National Insurance Co. Ltd vs Melo Kisku & Ors
2023 Latest Caselaw 6611 Cal

             IN THE HIGH COURT AT CALCUTTA
              CIVIL APPELLATE JURISDICTION
                       Appellate Side


Present:

The Hon'ble Justice Ajay Kumar Gupta




                      FMA 84 of 2011

                            With

           CAN 1 of 2011 (Old No. CAN 135 of 2011)

                 National Insurance Co. Ltd.
                             Versus
                     Melo Kisku & Ors.



For the appellant        : Mr. Afroze Alam, Adv.




For the Respondent       : Mr. Saidur Rahaman, Adv.

Heard on                 : 06.09.2023



Judgment on              : 29.09.2023





Ajay Kumar Gupta, J:

1. The instant appeal arises out of a judgment and award dated 24th

September, 2010 passed by Learned Judge, Motor Accident Claims

Tribunal- cum -Additional Sessions Judge, Fast Track, 1st Court, Malda in

M.A.C. Case No. 61 of 2010, thereby the Ld. Tribunal awarded a

compensation to the tune of Rs. 3,50,000/- on contest against the

Appellant/National Insurance Company Limited and ex parte against

owner of the offending vehicle. National Insurance Company has been

directed to pay the said amount within two months from the date of

judgment failing which the amount will carry interest at the rate of 6% per

annum till the date of realisation under Section 163A of the Motor

Vehicles Act,1988.

2. Sans otiose details, the fact of the instant case is that on

02.02.2010 the victim Durga Hembram was standing by the side of the

road of Pakua - Nalagola, at that point of time the offending vehicle

bearing No. WB 65/2442 was coming from Pakua side towards Nalagola

side with excessive speed and in negligent manner and suddenly dashed

the victim Durga Hembram as a result he sustained injuries. He was

removed to Nadipakua Hospital and thereafter he was further referred to

Malda Sadar Hospital, where he succumbed to his injuries. The claimants

have filed this case under Section 163 (A) of the Motor Vehicles Act

against the Insurance Company and the owner of the offending vehicle.

3. The National Insurance Company has contested the case by filing

written statement denying all material facts and allegations as made out

in the claim application. Whereas, owner of the offending vehicle did not

contest the case from initial stage. The claimant herself examined as P.W.

1 and P.W. 2 is an eye witness. P.W. 1 has proved that the offending

vehicle was involved in the said accident and accident took place when

offending vehicle knocked down the victim on the road when he was

standing. The contention of the P.W. 1 has been supported by P.W. 2. He

stated that at the time of accident, he was sitting at a nearby tea stall. He

saw the accident. After the accident, he lodged an FIR at Bamongola P.S.

The claimants have produced the copy of FIR, seizure lists, RC book,

charge sheet, post mortem report and those documents are marked as

Exhibits 1 to 7. The learned Tribunal after assessing and scanning the

evidence of the P.Ws. 1 and 2 observed that the offending vehicle bearing

No. WB 65/2442 was involved in the accident and due to rash and

negligent driving of the driver of the offending vehicle accident was

occurred and, in such accident, the victim Durga Hembram was expired

due to injuries suffered by him.

4. Learned counsel appearing on behalf of the Insurance Company

submitted that the learned Tribunal has wrongly assessed the income of

the victim as Rs. 3000/- per month though no documents were brought

on record before the learned Tribunal to substantiate his income was Rs.

3000/- per month and the learned Tribunal on personal guesswork

considered the income of the victim as Rs. 3000/- per month and finally

awarded a compensation to the tune of Rs. 3,50,000/- which is required

to be reconsidered by this Appellate Court after setting aside of the

judgement and award under challenged in this appeal. Income of the

victim is not proved by the claimants/respondents. If claimants fail to

prove income of the victim then the actual notional income ought to be Rs.

15,000/- in view of the Schedule II of the Motor Vehicles Act, 1988. But

the learned Tribunal had considered his notional income as Rs. 3000/-

which is not at all permissible in view of the structural formula, applied in

a case filed under Section 163(A) of the Motor Vehicles Act.

5. On the other hand, learned counsel appearing on behalf of the

respondents/claimants submitted that there were five members in victim's

family at the time of accident and the victim used to drive the power tiller

on each date to the land of others. He used to earn more than Rs. 100 per

day. So, his income was more than Rs. 3000/- per month. Furthermore,

the ld. Tribunal has relied on a decision reported in Laxmi Devi and

Others v. Md. Tabbar and Anr1, and finally held that the deceased had

an annual income of Rs. 36,000/- per annum considering his income as

Rs. 3000/- per month. Therefore, the Ld. Tribunal has rightly assessed

the compensation to the tune of Rs. 3,50,000/-. However, the ld. Tribunal

did not allow the interest from the date of filing of the claim application till

realisation. The interest ought to be allowed from the date of filing of the

claim application. He prayed for allowing interest from the date of filing till

the date of realisation.

6. It is further submitted that in spite of allowing compensation by

the Ld. Tribunal, the Insurance Company did not pay the awarded

amount till date and filed this appeal with a frivolous ground that the

notional income ought to be Rs. 15,000/- per annum. Though there is a

settled principle of law that even an unskilled labour could have earned

Rs. 100/- per day. Victim had maintained his entire family with such

meagre income of Rs. 100/- per day is genuine and acceptable.

7. Having heard the submission of both sides and on perusal of the

materials available on record, it is admitted facts that the offending vehicle

was involved in the said accident and the victim died due to injuries

suffered by Motor traffic accident. The Ld. Tribunal has considered the

2008 (2) T.A.C. 394 (SC)

insurance policy marked as Exhibit A which shows the insurance policy

was valid from 26.01.2010 to 25.01.2011 and the accident took place on

02.02.2010. Therefore, the offending vehicle was very much valid on the

date of accident.

