Calcutta High Court (Appellete Side)
Jamshed Ali & Ors vs United India Insurance Co. Ltd & Ors on 13 June, 2017
Author: Dipankar Datta
Bench: Dipankar Datta
IN THE HIGH COURT AT CALCUTTA
Civil Appellate Jurisdiction
Appellate Side
Present:
The Hon'ble Justice Dipankar Datta
And
The Hon'ble Justice Debi Prosad Dey
F.M.A.T. 926 of 2015
Jamshed Ali & Ors.......Appellant/Applicants
Vs.
United India Insurance Co. Ltd & Ors......
Respondent/Opposite Parties
For the Appellant : Mr. Krishanu Banik
: Mr. Abhijit Singha Roy.
For the
Respondent No.1 : Mr. Rajesh Singh
Heard on : 18.04.2017
Judgment on : 13.06.2017
Debi Prosad Dey, J. :-
The appellants assail the judgment dated 11th February, 2015 passed by the of learned Principal Motor Accident Claims Tribunal, Nadia in MAC case No. 624 of 2008 whereby and whereunder learned Judge has dismissed the case under reference on the ground that the claimants could not produce valid documents and insurance policy in respect of the motorcycle bearing registration no. WB-52D/2533. The case of the claimants in brief is that the deceased was proceeding from Krishnagar to Santipur on a motorcycle bearing registration no. WB-52D/2533 and he collided with a vehicle bearing registration no. WMK/9780 (oil tanker) due to rash and negligent driving of such oil tanker by its driver resulting in instant death of Atiyar Ali. At that point of time Atiyar Ali was aged about 29 years and he was an employee of a private company having monthly salary of Rs.18,126/- . The claimants/appellants have filed such petition under Section 166 of the Motor Vehicle Act, 1988 praying for damages to the tune of Rs.15,43,680/- for premature motor accidental death of Atiyar Ali and had also prayed for damages to the tune of Rs.30,000/- towards the damage of the motorcycle.
The registered owners of the vehicle bearing no.WMK/9780 did not turn up to contest the case despite service of notice. The opposite party no.2 United India Insurance Company Limited however contested the case by filing written statement whereunder the insurance company has denied all material allegations contained in the claim petition. The insurance company also took leave of the Court under Section 170 of the Motor Vehicle Act to defend the owner of oil tanker. The opposite party no.2 has specifically stated that the driver of the oil tanker was not at fault and in fact Atiyar Ali (since deceased) was driving the motor cycle in a rash and negligent manner and as a result of such action on the part of Atiyar Ali such accident took place. The insurance company is therefore not liable to pay any sort of compensation to the claimants.
Three witnesses namely Arsafulnessa Ali (PW1), Shyamal Pramanik (PW2) and Basab Bijoy Deb, manager of Concentricx Dakhs Service Private Limited (PW3) have been examined by the claimants in order to prove the occurrence as well as the income of the deceased.
The appellants have produced documentary evidences being exhibit 1 to exhibit 12 in order to prove the occurrence as well as the identity and income of the deceased. The respondent/Insurance Company did not adduce any evidence, oral or documentary to contest the claim.
Learned Advocate appearing on behalf of the appellants contended that the learned trial Judge has failed to appreciate that it was the choice of the appellant to file the case against any of the vehicles covered by insurance and thereby the learned trial Judge has misdirected himself in appreciating the case of the appellants. The appellants have had the liberty to exercise such choice and the appellants have rightly exercised their choice to file the case against the owner of the oil tanker as well as the Insurance Company.
Learned Advocate appearing on behalf of the appellants further contended that the learned trial Judge has made out a third case though no such case was made out in the written statement filed by the Insurance Company/respondents and the learned trial Judge has also failed to consider that the appellants have sufficiently proved the occurrence as well as the income of the deceased.
In support of his contention, learned Advocate appearing on behalf of the appellants has relied on a decision reported in AIR 1977 SC 1735 (Pushpabai Parshottam Udeshi and Ors. Vs. M/s. Ranjit Ginning & Pressing Co. Pvt. Ltd. & Anr.). Learned Advocate for the appellants drew the attention of the Court to para 6 of such judgment in order to justify that the learned trial Judge has failed to appreciate the case of the appellants with regard to the occurrence. Para 6 may be reproduced below for effective appreciation of such argument of learned Advocate for the appellants.
