Calcutta High Court (Appellete Side)
National Insurance Co. Ltd. (Cr)-I vs Sri Subhasis Manna & Anr on 31 July, 2019
Author: Dipankar Datta
Bench: Dipankar Datta
IN THE HIGH COURT AT CALCUTTA
CIVIL APPELLATE JURISDICTION
APPELLATE SIDE
Present:
Hon'ble Justice Dipankar Datta
and
Hon'ble Justice Saugata Bhattacharyya
CAN 1819 of 2018
in
FMA 1544 OF 2018
National Insurance Co. Ltd. (CR)-I
v.
Sri Subhasis Manna & anr.
with
COT 45 of 2018
Sri Subhasis Manna
v.
National Insurance Co. Ltd. & anr.
For the appellant/cross-respondent no.1 : Mr. Rajesh Singh.
For the respondent no.1/cross-objector : Mr. Ashique Mondal. Heard on: April 17, 2019 Judgment on: July 31, 2019 Dipankar Datta, J.:-
1. The appellant-insurer, in this appeal under section 173 of the Motor Vehicles Act, 1988 (hereafter the Act), has mounted a challenge to an award dated September 12, 2017 passed by the learned Judge, 6th Bench, City Civil Court, Kolkata (the Presiding Officer of the Motor Accident Claims Tribunal, Kolkata) while deciding MACC Case No.458 of 2007. By the award under appeal, the tribunal accepted the claim application presented before it by Sri Subhasis Manna (hereafter the claimant) under section 166 of the Act and proceeded to determine "just compensation" in a sum of Rs.20,56,800/- 2
for the injury suffered by him in an accident involving the use of a 'Maruti Van' (hereafter the "van"), insured by the appellant. The tribunal directed the appellant to pay the amount assessed on account of compensation by issuing an account payee cheque in favour of the claimant within 60 days, failing which it would carry interest @ 1% per month from the date of presentation of the claim application till realization of the same.
2. CAN 1819 of 2019 is an application for stay filed in the appeal by the appellant. Such application came up for consideration before a coordinate Bench on June 28, 2018. Having considered the submission advanced on behalf of the appellant that execution proceedings had been initiated by the claimant in pursuance whereof the appellant had secured Rs.46,27,000/- before the tribunal, the coordinate Bench granted liberty to the claimant to withdraw Rs.10,00,000/- without prejudice to the rights and contentions of the parties in the appeal and on the specific undertaking given by him through Mr. Mondal, learned advocate that should the appeal succeed and the award of the tribunal be ultimately set aside, he shall return the said sum of Rs.10,00,000/- lakh to the appellant. The coordinate Bench had also directed the Registrar, City Civil Court to invest the sum of Rs.36,27,000/- in an auto-renewable fixed deposit account in the manner specified therein. It was recorded in the order passed on that date that the appeal was proposed to be heard based on the lower Court records without insisting for preparation of formal paper books.
3. Although effectively nothing survived for decision on CAN 1819 of 2019 after such order, it was not formally disposed of.
3
4. The appeal together with CAN 1819 of 2019 was next listed on July 31, 2018. A coordinate Bench then in seisin thereof felt that at least an informal paper book, containing copies of the oral and documentary evidence that were exhibited before the tribunal, would be necessary for effectively deciding the appeal and accordingly, liberty was granted to the claimant (on his asking) to prepare requisite number of informal paper books and the appeal was directed to be listed on August 14, 2018.
5. The appeal as well as the application has since been listed before us as an assigned matter, pursuant to an order passed by the Hon'ble the Acting Chief Justice on September 26, 2018.