8. It is also admitted fact that the instant case has been filed by the

claimants under Section 163 A of the Motor Vehicles Act, which requires

not to prove the question of negligence or fault on the part of the offending

vehicle or the victim. The compensation should be awarded on the basis of

structural formula. For calculation of the compensation, the ld. Tribunal

has taken the income of the victim as Rs. 3000/- per month as claimed by

the claimants. Not only that the Ld. Tribunal also relied on the decision of

the Supreme Court reported in 2008 (2) T.A.C. 394 (SC) (Laxmi Devi

and Others v. Md. Tabbar and Anr), this Court does not find any cogent

reasons to discard the income of the victim as Rs.3,000/= because the

claimants claimed income of the victim as Rs. 3000/- per month

considering his income as Rs. 100/- per day as victim used to drive the

power tiller on each day of the land of the others and he used to earn more

than Rs. 100/- per day. Rs. 100/- per day is minimum income and even

an unskilled labour can earn such amount per day. Furthermore, the

Hon'ble Supreme Court also held in the aforesaid reported judgment that

the notional income fixed in Schedule II of the Motor Vehicles Act as Rs.

15,000/- in the year 1994. In the present case, the accident took place on

02.02.2010 i.e., after lapse of more than 15 years and the Supreme Court

has held that even an unskilled labour could earn Rs. 100/- per day. That

apart, the Insurance Company did not prefer to examine any witness on

its behalf and during cross-examination the Insurance Company failed to

rebut the contention of the income of the victim. So, considering the entire

facts and circumstances, this Court is fully satisfied that the Tribunal has

rightly assessed the income of the victim as Rs. 3000/- per month and the

same is reasonable and acceptable without any confusion. The Ld.

Tribunal has already accepted age of the victim as 33 years old at the time

of accident. In view of the evidence adduced by the P.W. 1 and selected

multiplier as 17 for the age group of 30 to 35 years which is not disputed

by the Insurance Company. So, in view of the above discussions, this

Court does not find any cogent reasons to interfere with the findings of the

Ld. Tribunal regarding the income of the victim as well as multiplier.

9. It is a case filed under Section 163A of the Motor Vehicles Act. So,

question of proving negligence or fault on the part of driver of the

offending vehicle is not require by the claimants. The questions now only

involved here is that:

i. Whether the offending vehicle was duly covered by a valid

insurance policy on the date of accident or not?

ii. Whether the claimants are entitled to get interest from

the date of filing claim application or not?

The Ld. Tribunal has considered the insurance policy marked as

Exhibit A which shows the insurance policy was valid from 26.01.2010 to

25.01.2011 and the accident took place on 02.02.2010. Therefore, the

offending vehicle was very much valid on the date of accident. Accordingly,

the Respondents/Claimants are entitled to get compensation from the

Appellant/Insurance Company with interest from the date of filing appeal.

10. In the light of above discussion and findings, the calculation of

compensation would be assessed as follows:

CALCULATION OF COMPENSATION

Monthly Income Rs. 3,000/-

  Annual Income (Rs.                        Rs.      36,000/-
       3000/- X 12)
Less: deduction 1/3rd of                    Rs.     12,000/-
the total Annual income
(towards personal and
    living expenses)


  Total income after                        Rs.     24,000/-
        deduction





Total loss of Dependency                 Rs.    4,08,000/-
   Rs. 24,000/- X 17
       (Multiplier)
  Add: Loss of estate                    Rs.      2,500/-


Add: Funereal Expenses                   Rs.      2,000/-


Add: Loss of consortium                  Rs.      5,000/-


  Total compensation                     Rs.    4,17,500/-




 11.     Thus,    the   respondents/claimants   are   entitled   to   get   total

compensation amount to tune of Rs. 4, 17,500/- which shall carry

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

i.e. from 26.02.2010 till final payment as it was informed that no any

compensation amount has been paid by the Insurance Company to the

complainants till date.

12. The Appellant-Insurance Company is directed to deposit total

compensation amount i.e. Rs. 4,17,500/= together with interest as

indicated above by way of cheque before the office of learned Registrar

General, High Court, Calcutta within a period of 4 weeks from date.

13. Learned Registrar General, High Court, Calcutta, upon deposit of

the amount and interest as indicated above, shall release the amount in

favour of the appellants /claimants upon proper identification and subject

to verification of the payment of ad valorem Court fees on the enhanced

amount, if not already paid, in the manner and mode of payment as

stipulated by the Ld. Tribunal in its judgement and award dated 24th

September, 2010.

14. The impugned judgment and award of the learned Tribunal dated

24th September, 2010 is modified to the aforesaid extent only. No order as

to costs. With above observations, the instant appeal stands disposed of.

15. Consequentially, application being CAN 1 of 2011 (Old No. CAN

135 of 2011) is also thus disposed of.

16. In view of the submission made by the learned advocate appearing

on behalf of the Insurance Company, liberty is giving to the Insurance

Company to withdraw the statutory amount, already deposited vide O.D.

Ch. No. 2816 dated 04.01.2011 in the Office of the Registrar General, High

Court, Calcutta along with accrued interest after payment of entire

compensation amount to the respondents/claimants.

17. Let a copy of this Judgment along with Lower Court records, if

received, be sent back to the learned Tribunal forthwith for information.

18. All parties shall act on a server copy of the judgment and order

uploaded from the official website of High Court at Calcutta.

19. Urgent photostat copy of this Judgment and Order be given to the

parties upon compliance of all legal formalities.

(Ajay Kumar Gupta, J)

P. Adak (P.A.)