Para 6: "The normal rule is that it is for the plaintiff to prove negligence but as in some cases considerable hardship is caused to the plaintiff as the true cause of the accident is not known to him but is solely within the knowledge of the defendant who caused it, the plaintiff can prove the accident but cannot prove how it happened to establish negligence on the part of the defendant. This hardship is sought to be avoided by applying the principle of res ipsa loquitur. The general purport of the words res ipsa loquitur is that the accident "speaks for itself" or tells its own story. There are cases in which the accident speaks for itself so that it is sufficient for the plaintiff to prove the accident and nothing more. It will then be for the defendant to establish that the accident happened due to some other cause than his own negligence. Salmond on the Law of Torts(15th Ed.) at p.306 states: "The maxim res ipsa loquitur applies whenever it is so improbable that such an accident would have happened without the negligence of the defendant that a reasonable jury could find without further evidence that it was so caused". In Halsbury's Laws of England, 3rd Ed., Vol. 28, at page 77, the position is stated thus: "An exception to the general rule that the burden of proof of the alleged negligence is in the first instance on the plaintiff occurs wherever the facts already established are such that the proper and natural inference arising from them is that the injury complained of was caused by the defendant's negligence, or where the event charged as negligence 'tells its own story' of negligence on the part of the defendant, the story so told being clear and unambiguous". Where the maxim is applied the burden is on the defendant to show either that in fact he was not negligent or that the accident might more probably have happened in a manner which did not connote negligence on his part. For the application of the principle it must be shown that the car was under the management of the defendant and that the accident is such as in ordinary course of things does not happen if those who had the management used proper care........................"
Learned Advocate for the Insurance Company/respondent no.1 has however contended with force that the learned trial Judge was perfectly justified in rejecting the plea of the appellants since they failed to produce valid driving license of the deceased and the appellants have also failed to implead the owner of the motor cycle as party/defendant in the case under reference. Learned Advocate Mr. Rajesh Singh on behalf of the Insurance Company/respondent no. 1 contended that the appellants ought to have produced valid documents of such motor cycle as well as driving license of the deceased so as to justify that the deceased was proceeding with such motor cycle with a valid license.
We have gone through the written statement filed by respondent no. 1 appended with the paper book and on careful consideration of such written statement we find that the respondent no.1/Insurance Company never raised the issue of the deceased not having valid license as well as valid documents of such motor cycle in its written statement. Learned trial Judge has definitely misdirected himself by making out a third case when no such case has been pleaded by the respondent no. 1/Insurance Company. Secondly, based on reading of the decision reported in (Pushpabai Parshottam Udeshi and Ors. Vs. M/s. Ranjit Ginning & Pressing Co. Pvt. Ltd. & Anr.) (Supra), it clearly reveals that the appellants have produced sufficient documents so as to accept the occurrence in terms of the projection of the case by the appellants. There is absolutely no scope to hold that no such occurrence took place as stated by the appellants. On the other hand, the post mortem examination report (being part of the charge sheet) clearly reveals that death was due to shock and haemorrhage resulting from the injuries mentioned therein which are ante mortem and accidental in nature following RTA (Road Traffic Accident).
Respondent No.1 never challenged such occurrence in the written statement and did not adduce any documentary or oral evidence to prove contrary to the case of the appellants.
The appellants have successfully discharged their initial burden to prove such occurrence by adducing sufficient oral and documentary evidences. The Insurance Company/respondent no. 1 did not adduce any evidence to prove that the incident took place due to the negligence of Atiyar Ali (since deceased) and the Insurance Company/respondent no. 1 has not even attempted to do so.
In the premises set forth above, we are of considered view that the appellants are entitled to get compensation from respondent no.1 for the death of Atiyar Ali in a road traffic accident.