6. The impugned award proceeded to award Rs.20,56,800/-, as noticed above, the break-up whereof is follows:
Compensation .... Rs.8,56,800/-
Medical expenses .... Rs.5,00,000/-
Incidental Cost .... Rs.1,00,000/-
Mental pain and agony .... Rs.1,00,000/-
Future prospect .... Rs.5,00,000/-
7. Appearing in support of the appeal, Mr. Singh, learned advocate for the
appellant pressed Grounds II to VIII of the memorandum of appeal. The contentions raised by him based on such grounds are set out below in chronological order :-
(1) The FIR which was lodged on the date of the accident and the charge-
sheet which was submitted upon completion of investigation of such 4 FIR does not refer to the identity of the victim of the accident and hence, it is a false plea that the claimant was the victim of the accident;
(2) Although the disability certificate issued in favour of the claimant indicates 70% as the extent of physical disability suffered by him, the tribunal erroneously proceeded on the basis of 100% functional disability of the appellant while assessing compensation; (3) The tribunal failed to consider in the proper perspective that there was contributory negligence of the "scooterist" who was involved in the accident;
(4) The tribunal awarded Rs.5,00,000/- on account of medical expenses without there being any basis therefor;
(5) Rs.1,00,000/- was awarded on account of mental pain and agony, unsupported by any evidence;
(6) Rs.5,00,000/- was awarded for addition towards future prospect although it was clear from the testimony of the claimant that Rs.250/- was the annual increment receivable by him from his employer; and (7) Interest payable on the awarded sum @ 1% per month is unreasonable and irrational.
8. Mr. Singh took pains to take us through the claim application, the written statement, the oral evidence as well as the documentary evidence on record to urge that the claimant was not a victim of the accident; alternatively, even 5 if it were held that the claimant was the victim of the accident, the tribunal pushed itself beyond its boundaries by awarding in excess of Rs.20,00,000/- as compensation in favour of a victim of an accident who had suffered fractures and without there being evidence on record to suggest that the claimant is in such vegetative state that he cannot earn his livelihood in future. Based on the aforesaid submissions, Mr. Singh urged us to exercise our appellate power and to correct the award of the tribunal.
9. Not only has the appeal been vehemently opposed by Mr. Mondal appearing for the claimant, he has also strenuously urged us to enhance the compensation payable to the claimant by Rs.7,00,000/- more together with interest @ 9% per annum on such enhanced sum from the date of presentation of the claim application, i.e., June 18, 2007, till realization. He endeavoured to establish that the award is well reasoned and compensation under the relevant heads was duly factored in; hence, the award does not warrant any interference in the appeal. While praying for dismissal of the appeal, he has prayed for orders to modify the impugned award by enhancing the compensation payable to the claimant by the appellant upon allowing the cross-objection. The submissions advanced in support of the cross-objection shall be noted when we deal with the same. Decision on the appeal
10. We have heard the parties and perused the materials-on-record. The decisions that have been cited by Mr. Singh and Mr. Mondal in support of their respective claims have also been considered together with other decisions having relevance to the issues arising for adjudication. 6
11. The claimant approached the tribunal with an application dated June 18, 2007 pleading therein that on April 27, 2007, at about 2.00 p.m., he was dashed by the van (WB-02V/1836) which was being driven in a rash and negligent manner. At the point of accident, the claimant was on his stationary scooter; and consequent to the impact, he fell down and sustained severe injuries whereupon he was removed to a hospital.
12. Contention-I 12.1. The FIR (Ext.1) lodged by one Matabur Mallick on April 27, 2007 at about 18.15 hours, giving rise to Panchla P.S. FIR No.47/07 dated April 27, 2007, reveals that the van, which was being driven rashly and negligently, had collided with a scooter coming from the opposite direction bearing registration no. WB-12F/4335. As a result thereof, not only was the scooter severely damaged but the rider was also seriously injured. It further reveals that the van was also damaged and its driver injured. Consequent thereto, the people who had gathered at the spot had removed the injured person to a local hospital for treatment. A prayer was made in the complaint for initiating appropriate legal action against the driver of the van. In course of investigation of the FIR, not only was the van but also the scooter involved in the accident seized together with documents relating to the van as well as the driving licence of its driver. From the charge-sheet that was submitted before the relevant magistrate in connection with GR No.858/2007, arising out of the said FIR, it appears that the driver of the van was charged with commission of offence punishable under sections 279/338/427 of the Indian Penal Code (Ext.-3). It is also revealed from such charge-sheet that 7 upon the scooter bearing registration no. WB-12F/4335 being seized with all connected papers, the same was returned to its registered owner who is none other than the claimant.
