Calcutta High Court (Appellete Side)

Smt. Sulekha Samanta & Ors vs The New India Assurance Company Ltd. & ... on 17 September, 2024

                     IN THE HIGH COURT AT CALCUTTA

                       (Civil Appellate Jurisdiction)

                            APPELLATE SIDE

Present:

The Hon'ble Justice Shampa Dutt (Paul)



                          FMA No. 2790 of 2015
                           (FMAT 394 of 2015)
                                   with
                              CAN 1 of 2024


                       Smt. Sulekha Samanta & Ors.

                                    Vs

              The New India Assurance Company Ltd. & Anr.



For the Appellants                        : Mr. Krishanu Banik,
                                            Mr. Tathagata Banik.



For the Respondent No.1/                  : Mr. Parimal Kumar Pahari.
Insurance Company


For the Respondent No.2/                  : None.
Owner



Hearing concluded on                      : 21.08.2024

Judgment on                               : 17.09.2024
                                         2


Shampa Dutt (Paul), J.:

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

Judgment and Award dated 23rd day of December, 2014 passed by the

learned Judge, Motor Accident Claims Tribunal, 3rd Court, Alipore

(hereinafter called as the Learned Tribunal Judge) in M.A.C. Case No.

82 of 2011, under Section 166 of the Motor Vehicles Act, 1988.

2. THE FACTS :-

"...............On 02.10.2011 at about 5.45 hrs the offending vehicle being a mini lorry (Tata 407) bearing registration no. WB-15A/3245 was being driven by its driver along Diamond Harbour Road from south to north at a very high speed and in a most rash and negligent manner disobeying all traffic rules and endangering human life and safety of others and when it reached near Joka opposite to Diamond Park it dashed a motorcycle bearing registration no. WB- 22A/9221 from behind and as a result both the motorcyclist namely Partha Sarathi Mondal and the pillion rider Mrinal Kanti Samanta were thrown on the road and sustained injuries on their persons and were removed to ESIC hospital where the driver of the motorcycle was administered first aid. After a few hours the pillion rider expired at the said hospital. Both the driver and the pillion rider were home guards and were coming to office at Thakurpukur to join Puja duties. Rash and negligent driving on the part of the driver of the alleged offending vehicle was the sole cause of the aforesaid accident. The deceased was a healthy man with active habits and was the only bread-earner of his family, therefore, the petitioners have fallen in a most helpless condition and have been suffering from acute financial problems as at present there is no earning member in the family. Due to the pathetic death of the deceased in the said accident his widow has lost consortium of her husband at a young age and his mother has lost her beloved son and the minor children have been deprived of love affection and guidance of their father in their childhood. The petitioners have suffered great financial loss, mental

pain and agony due to the premature death of the deceased in the said accident and they will suffer so for rest of their lives............"

3. Opposite party no.1 who is the owner of the offending vehicle did not

appear to contest the case, however, O.P. no.2, the New India

Assurance Co. Ltd. appeared and contested the case and by filing

written statement disputed the claim of the claimants and prayed for

dismissal of the case. On their application filed u/s 170 of the M.V.

Act, 1988 the O.P. no.2 was also permitted to contest the case on all

the grounds that are available to the insured.

4. The Claimants examined three witnesses and proved relevant

documents which were marked Exhibit 1 to 15.

5. The opposite parties did not adduce any evidence.

6. The Tribunal on the basis of materials on record finally:-

Dated 23rd December, 2014 ..........Therefore, in the light of the discussions as made above the claimants are found entitled to compensation calculated on the basis of yearly income i.e. Rs. 1,04,040/- per annum which after one third deduction towards personal and living expenses comes to Rs. 69,360/- per annum only. The age of the victim as already decided above is taken to be 35 years at the time of his death and therefore multiplier of 16 would be applicable. The calculation comes to Rs. 69,360/- multiplied by 16 = Rs. 11,09,760/-. In addition the claimants are also found to be entitled to Rs. 9,500/- on account of loss of consortium, loss of estate and funeral expenses thereby the amount of compensation would reach to Rs. 11,09,760/- + Rs. 9,500/- = Rs. 11,19,260/-. The claimants are found entitled to interest 6% per annum on the awarded compensation from the date of the filing of the claim

case i.e. 02.11.2011 in accordance with Section 171 of the M.V. Act, 1988. The wife of the deceased (claimant no.1) is entitled to 40% of the compensation plus loss of consortium i.e. Rs. 4,43,904/- + Rs. 5,000/- = Rs. 4,48,904/- and the mother and two daughters (claimant nos. 2, 3 & 4) for the rest of the compensation amount alongwith funeral expenses and loss of estate which comes to Rs. 6,65,856/- + Rs. 4500/- = Rs. 6,70,356/- in equal proportions..........

