Smt. Kajal Bera @ Kajal Rani Bera & ... vs Nishikanta Acharyya & Anr
2023 Latest Caselaw 5953 Cal

                       IN THE HIGH COURT AT CALUTTA
                          Civil Appellate Jurisdiction
  06.09.2023
   SL No.36
Court No. 551
      Ali


                         F.M.A. 2792 of 2015

                Smt. Kajal Bera @ Kajal Rani Bera & Ors.
                                  Vs.
                      Nishikanta Acharyya & Anr.

                  Mr. Laltu Mohan Ghosh
                                 ...for the appellants-claimants.

                  Mr. Parimal Kumar Pahari
                      ...........for the respondent No.2 insurance Co.

The instant appeal is preferred against the

judgment and Order dated 12th December, 2014

passed by the learned Judge, Motor Accident Claims

Tribunal, Tamluk, Purba Medinipur in MAC Case

No. 162 of 2013.

The brief fact of the case is that the present

appellant being the 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 policy of the

insurance company.

The claim case was contested by the

insurance company by filing written statement.

The learned tribunal after hearing both the

parties and after taking the evidences awarded a

compensation in favour of the claimants to the tune

of Rs.2,25,500/- alongwith interest @ 6% per

annum from the date of filing of the application.

Being aggrieved by and dissatisfied with the

impugned award of compensation, the present

appeal was preferred.

Learned advocate for the appellants submits

that the instant appeal is preferred only for

enhancement. The learned tribunal has awarded the

compensation by fixing the monthly income of the

deceased to be Rs. 3,000/- per month. The learned

tribunal was erroneous of such finding. The

deceased was the proprietor of "Shyamasri Bhandar"

wherefrom he used to earn Rs. 16,000/- per month.

Several documents of income were produced before

the learned tribunal including the IT return. The

PW-3 appeared before the learned tribunal to prove

the IT return showing the income of the deceased to

be Rs. 1,72,000/- per year. The learned tribunal has

not considered the documentary evidences and

passed the award erroneously so he prayed for

necessary order for just and proper compensation.

Mr. Parimal Kumar Pahari, learned advocate

appearing on behalf of the insurance company

submits that the impugned award passed by the

learned tribunal is not suffered any illegality. The

observation of the learned tribunal regarding dis-

believability of the documents of income was already

there in the impugned judgment itself. Learned

tribunal has passed the speaking order to that

effect. He further argued that the documents filed by

the claimants to prove the income of the deceased

cannot be believed as they are all prepared after the

demise of the deceased. So, the observation of the

learned tribunal was correct regarding the notional

income of the deceased.

Heard the learned advocate perused the

materials on record. It appears to me that the IT

return for two Assessment Years was filed before the

learned tribunal for showing the gross income of the

deceased. One is for the Assessment Year 2011-

2012 another is for the Assessment Year 2012-2013.

The PW-3 appeared before the learned tribunal to

prove those documents. It was the evidence of PW-3

that these documents were filed with the Income Tax

Department. The balance sheet of "Shyamasri

Bhandar" was also produced regarding the

Assessment Years 2008-2009, 2010-2011, 2011-

2012 and 2012-2013. On perusing the said balance

sheet including the IT return, it appears that both

the Income Tax Returns were filed in the year 2014

i.e. after the demise of the deceased. All the balance

sheet was also prepared in the year 2014.

On that score, the observation of the

learned tribunal is justified to the fact that the

documents were prepared for the purpose of the

instant claim application. I find no infirmity in such

finding, so I am of the view that the income of the

deceased correctly calculated notionally. It is the

fact that the deceased was died in the year 2012.

In considering the notional income of the

deceased this court adopted a view in several times

that when the deceased died in a road traffic

accident from the year 2011-2014 without any valid

prove of income, the notional income of the deceased

should be calculated to be Rs. 4,000/- per month.

The same view is adopted here and the income of

the deceased is to be calculated in this case fixing

Rs. 4,000/- per month.

The claimants are entitled to get the future

prospects and the general damages according to the

observation of the Hon'ble Supreme Court in Pranay

Sethi. As the number of claimants more than three

so the personal deduction would be 1/4th.

For the purpose of just and proper

compensation the impugned award passed by the

learned tribunal is hereby modified and recasted as

follows:

Monthly income Rs. 4,000/-, yearly income

Rs. 48,000/-. The future prospects 10% i.e. Rs.

4,800/- is added thus the yearly income comes to

Rs. 52,800/-. 1/4th is deducted so after deduction

the yearly dependency comes to Rs. 39,600/-. The

applicable multiplier is 9 so after adopting the

multiplier the award comes to Rs. 3,56,400/-. The

claimants are also entitled to get the future

prospects to the tune of Rs. 70,000/- after adding

the future prospects the award comes to Rs.

4,26,400/-. The claimants have already received the

amount of compensation of Rs. 2,25,500/- so

subtracting the same amount the balance award

comes to Rs. 2,00,900/-.

The insurance company is directed to pay

the balance amount of Rs. 2,00,900/- alongwith

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

the claim application i.e. from 02.07.2013 within

eight weeks from the date of passing of this order

with the office of learned Registrar General, High

Court, Calcutta. On such deposit the claimants are

at liberty to receive the same according to the

prevalent Rules subject to the ascertainment of

payment of requisite Court Fees.

The instant FMA 2792 of 2015 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.)