Calcutta High Court (Appellete Side)
Najina Bewa Sk & Ors vs The United India Insurance Company Ltd. ... on 6 August, 2024
IN THE HIGH COURT AT CALCUTTA
(Civil Appellate Jurisdiction)
APPELLATE SIDE
Present:
The Hon'ble Justice Shampa Dutt (Paul)
FMA No. 2243 of 2013
(FMAT No. 861 of 2013)
Najina Bewa Sk & Ors.
Vs
The United India Insurance Company Ltd. & Anr.
For the Appellants/ : Mr. Biswarup Biswas.
Claimants
For the Respondent No. 1/ : Mr. Parimal Kr. Pahari.
Insurance company
For the Respondent No. 2/ : None.
Owner
Hearing concluded on : 10.07.2024
Judgment on : 06.08.2024
2
Shampa Dutt (Paul), J.:
1. The present claim appeal has been preferred by claimants/appellants
against the judgment and award dated 28th day of May, 2013 passed by
the learned Judge, Motor Accident Claims Tribunal and the Additional
District Judge, 2nd Court, Nadia at Krishnanagar, Nadia (hereinafter
called learned Tribunal Judge) in MAC Case No. 23 of 2010, under
Section 166 of the Motor Vehicles Act, 1988.
2. Facts :-
"The victim was coming back to his house riding a
motor cycle sitting on the pillion. At about 11 a.m. at
Bamundanga, a speeding Oil Tanker dashed the Motor
cycle causing injury to the victim as a result of which he
died on the spot.
Police was informed about the accident and
Nakashipara P.S. Case No. 574/09 was registered.
According to the claimants, the victim was 45 years old,
self employed man who used to earn Rs.4000/- per
month. The offending vehicle was insured with
O.P./Insurer. The claimants claim a sum of
Rs.4,89,500/- towards compensation."
3. O.P./owner did not contest the case, whereas the O.P./Insurer contested
the case by filing written statement, denying all material allegations
therein. It is contended by them that the case as filed is bad for defect of
parties, non compliance of provision of Sections 147 and 149 of the M.V.
Act. The driver of the offending vehicle was not rash and negligent in
driving the vehicle. On the other hand, the victim was negligent and his
negligence brought his death and as such, the claim application was
liable to be dismissed.
4. The claimant no. 2 examined himself as P.W. 1 and proved relevant
documents. The opposite parties did not adduce any evidence.
5. The learned Tribunal finally held as follows :-
Dated: 28.05.2013
Now, come to the question of quantum of
compensation.
When it has been established that the victim
Nasiruddin Sk died of road traffic accident by motor
vehicle in use, I am of the view that the claimants are
entitled to compensation. As the victim was 47 years
old at the time of the accident, I take „13‟ as multiplier.
As the claimants failed to prove the income of the
victim, I am inclined to take Rs.3000/- as notional
income per month. Thus, the yearly income of the
deceased comes around Rs.36,000/-. One-third of the
said income is to be deducted towards the personal
expenditure of the deceased. Thus, the multiplied
amount comes to Rs.3,12,000/-. In addition to that
amount, the claimants are entitled to a sum of
Rs.2000/- towards funeral expenses and a further
sum of Rs.2500/- towards loss of estate. Thus, the
aggregated amount comes to Rs.3,16,500/- and each
of the claimant nos. 2 and 3 are entitled to
Rs.1,05,500/- and claimant no. 1 being the widow of
the deceased is entitled to a further sum of Rs.5000/-
towards loss of consortium, and thus she is entitled to
Rs.1,10,500/-. As the offending vehicle was insured
with the O.P./Insurer, the O.P./Insurer is to indemnify
the owner and pay compensation 4% @ with interest
till payment is made.
Sd/-
Member,
Motor Accident Claim Tribunal &
Addl. District Judge, 2nd Court, Nadia"
6. Being aggrieved, the appellants preferred this appeal on the
following ground :-
That the learned Tribunal did not take into
consideration the actual income of the deceased and
did not grant „Just Compensation‟ as per law.
7. From the materials and evidence on record, the following facts are
evident:-
i) The learned Tribunal held that the victim was 47 years old at the
time of accident, though the postmortem report (Exbt-4) shows 45
years. As such multiplier of 14 shall be applicable. (Sarla Verma
(Smt) & Ors. Vs. Delhi Transport Corporation and Anr. (2009) 6
SCC 121)
ii) The accident having occurred on 08.12.2011. The income of the
deceased is taken as Rs.4000/- per month.
iii) Future prospect shall be 25% of income. (National Insurance Co.
Ltd. Vs. Pranay Sethi & Ors., (2017) 16 SCC 680)
iv) Number of claimants being 3, 1/3rd shall be deducted as personal
expenses of the deceased. (Sarla Verma (Smt) & Ors. Vs. Delhi
Transport Corporation and Anr. (Supra))
v) General damages of Rs. 70,000/- under the conventional heads of
loss of estate, loss of consortium and funeral expenses (National
Insurance Company Ltd. Vs Pranay Sethi & Ors.,(Supra)).
General damages to be enhanced at the rate of 10% every three
years. So 10% every three year since 2017 on 70,000/- will be Rs.
84,000/-. (Being 20%)
8. Thus, the "Just Compensation" in this case would be as follows:-
Monthly Income Rs. 4,000/-
Annual Income Rs. 48,000/-
(4,000 x 12)
Less : 1/3rd towards personal and living Rs. 16,000/-
expenses
Rs. 32,000/-
Add : Future prospects @ 25% of the Rs. 8000/-
annual income of the deceased
Rs. 40,000/-
Multiplier x 14 (40,000 x 14) Rs. 5, 60, 000/-
Add: General damages Loss of estate: Rs. 84,000/-
Rs.15,000/- Loss of consortium:
Rs.40,000/- Funeral expenses:
Rs.15,000/. (Rs. 70,000 + 20% = Rs.
84,000)
Total amount:- Rs. 6, 44, 000/-
9. Admittedly, the Claimants/Appellants have received the amount of
compensation of Rs.1,10,500/- together with interest in terms of
order of the learned Tribunal. Accordingly, the claimants are now
entitled to the balance amount of compensation of Rs. 5, 33,
500/- together with interest at the rate of 6% per annum from
the date of filing of the claim application till deposit.
10. Taking into consideration, the amount already received by the
Claimants/Appellants, the Respondent No. 1/Insurance Company
shall deposit the balance amount, along with the interest, with the
learned Registrar General, High Court, Calcutta, within a period of
six weeks who shall release the amount in favour of the claimants in
equal proportion, after payment of the amount for loss of consortium
to the Appellant/wife, upon satisfaction of their identity and payment
of ad-valorem Court fees, if not already paid.
11. The appeal being FMA 2243 of 2013/FMAT 861 of 2013 stands
disposed of. The impugned judgment and award of the learned
Tribunal under appeal is modified to the above extent.
12. No order as to costs.
13. All connected applications, if any, stand disposed of.
14. Interim order, if any, stands vacated.
15. Copy of this Judgment be sent to the Learned Tribunal, along with the
trial court records, if received.
16. Urgent certified website copy of this judgment, if applied for, be supplied
expeditiously after complying with all, necessary legal formalities.
(Shampa Dutt (Paul), J.)
