Calcutta High Court (Appellete Side)

Reliance General Insurance Co. Ltd vs Selima Bibi @ Salima Bibi @ Bebila Bibi & ... on 23 September, 2024

                  IN THE HIGH COURT AT CALCUTTA

                       (Civil Appellate Jurisdiction)

                            APPELLATE SIDE



Present:

The Hon'ble Justice Shampa Dutt (Paul)



                          FMA No. 770 of 2021
                         (FMAT No. 901 of 2016)


                  Reliance General Insurance Co. Ltd.

                                    Vs

              Selima Bibi @ Salima Bibi @ Bebila Bibi & Ors.



For the Appellant/                       : Ms. Gopa Das Mukherjee.
Insurance Company




For the Respondents                      : Ms. Sima Ghosh,
                                           Mr. Sanjoy Patra.




Hearing concluded on                     : 22.08.2024

Judgment on                              : 23.09.2024
                                       2


Shampa Dutt (Paul), J.:

1. The present appeal has been filed by the Insurance Company against

the Judgment/Award passed on 20th Day of May, 2016 by Judge,

Motor Accident Claims Tribunal, 4th Court & Additional District and

Sessions Judge, Suri, Birbhum in MAC Case No. 28 of 2014, under

Section 166 of the Motor Vehicles Act.

2. THE FACTS :-

".........On 04.05.2012 about 11.45 a.m. the deceased while driving the Bus being no. WB-63- 4753(N.B.S.T.C.) towards Calcutta through Durgapur Express Way was obstructed by a Truck being no. WB- 41F-3097 which was in stationery condition on the wrong side of the road, consequently, the Bus caused dash out the Truck from its behind. Sk. Selim sustained injury on his person and died on the spot. He earned Rs. 26,517 per month from the North Bengal State Transport Corporation and looked after his family. The petitioners being heirs and dependents of Sk. Selim then came to the Tribunal for compensation to the tune of Rs. 25,00,000/- against the owner namely Sk. Sanayar Ali @ Sanowar of the Truck and M/s Reliance General Insurance Company Ltd., the insurer of the vehicle. Sk Sanowar Ali by a written objection has stated that the vehicle had duly been covered with valid insurance policy under the Reliance General Insurance Company Ltd. and he is no more liable for paying any compensation..........."

3. The Managing Director, NBSTC also filed a written objection denying

the claim of the petitioners but admitted the facts that the deceased

being the driver of the NBSTC was driving the vehicle bearing no. WB-

63-4753 (The bus of NBSTC) from Suri to Calcutta through Durgapur

Express Way and dashed out the Truck No. WB-41F-3097 while it was

in stationery condition on the wrong side of the road. This O.P.

denied their liability or responsibility for paying any compensation.

4. The O.P./Reliance General Insurance Company has opposed the prayer

by a written objection denying their liability on the ground that the

driver of the Bus had lost its control over the Bus and driving in rash

and negligent manner caused the incident. The Truck was though in

stationery condition but on the right track and the road being one way,

the driver of the Bus had the duty to drive carefully. This O.P. then

prayed for dismissal of the case. This O.P. however, was permitted to

take all available defence in terms of the prayer.

5. The Claimants in this case examined two witnesses and proved

relevant documents which were marked Exhibits.

6. The tribunal finally held as follows :-

Dated 20.05.2016 .............I have carefully gone through the decision and according to the settled principle (Sarala Verma Case) the multiplier has been assessed as 11 in the age group of 51 to 55 and that views has been accepted by the Hon'ble Court in the cited decision.

The widow of the deceased is entitled to get consortium to the tune of Rs. 1,00,000/- and Rs. 25,000/- as funeral and incidental cost.