The main guiding principle for determining the compensation is that it must be just and the compensation /award should also be reasonable. This principle of law has been enunciated by the Hon'ble Supreme Court in the decision reported in AIR 2003 SC 674 (Nagappa Vs. Gurudayal Singh and Ors.) The expression of just compensation has also been explained in the decision reported in (2009) 6 SCC 121 [Sarla Verma(Smt.) and Ors. Vs.Delhi Transport Corporation and Anr.]. The Hon'ble Supreme Court has further developed the expression of just compensation in a decision reported in 2013(9) SCC 54 (Rajesh Singh and Ors. Vs. Rajbir Singh and Ors).
Learned Advocate Mr. Rajesh Singh appearing on behalf of the National Insurance Company contended that future prospect while computing the loss of dependency cannot be decided since the matter has been referred to a special bench for decision. In support of his contention Mr. Singh has relied on a decision reported in 2015 SAR (Civil) 560 (Shashikala and Others Vs. Gangalakshmamma and Another). It is apparent from the said decision that Their Lordships have disagreed only in so far as the addition towards future prospects in case of self-employed or fixed wages to be added to the compensation towards the dependency and accordingly, Their Lordships have requested the Hon'ble the Chief Justice of India for appropriate orders towards the constitution of a suitable larger bench to decide the said issue.
In (2013)9 SCC 54 Rajesh & others Vs. Rajbir Sing and Ors (Supra), it has been observed by the Apex Court as follows:
"8. Since, the Court in Santosh Devi case actually intended to follow the principle in the case of salaried persons as laid down in Sarla Verma case and to make it applicable also to the self-employed and persons on fixed wages, it is clarified that the increase in the case of those groups is not 30% always; it will also have a reference to the age. In other words, in the case of self-employed or persons with fixed wages, in case, the deceased victim was below 40 years, there must be an addition of 50% to the actual income of the deceased while computing future prospects. Needless to say that the actual income should be income after paying the tax, if any. Addition should be 30% in case the deceased was in the age group of 40 to 50 years.
9. In Sarla Verma case, it has been stated that in the case of those above 50 years, there shall be no addition. Having regard to the fact that in the case of those self-employed or no fixed wages, where there is normally no age of superannuation, we are of the view that it will only be just and equitable to provide an addition of 15%in the case where the victim is between the age group of 50 to 60 years so as to make the compensation just, equitable, fair and reasonable. There shall normally be no addition thereafter."
In Reshma Kumari & Ors. Vs. Madan Mohan & Anr. reported in (2013)9 SCC 65 the Apex Court has also observed as follows:-
"39. The standardization of addition of income for future prospects shall help in achieving certainty in arriving at appropriate compensation. We approve the method that an addition of 50% of actual salary be made to the actual salary income of the deceased towards future prospects where the deceased had a permanent job and was below 40 years and the addition should be only 30% if the age of the deceased is more than 50 years. Where the annual income is in the taxable range, the actual salary shall mean actual salary less tax. In the cases where the deceased was self-employed or was on a fixed salary without provision for annual increments, the actual income at the time of death without any addition to income for future prospects will be appropriate. A departure from the above principle can only be justified in extraordinary circumstances and very exceptional cases."
It is therefore, apparent that both the three Judges bench of the Hon'ble Supreme Court have accepted in both the aforesaid decisions that 50 percent of actual salary be added to the salary income of the deceased towards future prospect where the deceased had a permanent job and was below 40 years. The only point of disagreement as it appears from the aforesaid paragraphs of both the decisions is with regard to the addition of any percentage in the cases where the deceased was self-employed or was on a fixed salary without provision for annual increments and where the age of the deceased is more than 50 years.
In Reshma Kumari & Ors. Vs. Madan Mohan & Anr. (Supra), the Hon'ble Supreme Court refused to accept anything towards future prospect in case of self-employed persons aged about 50 years.
On careful consideration of the Judgment of the Hon'ble Supreme Court in (Shashikala and Others Vs. Gangalakshmamma and Another) (supra) it transpires that no question has been raised with regard to adding of future prospects in terms of the aforesaid decisions in case the deceased is aged about below 40 years and a salaried person. The Supreme Court has also accepted the case of future prospects in following decisions reported in 2014 SAR(Civil) 639 (Savita Vs. Bindar Singh and Ors) and 2015 SAR (Civil) 821 (Munna Lal Jain and Anr. Vs. Vipin Kumar Sharma & Ors.) On careful reading of the aforesaid decisions, it transpires that the case under reference does not fall within the purview of the consideration of future prospect that is pending before the Supreme Court. On the contrary, there is absolutely no confusion in respect of adding the benefit of future prospect towards computation of compensation in respect of a deceased salaried person aged below 40 years.
