Calcutta High Court (Appellete Side)
Smt. Man Kumari Khalling vs The Oriental Insurance Company Limited ... on 18 September, 2024
IN THE HIGH COURT AT CALCUTTA
(Civil Appellate Jurisdiction)
APPELLATE SIDE
Present:
The Hon'ble Justice Shampa Dutt (Paul)
FMAT No. 409 of 2016
with
CAN 1 of 2024
Smt. Man Kumari Khalling
Vs
The Oriental Insurance Company Limited & Anr.
For the Appellant/ : Mr. Jayanta Banerjee,
Claimant Mr. Sandip Bandyopadhyay,
Mr. Rakib Hussain,
Ms. Rukmini Basu Roy.
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 : 18.09.2024
2
Shampa Dutt (Paul), J.:
1. The present appeal has been preferred by the claimant against the
Judgment and Award dated 31.08.2015 passed by Judge, Motor
Accident Claims Tribunal, 1st Court, Additional District Judge, Siliguri
in M.A.C. Case No. 09(02) of 2012, under Section 166 of the Motor
Vehicles Act, 1988.
2. THE FACTS :-
"..............On 08.05.2010 at about 10.30p.m.her son
Sewak Khaling was returning from his working place
at Royal Sarovar Hotel at Sevoke Road, Siliguri to his
home. On the way at Siliguri Salugara Road in front of
Sona Motor, one Motor Cycle being No. WB-74P-1962
being driven rashly and negligently hit her son, as a
result of which he sustained severe injuries and he
was immediately shifted to Anandalok Nursing Home
where he died on 12.05.2010.
At the time of accident her son was 22 years old,
and used to earn Rs. 6,000/- per month from his job of
painter and polish. She herself along with her family
were totally dependent upon the income of her son as
her husband is a patient of Glaucoma since long and is
almost blind.
The offending Vehicle being Regd. No. WB-74P-
1962 was insured with the Oriental Insurance Co.
Limited. She prays for compensation amounting to Rs.
8,25,500/-............."
3. O.P. No.1/Oriental Insurance Co. Ltd. is contested the case by filing
written statement denying the materials averments of the petition and
contended inter alia that the case is not maintainable in law and the
case is liable to be dismissed.
4. The Claimant examined two witnesses and proved relevant documents
which were marked Exhibit 1 to 9.
5. The opposite parties cross examined the P.W's but did not adduce any
evidence on behalf of the opposite party.
6. The Tribunal finally held as follows :-
".........MAC Case No. 09(02) 2012
Dated 31st August, 2015
...........The amount of compensation is thus as
follows:-
1/2 of Rs. 15000/- x 15 (multiplier) = Rs. 1,12,500/-
I am also inclined to grant a sum of Rs. 2,000/-
as funeral expenses and a sum of Rs. 2,500/- as loss of
estate. In all it comes to the tune of Rs. 1,17,000/- to
which the petitioner, Smt. Man Kumari Khaling (being
the mother & legal heir of the deceased) is entitled to get
as compensation................
Sd/-
Tribunal Judge, MAC Cases &
Addl. Dist. Judge, 1st Court,
Siliguri, Darjeeling........"
7. Beings aggrieved, the claimant has preferred the present appeal
on appeal on the ground :-
That the learned tribunal without considering the actual
income of the victim, did not grant „Just Compensation‟ to
the claimant, in accordance with the relevant provision of
law.
8. From the materials including the evidence on record, the
following is evident :-
i) From the FIR and seizure list (Exhibit-4 and 5) it appears that
the victim died on 12.05.2010, in the accident by the
offending vehicle, caused by its rash and negligent driving.
ii) The offending vehicle had valid Insurance (Ext. 8).
iii) Income of the deceased be taken as Rs. 3000/- p.m.
considering that the accident occurred in 2010 and the salary
certified/proved was not in accordance with law.
iv) The age of the victim was 25 years (voter card Ext.1) so
multiplier 18 will be applicable. (Sarla Verma (Smt) & Ors.
Vs. Delhi Transport Corporation and Anr. (2009) 6 SCC
121)
v) Future prospect shall be 40% of income. (National
Insurance Co. Ltd. Vs. Pranay Sethi & Ors., (2017) 16 SCC
680)
vi) Deceased being a bachelor, 50% deduction of income to be
made. (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%).
9. Thus the "Just Compensation" in this case would be as follow:-
Monthly Income Rs. 3,000/-
Annual Income Rs. 36,000/-
(3,000 x 12)
Less : Deduction on Income 50% (Bachelor) Rs. 18,000/-
Rs. 18,000/-
Add : Future prospects @ 40% of the annual Rs. 7,200/-
income of the deceased
Rs. 25,200/-
Multiplier x 18 (25, 200 x 18) Rs. 4,53,600/-
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. 5,37,600/-
10. Admittedly, the Claimant has received an amount of compensation of
Rs. 1,17,000/- together with interest in terms of order of the learned
Tribunal. Accordingly, the Claimant is now entitled to the balance
amount of compensation of Rs. 4,20,600/- 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
Claimant/Appellant, 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 claimant, upon
satisfaction of her identity and payment of ad-valorem Court fees, if
not already paid.
12. The appeal being FMAT 409 of 2016 stands disposed of. The
impugned judgment and award of the learned Tribunal under appeal
is modified to the above extent.
13. All connected applications, if any, stand disposed of.
14. There will be no order as to costs.
15. Interim order, if any, stands vacated.
16. Copy of this Judgment be sent to the Learned Tribunal, along with the
trial court records, if received.
17. Urgent certified website copy of this judgment, if applied for, be supplied
expeditiously after complying with all, necessary legal formalities.
(Shampa Dutt (Paul), J.)
