The National Assurance Co. Ltd vs Smt. Rama Sarkar & Ors
2023 Latest Caselaw 6406 Cal

                         IN THE HIGH COURT AT CALUTTA
                            Civil Appellate Jurisdiction
 22.9.2023
 SL No.25 & 26
Court No. 551
    Ali


                               F.M.A. 3098 of 2013
                  IA No.:CAN/2/2018 (Old No:CAN/3579/2018)

                            The National Assurance Co. Ltd.
                                         Versus
                           Smt. Rama Sarkar & Ors.
                                    With

                              COT 14 of 2014

                           Rama Sarkar & Ors.
                                 Versus
                  The National Assurance Co. Ltd. & Anr.


                   Ms. Gopa Das Mukherjee
                            ...for the appellant in FMA 3098 of
                          2013 and respondent in COT 14 of 2014.

Mr. Jayanta Kumar Mandal ......for the respondents-claimants in FMA 3098 of 2013 and appellants in COT 14 of 2014.

The instant appeal has been preferred against

the judgment and award dated 24th May, 2013

passed by learned Judge, Motor Accident Claims

Tribunal, 13th Court, Alipore, 24-Parganas (South) in

M.A.C. Case No. 18 of 2011.

The brief fact of the case is that the present

respondents are the fateful parents of a young person

who died in a road traffic accident. The parents have

preferred a claim application under Section 166 of the

MV Act before the learned tribunal for getting

compensation on the ground that their unmarried

young son was died in a road accident due to rash

and negligent driving of the driver of the offending

vehicle duly insured under the policy of the insurance

company.

The matter was contested by the insurance

company and after hearing both the parties the

learned tribunal has awarded a sum of Rs.

34,64,342/-towards the compensation to the

claimants.

Being aggrieved by and dissatisfied with the

said judgment, the insurance company has

preferred this appeal.

The only ground was raised by the insurance

company before this appellate court is that there are

contributory negligence on the part of the victim to

cause the accident thus the insurance company may

not solely liable to pay the compensation. In support

to his contention, she submits that the accident was

happened in Mumbai-Pune Express Highway

wherein four young persons was driven a Honda

City Car in high speed and in a rash and negligent

manner and they dashed behind a truck. By such

accident the driver i.e. the present victim alongwith

another persons died on spot and the other two

persons at back seat of the car sustained injuries.

He argued that the evidence on record including the

police paper would show that the driver of the

Honda City Car i.e. the present victim was also

responsible for the accident. On that score, she

argued that the compensation has to be apportioned

in regard to the contributory negligence on the part

of the victim.

Learned advocate for the

respondents/claimants filed a cross appeal, which

was listed alongwith this appeal. It is the

submission of the learned advocate for the claimants

that the future prospects was not considered by the

learned tribunal at the time of passing of the

compensation as per the direction of the Hon'ble

Apex Court passed in Pranay Sethi. As the victim

was employee State Bank of India so the 50%

establish income should be added towards the

future prospects. He further argued that the

claimants are the parents so they are entitled to get

the general damages of Rs. 30,000/- alongwith with

additional enhancement of 10% according to the

direction of the Hon'ble Apex Court in Pranay Sethi.

He finally argued that the police papers including

the evidences of PWs and the eye witness shows that

the victim was not responsible for the accident but

the truck was only responsible for the accident. At

this juncture, the compensation cannot be

apportioned on the ground of contributory

negligence.

Heard the learned advocates perused the

materials on record it appears to me that the case of

the claimants were stated the manner of the

accident as follows:- while they were driven the

Honda City Car at that time of the offending car

coming through the opposite side dashed the Honda

City Car and as such they sustained the injuries

and the victim died. The facts also goes to show the

victim was driving the Car towards Pune.

On perusing the police papers it appears to

me that after a accident the police case was

registered vide Takegaon Debhade Police Case No.

36 of 2010 dated 27.02.2010. The field inquiry of

the police after the said accident disclosed that both

the Honda City Car and the Truck was facing

towards the Pune side. The back light of the Truck

was broken and filled with mud and front side of the

Honda City Car was damaged. The statement of the

police on detailed inquiry of the spot shows that the

Honda City Car dashed the Truck from the behind.