Sd/-

Judge MAC Tribunal 3rd Court, Alipore......"

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

grounds :-

a) That the Learned Tribunal Judge was wrong in not

considering the future prospect of the deceased since on the

ground that the wife of the victim deceased got an

appointment on compassionate ground and she was

receiving duty allowance which would have been received by

the husband had he been alive and these findings of the

Learned Tribunal Judge are contrary to the settled principal

of law laid down by the Hon'ble Apex Court of India in

the case of Vimal Kanwar & Ors. Vs Kishore Das & Ors

reported in AIR 2013 SC (Civil) 1783=2013(3) TAC

6(S.C.) and as such the impugned award is bad in law and

the same is liable to be enhanced and modified.

b) That the learned Tribunal was wrong in not granting „Just

Compensation‟ in favour of the claimants as per the relevant

provision of the Motor Vehicles laws.

8. From the materials including evidence on record, it appears that:-

i) P.W. 2, an eyewitness has proved the rash and negligent

driving of the offending vehicle, which was duly insured at the

relevant time (Exhibit 11).

ii) The deceased was Home Guard with the Kolkata Police and

through Ext. 14, his salary has been taken as Rs. 8670/- per

month (Exhibit 14).

iii) As per his service I-Card (Exhibit 3) the victim's date of Birth

is 02.10.1976. He died on his birth day, 02.10.2011. He was

aged 35 years and as such multiplier 16 will be applicable.

(Sarla Verma (Smt) & Ors. Vs. Delhi Transport

Corporation and Anr. (2009) 6 SCC 121)

iv) Regarding future prospects the tribunal held as follows :-

"...........In the judgment cited by the claimants (2013 (3) T.A.C. 6 (S.C.) Vimal Kanwar and others. Vs Kishore Dan and others) the principle that has been laid down is that the salary received by the claimant on compassionate appointment cannot be termed to be a (pecuniary advantage) and the same is not liable for deduction while calculating the final amount of compensation. The said principle is binding on this tribunal, however, there is a difference in the present case in as much as the salary being received by the claimant no. 1 is not being deducted for the purpose of calculating the compensation, rather taking into account the same only addition of future prospects is not being done as apparently even if the deceased

had been alive he would have received the same amount which is currently being received by the claimant no.1 and therefore there has not been any loss of income for the claimants as such. However, the claimants are entitled to compensation the detailed calculation of which is given below. The other judgment 2012(3) T.A.C. 77(Cal) Smt. Namita Mishra alias Misra and others v. New India Assurance Co.

Ltd. and Anr. as cited by the claimants is also not applicable in this case for the same reasons as discussed above............"

v) The said argument by the Insurance Company /O.P.

(Claimants No.1 having got the job of her husband) does not

hold good, because had the husband been alive, his income

would have added to the income of claimants. Future

prospects are what the claimants get as death benefit.

So 50% of salary is to be taken. (National Insurance

Co. Ltd. Vs. Pranay Sethi & Ors., (2017) 16 SCC 680)

vi) Number of claimants being 4, 1/4th is to be deducted towards

personal expenses of the deceased.

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%).

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

       Monthly Income                                   Rs. 8670/-
       Annual Income                                    Rs. 1,04,040/-
       (8670 x 12)
       Less : 1/4th towards personal and living         Rs. 26,010/-
       expenses
                                                        Rs. 78,030/-
       Add : Future prospects @ 50% of the annual       Rs. 39,015/-
       income of the deceased
                                                        Rs. 1,17,045/-
       Multiplier x 16 (1,17,045 x 16)                  Rs. 18,72,720/-
       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. 19,56,720/-

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

of Rs. 11,19,260/- 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. 8,37,460/- 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, who shall release the amount in favour of the claimants in