12.2. It is indeed true, as contended by Mr. Singh, that the FIR refers to a van having collided with a scooter whereas in the claim application the claimant pleaded that he was seated on his stationary scooter when the van dashed him and his scooter. It is also true that the charge-sheet (Ext.-3) refers to the "scooter rider" who received serious injury and does not refer to the claimant as the injured victim. But, at the same time, it is not the law that any version not in sync with the FIR can never be accepted or that a charge- sheet, once filed before the relevant magistrate under section 173(2) of the Code of Criminal Procedure, 1973 (hereafter the Cr.PC), is final and there is no scope for filing of a supplementary charge-sheet, or that evidence adduced in course of trial, even if it is not supported by the charge-sheet cannot be received and/or acted upon. Having regard to the scheme of the Cr.PC., filing of a charge-sheet before the magistrate is normally regarded as the final step in the matter of investigation. It reflects the result of investigation. Upon the termination of the executive's duty to investigate, the stage is set for the judiciary to take over, initially by taking cognisance of the offence(s) alleged to have been committed by the accused and thereafter to proceed for trial upon compliance with the procedural formalities engrafted in the Cr.PC. Failure on the part of the prosecution to lead clinching evidence in course of trial to prove the offence(s) might result in the court recording a finding of 'not guilty' but merely because the FIR version did not 8 tally with the case pleaded in the claim application or that the charge-sheet here did not identify the claimant as the victim of the accident, without anything more, may not lead to the inevitable conclusion for deciding an application under section 166 of the Act or an appeal under section 173 thereof that the claimant is not the victim of the accident. It has to be borne in mind that proceedings under section 166 are inquisitorial in nature and for an application claiming compensation to succeed, the standard of proof is 'preponderance of probabilities' and not 'proof beyond reasonable doubt'. 12.3. Apart from whatever we have discussed above, the contention of Mr. Singh could have even commended acceptance but for the oral evidence adduced by the appellant's witness.
12.4. We have noted that in course of cross-examination, OPW 1 (Deepak Someddar, Administrative Officer of the appellant) made the following statements:
"Relating this accident barring Subhasis Manna no other claims compensation.
Investigation report does not reflect that any person other than this owner Subhasis Manna was driving that scooter.
It is not reported by investigator that on that very date Subhasis Manna did not sustain any injury due to this accident."
12.5. The aforesaid evidence of the appellant's witness takes away the force behind the contention and to our mind, clinches the issue. An investigator had been appointed by the appellant. OPW 1 referred to the report of the investigator. The report was not brought on record. The tribunal, or for that matter, even we are unaware of its contents. An adverse inference could be 9 drawn that had it been produced, the same would have supported the claim case and hence, was withheld. Nevertheless, the witness did not say that whatever the investigator had reported was incorrect. It seems to be probable on the basis of the evidence extracted above that the claimant was indeed involved in the accident including the scooter on the fateful day and sustained severe injuries as a victim thereof. Whether the claimant was driving the scooter or was seated on the stationary scooter, in the circumstances, pales into in significance.
12.6. Since the standard of proof applicable to criminal cases is not to be applied in claim cases under the Act for compensation and considering the facts and circumstances appearing from the records, namely the FIR, the charge- sheet, the seizure list as well as the fact that the scooter, which was seized, was returned to its registered owner, i.e., the claimant, together with the oral evidence of the claimant and his witnesses, so also the witness for the appellant, there is little doubt that it was the claimant who had been involved in the accident caused by the van and the serious injuries suffered by him were the obvious consequence of such an accident. 12.7. The contention of Mr. Singh is, accordingly, overruled.
