Calcutta High Court (Appellete Side)

Smt. Madhabi Mondal vs United India Insurance Company Ltd. & ... on 23 September, 2024

                     IN THE HIGH COURT AT CALCUTTA

                        (Civil Appellate Jurisdiction)

                             APPELLATE SIDE

Present:

The Hon'ble Justice Shampa Dutt (Paul)



                                      FMA 1405 of 2015
                                      (FMAT 588 of 2014)

                               Smt. Madhabi Mondal

                                             Vs.

                     United India Insurance Company Ltd. & Anr.



For the Appellant/            :          Mr. Krishanu Banik,
Claimant                                 Mr. Tathagata Banik.



For the Respondent No.1/      :          Mr. Parimal Kr. Pahari.
Insurance company



For the Respondent No.2/      :           None.
Owner



Hearing concluded on          :           23.09.2024

Judgment on                       :        23.09.2024
                                          2


     Shampa Dutt (Paul), J.:

1. The present claim appeal has been preferred by claimant/appellant

against the Judgment and Award dated 25th day of March, 2014 passed

by the learned Judge, Motor Accident Claims Tribunal and District and

Sessions Judge, Purba Medinipur (hereinafter called as the Learned

Tribunal Judge) in M.A.C. Case No. 224 of 2010, under Section 166 of

the M.V. Act.

2. FACTS :-

"........On 06.02.2010 victim Nayan Kumar Mondal was coming to his working place as a pillion rider of motorcycle being No. WB-12U/0836 and when he reached at village-Rakshachak on National High Way No. 41 then in front of the approach road of Madras Cement Limited, the said motorbike stopped. The deceased Nayan Mondal was standing on the mud and moram portion of the road to go to his factory and at that time the offending bus bearing registration No. WB- 33/5194 which was proceeding towards Mecheda dashed him in a rash and negligent manner with excessive speed and ran over him. The driver of the motorbike Ramjoy Yadav also sustained injury. Both Nayan Kumar Mondal and Ramjoy Yadav were taken to Popular Nursing Home, Mecheda, where Nayan Kumar Mondal expired at 4.40 p.m. due to his injuries. Post mortem was held in respect of the dead body of deceased Nayan Kumar Mondal at District Hospital, Purba Medinipur. The motorbike was damaged. According to the petitioner, the alleged accident occurred due to rash and negligent driving on the part of the driver of the offending bus. The deceased was a healthy, young man and he used to earn Rs.13,516/- per month from his service at the time of accident.

The petitioner was totally dependent upon the income of the deceased. After the death of deceased the applicant has suffered financial and mental pain............."

3. The opposite party no. 1, Sk. Bulbul Rahaman, the owner of the

offending vehicle, did not contest the case and as such, the case heard

ex parte against him.

4. The opposite party no. 2, the United India Insurance Company Ltd., the

insurer of the offending vehicle, contested the case by filing written

statement. In its written statement the opposite party no. 2 challenged

the maintainability of the case on various grounds. The involvement of

the offending vehicle No. WB-33/5194 was totally denied by the opposite

party no. 2. The opposite party no. 2 claimed that at the relevant point of

time the deceased was travelling by motorbike without helmet. According

to the opposite party no. 2, the owner and insurer of the motorbike are

necessary parties in the instant case. Lastly, the insurer prayed for

dismissal of the case with cost.

5. On completion of hearing, the learned Tribunal held as follows :-

"...........M.A.C. Case No. 224 of 2010

Dated: 25th March, 2014 In the above situation, I have no other alternative but to adopt the principle of notional income to ascertain the income of the deceased. In view of the various decisions of Hon‟ble Supreme Court, the annual notional income of a person is Rupees 36,000/- per annum. From the materials on record it appears that the deceased died as a bachelor. In this connection the learned Advocate for the opposite party No. 2 has placed his reliance on the decision of Hon‟ble Supreme Court reported in 2011(1) TAC 4 (SC) and submitted that 50 per cent would be deducted as personal and living expenses of the bachelor and remaining 50 per cent as the contribution to the family as the deceased died leaving behind his mother only.

