Calcutta High Court (Appellete Side)
Mabia Bibi & Ors vs The New India Assurance Co. Ltd. & Anr on 18 September, 2024
IN THE HIGH COURT AT CALCUTTA
(Civil Appellate Jurisdiction)
APPELLATE SIDE
Present:
The Hon'ble Justice Shampa Dutt (Paul)
FMA No. 1212 of 2007
(FMAT 1306 of 2006)
Mabia Bibi & Ors.
Vs
The New India Assurance Co. Ltd. & Anr.
For the Appellants/ : Mr. Niranjan Maity.
Claimants
For the Respondent No.1/ : Ms. Gopa Das Mukherjee.
Insurance Company
For the Respondent No.2/ : None.
Owner
Hearing concluded on : 22.08.2024
Judgment on : 18.09.2024
2
Shampa Dutt (Paul), J.:
1. The present appeal has been preferred by the claimants against the
Judgment and Order dated 2nd July, 2005 passed by Judge, Motor
Accident Claims Tribunal, (5th Additional District Judge), South 24
Parganas at Alipore in M.A.C. Case No. 2 of 2005, under Section 166
of the Motor Vehicles Act, 1988.
2. THE FACTS :-
"..........Abdul Razzak Gayen, the husband of the
petitioner no. 1 died in a motor vehicle accident
which occurred on 20.11.2003 at about 11.15
hrs. over Diamond Harbour, Kakdwip Road near
Tulsirchak within P.S. Kulpi in which the vehicle
bearing no. WB-03A/4017 (Truck) was involved.
From the attested copy of FIR (Ext-1) it
appears that one Md. Hossain on 29.11.03
lodged the FIR to the O.C., Kulpi P.S. to the effect
that on 29.11.03 at about 9.00 am he along with
Rouf Ali Pyke, Sahjan Ali Pyke, Abdul Razzak
Gayen, Saifulla Pyke, Hossain Ali Pyke and
Kholrul Ali Pyle boarded a TATA 407 model
vehicle bearing No. WB-03A/4017 at Hospital
More and were proceeding towards their
respective houses and on the way near
Tulshichak More the said vehicle running in a
high speed, rash and negligent manner while
giving side the lorry turned turtle and fell on the
road-side ditch, and as a result, the 11 to 15
persons became seriously injured and Abdul
Razzak and Rahaman Ali Sk. and 6 other were
removed to Diamond Harbour S.D. Hospital and
the remaining injured persons were removed to
Kulpi Hospital. It also appears that on the basis
of that FIR Kulpi P.S. Case No. 161 dt. 20.11.03
u/s 279/333 IPC was started........"
3. The O.P. No. 2/ The New Indian Assurance Co. Ltd. who has been
allowed to take larger defence u/s 170 of M.V. Act, has challenged the
claim of the petitioners by filing a written statement while the O.P. no.
1, the owner of the vehicle did not contest the case.
4. The claimants examined two witnesses and proved relevant
documents.
5. The opposite party did not adduce any evidence.
6. The tribunal finally held as follows:-
"...........M.A.C. Case No. 2 of 2005
Dated: 2nd July, 2005
...........As it has not been proved that the victim,
Abdul Razzak was a cloth businessman. So I have no
reason to believe that he used to earn Rs, 4,000/-
p.m. as business man of cloths. In fact, there is no
cogent and reliable evidence to prove the income of
the victim at the relevant time. In that circumstance,
this Tribunal is inclined to proceed with the notional
income of Rs. 15,000/- p.a. for the victim. Abdul
Razzak 1/3rd of it having been deducted towards the
personal expenses of the victim, so his annual
dependency comes to Rs. 10,000/-. By applying
multiplier 18 we get a figure of Rs. 1,80,000/-. To it
we may add Rs. 9500/- towards funeral expenses,
loss of estate and loss of consortium. Thus, the total
amount comes to Rs. 1,89,500/- to which the
petitioners are entitled to get compensation from the
O.P. no.1 owner of the offending vehicle.
Sd/-
Judge, M.A.C. Tribunal,
5th A.D.J. Alipore........."
