Calcutta High Court (Appellete Side)
The New Indiaassurance Co. Ltd vs Farida Bibi And Ors on 30 November, 2017
Author: Dipankar Datta
Bench: Dipankar Datta
1
30.11.2017
(124 of 16.11.)
KC
CAN 11712 of 2015
In
F.M.A. 1593 of 2016
The New IndiaAssurance Co. Ltd.
-versus-
Farida Bibi and Ors.
Mr. Parimal Kumar Pahari................For the appellant.
Ms. Sima Ghosh............................For the claimants/
respondents.
Office note dated 16th January, 2017 records that requisites have not been put up by the appellant for service of notice of appeal on the respondent no. 5.
Mr. Pahari, learned advocate appearing for the appellant submits that the presence of the respondent no. 5 is not necessary for decision in this appeal.
On the prayer of Mr. Pahari, we dispense with service of notice of appeal on the respondent no. 5. Since the respondents 1 to 4/claimants are represented by Ms. Ghosh, learned advocate, we propose to take up the appeal itself for hearing while considering the application for stay.
The respondents 1 to 4 had approached the Motor Accident Claims Tribunal, 4th Court, Suri by making an application under Section 163A of the Motor Vehicles Act (hereafter the Act) on the death of Hasan Ali in a motor accident that occurred on 2nd August, 2013. The claim application was allowed by the tribunal by its judgment and award dated 9th July, 2015. The claimants were held entitled by the tribunal to Rs. 6,95,400/- on account of compensation, 2 together with interest @ 9% per annum from the date of filing of the claim application till realisation.
The quantum of compensation, payable to the claimants by the appellant is the subject matter of challenge in this appeal.
Mr. Pahari, learned advocate appearing for the appellant has urged that compensation payable is required to be worked out on the basis of the structured formula given in the Second Schedule of the Act; however, the tribunal committed gross error in awarding amounts towards future prospect as well as loss of care and guidance for the minor children. It was also contended that the tribunal by awarding Rs. 1,00,000/- towards loss of consortium, has travelled beyond the Second Schedule.
Appearing on behalf of the claimants, Ms. Ghosh, learned advocate contended that the tribunal without assigning any reason disbelieved the oral evidence of the P.W. 1 that the deceased had an earning of Rs.3,000/- per month. According to Ms. Ghosh, calculation of compensation by the tribunal reckoning Rs. 3,000/- as the monthly income of the deceased should not be upheld and the compensation may be re-assessed on the basis of Rs.3,300/- being the monthly income of the deceased.
Upon hearing learned advocates for the parties, we are of the considered view that the contention of Mr. Pahari ought to be upheld; at the same time, we accept Ms. Ghosh's contention that the tribunal committed a serious error in not believing the oral evidence of the P.W. 1, particularly in the absence of any evidence adduced by the appellant to contradict her version.
In that view of the matter, we proceed to re-assess the compensation payable to the claimants as follows:
3Heads Calculation Notional Income Rs.(3,300 x 12) =39,600/- Less 1/3rd on account of Rs. 39,600 - 13,200 = Rs. personal and living 26,400/- expenses of the deceased Compensation after Rs. 26,400 x 14 = Rs. multiplier 14 is applied 3,69,600/- Loss of consortium Rs. 5,000/- Funeral expenses Rs. 2,000/- Loss of estate Rs. 2,500/- Total amount of Rs. 3,79,100 /- compensation
Since the appellant/insurer has secured Rs. 6,95,400/- in terms of an order of the co-ordinate bench, the claimants shall be entitled to Rs. 3,79,100/- out of the said sum together with interest @ 9% per annum from the date of filing of the claim application.
If an approach is made by the claimants, the Registrar General shall proceed to disburse the said amount in favour of the claimants, in accordance with law. The balance amount together with accrued interest shall be returned to the appellant/insurer.
The appeal as well as the stay application stand disposed of. There shall be no order as to costs.
Urgent logo certified copy of this order, if applied for, be supplied expeditiously, after complying with all formalities.
(DIPANKAR DATTA, J.) (PROTIK PRAKASH BANEREJEE, J.) 4 5