In the case under reference the deceased Atiyar Ali was aged about below 30 years and he was a regular employee of a company. Therefore, there is, absolutely no confusion to add future prospect towards calculation for just compensation in favour of Atiyar Ali.
Therefore, we too determine the just compensation in terms of the principle of law as enunciated in the aforesaid decisions.
Exhibit 9 is the Form 16 issued by the employer of Atiyar (since deceased) and it transpires from such exhibit that the gross salary of Atiyar (since deceased) was Rs. 194395.74/- rounded of as Rs. 194396/-. Total income tax was assessed at Rs. 4044/- thereby the net income of Atiyar (since deceased) was at Rs. 194396- Rs. 4044 = Rs. 190352/-. The monthly net income of Atiyar Ali (since deceased) would be Rs. 16199/-.
One half of such income has to be deducted in consideration of the expenses which Atiyar (victim) would have incurred towards maintaining himself had he been alive. Therefore, the net income of the deceased at the relevant point of time was Rs. 16199 divided by 2 = Rs. 8099.50/- rounded of Rs.8100/-.
In view of the discussions made herein above 50 percent of the actual salary income of Atiyar Ali(since deceased) has to be added towards future prospect. Therefore, the annual income of Atiyar Ali(since deceased) may be assessed at Rs.8100/-(50% of Rs.8100= Rs. 4050/- = (Rs.8100/- + Rs. 4050/-) = Rs. 12150/- X 12 = Rs. 1,45,800/-.
Atiyar Ali was aged about 29 years at the date of occurrence. As per the decision in Sarala Verma (Supra) multiplier 17 has to be accepted. Therefore, the total compensation would be Rs. 1,45,800/- X 17 = Rs. 24,78,600/- .
In view of the judgment in Rajesh Singh Vs. Rajbir Singh (Supra), a sum of Rs. 25,000/- may be added towards funeral expenses and a sum of Rs. 1,00000/- may be added towards loss of estate with the aforesaid calculation.
To sum up, the total calculation of just compensation may be reproduced in the following table.
SL. No. HEADS CALCULATION
i. Net Salary after Rs.16199/- per month.
deduction of income
tax
ii. Half of the above (i) to Rs.16199 divided by 2=8099.50
be deducted as rounded of Rs.8100/-.
expenditure towards
the personal
expenses of the
Atiyar(since
Deceased)
iii. 50% of salary is Rs. 8100/- + Rs. 4050/- = Rs.
added towards future 12,150/-.
prospects
iv. Compensation after Rs. 12150 X 12 X 17 = Rs.
multiplier 17 is 24,78,600/-
applied
v. Funeral expenses Rs. 25,000/-
vi. Loss of estate Rs. 1,00,000/-
Total compensation Rs.24,78,600 + Rs. 25,000 +
awarded Rs. 1,00,000/- =26,03,600/-
The amount of compensation to the tune of Rs.26,03,600/- shall carry interest at the rate of 7.5 percent from the date of filing of the petition till realization.
In the result the appeal is allowed. The impugned judgment of the Tribunal is set aside. The claimants/appellants shall be entitled to a total compensation of Rs.26,03,600/- with interest at the rate of 7.5% from the date of filing of such application till the date of realization. The respondent no. 1/insurance company is directed to deposit the aforesaid sum by issuing cheques of equal amount in the name of all the appellants within 3 months and shall deposit cheques in the Tribunal. The claimants shall be at liberty to withdraw the cheques from the Tribunal on proper verification by the Tribunal.
No order as to costs.
Let a copy of this order be forwarded to the Tribunal forthwith for information and necessary action. The lower Court records be returned forthwith.
Urgent photostat certified copy of this order, if applied for, be given to the parties as expeditiously as possible.
I agree (Dipankar Datta , J.) (Debi Prosad Dey, J.)