13. Contention-II 13.1. We now move on to the certificate (Ext. 13) issued in favour of the claimant by the District Hospital, Howrah to ascertain the extent of his disability. Such certificate was issued on January 8, 2011. A reading of such certificate would reveal that the claimant suffered permanent disability to the extent of 10 70% and the case does not require review. It is also revealed therefrom that the claimant cannot travel without assistance and escort, and is not in a position to earn his livelihood independently.
13.2. Mr. Singh referred to a discharge certificate (Ext.-9) issued by the Calcutta Medical Research Institute (hereafter the CMRI), where the claimant was initially admitted, to contend that the claimant was medically examined and it was found that the fractures that the claimant had suffered were uniting. Based on such discharge certificate, Mr. Singh urged us not to rely on the disability certificate.
13.3. The contention of Mr. Singh has not impressed us at all. The discharge certificate reveals that the claimant was admitted in the CMRI on September 28, 2007 and was discharged on October 5, 2007. Although the date of issuance of the discharge certificate is not available, it stands to reason that the same was issued on the date of discharge, i.e., October 5, 2007. The portion thereof relied on by Mr. Singh indicated the position after an operation that the claimant had undergone on October 1, 2007. It was more than three and half years' thence that the disability certificate was issued in favour of the claimant. The position obtaining as on January 8, 2011 in respect of physical condition of the claimant was certified thereby. The certificate having been found to be credible and trust-worthy, and no evidence having been adduced by the appellant to disprove the contents of such certificate, we draw a presumption that despite the operation that the claimant had undergone on October 1, 2007, his physical condition may not have changed for the better, and in fact took a worse turn resulting in the 11 medical board of the district hospital opining on January 8, 2011 that he had lost the capability to travel as well as to earn his livelihood independently.
13.4. Rule 337(7) of the West Bengal Motor Vehicles Rules, 1989 confers power on a tribunal to take the assistance of an expert. If indeed the appellant had any doubt with regard to the contents of the disability certificate, it could have contested the same and applied before the tribunal to pass an order for fresh examination of the claimant to ascertain the precise extent of his disability. The appellant did not take recourse to such rule (7) of rule 337. In such circumstances, we find no valid ground to disbelieve the disability certificate.
13.5. Relying on the decision in Raj Kumar v. Ajay Kumar and ors., reported in (2011) 1 SCC 343, Mr. Singh contended that the tribunal erred in proceeding to assess compensation on the basis that the functional disability of the claimant was 100%. Paragraph 24 of the said decision was relied on in this regard.
13.6. In this connection, it would be profitable to note paragraphs 12 and 13 of the decision in Raj Kumar (supra). The same are quoted below:
"12. Therefore, the Tribunal has to first decide whether there is any permanent disability and, if so, the extent of such permanent disability. This means that the Tribunal should consider and decide with reference to the evidence:
(i) whether the disablement is permanent or temporary;
(ii) if the disablement is permanent, whether it is permanent total disablement or permanent partial disablement;12
(iii) if the disablement percentage is expressed with reference to any specific limb, then the effect of such disablement of the limb on the functioning of the entire body, that is, the permanent disability suffered by the person.
If the Tribunal concludes that there is no permanent disability then there is no question of proceeding further and determining the loss of future earning capacity. But if the Tribunal concludes that there is permanent disability then it will proceed to ascertain its extent. After the Tribunal ascertains the actual extent of permanent disability of the claimant based on the medical evidence, it has to determine whether such permanent disability has affected or will affect his earning capacity.
13. Ascertainment of the effect of the permanent disability on the actual earning capacity involves three steps. The Tribunal has to first ascertain what activities the claimant could carry on in spite of the permanent disability and what he could not do as a result of the permanent disability (this is also relevant for awarding compensation under the head of loss of amenities of life). The second step is to ascertain his avocation, profession and nature of work before the accident, as also his age. The third step is to find out whether (i) the claimant is totally disabled from earning any kind of livelihood, or (ii) whether in spite of the permanent disability, the claimant could still effectively carry on the activities and functions, which he was earlier carrying on, or (iii) whether he was prevented or restricted from discharging his previous activities and functions, but could carry on some other or lesser scale of activities and functions so that he continues to earn or can continue to earn his livelihood." 13.7. The Supreme Court in Govind Yadav v. New India Insurance Company Ltd., reported in (2011) 10 SCC 683, has ruled that while deciding claim applications pertaining to physical disability of an accident victim, the tribunals ought to determine compensation payable to the injured victim of a motor accident bearing in mind the aforesaid parameters laid down in Raj Kumar (supra).
