Calcutta High Court (Appellete Side)

Ruma Biswas & Ors vs The Oriental Insurance Company Ltd on 7 August, 2024

                  IN THE HIGH COURT AT CALCUTTA

                       (Civil Appellate Jurisdiction)

                             APPELLATE SIDE



Present:

The Hon'ble Justice Shampa Dutt (Paul)



                             FMA 823 of 2023
                            (FMAT 412 of 2016)


                          Ruma Biswas & Ors.
                                 Vs
    The Oriental Insurance Company Ltd., Chinsurah, Hooghly & Anr.



For the Appellants/                      : Mr. Amit Ranjan Roy.
Claimants




For the Respondent No. 1/                : Ms. Sucharita Paul.
Insurance company


For the Respondent No. 2/                : None.
Owner




Hearing concluded on                     : 11.07.2024

Judgment on                              : 07.08.2024
                                        2


Shampa Dutt (Paul), J.:

1. The present claim appeal has been preferred by claimants/appellants

against the Judgment and Award passed on 8th October, 2015 by the

Member, Motor Accident Claims Tribunal, 1st Court, Hooghly, in M.A.C.

Case No. 34 of 2010/408 of 2014, under Section 166 of the Motor

Vehicles Act, 1988.

2. Facts :-

"The death of Samir Biswas aged about 48 years in a motor vehicle accident took place on 12.01.2009 at about 9.45 a.m. On the relevant date at the material point of time Samir Biswas was proceeding in his motorcycle being No. WB-16A/4921 along the G.T. Road towards Mogra and when he reached near Natunpole, G.T. Road near Adisaptagram, the driver of the truck being No. WB-41C/9328 dashed against him and at that time the driver was driving the truck in a very rash and negligent manner. By the impact of that accident, Samir Biswas fell down from the motorcycle and he sustained serious injuries and died on the spot. After the accident a criminal case was started against the accused driver and the case ended in a charge- sheet being No. 13/09 dated 28.02.2009."

3. Oriental Insurance Company Ltd. contested the case, wherein all the

material allegations with regard to the age and income of the deceased,

the mode and manner of accident and also the insurance coverage of the

vehicle were denied. It was contended that the claim of the petitioners

was excessive, abnormal and without any legal and equitable basis and

as such the claim application was liable to be dismissed with cost. The

specific case of the defence is that the driver of the offending truck was

not holding a valid and effective driving license at the time of accident.

The owner of that truck had handed over the possession of that vehicle

to the driver without any valid paper of authority and thereby violated

the terms and conditions of the insurance policy for which the claimants

are not entitled to compensation from the Insurance Company.

4. The claimants examined 7 (seven) witnesses and proved relevant

documents which were marked as Exhibits.

5. The O.P.W. 1/Owner has proved the licence (valid) in favour of Sujay

Dhara.

6. The learned Tribunal granted compensation as follows :-

(New No. MACC 408/ 2014)

Dated:08.10.2015 Admittedly the deceased was 48 years of age for which multiplier 13 will be applicable. The deceased was a general order supplier and he was carrying on his day to day occupation on the basis of a valid trade license issued by the Hooghly-Chinsurah Municipality and from the IT returns of assessment years 2005--06, 2007-08 and 2008-09 the average income will come to Rs.89,067/-. The deceased was a married man and as such the amount of compensation so arrived at shall be reduced by one-third towards the personal expenses of the deceased. Hence, his annual income will come up to Rs.59,378/-. With this amount 13 multiplier will be considered for which the compensation will come to Rs.7,71,914/-. Besides this, the claimants will be entitled to the funeral expenses to the extent of Rrs.2,000/-, loss of estate to the extent of Rs.2,500/- and loss of consortium to the extent of Rs.5,000/- totaling to Rs.9,500/-.

Then the total compensation amount will come to Rs.7,81,414/-. In addition to this amount, claimants are entitled to interest @ 8% per annum over the said amount of compensation from the date of filing of this case till actual realization. In my considered view this amount of compensation will be just, proper, adequate and equitable. Hence, the owner of the offending vehicle bearing Registration No. WB-41C/9328 involved in the accident is liable to pay the said amount of compensation to the petitioners. For the reasons aforesaid all the issues are decided in favour of the petitioners.

Sd/-

Member,

Motor Accident Claims Tribunal, 1st Court, Hooghly"

7. Being aggrieved, this appeal has been preferred on the ground :-

That the award passed by the learned Tribunal is not in accordance with law.

8. Considering the materials and evidence on record, it appears:-

i) That the driver of the offending vehicle had a valid licence

(Exhibit 9). It appears that the licence was issued on

26.12.2004 and was valid (Non Transport) till 31.12.2024 and

for (Transport) it was valid till 10.12.2015. The accident

happened on 12.01.2009 and the offending vehicle is a truck

(lorry). Thus, the finding on this issue of the tribunal is

erroneous.

ii) Exhibit 10, collectively are the Income Tax returns filed by the

deceased. The return for the year 2008-09 shows that the

actual income of the deceased at the time of the accident was

Rs.1,15,520/- per annum.

iii) The date of birth of the deceased as per Exhibit 9 (driving

licence) is 01.01.1975 and the accident took place on

12.01.2009. Thus, the age of the deceased was 34 years and

as such, Multiplier of 16 will be applicable. (Sarla Verma

(Smt) & Ors. Vs. Delhi Transport Corporation and Anr.

(2009) 6 SCC 121)

iv) Future prospects at 40% of income is to be added, as

deceased was self employed (general order supplier). (National

Insurance Co. Ltd. Vs. Pranay Sethi & Ors., (2017) 16 SCC

680)

v) Number of claimants being 3 (three), 1/3rd of the victim's

income is to be deducted towards personal expenses. (Sarla

Verma & Ors. Vs. Delhi Transport Corporation and Anr.

(Supra))

vi) General damages of Rs. 70,000/- under the conventional heads

of loss of estate, loss of the 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%).

vii) The offending vehicle had valid insurance (Exhibit 5) to be paid

fully by the insurance company (Valid Insurance) (Exhibit - 5).

9. Thus, the "Just Compensation" in this case would be as follows:-

        Annual Income                                   Rs. 1,15,520/-
        Less : 1/3rd towards personal and living        Rs. 38,507/-
        expenses
                                                        Rs. 77,013/-
        Add : Future prospects @ 40% of the annual      Rs. 30,805/-
        income of the deceased
                                                        Rs. 1,07,818/-
        Multiplier x 16 (1,07,818 x 16)                 Rs. 17, 25, 088/-
        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. 18, 09, 088/-

10. Admittedly, the Claimants have received the amount of compensation of

Rs. 7, 81, 414/- 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. 10, 27, 674/- together with interest

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

application till deposit.

11. 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,