               The Compensation thus was calculated

            The    annual       Rs. 25,460x12             =Rs.
            income     of                                 3,05,520
            1/3 rd     be
            deducted as         Rs.3,05,520-              =Rs.
            personal            1,01,840                  2,03,680
            expense



            The
            compensation        Rs.2,03,680/-X 11        =Rs.
            after adding                                 22,40,480
            multiplier 11
            Loss         of     Rs. 1,00,000/-
            Consortium
            Funeral             Rs. 25,000/-
            expenses and
            incidental
            cost
            Total               Rs. 23,65,480/-

Total compensation thus awarded to Rs. 23,65,800/-.

The claimant is entitled to Rs. 23,65,800/- and the interest therein which will be 9% per annum from the date of filing of the claim application i.e. on 09.07.2014.

The document of Exbt.-4 shows that the offending Truck bears a valid Insurance Policy with the M/S Reliance General Insurance Company and there is no inconsistency or invalidity or fouling of any terms and condition has been seen and therefore the liability to pay the compensation has been casted upon the O.P. no. 2, the M/S Reliance General Insurance Company Ltd.............

Sd/-

MAC Tribunal 4 Court, Suri, Birbhum."

7. Being aggrieved, the Insurance Company has preferred this appeal

on the ground :-

a) That while directing the Appellate - Insurance Company to satisfy the

award ought to have considered the fact that the Bus dashed the

stationery Truck No. WB-41F-3097 of which the appellant is the

insurer.

b) The Learned Tribunal ought to have exempted the owner and insurer

of the truck No. WB-41F-3097 from the liability altogether since the

Truck was stationery and that the Bus No. WB-63-4753(NBSTC)

dashed the stationery Truck from behind.

c) That since there was no fault on the part of the driver of the Truck, the

owner and insurer of the Truck cannot be held liable for the accident.

d) That the accident took place solely due to negligence on the part of the

driver of the vehicle No. WB-63-4753(NBSTC) (Bus).

8. From the materials including evidence on record, the following in

evident :-

i) Learned counsel for the Insurance Company has relied upon

the judgment of the Supreme Court in Khenyei vs New India

Assurance Co. Ltd.& Ors., 2015 (9) SCC 273. In the present

case a Bus (NBSTC) collided with a stationary truck (insured

with the appellant) parked admittedly on the wrong side of

the road. The driver of the Bus died in the accident and his

legal heirs are the claimants.

Keeping this in mind the tribunal directed the appellant

herein, being the insurer of the offending vehicle the truck, was

liable to pay the entire compensation, having violated traffic

rules by parking the same on the wrong side of the road.

From the charge sheet it appears that the truck laden

with sand and a punctured tyre, was parked on the right side

of the road. The truck and the Bus were both proceeding

towards Kolkata. It is in the charge sheet that the Bus dashed

the back side of the parked truck, which was parked on the

right side, and as stated by P.W 2 (an eyewitness) in cross

examination "when there was a lorry in front of the Bus and

that lorry pressed certain brake and in order to save the driver

of the bus then turned right side and caused accident to

another lorry which was standing on the right side."

Charge sheet has been filed only in respect of the

driver of the truck as the driver of the Bus died in the said

accident and thus the Insurer of the truck was directed to

pay by being held to be solely responsible.

In view of the above facts, the tribunal rightly held that

there was no contributory or composite negligence.

ii) The victim's age being 53 years as Ext-6, PAN Card shows the

date of birth of the victim as 05.02.1959, multiplier 11 is

applicable (Sarla Verma & Ors. Vs. Delhi Transport

Corporation and Anr. (2009) 6 SCC 121)

iii) Future prospects at 15% of salary is to added, the victim

being a permanent employee of NBSTC. (National Insurance

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

The Salary of the victim at the time of accident was Rs.

26,762.60/- (April, 2012) there being no tax paid. (Ext - 10)

Deduction towards provident fund is not to be deducted in a

case of an accident claim.

This has support from the Judgment in National

Insurance Company Ltd vs Indira Srivastava & Ors., AIR

2008 SC 845, wherein the Supreme Court held:-

"13. The question came for consideration before a learned Single Judge of the Madras High Court in The Manager, National Insurance Co. Ltd. v.