13.8. The 'Discharge Summary & Certificate' (Ext.-9) reveals the final diagnosis, which is as follows:
13
"Delayed union fracture shaft femur right with delayed union and loss of fixation and reduction fracture basic right femur."
13.9. It is evident from the evidence on record that the claimant was working as a salesman in a medical shop and earning Rs.4,200/- per month with annual increment of Rs.250/-. As a result of the accident, he lost his job. Having regard to the disability certificate certifying that the claimant suffered permanent disability to the extent of 70% and that he is unable to travel without the assistance of an escort and earn his livelihood independently, we are of the considered opinion that the tribunal was right in its approach in assessing compensation upon assessing functional disability suffered by the claimant to the extent of 100% functional disability. 13.10. The portion of the decision in Raj Kumar (supra) relied on Mr. Singh, is distinguishable inasmuch as in that case the loss of future earning capacity was found to be 45% by the tribunal overlooking the fact that the disability certificate referred to 45% disability with reference to left lower limb and not in regard to the entire body; and the said extent of permanent disability of the limb could not be considered to be the functional disability of the body nor could it be assumed to result in a corresponding extent of loss of earning capacity, as the disability would not have prevented the injured claimant from carrying on his avocation as a cheese vendor, though it might have impaired his smooth function. Because of the factual dissimilarities, we hold that Mr. Singh cannot derive any assistance from paragraph 24 of the decision in Raj Kumar (supra).
1413.11. The claimant having been rendered unfit to move on his own and having lost his job pursuant to the injuries suffered by him in the accident, the tribunal was justified in holding that the claimant had suffered 100% functional disability.
13.12. For the reasons as above, this contention is held to be unsound.
14. Contention-III 14.1. The appellant in the concluding paragraph of its written statement alleged that the claimant was "guilty and responsible for the accident as he was plying the scooter roughly and dangerously" and as such he cannot take advantage of his own wrong.
14.2. This allegation was required to be proved before the tribunal by the appellant. The main plank of the defence of the appellant, as gleaned from the written statement, was that the claimant was not involved in the accident. OPW-1 for the appellant in course of his evidence (in-chief) also referred to the FIR and the charge-sheet not reflecting the name of the victim; having taken such a stand, obviously no effort worth the name was made to establish that the claimant by his own negligence had contributed to the accident. We hold that the appellant did not discharge the burden of proving contributory negligence and hence the contention that the tribunal failed to consider such aspect, did not and could not arise. 14.3. The contention is absolutely without merit and hence stands overruled.
15. Contention-IV 15 15.1. Mr. Singh referred to the part of the impugned award where the tribunal observed that medical vouchers had not been exhibited. According to him, if the medical vouchers had not been exhibited, there was no question of awarding Rs.5,00,000/- on account of medical expenses. 15.2. Opposing this contention, Mr. Mondal referred to the final bills generated by the CMRI (Exts. 10 and 11) totalling to Rs.4,09,734/-. It was also submitted by him that along with the claim application the claimant had annexed other documents relating to his treatment, viz., bills raised by the CMRI and the Christian Medical College Vellore, Tamil Nadu as well as travel and boarding and lodging expenses incurred by him together with bills for miscellaneous expenses incurred like hiring of nurses and ambulances, buying crutches, etc. Although some of these documents had not been formally marked as exhibits, Mr. Mondal argued that the same having accompanied the claim application and formed part of the records of the tribunal, taking an overall view of the matter, the tribunal awarded Rs.5,00,000/- and Rs.1,00,000/- on account of medical expenses and incidental costs, respectively.
