Calcutta High Court (Appellete Side)
Rajen Halder vs The National Insurance Co. Ltd. & ... on 1 September, 2023
IN THE HIGH COURT AT CALUTTA
Civil Appellate Jurisdiction
01.09.2023
SL No.3
Court No. 551
Ali
F.M.A. 620 of 2009
Rajen Halder
Versus
The National Insurance Co. Ltd. & Anr.
Mr. Krishanu Banik
...for the appellant-claimant.
Mr. Rajesh Singh
....for the insurance Co.
The instant appeal is preferred against the
judgment and award dated 29th April, 2006 passed
by the learned Judge, Motor Accident Claims
Tribunal, Fast Track, 2nd Court, Alipore, 24-
Parganas (South) in MAC Case No. 28 of 2004 under
Section 163-A of the M.V. Act.
The brief fact of the case is that the present
appellant being the claimant filed one application
before the learned tribunal under Section 163-A of
the M.V. Act for getting compensation on the ground
that the present claimant has sustained grievous
injuries due to rash and negligent driving of the
driver of the offending vehicle duly insured under
the policy of the insurance company-respondent.
The learned advocate for the appellant
submitted before this court that the impugned
award passed by the learned tribunal suffers
illegality. The learned tribunal has considered the
income of the deceased to be notionally to be Rs.
15,000/- per annum which is erroneous. The
appellant was a fish seller and used to earn Rs.
3,000/- per month so his income cannot be
computed Rs.15,000/- per annum. He also argued
that the 50% of the compensation was deducted
towards the loss of earning capacity of the petitioner
which was calculated by the Government Hospital
by issuing a handicapped certificate. He also argued
that the learned tribunal has also committed error
by deducting 50% of the compensation on the
ground that the another vehicle was involved who
was not made party in the claim case. He argued
that the learned tribunal should not have deducted
further 50% on the ground of involvement of the
other vehicle. He again argued that the instant
application was filed under Section 163-A of the
M.V. Act which would be decided on the principle of
"no fault liability". In this proceeding, the claimant
should be given the compensation without fixing the
liability to any person responsible for the accident.
He also submitted that the claimant is also entitled
to get some more compensation on the ground of
medical expenses, towards which learned tribunal
has given only Rs. 2,000/- so he prayed for just and
proper compensation.
Learned advocate appearing for the
insurance company raised strong objection and
submitted before this court that the impugned
award passed by the learned tribunal is not illegal in
the eye of law. However, he contended that the law
is very much clear to the effect that in case under
Section 163-A of the M.V. Act the principle to
determine the matter "no fault liability" and in that
matter the rash and negligent driving and fixing the
liability to the vehicles is unknown. So he submitted
that the just and proper compensation of this case
may be awarded.
In considering the judgment of Hon'ble
Division Bench of this High Court passed in Smt.
Bilasini Mondal Versus National Insurance
Company Limited and Another reported in 2003
(2) T.A.C. 435 (Cal.) it appears that in Smt.
Bilasini Mondal a fish seller was claimant wherein
the Division Bench of this Court has calculated the
compensation by considering the income of that
deceased/claimant to be Rs.3,000/- per month. In
this case the claimant is also a fish seller, so the
observation of the Ho'ble Division Bench of this
Court be safely adopted here So, in adopting such
view in this case the income of the claimant can be
assessed to be Rs. 3,000/- per month.
On that score, the just and proper
compensation of this case is as follows:-
Calculation of compensation
1. Monthly Income ..................................Rs.3,000/-
2. Annual Income (Rs.3,000/- X 12)......Rs.36,000/-
3. As per age of the victim
multiplier would be 11 (11 X 36,000)...Rs.3,96,000/-
4. 50% loss of income........................Rs.1,98,000/-
5. Grievous Injury (Pranay Sethi)..........Rs.5,000/-
Total Rs. 2,03,000/-
6. Add: Medical Expenses ..................Rs.2,000/-
Compensation ........Rs,2,05,000/-
7. Less awarded by Tribunal & paid.......Rs. 44,750/-
Enhancement........................Rs. 1,60,250/-
The insurance company is directed to pay
the balance amount of compensation amounting to
Rs. 1,60,250/- alongwith interest @ 6% per annum
from the date of filing of the claim application i.e.
from 03.03.2004 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 claimant is at liberty to receive the same
on the prevalent Rules.
The instant FMA 620 of 2009 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.)
