Calcutta High Court (Appellete Side)
Smt. Tandra Guha & Anr vs The New India Assurance Co. Ltd. & Anr on 25 September, 2024
IN THE HIGH COURT AT CALCUTTA
(Civil Appellate Jurisdiction)
APPELLATE SIDE
Present:
The Hon‟ble Justice Shampa Dutt (Paul)
FMA 960 of 2012
Smt. Tandra Guha & Anr.
Vs.
The New India Assurance Co. Ltd. & Anr.
For the Appellants/ : Mr. Jayanta Kr. Mandal,
Claimants Mr. Sayantan Rakshit.
For the Respondent No. 1/ : Mr. Sanjay Paul,
Insurance Company Ms. Jaita Ghosh.
For the Respondent No. 2/ : None.
Owner
Hearing concluded on : 25.09.2024
Judgment on : 25.09.2024
2
Shampa Dutt (Paul), J.:
1. The present appeal has been preferred by the Claimants/Appellants
against the Judgment and/or Order/Award dated 30th June, 2011
passed by the learned Judge, Motor Accident Claims Tribunal, 14th
Additional District Judge, Alipore, District-South 24 Parganas
(hereinafter referred to as the Learned Judge) in M.A.C. Case No. 68 of
2010, under Section 166 of the M.V. Act.
2. Facts :-
"..........On 02.03.2008 at about 3.15 hrs the
driver of the offending vehicle bearing registration
No. HR/38-L-2681 was driving along Pune-
Mumbai Road in a rash and negligent manner,
endangering the human life and safety to others
and suddenly the said offending Trailor entered
into the Dehu Road violating the traffic Rules and
dashed the Motor Cycle bearing Registration No.
MH-14-BH/912 from the opposite direction and
rolled over the road approximate 70 to 80 Feets as
a result the victim „Victor Guha‟ and his office
Manager Mr. Kutty sustained severe injuries on
their person and removed to Y.C.M. Hospital, Pune
by the local police personnel, where Doctor
declared them brought dead.
The deceased, Victor Guha was the only son of
his parents and due to sudden death of the victim,
the claimants have suffered financial loss and also
loss of association and moreover they lost next
generation forever and the dreams of the parents
regarding their son, broken out from their life. The
claimants have claimed Rs.20,00,000/- including
interest from the date of filing of the instant case.
The claimant has impleaded the owner of the
offending vehicle, Arvind Bangar as O.P. No. 1 and
insurer of the offending vehicle, The New India
Assurance Co. Ltd. as O.P. No. 2........"
3. The O.P. No. 1/Owner of the vehicle and O.P. No. 2/The New India
Assurance Co. Ltd. have contested the instant case by filing their
respective written statements and inter alia denying all the material
contentions of the claimants.
4. The claimants examined two witnesses and proved relevant documents
which were marked as exhibits.
5. The learned Tribunal on conclusion of hearing, granted
compensation as follows :-
Dated 30th June, 2011
...........Therefore, Rs.2,29,000/- is multiplied by multiplier „12‟
comes to Rs.27,48,000/- only as total loss of dependency. 1/3rd
of this amount come to Rs.9,16,000/- i.e. the amount would spent
by the victim towards Personal expenses and maintenance during
his life time if he would alive. Therefore, 1/3rd of this amount i.e.
9,16,000/- will be deducted from the total amount i.e.
Rs.27,48,000/- = Rs.18,32,000/-. This amount is the total
dependency. Apart from this loss of dependency, the claimant is
also entitled to Rs.2000 towards Funeral expenses, Rs.2,500/-
towards Loss of Estate.
Therefore, total amount of compensation run as follows :-
1. Loss of dependency....................................Rs.18,32,000/-
2. Funeral Expenses.......................................Rs.2,000/-
3. Loss of Estate.............................................Rs.2,500/-
....................................................................................
Rs.18,36,500/-
Sd/-
MAC Tribunal Judge, Alipore
14th ADJ, Alipore, 24 PGS (S)....."
6. The tribunal directed the opposite party no. 1/owner to pay the said
compensation as it was held that the driver of the offending vehicle did
not have a valid licence and the same was proved before the learned
Tribunal by the O.P./Insurance Company by adducing witnesses and
documents which were marked as exhibits.
