Jayanti Dalapati & Ors vs The United India Insurance Co. ...
2023 Latest Caselaw 6403 Cal

22.09.2023                  IN THE HIGH COURT AT CALCUTTA
 Ct. no.654                 CIVIL APPELLATE JURISDICTION
 Sl. No.193                         APPELLATE SIDE
     KB/sn                             ,,




                                    F.M.A. 108 of 2021

                                  Jayanti Dalapati & Ors.
                                            Vs.
                        The United India Insurance Co. Ltd. & Ors.
              ,,




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

                     Mrs. Sucharita Paul
                           ... For the respondents-insurance company.

This appeal is preferred against the judgment and

award dated 3rd February, 2018 passed by learned

Additional District Judge cum Judge, Motor Accident

Claims Tribunal, 3rd Court, Tamluk, Purba Medinipur in

M.A.C. Case No. 319 of 2014 dismissing the claim

application of the claimants filed under Section 166 of the

Motor Vehicles Act, 1988.

The brief fact of the case is that on 10th June, 2014

at about 5 A.M. while the victim was standing near Uttar

Narkelda Pan Market on NH 41 under P.S. Tamluk, at that

time one pick up van bearing registration no. WB-65A-

9203 loaded with betel leaves came and was parked by the

side of NH41. Soon thereafter some persons started

unloading the betel leaves and another person was talking

to the driver of the pick up van. Suddenly the offending

vehicle bearing registration no. WB-29-9265 (Truck) came

from Haldia side to Mecheda in a rash and negligent

manner and dashed the pick up van from behind and the

said pick up van dashed another stationary truck

standing in front of it. The pick up van was damaged in

front and the offending vehicle fled away from the spot. As

a result of such accident the victim and some other

standing persons including the driver of the pick up van

were seriously injured. The victim was taken to Purba

Medinipur District Hospital at Tamluk where he was

declared dead by the attending doctor. On account of

sudden demise of the victim the claimants, being the wife,

son and mother filed application for compensation of

Rs.7,00,000/- together with interest under Section 166 of

the Motor Vehicles Act, 1988.

The claimants in order to establish their case

examined three witnesses and produced documents which

have been marked as Exhibit 1 to 7 respectively.

Respondent no.1-insurance company did not adduce

any evidence.

By order dated 20th February, 2023, service of notice

of appeal upon respondent no.2-owner of the offending

vehicle has been dispensed with since he did not contest

the claim application.

Upon considering the materials on record and the

evidence adduced on behalf of the claimants, the learned

Tribunal dismissed the claim application of the claimants

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 claimants have preferred the present appeal.

During the pendency of this appeal, the appellant

no.3 Subhasini Dalapati alias Shobhasini Dalapati expired

on 11th August, 2019 and by order dated 20th February,

2023 appellant nos. 3(a) to 3(e) being the legal heirs of

deceased appellant were substituted in her place. By such

order the opposite party no.3, in the claim application

namely, Megha Dalapati was added as respondent no.3 in

the Memorandum of Appeal.

Mr. Amit Ranjan Roy, learned advocate for

appellants-claimants submits that the learned Tribunal

erred in dismissing the claim application of the claimants

without appreciating the evidence adduced on behalf of

the claimants in support of their case. The learned

Tribunal dismissed the claim application holding that the

victim contributed to the negligence which is totally based

on assumption since there are no evidence on record of

contributory negligence of the victim. Accordingly, the

order of dismissal of the learned Tribunal cannot sustain

in the eye of law.

With regard to the quantum of compensation, he

submits that P.W.3 has proved the documents from which

it will be evident that at the time of accident the victim

was a Cashier in Bangla Pan Arat and had monthly

income of Rs.7,000/- per month which should be taken

into account for determining the compensation. Moreover,

as per the post mortem report, the victim at the time of

accident was aged 45 years and as such the multiplier

should be 14. Further the claimants are also entitled to an

amount equivalent to 25% of the annual income of the

victim towards future prospect. In light of his submission,

he prays for setting aside the order of the learned Tribunal

and granting compensation in favour of the claimants.

In reply to the contention raised on behalf of

appellants-claimants, Mrs. Sucharita Paul, learned

advocate for respondent no.1-insurance company submits

that as per the evidence on record, the victim on the date

of accident was talking to the driver of the pick up van

which clearly manifest that the victim was standing on the

right side of pick up van which is on the road itself and

thereby he is guilty of contributory negligence and the

learned Tribunal has rightly observed that the victim had

contributed to the negligence. Thus the order of dismissal

of the claim application by the learned Tribunal does not

call for interference.

So far as the quantum of compensation is concerned,

Mrs. Sucharita Paul, learned advocate for respondent-

insurance company submits that the income of the victim

has not been proved by any cogent evidence.

Having heard the learned advocates for the

respective parties, the primary issue raised in the appeal

is whether the learned Tribunal erred in dismissing the

claim application of the claimants on the ground of

contributory negligence of the victim.

