Calcutta High Court (Appellete Side)
Prasanta Mondal & Ors vs The National Insurance Co. Ltd. & Anr on 12 September, 2024
IN THE HIGH COURT AT CALCUTTA
(Civil Appellate Jurisdiction)
Appellate Side
Present :
The Hon'ble Justice Shampa Dutt (Paul)
FMAT 639 of 2013
With
CAN 1 of 2018
(Old No.: CAN 6347 of 2018)
Prasanta Mondal & Ors.
Vs.
The National Insurance Co. Ltd. & Anr.
For the Appellant : Mr. Biswarup Biswas.
For the Respondent No. 1/ : Mrs. Sucharita Paul.
Insurance Company
For the Respondent No. 2/ : None.
Owner
Hearing concluded on : 12.09.2024
Judgment on : 12.09.2024
2
Shampa Dutt (Paul) , J.
Re : IA No.: CAN 1 of 2018
(Old No.: CAN 6347 of 2018)
1. IA No.: CAN 1 of 2018 (Old No.: CAN 6347 of 2018) preferred
under Section 5 of the Limitation Act, pending till date is taken up
for hearing. By the instant application, the petitioner has prayed for
condonation of delay in filing the present appeal. Considering
grounds as made out and in the interest of justice, prayer for
condonation of delay is allowed.
2. IA No.: CAN 1 of 2018 (Old No.: CAN 6347 of 2018) is thus
disposed of.
3. The present appeal has been preferred by the claimants
against the judgment and award dated 30th June, 2012 passed by
the learned Judge, Motor Accident Claims Tribunal and the
Additional District Judge, 3rd Court, Nadia, Krishnanagar, in MAC
Case No. 399 of 2008, under Section 163A of the Motor Vehicles
Act.
4. The Facts :-
"........... The instant application under Section 163A
of M. V. Act was filed by the parents, brother and
sister of the deceased, Mithun Mondal, for the
compensation amounting to Rs.4,32,400/- for the
demise of Mithun Mondal who was aged about 20
years at the time of incident and was a marble-
mistry who earned Rs.3,300/- per month. When the
said deceased and other passengers on 26.03.2008
at about 03:30 hrs. were returning by a bus being
No. WB 51/3493, the said bus was plying
indiscriminately with heavy speed along the
Krishnanagar-Karimpur metal road and the driver of
the said bus pressed sudden brake near the place of
Bajitpur Talikhola under P.S Karimpur, as a result
the door of the bus opened and the victim and other
passengers fell down from the inner side of the said
bus and hit a tree. To that effect the victim and other
passengers received severe injuries on their persons
and victim Mithun Mondal died in the accident on
the spot. P.M was duly performed at Saktinagar
Hospital. Accordingly, the petitioner being the
dependents filed the instant case against the owner
of the bus and the Insurance Company of the said
bus..............."
5. Opposite Party/National Insurance Company Limited
contested the suit by filing W.O., whereas the owner of the bus
neither appeared nor filed any W.O. As such the case has been
proceeded against the owner of the bus ex parte.
6. The contents of the written objection filed by the Insurance
Company is that the application is not maintainable in its present
form and prayer. The petitioner has no cause of action to file the
instant case. The application is bad for mis-joinder and non-joinder
of the necessary party. The Insurance Company took plea that the
petitioners are liable to comply with the provision of Section 330 of
Motor Vehicles Rules. This O.P does not admit the petitioners' case.
According to the Insurance Company, the claim of the petitioners is
excessive, exaggerated and without any basis and the income as
alleged by the claimants is not correct and that no such accident
occurred as alleged by the petitioners. Accordingly, the petitioners
are not entitled to get any compensation as prayed for.
7. The claimants examined two witnesses and proved documents
which were marked as Exhibit-1 to 5.
8. The Tribunal finally considering the materials on record
held as follows :-
"......... MAC Case No. 399 of 2008
Dated 30.06.2012
..........In that discussion, we can accept the observation
(2007) 1 WBLR CAL 348 where the Hon'ble Lordship
was pleased to hold that a mason like a marble mistry
earns Rs.100/- per day or Rs.3,000/- per month and
his annual income will be Rs.31,200/- and ½ of the said
amount is required to be excluded. As such the
contribution to the family will be Rs.31,200/- ÷ 2 =
Rs.15,600/- and considering the age of the victim is 20
and multiplier would be 16. Accordingly, the
compensatory amount would be Rs.15,600/- x 16
=2,49,600/. Accordingly, the petitioners no.1 and 2 are
entitled to get the said compensation...............