7. It was held by the learned Tribunal that on the date of accident i.e. on
02.03.2008, the driving licence of the driver of the offending heavy
goods vehicle was not valid as per information given by the District
Transport Officer, Bhilwada.
8. Being aggrieved, the present appeal has been preferred by the
claimants on the following grounds :-
i) That the learned Tribunal did not appreciate the evidence on record
properly and thus did not grant „Just Compensation‟.
ii) That the learned Tribunal wrongly directed that the compensation
to be paid by the opposite party/owner.
9. Considering the materials including the evidence on record the
following is evident :-
i) The income of the deceased which is not disputed is Rs.19077/-
per month.
ii) As per the school certificate (Exhibit-2 and Pan Card Exhibit-16)
of the deceased, it appears that the date of birth of the victim was
25.06.1984 and, as such, the victim was aged about 23 years at
the time of the accident. Thus, Multiplier „18‟ shall be
applicable. (Sarla Verma & Ors. Vs. Delhi Transport
Corporation and Anr. (2009) 6 SCC 121)
iii) As the victim had a permanent job, future prospects shall be
50% of the actual income. (National Insurance Co. Ltd. Vs.
Pranay Sethi & Ors., (2017) 16 SCC 680)
iv) Admittedly, the victim was a bachelor and, as such, 50% of his
income be deducted as his personal expense.
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%).
10. Thus the "Just Compensation" in this case would be as follows :-
Monthly Income Rs. 19077/-
Annual Income Rs. 2,28,924/-
(19077 x 12)
Less : 50% of his income Rs. 1,14,462/-
Rs. 1,14,462/-
Add : Future prospects @ 50% of the Rs. 57,231/-
annual income of the deceased
Rs. 1,71,693/-
Multiplier x 18 (1,71,693 x 18) Rs. 30, 90, 474/-
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, 74, 474/-
11. Admittedly, the Claimants have not received the amount of
compensation in terms of order of the learned Tribunal directing the
owner to pay. Accordingly, the claimants are now entitled to the total
amount of compensation of Rs. 31,74,474/- 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, upon satisfaction
of their identity and payment of ad-valorem Court fees, if not already
paid.
13. The insurance company has proved that the driver of the offending
vehicle did not have a valid licence.
14. Exhibit D, is the copy of the particulars for verification of driving licence
issued by the District Transport Office, Bhilwara. On careful scrutiny, it
appears that the licence was being renewed from time to time, once
renewed up to 25.12.2004, and then renewed again on 28.01.2005 up to
27.01.2008 and lastly it was renewed on 05.04.2008 up to 04.04.2011.
So for the period from 27.01.2008 to 05.04.2008, the driver of the
offending vehicle did not have a valid driver‟s licence and the
accident in this case took place on 02.03.2008.
15. Thus there has been a clear violation of the rules of the Insurance
Policy.
16. The Respondent No. 1/ 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 Trailor)
bearing no. HR/38-L-2681 (insured with the Respondent No. 1) on the
ground that the driver of the offending vehicle did not have a valid
licence. (Balu Krishna Chavan vs. The Reliance General Insurance
Company Ltd. & Ors., in SLP (C) No. 33638 of 2017, on 3rd
November, 2022)
17. It is proved from the particulars for verification of driving license issued
by the District Transport Office, Bhilwara (Ext D) and by adducing
witnesses and other documents which were marked as exhibits, that
the driver of the offending vehicle (bearing no. HR/38-L-2681, Trailor)
did not have a valid licence at the time of accident, though the vehicle
had valid insurance with the Respondent No. 1/Insurance
Company/National Insurance Company Ltd. and thus there being a
violation of the condition of the rules in the policy, the Respondent No.
1/Insurance Company is to pay the total compensation and then
recover the compensation paid, by due process of law, from the
owner of vehicle no. HR/38-L-2681, the Respondent No. 2 herein.
18. The appeal being FMA 960 of 2012 stands disposed of. The
impugned judgment and award of the learned Tribunal under appeal
is modified to the above extent.
19. All connected applications, if any, stand disposed of.
20. Interim order, if any, stands vacated.
21. Copy of this Judgment be sent to the Learned Tribunal, along with the
trial court records, if received.
22. Urgent certified website copy of this judgment, if applied for, be supplied
expeditiously after complying with all, necessary legal formalities.
(Shampa Dutt (Paul), J.)