The Postmortem was conducted over the dead body

of the deceased wherefrom it appears that the

stomach of the victim contained undigested food

alongwith smell of Alcohol. The investigation of the

police ended in charge-sheet. The charge-sheet

contained the statement of witnesses. The Khalasi

of the said Truck has stated before the police. The

statement of Khalasi, namely, Mithu Tukaram Dhigi

disclosed that the Truck was going towards the

Mumbai side and when he reached the PO the

driver suddenly tried to cross the Express High Way

by while turning for going towards the Pune side. At

that time driver entered into no-entry zone, when

the truck turn its head towards the Pune side

suddenly the Honda City Car dashed the truck from

behind. The other attending witnesses also support

the version. The investigation of the police ended in

charge-sheet alleging the driver of the offending

truck to be responsible for the accident. So

considering the entire circumstances, in calculating

the negligence of parties, it appears to me that the

driver of the truck suddenly without any signal

entered into the no entry zone and cross the Express

High Way, when he Truck its head towards Pune

side at the time of the driver of the Honda City Car

i.e. the victim under influence of the Alcohol failed to

make the judgment about the distance between the

truck and the Honda City Car and dashed the back

side of the Truck. In the impact of such accident the

victim died alongwith any other person.

So, in that score, it is clear that the

offending vehicle i.e. the Truck was initially

responsible for the accident but at the same time

the driver of the Honda City Car i.e. the victim

himself was also responsible as he failed to make

the judgment under the influence of alcohol and

could not press the break of speeding car..

Considering the same, I think it necessary that the

victim i.e. the driver of the Honda City Car is 40%

responsible for the accident while the offending

Truck is responsible for rest 60%. In my view, the

compensation has to be apportioned to 60% : 40%.

In considering the income, the just and

proper compensation in this case and it appears to

me that the learned tribunal has assessed the

compensation by fixing the monthly income of the

deceased to be Rs. 33,871/- on perusing the exhibit

15 i.e. the Pay Slip given by the State Bank of India

it appears that the Pay Slip contains the P Tax of Rs.

200/- and Income Tax of Rs. 604/- so Rs. 804/-

has to be deducted towards the tax component from

the gross salary of the deceased, the gross salary of

the deceased Rs.33,807/-. So, in considering the

compensation in this case, the Rs.800/- has to be

deducted thus the income of the deceased appears

be Rs.33,000/- per month.

Considering the same, it appears to me that

the impugned order passed by the learned tribunal

is need be modified.

The just and proper compensation is

assessed hereunder.:-

Calculation of compensation

1. Yearly Income .......................................Rs.3,96,000/-

Add 50% Future Prospect............Rs.1,98,000/-

Rs. 5,94,000/-

2. Less: 50% Personal Expenses ............ Rs.2,97,000/-

3. Multiplier 17 (Rs.2,97,000/-X 17)...................................Rs.50,49,000/

5. Add: General Damages .......................Rs. 33,000/-

Compensation.......... Rs. 50,82,000/-

So the just and proper compensation of this

case comes to Rs. 50,82,000/-

The insurance company is liable to pay the 60%

of the same. So, the 50% of the same award comes to

Rs. 30,49,200/-. The insurance company is directed

to pay the compensation alongwith interest @ 6% per

annum from the date of the claim application i.e.

from 18th of February, 2011. It appears from the

record that the insurance company has already

deposited the statutory deposit of Rs. 25,000/- on

29.08.2013 and rest amount of Rs. 41,96,502/- with

the office of the Registry on 12th of March, 2014 the

said deposited amount must have carried some

interest. At this juncture, the insurance company is

liable to pay the compensation amounting to Rs.

30,41,200/-. The compensation amount appears to

be less than the deposited amount, considering the

same the office of the learned Registrar General, High

Court, Calcutta is directed to calculate the

compensation alongwith the interest as directed

above from the date of filing of the claim application

to its actual payment and disburse the same as early

as possibly most preferable within the ensuing Puja

Vacation to the claimants and after such payment if it

appears that same amount is left unadjusted in the

account the same may be refunded to the insurance

company and after such calculation if it appears that

the claimants have some due then the insurance

company is to pay the rest amount within eight weeks

after such calculation.

The instant FMA 3098 of 2013 alongwith COT

14 of 2014 are 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.)