Sabina Yasmin Begum & Ors vs The National Insurance Company ...
2023 Latest Caselaw 5828 Cal

IN THE HIGH COURT AT CALUTTA Civil Appellate Jurisdiction 01.09.2023 SL No.1

Ali

F.M.A. 3253 of 2013 IA No.CAN/1/2013 (Old No.CAN/11177/2013)

Sabina Yasmin Begum & Ors.

Vs.

The National Insurance Company Ltd. & Anr.

Mr. Amit Ranjan Roy ...for the appellants-claimants.

Mr. Afroze Alam ...........for the insurance Co.

The instant appeal is preferred against the

judgment and award dated 11th April, 2013 passed

by the learned Judge, Motor Accident Claims

Tribunal, 1st Court, Purba Bardhaman in MAC Case

No. 33 of 2011 under Section 166 of the M.V. Act.

The appellants being claimants have preferred an

application under Section 166 of the M.V. Act before

the learned tribunal for getting compensation from

the insurance company on the ground that the their

predecessor was died in a road traffic accident due

to rash and negligent driving of the driver of the

offending vehicle duly insured by the insurance

company.

The learned advocate for the appellants

submits that the instant appeal has been preferred

only for enhancement of the award.

He submits that the income of the deceased

was taken notionally to be Rs. 3,000/- per month.

The occupation of the deceased was stated in the

claim application to be driver of a lorry and having

self transport business from his own lorry. The

income of the deceased was stated to be Rs. 9,000/-

per month. He argued that the avocation of

driving/cleaning by the deceased was well proved in

this case but the learned tribunal has erroneously

adopted the income of the deceased notionally. He

argued that the income of the deceased should not

be calculated according to the notional income. He

again argued that the claimants are entitled to get

the benefit of the judgment of the Hon'ble Apex

Court passed in Pranay Sethi regarding the future

prospects and the general damages.

Learned advocate for the insurance

company submits that the impugned award passed

by the learned tribunal suffers no illegality. The

claimant has not produced any document regarding

the business or so called driving licence of the

deceased. Thus, the learned tribunal has correctly

assessed the compensation on the basis of notional

income of the deceased to be Rs. 3,000/- there is no

chance to interfere with the impugned award.

Heard the learned advocate it appears to me

that the learned tribunal in considering the entire

case has awarded a sum of Rs. 4,17,500/-. Learned

tribunal has also ordered to pay the compensation

in favour of the wife and daughter of the deceased

i.e. appellant Nos. 1 and 2. In assessing the

compensation the learned tribunal has calculated

the income of the deceased to be Rs. 3,000/- per

month.

In considering the submission of the learned

advocate for the appellant it appears to me that the

charge sheet has been submitted stating the

deceased to be cleaner/co-driver of the offending

truck. The accident was happened in Andhra

Pradesh. The deceased was with the driver in the

said truck. Whether he was a cleaner or co-driver it

is not proved but it has sufficiently proved that he

was one of the employee of the truck who

accompanied the driver out of State. The fact was

not denied by the insurance company. The police

papers were crystal clear regarding the avocation of

the deceased to be a co-driver. Considering the

same, I think it necessary to hold that the learned

tribunal has committed error for holding the income

notionally to Rs. 3,000/- per month.

In considering the entire facts and

circumstance of this case, the income of the

deceased should be Rs. 4,500/-. It appears that the

learned tribunal has awarded the compensation in

favour of the wife and daughter of the deceased thus

in this case the applicable deduction would be 1/3rd.

According to the decision of the Hon'ble Supreme

Court Constitutional Bench (Pranay Sethi), the

claimants are also entitled to get the future

prospects i.e. 40% of his establish income and the

general damages of Rs. 70,000/-. So the just and

proper compensation of this case is as follows:- The

income of the deceased was calculated to be Rs.

4,500/- per month so the yearly income comes to

Rs. 54,000/-. 40% of which (Rs.21,600/- is added)

so the yearly award comes to Rs. 75,600/-, 1/3rd is

deducted towards the personal expenses, so after

substracting Rs.25,200/- it appears to Rs.50,400/-;

the applicable multiplier in this case is 16. So, after

applying multiplier the award comes to Rs.

8,06,400/- the general damages of Rs. 70,000/- is

also added, so the award comes to Rs. 8,76,400/-

the tribunal has already awarded a sum of Rs.

4,17,500/- which was received by the claimants

alongwith interest. Such amount is deducted from

the compensation so the balance award comes to

Rs. 4,58,900/-

The insurance company is directed to pay

the compensation alongwith interest @ 6% per

annum from the date of filing of the claim case that

is from 20.07.2010 within eight weeks from the date

of passing of this order with the office of the learned

Registrar General, High Court, Calcutta. On such

deposit the office of the learned Registrar General,

High Court, Calcutta shall disburse the amount

according to the direction given by the learned

tribunal specifically in the name of the

appellant/claimant Nos. 1 and 2 in equal shares

according to the prevalent Rules subject to the

ascertainment of payment of requisite Court Fees.

The instant FMA 3253 of 2013 is disposed

of.

All connected applications, if any, stand

disposed of.

Interim orders, if any, stand vacated.

Parties to act upon the server copy and

urgent certified copy of this order be provided on

usual terms and conditions.

(Subhendu Samanta, J.)