Calcutta High Court (Appellete Side)
The New India Assurance Company Ltd vs Ashrupa Khatoon @ Ashrupa Islam & Ors on 23 September, 2024
IN THE HIGH COURT AT CALCUTTA
(Civil Appellate Jurisdiction)
Appellate Side
Present :
The Hon'ble Justice Shampa Dutt (Paul)
FMAT 1577 of 2009
The New India Assurance Company Ltd.
Vs.
Ashrupa Khatoon @ Ashrupa Islam & Ors.
For the Appellant/ : Mr. Gopa Das Mukherjee.
Insurance company
For the Respondent No. 2 & 3/ : Mr. Niranjan Maity.
Claimants
For the Respondent No. 4/ : None.
Owner
Hearing concluded on : 23.09.2024
Judgment on : 23.09.2024
2
Shampa Dutt (Paul) , J.
Re : IA No.: CAN 1 of 2009
(Old No.: CAN 9433 of 2009)
1. Learned counsel for the appellant moves IA No.: CAN 1 of 2009
(Old No.: CAN 9433 of 2009). By the instant application the
appellant has prayed for condonation of delay for filing the said
appeal. As seen from the application, it appears that the
grounds as made out for the delay is departmental procedural
delay and as such the appellant has prayed for condonation of
the same.
2. Considering the fact that this is a beneficial legislation and also
considering the grounds as made out, the delay be condoned.
3. Application being IA No.: CAN 1 of 2009 (Old No.: CAN 9433
of 2009) is accordingly allowed.
Re : IA No.: CAN 3 of 2024
4. IA No.: CAN 3 of 2024 has been preferred praying for noting
that the claimants Ashrupa Khatoon @ Ashrupa Islam and Kaji
Asraful Ali @ Kazi Asraful (Respondent No. 2 and 3) have now
become 'major' (copies of Birth Certificates are on record).
5. Necessary note be made in the cause title.
6. It is further stated that claimant no. 1 'Rafia Bewa' has died
intestate on 29.03.2012 and her legal heirs are on record. (copy
of the death certificate is on record).
7. Accordingly, name of Rafia Bewa be deleted from the cause title
of the Memo of Appeal.
8. IA No.: CAN 3 of 2024 is allowed.
The Appeal:-
9. The present appeal has been preferred by the Insurance
Company against the judgment and award dated 01.08.2008
passed by learned Judge, M.A.C. Tribunal, 10th Court, Alipore,
South 24 Parganas, in MACC No.15 of 2007, under Section
166 of the M.V Act.
10. Facts :-
"..........On 20.04.2004 while some businessman
including the victim Kaji Askar Ali @ Aajgar (a cloth
merchant) was proceeding towards Beldanga from
Rajinagar more side travelling by a Mini Truck
bearing No. WB-19A-6476 along with his business
materials like clothings as owner of the goods by
paying hire charges along with N.H 34 and the driver
of the said vehicle was proceeding with his vehicle
towards Beldanga rashly and negligently and
thereby dashed against an electric Pole situated by
the left side of N.H 34 near Beltala with tremendous
for force and as a result the said Kaji Askar Ali @
Aajkar sustained fatal injuries on his person and died
almost on the spot.
That the deceased was aged about 36 years at the
time of accident and earned Rs.4500/- per month
from his business. Over this accident Rejinagar P.S.
Case No.36 dated 20.04.2004 under Section
279/337/338/304A of the I.P.C was started against
the driver of the offending vehicle bearing No.WB-19A
6476.
The petitioners claimed Rs.4,00,000/- as
compensation............."
11. The owner in spite of summons did not contest the claim and
the case against him was taken up ex-parte.
12. By filing written statement, the opposite party no.2/the
Insurance Company denied all the material allegations as
stated in the claim petition. The opposite party further stated
that the claim petition is not maintainable in law as well as in
facts and the said petition is bad for non-joinder of necessary
parties and mis-joinder of unnecessary parties and that the
applicant must prove that the victim was 36 years of age and
was a businessman and that he used to earn Rs.4,500/- p.m.
at the time of the accident and thus prayed for dismissal of the
claim application.
13. The claimant examined three witnesses and proved relevant
document which was marked as exhibit.
14. The opposite party did not adduce any evidence but cross
examined the claimant's witnesses.
