Calcutta High Court (Appellete Side)
The Oriental Insurance Company Limited vs Smt. Tanushree Jana & Anr on 6 February, 2018
1
06.02.2018
03.SL.AJ.
C.A.N. 2084 of 2017
with
F.M.A. 133 of 2017
The Oriental Insurance Company Limited
-Vs-
Smt. Tanushree Jana & Anr.
with
C.O.T. 19 of 2017
Smt. Tanushree Jana
-Vs-
The Oriental Insurance Company Limited & Anr.
Mr. Rajesh Singh.
...... .for the appellant.
Mr. Amit Ranjan Roy.
........for the respondent no.1/
claimant/cross-objector.
M.A.C. Case No. 139 of 2013, on the file of the Motor Accident Claims Tribunal, Tamluk, Purba Medinipur, was registered on an application under Section 166 of the Motor Vehicles Act, 1988 filed by Smt. Tanushree Jana, the widow of Manoj Kumar Jana (hereafter the victim) who died in a motor vehicular accident on 20th February, 2010. Smt. Jana claimed compensation of Rs.7,50,000/- pleading that the victim was a businessman (dealing with fertilizers) and had an income of approximately Rs.5,000/- to Rs.6,000/- per month. The claim application succeeded. The tribunal, by its award dated 31st May, 2016, awarded compensation in a sum of Rs.4,23,000/-. The offending vehicle (a mini bus) was found to be covered by an insurance policy 2 issued by the opposite party no. 2 (hereafter the insurer) and accordingly, the insurer was made liable to pay the said sum of Rs.4,23,000/- together with simple interest @ 6 % per annum from the date of filing of the claim application till payment.
F.M.A.T. 861 of 2016, at the instance of the insurer, is directed against the said award. Having been served with notice of appeal, Smt. Jana has entered appearance and filed a cross-objection (C.O.T. 19 of 2017) together with the application for withdrawal (C.A.N. 2084 of 2017).
We propose to dispose of the appeal as well as the cross-objection by this common judgement and order, with the consent of the parties dispensing with all formalities.
Mr. Singh, learned advocate appearing in support of the appeal has raised a solitary point. According to him, the mini bus was covered by a stage carriage permit to ply on the route Nandigram to Khejuri but the accident occurred at a place called Udakhali on Digha - Mecheda road; and since Udakhali does not fall on the stretch of the route Nandigram to Khejuri, the mini bus was obviously being plied on a public road not in accordance with the terms and conditions of the permit. It is contended by him that the permit holder having been allowed to ply the mini bus on a particular route but he having allowed it to ply on a stretch of a public road beyond the route mentioned in the permit, the tribunal committed gross error in fastening the insurer with the liability to pay compensation to Smt. Jana. 3
This being the only point raised by Mr. Singh, we need not refer to the evidence in detail as to how the accident occurred or what was the evidence, oral or documentary, adduced in support of the claim application or to resist it.
However, having looked into the evidence on record, we have no hesitation to hold that the point urged by Mr. Singh is without substance.
There is no doubt that the permit issued by the State Transport Authority, West Bengal in favour of the opposite party no. 1 before the tribunal, authorized the mini bus to ply between Nandigram and Khejuri and vice - versa. The accident that took away the life of the victim occurred on 20th February, 2010. The permit, which was exhibited before the tribunal, showed that it had a validity of five years from 7th February, 2010. We shall assume that Udakhali is located on Digha - Mecheda road and not at any point between Nandigram and Khejuri. To sustain its contention that the mini bus was being plied beyond the permit conditions, the burden was on the insurer to lay evidence and prove before the tribunal that the mini bus was carrying passengers while the accident had occurred at Udakhali. The tribunal, in fact, has recorded that there was no clinching evidence which had been brought on record by the insurer to establish that the place where the accident took place is beyond the route mentioned in the permit granted by the competent authority for plying the mini bus. We agree with such finding and hold that the insurer has utterly failed in its attempt to prove that the mini bus was being plied in contravention of the permit conditions. 4 At this stage, we consider it proper to refer to a side argument of Mr. Singh which he has advanced before us upon the Court declining to accept his aforesaid contention. Mr. Singh contended on the basis of a complaint dated 12th March, 2010 of the brother of the victim that the victim had not died as a result of rash and negligent driving of the mini bus but it was a conspiracy that Smt. Jana had hatched with others for the purpose of murdering her husband. Although the complaint is on record, we have not been shown that any F.I.R. was registered on the basis of such complaint or that even at the time of filing of police report [(charge sheet) under Section 173(2) of the Code of Criminal Procedure] pursuant to investigation of the F.I.R. registered immediately after the victim succumbed to his injuries, the investigating officer had alleged that the victim was murdered and, therefore, the charge sheet calls for being filed, inter alia, under Section 302 of the Indian Penal Code. In the absence of any such material in the records, we feel disinclined to examine in depth as to whether the victim died as a result of a conspiracy having been hatched by Smt. Jana with others. For the reasons aforesaid, the appeal is without merit and, accordingly, stands dismissed.