In view of the above after deduction of 50 per cent towards personal and living expenses the total contribution of the deceased to his family

would be Rs.18,000/- per annum. After applying multiplier eleven, the total compensation comes to Rs.1,98,000/-. The amount of compensation includes funeral expenses and loss of estate. As such, further sum of Rs.4500/- may be added to the total amount of compensation. As such, the amount of compensation comes to Rs.2,02,500/- (Rupees Two lack two thousand five hundred). The amount of compensation includes interest. As such, the petitioner is entitled to get interest @ 9 per cent per annum over the compensation amount from the date of filing of the case till deposit is made.

Sd/-

Judge, Motor Accident Claims Tribunal District & Sessions Judge, Purba Medinipur......"

6. Being aggrieved, the Claimant preferred this appeal on the

ground :-

That the learned tribunal did not grant „just

compensation‟ inspite of evidence on record.

7. Considering the materials including the evidence on record, the

following is evident :-

i) Though the claimants before the Tribunal had produced

some documents in respect of the income of the deceased

during hearing, the same has not been proved in

accordance with law and as such was not accepted by the

learned Tribunal. Even though in the deposition of PW 3,

the said documents have been marked as Exbt. 8, 9 and 10

the documents themselves have not been marked.

8. Learned Tribunal has thus not accepted the income of the victim as

Rs. 13,516 per month (Ext. 8, 9 & 10) on the following findings:-

"...........M.A.C. Case No. 224 of 2010

Dated: 25th March, 2014 .................In order to prove the income of the deceased petitioner examined P.W. No. 3, Pradip Mukherjee. From his evidence it appears that deceased Nayan Kumar Mondal was an employee of Madras Cement Ltd., Kolaghat and he used to get a salary of Rs.13,516/- per month before his accident. From the cross-examination of P.W. No. 3 it appears that the service of deceased was not temporary in nature. He was a permanent employee though he was on probation. In paragraph 7 of his affidavit-in- chief the P.W. No. 3 submitted certain documents regarding the offer of payment of deceased Nayan Kumar Mondal monthly attendance register for the month of April, 2010, May, 2010, June, 2010 of Madras Cement Limited, Kolaghat and prayed for marking of those documents as Exhibits. The pay- statement of Nayan Kumar Mondal has not been produced by P.W. No. 3.

P.W. No. 3 neither in his examination-in-chief nor in his cross-examination disclosed his identity on the basis of which he was deposing before the court. During his cross-examination he has admitted that he has not brought the official register and there is no such endorsement on the document which he had produced to the effect that those documents were prepared from the official record. It is doubtful under what capacity P.W. No. 3, Pradip Mukherjee, has deposed before the court in support of the income of the deceased. Nowhere in his evidence he has disclosed his relationship with Madras Cement Limited, Kolaghat. Except his verbal statement regarding the income of the deceased, no other document has been produced by the petitioner to prove his income. Moreover, during his cross- examination P.W. No. 3 has admitted that there is no such endorsement on the document which he has produced before the court to the effect that those documents were prepared from the official record. In the above situation, it would not be reasonable and justified to place reliance on the evidence of P.W. No. 3, regarding the income of the deceased.

In the above situation, I have no other alternative but to adopt the principle of notional income to ascertain the income of the deceased. In view of the various decisions of Hon'ble Supreme

Court, the annual notional income of a person is Rupees 36,000/- per annum............

Sd/-

Judge, Motor Accident Claims Tribunal District & Sessions Judge, Purba Medinipur......"

9. It appears from the evidence of P.W. 3, that the tribunal marked the said

documents as Exhibit 8, 9 & 10, but the documents have themselves not

been marked nor considered in view of the findings above.

10. P.W. 3 (examination in chief) on 20.02.2014, is as follows:-

"..........Three documents namely, authenticated copy of letter of appointment of Nayan Kumar Mondal, pay- slip for the month of April, 2010 of Nayan Kr. Mondal and pay-roll Section of Madras Cement Ltd., Chennai, have been marked as Exhibits -8, 9 and 10 respectively..........."

11. As the difference in the income taken by the tribunal and the

documents marked is substantial, the claimants have prayed that the

matter be remanded, so that the claimants get an opportunity to prove

the said documents in accordance with law, in view of the findings of the

tribunal.

12. It is surprising to note that even though the said documents were

marked as exhibits, (without objection), then what stopped the tribunal

to accept the said documents as evidence.

13. But considering the findings of the tribunal as above in respect of the

said documents, interest of justice requires, that the case be sent back

on limited remand, to also enable the insurance company to get the

opportunity to cross examine the witness (P.W. 3) to that extent only.