the Police Station. Under such circumstances, they are not expected to act mechanically with promptitude in lodging the FIR with the Police. Delay in lodging the FIR thus, cannot be the ground to deny justice to the victim. In cases of delay, the Courts are required to examine the evidence with a closer scrutiny and in doing so; the contents of the FIR should also be scrutinized more carefully. If Court finds that there is no indication of fabrication or it has not been concocted or engineered to implicate innocent persons then, even if there is a delay in lodging the FIR the claim case cannot be dismissed merely on that ground."

Bearing in mind the aforesaid observation of

the Hon'ble Supreme Court, as in the present case at

hand, there is no evidence of fabrication or

concoction or engineering to the FIR, hence, the

delay in lodging FIR per se would not make the claim

case doubtful. In view of the above, the argument

advanced on behalf of the appellant-insurance

company fall short of merit.

With regard to the second issue relating to

entitlement of future prospect, it is found that the

learned Tribunal has granted Rs.7,28,429/- towards

future prospect. Admittedly, at the time of accident,

the victim was 52 years of age and he was an

assistant teacher of Matgoda High School, Post Office

Matgoda, District Bankura. Following the

observations of Hon'ble Supreme Court 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

15% of the annual income of the victim towards

future prospect.

So far as the general damages are concerned, it

is found that the learned Tribunal has granted

Rs.62,000/- 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.41,388/-
     Annual income                           Rs.4,96,656/-
     (Rs.41,388/- x 12)
     Add: 15% of the annual income           Rs.74,498/-
          towards future prospect
                                             Rs.5,71,154/-
     Less: 1/3rd deduction towards           Rs.1,90,385/-
           personal and living expenses
                                             Rs.3,80,769/-
     Multiplier 11                           Rs.41,88,459/-
     (Rs.3,80,769/- x 11)
     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.42,58,459/-

Thus, the respondents -claimants are entitled

to compensation of Rs.42,58,459/- together with

interest @ 6% per annum from the date of filing of

the claim application till payment.

It is found that the insurance company has

already deposited an amount of Rs.56,20,565/- in

terms of the order of this Court vide O.D. challan no.

83 dated 11th April, 2019 and an amount of

Rs.25,000/- as statutory deposit vide O.D. challan

no. 2817 dated 12th February, 2019 before the

registry of this Court. Both the aforesaid deposits

together with accrued interest be adjusted against