7. The tribunal directed the Opposite Party/Owner to pay the said
compensation to the claimant as it is on record that the victim was a
„gratuitous passenger‟.
8. Being aggrieved the claimant has preferred this appeal on the
ground :-
That the tribunal erroneously directed the O.P. no.1/owner to
pay the compensation on the finding that the victim was
travelling as a gratuitous passenger, which is not in accordance
with law.
9. From the materials including the evidence on record, it is evident:-
i) That the victim was travelling in a goods vehicle as a
gratuitous passenger and as such there being a violation of
policy rules, the Insurance Company was to pay the
compensation and then entitled to recover the same from the
owner by due process of law. (Balu Krishna Chavan vs. The
Reliance General Insurance Company Ltd. & Ors., in SLP
(C) No. 33638 of 2017)
ii) The accident having occurred in the year 2003, and there
being no documents to support the income of the victim, his
income is taken as Rs. 3000/- per month.
iii) Age of the deceased being 22 years in the P.M. report (Ext - 4)
and 26 years as per voter card (Ext-5), the average is taken as
24 years and thus multiplier 18 is applicable. (Sarla Verma
& Ors. Vs. Delhi Transport Corporation and Anr. (2009) 6
SCC 121)
iv) Future prospect shall be 40% of Income (victim being self
employed). (National Insurance Co. Ltd. Vs. Pranay Sethi &
Ors., (2017) 16 SCC 680)
v) Number of claimants (at the time of filling) being 4, 1/4th of
the victim's income is to be deducted towards his 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: 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%).
10. Thus the "Just Compensation" in this case would be as follows :-
Monthly Income Rs. 3,000/-
Annual Income Rs. 36,000/-
(3,000 x 12)
Less : 1/4th towards personal and living Rs. 9,000/-
expenses
Rs. 27,000/-
Add : Future prospects @ 40% of the annual Rs. 10,800/-
income of the deceased
Rs. 37,800/-
Multiplier x 18 (37,800 x 18) Rs. 6,80,400/-
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. 7,64,400/-
11. Admittedly, the Claimants have not received the amount of
compensation in terms of order of the learned Tribunal. Thus, the
Claimants are now entitled to the total amount of compensation of
Rs. 7,64,400/- together with interest at the rate of 6% per annum
from the date of filing of the claim application till deposit.
12. The Respondent No.1/Insurance Company shall deposit the total
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 equal proportion, after payment
of the amount for loss of consortium to the claimant/wife, upon
satisfaction of their identity and payment of ad-valorem Court fees, if
not already paid.
13. The Respondent No. 1/Insurance Company/The New India Assurance
Co. Ltd. has now prayed for leave to recover the compensation from
the Owner/Respondent no. 2 of the offending vehicle (being a Truck)
bearing no. WB 03A/4017 (insured with the Respondent No. 1) on the
ground that the deceased was a 'gratuitous passenger' in the said
vehicle.
14. It is proved that the deceased was travelling as a gratuitous passenger
in the offending vehicles being a truck, bearing No. WB 03A/4017,
insured with the Respondent No. 1/Insurance Company/ The New
India Assurance Co. Ltd. and thus there being a violation of the
condition of the rules in the policy, the Respondent No. 1 is entitled to
recover their share of compensation paid, by due process of law from the
owner of vehicle no. WB 03A/4017, the respondent no. 2 herein. (Balu
Krishna Chavan vs. The Reliance General Insurance Company Ltd.
& Ors., in SLP (C) No. 33638 of 2017, on 3rd November, 2022)
15. The appeal being FMA 1212 of 2007/FMAT 1306 of 2006 stands
disposed of. The impugned judgment and award of the learned
Tribunal under appeal is modified to the above extent.
16. All connected applications, if any, stand disposed of.
17. There will be no order as to costs.
18. Interim order, if any, stands vacated.
19. Copy of this Judgment be sent to the Learned Tribunal, along with the
trial court records, if received.
20. Urgent certified website copy of this judgment, if applied for, be supplied
expeditiously after complying with all, necessary legal formalities.
(Shampa Dutt (Paul), J.)