Sd/-
Member, MACT & Addl. District Judge
(3rd Court), Nadia........"
9. From the materials on record, it appears that the claimants in
the present case are the parents and siblings of the deceased who
was aged about 20 years at the time of accident.
10. The trial Court has held that in absence of any document his
income be taken as Rs.3,000/- per month.
11. The accident occurred in the year 2008.
12. (a) In Urmila Halder Vs. New India Assurance Co. Ltd. &
Ors., in F.M.A. 446 of 2010, decided on 9th August, 2018, the
Calcutta High Court held:-
"9. Sub-section (1) of Section 163-A of the
1988 Act ordains that notwithstanding
anything contained therein or in any other
law for the time being in force, upon proof of
death in an accident involving the use of a
motor vehicle, compensation is payable either
by the owner of such vehicle or the
authorized insurer thereof as indicated in the
Second Schedule to the legal heirs of the
victim. The Second Schedule appended to the
1988 Act, referring to Section 163-A thereof,
provides the structured formula for
determining compensation.
11. As it stands now, the Second Schedule
after its amendment by the said notification
prescribes lump-sum compensation in the
following manner:
1. Fatal accidents - Rs. 5,00,000.00 is
payable as compensation in case of death;
2. Accidents resulting in permanent disability
- Rs. 5,00,000.00 x percentage of disability
as per Schedule I of the Employee's
Compensation Act, 1923 (8 of 1923), provided
that the minimum compensation in case of
permanent disability of any kind shall not be
less than Rs. 50,000.00;
3. Accidents resulting in minor injury - A fixed
compensation of Rs. 25,000.00.
14. With that in view, we invited such
learned advocates to address us on the
following issue:
Whether, after the amendment brought about
by the said notification, the new schedule
would be applicable to pending claim
applications under Section 163-A before the
motor accident claim tribunals as well as the
appeals arising out of awards delivered there
under prior to May 22, 2018?
118. Therefore, the conclusion seems to
be inescapable that while deciding
pending claim applications/appeals post
May 22, 2018, the new schedule ought to
be applied by the tribunals/this Court for
determining compensation payable to
the legal heirs of an accident victim or
to the victim himself regardless of
whether the new schedule is beneficial to
them or not. The issue framed in
paragraph 12 is, accordingly, answered.
126. Turning to the facts in the appeal, we
find that had this appeal been decided prior
to May 22, 2018, the appellant would have
been entitled to whatever sum were
determined as payable in terms of the old
schedule. Admittedly, Rs.5,00,000.00 was
not payable to the appellant by the
respondent no.1 any time prior to May 22,
2018 and, therefore, she was not entitled to
such sum as on date she exercised her "right
of action". Therefore, in each case where the
claim is pending before the tribunal or if this
Court has been approached in appeal as on
May 22, 2018, we feel it to be the duty of the
tribunal/Court to determine the amount of
compensation payable to the claimant in
terms of the structured formula and award
interest at such rate it considers proper
thereon from the date of filing of the claim
application till May 21, 2018. To avoid any
charge of arbitrariness, it would be safe to
award interest at the prevailing bank rate of
interest on term deposits on the date the
award is made. Thereafter, that is from May
22, 2018, interest on Rs.5,00,000.00 may be
directed to be paid till realization as per the
prevailing bank rate of interest on term
deposits.
127. To determine what the appellant could
have lawfully claimed as compensation
based on the old schedule, we need to look
into the evidence. The version of the appellant
that the victim was earning Rs.2,000.00 per
month could not be dislodged by the
respondent no. 1 in cross-examination. The
victim being self-employed in the unorganized
sector, the tribunal put an onerous burden on
the appellant to produce documentary
evidence to prove her monthly income. Having
regard to the decision in Syed Sadiq v. United
India Insurance Co. Ltd.: (2014) 2 SCC 735,
we hold that it was not necessary for the
appellant to prove the income of the victim by
producing documentary evidence. The loss of
dependency, thus, has to be worked out
reckoning Rs.24,000.00 as the notional
yearly income of the victim. Capitalizing it on
a multiplier of 17, the resultant amount
would be Rs.4,08,000.00. Deducting 1/3rd in
consideration of the expenses which the
victim would have incurred towards
maintaining herself had she been alive, and
adding Rs.4.500.00 on account of loss of
estate and funeral expenses, we arrive at the
sum of Rs.2,76,500.00.