15. On conclusion of hearing the Tribunal held as follows :-
"..........MACC No. 15 of 2007
Dated 01.08.2008
The compensation is to be computed on the basis of
Rs.2,000/- per month after deduction of 1/3rd for the
accident of victim had he been alive. The multiplier
suggested for the age group of 40 to 45 years is „15‟
and the compensation comes to Rs.3,60,000/-. Along
with this the petitioners are entitled to Rs.4500/- as
funeral expenses and loss of estate. Therefore, the
total compensation comes to Rs.3,64,500/-(Rupees
Three Lacs Sixty Four Thousand and Five Hundred
only).......
Sd/-
Additional District Judge
10th Court, Alipore......."
16. Being aggrieved, the present appeal has been preferred on
the ground:-
That the income, disability certificate and medical
expenses considered by the Tribunal was not in
accordance with law and thus „just compensation‟ was
not granted.
17. Considering the materials including the evidence on
record, it appears that:-
i) There is no documents as to the income of the victim and
as the accident took place in the year 2004, the income of
the deceased is taken as Rs.3,000/- per month.
ii) Learned counsel for the appellant has submitted that the
age of the deceased should be taken as 40. But this Court
in view of the age in the postmortem report and the death
certificate holds that the deceased/victim was aged about
36 years at the time of accident and as such, multiplier
'15' is applicable. (Sarla Verma & Ors. Vs. Delhi
Transport Corporation and Anr. (2009) 6 SCC 121)
iii) As seen from the claim application, the number of
claimants initially was four. As such, 1/4th shall be the
deduction towards personal expense of the deceased.
(Sarla Verma & Ors. Vs. Delhi Transport Corporation
and Anr. (Supra))
iv) Future prospects - it appears that the deceased was self
employed and, as such, 40% of the income shall be
added towards future prospects. (National Insurance Co.
Ltd. Vs. Pranay Sethi & Ors., (2017) 16 SCC 680)
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. (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%)
18. Though there is no cross appeal by the claimant for
enhancement of compensation in the present appeal filed by
the Insurance Company, this Court considering the prevailing
laws and relying upon 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), holds that the
claimant in this case is entitled under the law to enhanced
compensation and as such the calculation of 'just
compensation' is as follows:-
Monthly Income Rs. 3,000/-
Annual Income Rs. 36,000/-
(3,000 x 12)
Less : Less : 1/4th towards personal and Rs. 9,000/-
living expenses
Rs. 27,000/-
Add : Future prospects @ 40% of the Rs. 10,800/-
annual income of the deceased
Rs. 37,800/-
Multiplier x 15 (37,800 x 15) Rs. 5, 67, 000/-
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. 6, 51, 000/-
19. Admittedly, the Appellant/Insurance Company has deposited
the amount of compensation of Rs. 3,64,500/- in terms of the
order of the learned Tribunal. The claimants are now entitled to
the total amount of compensation of Rs. 6, 51, 000/-
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.
20. Taking into consideration, the amount already deposited by the
Appellant/Insurance Company, the Insurance Company shall
deposit the balance amount of Rs. 2,86,500/- along with
interest on the total compensation amount, with the learned
Registrar General, High Court, Calcutta, within a period of six
weeks, who shall release the amount in favour of the Claimants
(being Respondent No. 2 & 3) in equal proportion, upon
satisfaction of their identity and payment of ad-valorem Court
fees, if not already paid.
21. It appears that the victim admittedly was travelling in a Mini
Truck bearing No. WB-19A-6476 (offending vehicle) along with
goods and as such, the victim was a gratuitous passenger.
(Balu Krishna Chavan vs. The Reliance General Insurance
Company Ltd. & Ors., in SLP (C) No. 33638 of 2017, on 3rd
November, 2022)
22. It is proved from the Exhibits (FIR and charge sheet) that
the deceased was travelling as a gratuitous passenger in the
offending vehicles being a Mini Truck bearing No. WB-19A-
6476, insured with the Appellant/Insurance Company and
thus there being a violation of the condition of the rules in the
policy, the Appellant is to pay and then recover the
compensation paid, by due process of law from the owner of
vehicle no. WB-19A-6476, the respondent no. 4 herein.
23. The appeal being FMAT 1577 of 2009 stands disposed of.
The impugned judgment and award of the learned Tribunal
under appeal is modified to the above extent.
24. No order as to costs.
25. All connected applications, if any, stand disposed of.
26. Interim order, if any, stands vacated.
27. Copy of this Judgment be sent to the Learned Tribunal, along
with the trial court records, if received.
28. Urgent Photostat certified copy of this Judgment, if applied for,
be given to the parties on usual undertaking.
(Shampa Dutt (Paul), J.)
