Calcutta High Court (Appellete Side)

Jarina Bibi & Ors vs The National Insurance Company Limited ... on 13 September, 2024

                  IN THE HIGH COURT AT CALCUTTA

                       (Civil Appellate Jurisdiction)

                            APPELLATE SIDE



Present:

The Hon'ble Justice Shampa Dutt (Paul)

                          FMA No. 1401 of 2015
                           (FMAT 603 of 2014)
                                   With
               CAN 1 of 2014 (Old No. CAN 6764 of 2014)
                              CAN 2 of 2022


                            Jarina Bibi & Ors.

                                    Vs.

            The National Insurance Company Limited & Anr.



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



For the Respondent No.1/                  : Mr. Afroze Alam.
Insurance Company


For the Respondent No.2/                  : None.
Owner



Hearing concluded on                      : 20.08.2024

Judgment on                               : 13.09.2024
                                         2


Shampa Dutt (Paul), J.:

1. The present appeal has been preferred by the Claimants against the

Judgment and Award dated 26th February, 2014 passed by Judge,

Motor Accident Claims Tribunal, 3rd Court Nadia, Krishnanagar in

M.A.C. Case No. 50 of 2007, under Section 166 of the Motor

Vehicles Act, 1988.

2. THE FACTS :-

"............On 25.12.06 the victim and others were proceeding as the patient party in the offending vehicle bearing No. WB-51/6099 and at the place of occurrence the driver lost his control and dashed one road side tree and due to the said accident the victim died on the spot............."

3. The O.P./Owner has not contested this case, for which the case has

been heard ex-parte against him.

4. The O.P./Insurance Company has contested this case by filing a

written statement denying therein all the material allegations in the

claim petition.

5. This O.P./Insurance Company submits that the case is not

maintainable in its present form and law and the victim did not expire

due to the accident caused by the offending vehicle and the victim was

travelling in the offending vehicle illegally and the allegations of the

claimants are false. Hence, this O.P. has prayed for dismissal of the

case.

6. The Claimants examined two witnesses and proved relevant

documents which were marked exhibits.

7. The Opposite Parties also adduced evidence and proved relevant

documents.

8. Finally, the tribunal held as follows :-

" ...........M.A.C. Case No. 50 of 2007

Dated: 26th February, 2014

...........The Exbt. B, the proposal form, mentions that policy was made for two person, i.e. driver and the cleaner of the offending vehicle and five passengers and premium was paid for the said policy. But the F.I.R. mentions that at the time of the incident 6 passengers were proceeding in the said offending vehicle and the PW-2, who has claimed to be the eye witness of the incident and who has claimed to have been proceeding along with the victim and others in the above offending vehicle at the time of the incident, has stated in his cross examination that at the time of the incident six persons were in the said offending vehicle. The OPW-1 has stated in court that the above offending vehicle was insured for carrying five passengers and one driver and one cleaner. So it is proved that the O.P./owner has violated the terms of the policy by carrying six passengers in the above offending vehicle at the time of the incident and accordingly the O.P. insurance Company is not liable to pay the compensation money to the claimants for death of the victim and the O.P./owner will pay the compensation amount to the claimants for death of the victim.

The certified copy of the postmortem report (Exbt.3) shows death of the victim and the age of the victim as 40 years. As per the claim petition the victim was 38 years old at the time of the incident.

So, on the basis of the postmortem report I hold that the victim was 38/40 years old at time of the incident and accordingly multiplier of 16 is to be applied in this case.

Regarding the income of the victim at the time of the incident, the PW-3 Bibekananda Poddar has proved the Income Tax paper as Exbt. 4 and he has stated that the total income of the victim at the time of the incident was Rs. 1,03,195/-. The PW-4 Shambhu Mandi has stated in court that at the time of the incident the victim drew commission of Rs. 1,03,194/- as L.I.C. Agent. Hence, I hold that the annual income of the victim was Rs. 1 Lakh

as L.I.C. Agent at the time of the incident and by deducting 1/3rd of the said income towards the personal expenses, the said amount comes to Rs. 66,667/- per year and by applying the multiplier of 16, the compensation amount comes to Rs. 10,66,672/-. In addition the claimants are entitled to get Rs. 2,000/- as funeral expenses, Rs. 2,500/- as loss of estate and the claimant No.1, being the wife of the victim, is entitled to get Rs. 5,000/- as loss of consortium. In all, the claimants are entitled to get Rs. 10,76,172/-, as compensation from the O.P./owner. But the claimants have paid court fee for Rs. 8 Lakhs. Hence, I hold that they are entitled to get Rs. 8 Lakhs as compensation from the O.P. /owner............

Sd/-

Judge, M.A.C. Tribunal, 3rd Court, Krishnanagar, Nadia........."

9. Being aggrieved the Claimants preferred the present appeal on the

grounds :-

i) That the Learned Tribunal did not grant "Just Compensation" to

the Claimants by not applying the appropriate provision of law

towards proper calculation of compensation.

ii) The Learned Tribunal did not appreciate the evidence on record

properly.

10. From the materials including the evidence on record, it is evident

that :-

I) The Learned Tribunal wrongly held that the claimant is not

entitled to any compensation as there has been violation of the

policy rules in respect of number of passenger's permitted to

travel in it.

II) The capacity of the vehicle as seen from the Insurance policy is

5+1 (Six) persons including the driver. From the FIR it appears

that there were 6 passengers and one driver. Admittedly,

there has been no other claim till date. The tribunal did not

consider the fact that this was the first claim in respect of the

said accident and as such within the permitted capacity of

passengers.

III) The income of the victim from the Income Tax return proved

by P.W. 3 and 4 and exhibit 4 has been applied by the

tribunal as Rs. 1,00,000/-. But it should be Rs. 1,03,195

minus Rs. 10,526.00 (Income tax), which comes to Rs.

92,669/- per annum (Commission) as a LIC agent (Self

employed).

IV) The age of the victim is taken as 40 years (PM report,

Exhibit 3), so multiplier 15 shall be applicable. (Sarla

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

Anr. (2009) 6 SCC 121)

V) Future prospect to be applied is 25% of income. (National

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

680)

VI) Deduction would be 1/5th, the number of claimants being 7.

(Sarla Verma & Ors. Vs. Delhi Transport Corporation and

Anr. (Supra)).

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

heads of Loss of estate: Rs.15,000, Loss of consortium:

Rs.40,000, Funeral expenses: Rs.15,000. (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%).

11. Thus the 'Just Compensation' in this case would be :-

       Annual Income                                      Rs. 92,669/-
       Less : 1/5th towards personal and living           Rs. 18,533.8/-
       expenses
                                                          Rs. 74,135.2/-
       Add : Future prospects @ 25% of the annual         Rs. 18,533.8/-
       income of the deceased
                                                          Rs. 92,669/-
       Multiplier x 15 (92,669 x 15)                      Rs. 13, 90, 035/-
       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. 14, 74, 035/-

12. The notice upon the Insurance Company has been served this year

(2024).

13. The appeal has been preferred in 2015 from a judgment of the

year 2014.

14. Accordingly, the balance compensation shall be paid with interest

as granted from date of filing till the year 2014.

15. Admittedly, the Claimants have not received the amount of

compensation in terms of order of the learned Tribunal. Accordingly,

the Claimants are now entitled to the total amount of compensation

of Rs. 14, 74, 035/- together with interest at the rate of 6% per

annum from the date of filing of the claim application till the year