It is now time to take up the cross-objection for consideration. It appears that the tribunal disbelieved the version of Smt. Jana that the victim was engaged in a business of fertilizers having a monthly income of approximately Rs.5,000/- to Rs.6,000/-. To engage oneself in any trade or business, one is required to obtain a certificate of enlistment under the 5 relevant panchayat/municipal law. No such certificate was produced before the tribunal. In the absence of any such documentary evidence, the tribunal proceeded to assess compensation on the premise that the victim was capable of earning Rs.100/- per day, i.e. Rs.3,000/- per month = Rs.36,000/- per year. Obviously the tribunal was inspired by the decision of the Supreme Court reported in 2008 (2) T.A.C. 394 (S.C.) (Laxmi Devi & Ors. - Vs- Md. Tabbar & Ors.) The accident in Laxmi Devi (supra) occurred sometime in 2004. The accident in the present case occurred on 20th February, 2010. We are inclined to raise the yearly income by Rs.100/- per year, keeping in mind the mounting price rise.
We cannot also lose sight of the recent Constitution Bench decision of the Supreme Court reported in 2017(4) T.A.C. 673 (S.C.) [Pranay Setty & Ors.
-Vs- National Insurance Company Limited) wherein enhanced sums on account of loss of consortium, loss of estate and funeral expenses have been allowed.
Drawing inspiration from such decision, we re-assess compensation as follows :-
Heads Calculation
Sl
No
i) Monthly income Rs. 3,600/- per month
Rs.3,600/- X 12 months
ii) Notional income = Rs.43,200/-
1/3rd deducted on Rs.43,200/- - Rs.14,400/-
iii) account of personal = Rs.28,800/-
and living expenses of
the victim
6
Compensation Rs. 28,800/- X 16
iv) after multiplier of 16 is = Rs.4,60,800/-
applied
General Damages Rs. 84,700/-
v) including loss of
consortium, loss of
estate and funeral
expenses
Total Rs. 5,45,500/-
The aforesaid sum shall carry interest @ 6 % per annum from the date of filing of the claim application.
Mr. Singh submits that Rs.5,89,959/- inclusive of the statutory deposit of Rs.25,000/- has been secured with the Registrar General of this Court.
We are of the view that for carrying an unmeritorious cause before this Court, the insurer shall not be entitled to return of the statutory deposit of Rs.25,000/- which shall be paid to Smt. Jana as costs of this proceeding. The additional sum to which Smt. Jana is entitled in terms of this order together with interest @ 6 % per annum on such sum shall be deposited by the insurer with the Registrar General within two months from date whereafter Smt. Jana shall be at liberty to approach the Registrar General for release of the entire sum in accordance with law.
The cross-objection (C.O.T. 19 of 2017) stands allowed. Since Smt. Jana is a cancer patient, the Registrar General shall ensure that the direction regarding release is complied with at the earliest.
The application for withdrawal (C.A.N. 2084 of 2017) also stands disposed of.
There shall be no order for costs.
7Lower Court Records along with a copy of this judgment shall be sent down to the tribunal by the department immediately.
Urgent photostat certified copy of this order, if applied for, be supplied expeditiously after complying with all necessary legal formalities.
(Dipankar Datta, J.) (Protik Prakash Banerjee, J.)