Calcutta High Court (Appellete Side)
Shirapa Khilari & Ors vs The Oriental Insurance Co. Ltd. & ... on 5 September, 2023
05.09.2023 IN THE HIGH COURT AT CALCUTTA
Ct. no.654 CIVIL APPELLATE JURISDICTION
Sl. Nos.266 APPELLATE SIDE
sn
F.M.A. 1352 of 2022
Shirapa Khilari & Ors.
Vs.
The Oriental Insurance Co. Ltd. & Anr.
Mr. Amit Ranjan Roy
..for the appellants-claimants
Mr. Prabir Kumar Ghosh
..for the respondents-insurance Co.
Inadvertent typographical error has crept into
the order dated 7th November, 2022 mentioning the
name of learned advocate for the respondent no.1-
insurance company as "Mr. Parimal Kumar Pahari"
instead of " Mr. Prabir Kumar Ghosh" in the cause
title and in the 13th line of the said order.
Let the name of " Mr. Prabir Kumar Ghosh" be
read in place of "Mr. Parimal Kumar Pahari" in the
aforesaid order.
The aforesaid order stands modified to the
above extent. The other portion of the aforesaid order
shall remain unaltered.
This appeal is preferred against the judgement
and award dated 22nd December, 2017 passed by
learned Additional District Judge cum Judge, Motor
Accident Claims Tribunal, 6th Court, Paschim
Medinipur in M.A.C. Case No. 292 of 2015 granting
compensation of Rs.5,90,500/- 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 07.05.2015
at about 8-00 p.m. while the victim was standing
with her friend on the morum portion road near
Karkatasole under Police Station Gopiballavpur,
District Paschim Medinipur, at that time the
offending vehicle bearing registration no.OR-
11G/5011(Bolero Pick-up Van) in a rash and
negligent manner dashed the victim from behind, as
a result of which the victim sustained severe injuries
on his person and he died on the spot. On account
of sudden demise of the victim, the claimants being
the widow, minor son, minor daughter and mother of
the deceased filed application for compensation of
Rs.8,00,000/- together with interest under Section
166 of the Motor Vehicles Act, 1988.
The claimants in order to establish their case
examined two witnesses and produced documents,
which have been marked as Exhibit 1 to 6
respectively.
The respondent no.1-insurance company did
not adduce any evidence.
By order dated 7th November, 2022, service of
notice of appeal upon the respondent no.2, owner of
the offending vehicle, has been dispensed with.
Upon considering the materials on record and
evidence adduced on behalf of the claimants, the
learned Tribunal granted compensation of Rs.
5,90,500/- 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 appellants-claimants preferred the
present appeal.
Mr. Amit Ranjan Roy, learned advocate for the
appellants-claimants submits that the learned
Tribunal erred in determining the income of the
victim and failed to consider that at the relevant time
of accident the victim was a Mason by profession and
had income of Rs.9,000/- per month, which is
supported by the evidence of PW-1, widow of the
deceased. He further submits that the claimants are
entitled to an amount equivalent to 40% of the
annual income of the victim towards future prospect
and general damages of Rs.70,000/- under the
conventional heads in view of the decision 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
further submits that deduction towards personal and
living expenses of the deceased should be 1/4th
instead of 1/3rd since at the time of accident the
victim had four dependants. In view of the aforesaid
submissions, he prays for enhancement of the
compensation amount.
In reply to the contentions raised on behalf of
the appellants-claimants, Mr. Prabir Kumar Ghosh,
learned advocate for the respondent no.1-insurance
company submits that the income of the victim has
not been proved by any cogent documentary
evidence. He further submits that the manner of
accident has also not been proved in this case. In
view of this above submissions, he prays for
dismissal of the appeal.
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 claimants are entitled to general damages of
Rs.70,000/- under the conventional heads and
Lastly, whether the deduction towards personal and
living expenses of the deceased should be 1/4th
instead of 1/3rd.
With regard to the first issue relating to
determination of income of the deceased, it is found
that the claimants in their claim application as well
as through the evidence of PW-I(Shirapa Khilari),
widow of the deceased, has claimed that the
deceased at the time of accident was a Mason and
used to earn Rs.9,000/- per month by working under
the Block Development Officer at Suliapada Block,
District Mayur Bhanj, State Orissa. Save and except
the oral evidence of PW-1, there are no cogent
documentary evidence produced on behalf of the
claimants to establish the profession and income of
the victim. From the impugned judgment, it appears
that one certificate issued by the Engineer of
Suliapada Block was filed by the claimants in
support of the income of the deceased but the same
has not been proved. Be that as it may, bearing in
mind the economic factors and prices of essential
commodities prevailing in the year 2015 and also
keeping in mind catena of decisions of this Court the
income of the victim of Rs. 5,000/- per month would
be reasonable and appropriate in the facts of
circumstances of the case.
With regard to the second issue relating to
entitlement of future prospect, it is found that the
victim at the time of accident was 31 years of age and
was self-employed and, therefore, 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 general damages are concerned, it
is found that the learned Tribunal has granted
Rs.4,500/- towards funeral expenses and loss of
estate and Rs. 10,000/- towards loss of love and
affection. 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.
With regard to the deduction towards personal
and living expenses of the deceased, it is found that
the learned Tribunal has deducted 1/3rd of the
annual income of the victim towards his personal
and living expenses. Since at the time of accident the
number of dependants of the deceased is four, hence
following the observations in Sarla Verma and
Others versus Delhi Transport Corporation and
Another reported in 2009 (6) SCC 121, the
deduction towards personal and living expenses
should be 1/4th of his annual income.
Although Mr. Ghosh, learned advocate for the
respondent no.1-insurance company has challenged
the manner of accident but the same has not been
challenged by way of cross-objection.
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: 1/4th towards personal Rs.21,000/-
and living expenses
Rs.63,000/-
Multiplier 16 Rs.10,08,000/-
(Rs.63,000/- x 16)
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.10,78,000/-
Thus, the appellants -claimants are entitled to
compensation of Rs.10,78,000/- together with
interest @ 6% per annum from the date of filing of
the claim application(22.05.2015) till payment.
It is informed that the claimants have already
received a sum of Rs.5,90,500/- together with
interest in terms of the order of the learned Tribunal.
Accordingly, the claimants are entitled to balance
amount of compensation of Rs.4,87,500/- together
with interest @ 6% per annum from the date of filing
of the claim application (22.05.2015) till payment.
The respondent no.1-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 ad
valorem 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 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 ad valorem court fees,
if not already paid.
The appellant no.1, being the mother and
natural guardian of the appellant nos. 2&3 shall
receive the share of the said minors and shall keep
the same in a fixed deposit scheme of any
nationalized bank or post office till attainment of
majority of the said minors.
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.
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.)