Padmavathy & Ors. [CMA No.114 of 2006 decided on 29.1.2007], wherein it was held :

"Income tax, Professional tax which are deducted from the salaried person goes to the coffers of the government under specific head and there is no return. Whereas, the General Provident Fund, Special Provident Fund, L.I.C., Contribution are amounts paid specific heads and the contribution is always repayable to an employee at the time of voluntary retirement, death or for any other reason. Such contribution made by the salaried person are deferred payments and they are savings. The Supreme Court as well as various High Courts have held that the compensation payable under the Motor Vehicles Act is statutory and that the deferred payments made to the employee are contractual. Courts have held that there cannot be any deductions in the statutory compensation, if the Legal Representatives are entitled to lumpsum payment under the contractual liability. If the contributions made by the employee which are otherwise savings from the salary are deducted from the gross income and only the net income is taken for computing the dependancy compensation, then the Legal Representatives of the victim would lose considerable portion of the income. In view of the settled proposition of law, I am of the view, the Tribunal can make only statutory deductions such as Income tax and professional tax and any other contribution, which is not repayable by the employer, from the salary of the deceased person while determining the monthly income for computing the dependancy compensation. Any contribution made by the employee during his life time, form part of the salary and they should be included in the monthly income, while computing the dependency compensation."

22. Yet again in New India Assurance Co. Ltd. v. Charlie & Anr [(2005) 10 SCC 720], the same view was reiterated. However, therein although the words 'net income' has been used but the same itself would ordinarily mean gross income minus the statutory deductions. We must also notice that the said decision has been followed in New India Assurance Co. Ltd. v. Kalpana (Smt.) & Ors. [(2007) 3 SCC 538].

24. In view of our finding abovementioned, the appeal is to be allowed in part in so far as the High Court had directed deduction of medical reimbursement and tax elements on the entire sum which according to the statute constitute income. But we decline to do so for two reasons. Firstly, the accident had taken place as far back as on 1st September, 1997 and secondly the Tribunal as also the High Court failed to take into consideration rise in income of the deceased by way of promotion or otherwise."

iv) Number of claimants initially being 5, 1/4th deduction towards

personal expenses of the deceased is to be made from his

income. (Sarla Verma & Ors. Vs. Delhi Transport

Corporation and Anr. (Supra)).

v) 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 to be added.

(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. In view of the judgment in Janabai WD/O Dinkarrao Ghorpade & Ors.

Vs. M/S. I.C.I.C.I. Lambord Insurance Company Ltd., Civil Appeal

No.______of 2022 (Arising out of SLP (Civil) No. 21077 of 2019), the

amount is being enhanced inspite of there being no cross appeal by the

claimants in this appeal filed by the Insurance Company.

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

        Monthly Income                                 Rs. 26,762.60/-
        Annual Income                                  Rs. 3,21,151.2/-
        (26,762.60 x 12)
        Less : 1/4th towards personal and living       Rs. 80,287.8/-
        expenses
                                                       Rs. 2, 40,863.4/-
        Add : Future prospects @ 15% of the annual     Rs. 36,129.5/-
        income of the deceased
                                                       Rs. 2, 76, 992.9/-
        Multiplier x 11 (2, 76,992.9 x 11)             Rs.30,46,921.9 /-
        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.31,30,921.9 /-

Round Off Amount:- Rs. 31,30,922/-

11. Admittedly, the Appellant/Insurance Company has deposited an amount

of compensation of Rs. 23,65,800/- in terms of the order of the learned

Tribunal. Accordingly, the claimants are now entitled to the total amount

of compensation of Rs. 31,30,922/- together with interest at the rate

of 6% per annum from the date of filing of the claim application till

deposit, on the total compensation amount.

12. Taking into consideration, the amount already deposited by the

Appellant/Insurance Company, the Insurance Company shall deposit

the balance amount of Rs. 7,65,122/- along with the interest on the

total compensation amount, with the learned Registrar General, High