Calcutta High Court (Appellete Side)
The Oriental Insurance Co. Ltd vs Tara Sk. @ Seikh & Anr on 24 September, 2024
In The High Court At Calcutta
Civil Appellate Jurisdiction
Appellate Side
Present:-
The Hon'ble Justice Ananya Bandyopadhyay
FMAT(MV) 578 of 2023
The Oriental Insurance Co. Ltd.
v.
Tara Sk. @ Seikh & Anr.
With
C.O.T. 3 of 2024
Tara Sk. @ Seikh & Anr.
Vs.
The Oriental Insurance Co. Ltd & Anr.
Mr. Ananda Gopal Mukherjee
... for the appellant/insurance company
in FMAT(MV) 578 of 2023
for the respondent/insurance company
in COT 3 of 2024 .
Mr. Amit Ranjan roy
Mr. Pradyut Kr. Ray
... for the respondent/claimant
in FMAT(MV) 578 of 2023
for the appellant/claimant
in COT 3 of 2024.
Heard on: 24th September, 2024.
Judgment on: 24th September, 2024.
Ananya Bandyopadhyay, J:-
The learned advocates for the appellant/claimant as well as respondent
Nos. 1 are present.
The learned advocate for the appellant/insurance company did not
contest before the leaned Tribunal.
2
In an application filed under Section 166 of the M. V. Act being MACC
Case No in M.A.C. Case No.13 of 2014 has been disposed of by Motor Accident
Claim Tribunal and learned Additional District Judge, 2nd Court, Katwa as the
same is challenged with regard to the multiplier considering the error on the
part of the learned Tribunal to have considered the age of the victim to be 49
years on the basis of difference in the age stated in the Aaadhar Card and the
disability certificate which after thorough scrutiny would reveal the age of the
victim to have 61 years on the date of the accident as per the Aaadhar card and
60 years as per the Disablement Certificate.
The learned advocate for the appellant/ Insurance company further
submitted that the doctor prescribing the Disability Certificate assessed the
disability to the extent of 80% partial disablement contrary to the functional
disability of the victim to have been considered to be 100% by the learned
Tribunal. It was further stated that the multiplier should have been seven(7)
with regard to the age of the victim to have been 61 years on the date of the
accident without being entitled to the aspect of the future prospect.
The learned advocate for the respondent/ claimant submitted that the
Aaadhar card cannot be considered to be sacrosanct and the age mentioned
therein are not to be considered to be the ultimate proof of age of the victim.
Moreover, the Disablement Certificate issued by the concerned authority had not
been filled up by the assessing doctor in its entirety with the first half of the said
certificate being filled up by somebody else. The victim being amputed of his
right leg from the knee has suffered a total disablement to enable him to be
engaged in any kind of provocation and the consideration of 100% disablement
3
is functional disablement as declared by the learned Tribunal is not unjustified
or not considered.
An application under Section 166 of the Motor Vehicle Act had been filed
by the injured victim who had sustained an accident on 20th December, 2013 at
about 11.30 a.m. at Bonkapashi Karojgram Road near Karojgram village within
the jurisdiction of the Katwa Police Station in Burdwan District with the
involvement of the offending vehicle wherein the registration no. is WB 42R/
1655(motor cycle).
The occurrence of the accident, involvement of the offending vehicle, the
driving licence, route permit and other ancillary issues were not disputed by the
Learned Advocate for the appellant/insurance company.
The learned Tribunal has reasonably considered the extent of functional
disability of the victim to be 100% being incapacitated to work without
assistance precluding him to perform his work as a 'mason' and such aspect of
100% disablement considered by the learned Tribunal is not interfered with. The
age of the victim is under challenge as to whether the same would be 60 years or
61 years. The Disablement Certificate mentioned the age of the victim to be 60
years contrary to the date of birth as mentioned in the Aaadhar card to be 1st
January, 1953 which cannot be verily relied upon since the Disablement
Certificate may have been filled up by the concerned Authority at the instance of
the victim and, therefore, the age of the victim at the relevant point of accident
can be safely construed to be 58 years of age and the Disablement Certificate
was issued on 13th May, 2015. Therefore, the victim was 58 years of age on the
date of accident and, therefore, the multiplier would be considered.
4
Considering the observation of the Hon'ble Supreme Court reported in National
insurance company Ltd. Vs. Pranay Shetty & Anr.1
The impugned award of Rs. 12,45,000/- is modified as follows:-
Monthly Income Rs. 6,000/-
Annual Income X 12
------------------
Rs. 72,000/-
Add Future Prospects (40%) + 7200/-
-------------------
Rs. 79,200/-
_______________
Rs. 7,12,800/-
Add: Pain & Suffering Rs. 75,000/-
Future medical expenses -------------------
Rs.7,87,800/-
Non pecuniary damages
It was further submitted by the Learned Advocate as aforesaid that the
Appellant/Insurance Company has deposited the entire awarded amount along
with interest of 6 % per annum from the date of filing of the claim application i.e.
18,85,342/- as per the challan filed by the learned advocate for the
Appellant/Insurance company.
The respondent/claimant is entitled to receive the balance amount of Rs.
7,87,800/- along with interest at the rate of 6% per cent per annum from
the date of filing of the application till the date of actual realization.
1 2017(4)TAC 673(S.C)
The office of the learned Registrar General, High Court, Calcutta
shall encash the cheque stipulating the entire calculated amount as
aforesaid and thereafter disburse the same to the present
respondent/claimant as mentioned in the impugned judgment dated 2nd
February, 2023 passed by the 20th January, 2023 passed by the Motor
Accident Claim Tribunal and learned Additional District Judge, 2nd
Court, Katwa in M.A.C. Case No. 13 of 2014 on proof of proper
identification of the respondent/claimant subject to payment of ad
valorem Court fees and refund the balance amount if any through a
cheque to the Learned Advocate for the Appellant/Insurance Company for
the accounts of the insurance company.
The interest accrued on the sum of money deposited by the
Appellant/Insurance company at the office of the Learned Registrar
General, High Court at Calcutta which was further deposited in the
Nationalized Bank by the office of the Learned Registrar General, High
Court at Calcutta is to be apportioned and the sum of interest accrued on
Rs. 7,87,800/-is to be disbursed in favour of the respondent/claimant
and the balance sum of interest to be refunded to the Insurance Company
through distinct account payee cheques.
The instant appeal being FMAT(MV) 578 of 2023 and COT 3 of
2024 are disposed of.
The application if any stands disposed of.
The lower court records be sent to the concerned tribunal forthwith.
Copy of the order be sent to the Department as well as the
concerned tribunal as expeditiously as possible.
c.m.
(Ananya Bandyopadhyay, J.)