128. In the final analysis, we hold that the
appellant shall be entitled to Rs.5,00,000.00
on account of compensation under Section
163-A of the 1988 Act read with the new
schedule. However, since she has received
Rs. 1,14,500.00 that was awarded by the
tribunal, the respondent no.1 shall pay
Rs.3,85,500.00 more to the appellant within
2 (two) months from date of service of a copy
of this judgment and order on it. The
appellant is further held entitled to interest as
follows:
(i) @ 9% per annum on Rs.2,76,500.00 from
the date of filing of the claim application, i.e.,
February 8, 2005 till May 21, 2018; and
(ii) @ 6% per annum on Rs. 5,00,000.00 from
May 22, 2018 till such time payments of Rs.
3,85,500.00 and interest as in (i) above are
effected in favour of the appellant."
(b) In appeal, the Supreme Court in The New India Assurance
Co. Ltd. Vs. Urmila Halder, Civil Appeal No. ____ of 2024
(@ Special Leave Petition (Civil) No. 6260 of 2019), decided
on 8th February, 2024, upheld the above judgment and
held:-
"4. The short point for consideration before
this Court is whether the amendment in
Section 163-A of the Motor Vehicles Act,
1988, which came into effect by a Gazette
Notification on 22nd May, 2018, would relate
to an accident which had occurred prior to the
said date.
10. The order of the High Court is well
discussed and we agree with the view taken.
We may, however, add that a beneficial
legislation would necessarily entail the
benefit to be passed on to the claimant
in the absence of any specific bar to the
same. In the present case, the liability of the
appellant-Insurance Company has not been
interfered with. Only the computational mode
and the modality have been further clarified,
which rightly has been noted by the High
Court and accordingly, the claim has been
enhanced to ₹5,00,000/- (Rupees Five
Lakhs). As 50% of the compensation amount
was stayed by this Court, the same be paid
to the respondent in terms of the impugned
judgment within eight weeks."
13. In the present appeal, the claim was decided by the tribunal
on 30th June, 2012, thus prior to 22nd May, 2018 and compensation
of a sum of Rs. 2,49,600/- was granted in terms of the old
schedule.
14. Now, in terms of the guidelines of the Courts, in the
judgments, Urmila Halder Vs. New India Assurance Co. Ltd. &
Ors.(Supra) and The New India Assurance Co. Ltd. Vs. Urmila
Halder (Supra), the Appellants/Claimants are entitled to
compensation of a total sum of Rs. 5,00,000/- under Section 163A
of the 1988 M.V. Act read with the new schedule.
15. Admittedly, the Appellants/Claimants have already received
an amount of compensation of Rs. 2,49,600/- in terms of order of
the Learned Tribunal. Accordingly, the Appellants/Claimants are
now entitled to the balance amount of compensation of Rs.
2,50,400/- together with interest at the rate of 6% per annum
from the date of filing of the claim application till deposit.
16. The Respondent No. 1/Insurance Company, thus is directed
to deposit the balance amount and the interest as indicated above,
by way of cheque before the learned Registrar General, High Court,
Calcutta, within a period of six weeks from date. The Respondent
No. 1/ Insurance Company, shall also pay the interest upon the
sum of Rs. 2,49,600/- at the rate of 6% till deposit, within the
period as specified above.
17. Upon deposit of the aforesaid amount along with interest,
learned Registrar General, High Court, Calcutta shall release the
amount in favour of the Appellants/Claimants in equal proportion,
upon satisfaction of their identity and payment of ad-valorem Court
fees, if not already paid.
18. The appeal being FMAT 639 of 2013 stands disposed of.
The impugned judgment and award of the learned Tribunal is
modified to the above extent.
19. No order as to costs.
20. All connected applications, if any, stand disposed of.
21. Interim order, if any, stands vacated.
22. Copy of this Judgment be sent to the Learned Tribunal, along
with the trial court records, if received.
23. Urgent photostat certified copy of this Judgment, if applied
for, be given to the parties on usual undertaking.
( Shampa Dutt (Paul), J. )