In order to appreciate the aforesaid issue, it would

be apposite to look to the evidence adduced on behalf of

the claimants. The claimants in order to establish rash

and negligent Act of the driver of the offending vehicle

have examined one Sunil Guria as PW-2 and produced

documents in the form of written complaint (Exhibit-1)

and Charge-sheet (Exhibit-2) filed by the investigating

agency. PW-2, Sunil Guria stated in his affidavit-in-chief

that on 10th June, 2014 at about 5 a.m. while he was

standing at Uttar Narkelda Pan Market he saw the victim

near the said market. At that point of time, one Pick up

van bearing registration no.WB-65/9203 came and

parked at the market. Some persons were unloading betel

leaf from the said pick up van and some others were

talking to the driver, at that point of time one loaded

truck bearing registration no.WB-29/9265 coming from

Haldia side to Mecheda dashed the said pick up van from

behind and fled away. Due to the said accident, some

persons including the driver sustained injuries. He

further deposed that he is an eyewitness to the

occurrence. The presence of eyewitness on the relevant

time of accident near scene the occurrence is not

challenged in the cross-examination, rather his presence

has been established in the cross-examination by his

statement that on that day he came to the market to

purchase betel leaf.

There is no evidence on record to suggest that on

the date of accident the victim was standing on the road.

The material on record also does not lead to the fact that

the victim has guilty to the contributory negligence. No

contrary evidence has been led from the side of the

insurance company to primarily establish that there was

contributory negligence on the part of the victim. The

evidence of eyewitness is also corroborated by the written

complaint and the charge sheet filed by the investigating

agency against the driver of the offending vehicle.

Considering the aforesaid materials on record, it is found

that the claimants have succeeded in establishing that

the accident took place due to rash and negligent driving

of the offending vehicle by its driver. For such reasons,

the order of dismissal of the claim application passed by

the learned Tribunal is liable to be set aside.

Now, with regard to the quantum, the following

aspects are to be determined.

i) Multiplier.

ii) Income.

iii) Deduction towards personal and living expenses.

iv) General damages.

With regard to the multiplier, the age of the victim

is to be ascertained. The claimants excepting the post

mortem report has placed no other documentary evidence

with regard to the age of the victim. As per post mortem

report, the victim at the time of accident was 45 years of

age. There is no contrary evidence to the aforesaid age of

the victim. Following the observations of Hon'ble Supreme

Court in Sarla Verma and Others versus Delhi

Transport Corporation and Another reported in 2009

(6) SCC 121, the multiplier should be 14.

With regard to the income of the victim, it is found

that the claimants have examined the proprietor of

Bangla Pan Arat (BM) as PW 3, who deposed that the

victim worked in his Pan Arat as a Cashier. Be that as it

may, in his cross-examination, this witness admitted that

he has no document to show that the victim used to work

under him. He also admitted that he has no document to

show that he paid salary to his workers. Though, this

witness proved income certificate (Exhibit-7), however,

such certificate is not supported by any documentary

evidence. Therefore, salary certificate (Exhibit-7) cannot

be accepted in the absence of supportive documentary

evidence. Be that as it may, bearing in mind the economic

factors prevalent at the time of accident in the year 2014,

I am of the view that the monthly income of Rs.4,000/-

per month would be reasonable and appropriate in the

facts and circumstances of this case. Since at the time of

accident the victim was 45 years of age and was self-

employed, 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 25% of the annual

income of the deceased towards future prospects.

So far as the deduction towards personal and living

expenses of the victim is concerned, it is found that

admittedly at the time of accident the victim had three

dependants. Following observations of Sarla Verma

(supra), deduction towards personal and living expenses

of the deceased should be 1/3rd.

Further the claimants are also entitled to general

damages under the conventional heads loss of estate, loss

of consortium and funeral expenses 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.4,000/-
      Annual income                           Rs.48,000/-
      (Rs.4,000/- x 12)
      Add: 25% of the annual income           Rs.12,000/-
           towards future prospect
                                              Rs.60,000/-
      Less: 1/3rd towards personal            Rs.20,000/-
            and living expenses
                                              Rs.40,000/-
      Multiplier 14                           Rs.5,60,000/-
      (Rs.40,000/- x 14)
      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.6,30,000/-

The legal heirs of the deceased namely appellant

nos. 1 & 2 and respondent no. 3 are entitled to

compensation of Rs. 6,30,000/- together with interest @

6% per annum from the date of filing of the claim

application (21.07.2014) till payment.

The respondent no.1-insurance company is

directed to deposit the aforesaid 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.

Upon deposit of the aforesaid amount of

compensation, the learned Registrar General, High Court,

Calcutta shall release the amount of compensation in

favour of the appellant nos.1 & 2 and respondent no.3,

after making payment of Rs. 40,000/- in favour of the

appellant no.1, widow of the deceased, towards spousal

consortium, in the proportion that appellant no.1 shall

receive 60% and the appellant no.2 and the respondent

no.3 shall receive 20% each upon satisfaction of their

identity. No award is granted in favour of appellant no.

3(a) to 3(e).

The appeal is accordingly allowed. The impugned

judgment of dismissal of the learned Tribunal is set aside.

No order as to costs.

All connected applications, if any, are also disposed

of.

Interim order, if any, stands vacated.

Let a copy of this order along with lower court

records be forwarded to learned Tribunal forthwith in

accordance with rules.

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.)