15.3. Mr. Mondal's argument is that having regard to the nature of proceedings before the tribunal, which is inquisitorial, strict rules of the Evidence Act, 1872 (hereafter the 1872 Act) may not have application and since the documents were and still there in the tribunal's record of proceedings, the claimant ought to be granted the benefit thereof having regard to the object that the provisions contained in Chapter XII of the Act seeks to achieve notwithstanding that such documents were not marked as exhibits. 16 According to Mr. Mondal, the claimant is entitled to further sums on account of medical and incidental expenses incurred by him despite the fact that the documentary evidence adduced in this behalf had not been marked as exhibits.
15.4. We have given our anxious consideration to the contentious issue. We have also looked into the records of the tribunal.
15.5. Without certain medical documents being exhibited, the tribunal took judicial notice of the same and awarded Rs.5,00,000/-. So far as Rs.4,09,734/- is concerned, the records are clean and cannot be touched. The dispute is regarding the balance sum of Rs.90,000/- plus. 15.6. The question that would arise is, whether the tribunal was justified in taking judicial notice of documents in the file which neither was exhibited nor the contents thereof proved.
15.7. It is true that the 1872 Act stricto sensu may not apply to proceedings under section 166 of the Act before the tribunal; however, principles flowing therefrom, to the extent possible, may be applied for ends of justice. If a party produces a document before the tribunal along with his claim application seeking to rely on it and the same forms part of the records but no endeavour is made by him to prove the contents of such document either by himself or through the testimony of any other witness on his behalf, the said document does not constitute legal evidence before the tribunal that can be relied upon in support of the claim. After all, a document does not prove itself. Mere marking of it as an exhibit cannot also dispense with 17 proof. There ought to be some oral evidence from the side of the party relying on it as to what the document is and why the same is adduced as evidence. Once this procedure is followed, this would enable the other side to contest the document by effectively cross-examining the witness and produce contra-evidence, if possible, through its witness to persuade the tribunal not to rely on the said document.
15.8. The statement of law in paragraphs 26 and 27 of the decision of the Supreme Court in Life Insurance Corporation of India v. Ram Pal Singh Bisen, reported in (2010) 2 WBLR (SC) 689, is apt in the present fact situation. The said decision has been followed by a coordinate Bench of this Court in Bajaj Allianz General Insurance Co. Ltd. v. Santa Dey, reported in 2018 (3) T.A.C. 473 (Cal). We find no reason to take a different view. 15.9. We, thus, answer this contention of Mr. Singh by observing that the dispute regarding the balance sum of Rs.90,000/- plus awarded to the claimant by the tribunal is well-founded. However, we propose to take this sum into consideration while deciding the cross-objection.
16. Contention-V 16.1. According to Mr. Singh, there was no evidence based whereon the tribunal could have awarded Rs.1,00,000/- on account of mental agony and physical pain.
16.2. We wonder if evidence was required to be adduced by the claimant before the tribunal to show that he had suffered pain and trauma as a consequence of the injuries. It was a case where the maxim res ipsa loquitor 18 applies. An individual, who was barely 30 years old, suddenly met with an accident and it rendered him incapacitated to travel on his own. He has to use crutches to walk. He lost his job. We are of the opinion that these circumstances are sufficient to justify award of compensation in favour of the claimant under the particular head.
16.3. The pain, suffering and trauma, as a consequence of the injuries sustained, have to be assessed under the heading non-pecuniary damages bearing in mind the extent of injury suffered by the claimant.
16.4. In Govind Yadav (supra), the Supreme Court held that if the victim of the accident suffers permanent disability then efforts should always be made to award adequate compensation not only for the physical injury and treatment, but also for the loss of earning and his inability to lead a normal life and enjoyment of amenities, which he would have enjoyed but for the disability caused due to the accident. It has also been held there that it is not always possible for the tribunals and the Courts to make a precise assessment of the pain and trauma that is suffered by a person who is rendered disabled as a result of an accident and, therefore, in all such cases, the tribunals and the Courts should make a broad guess for the purpose of fixing the amount of compensation.
16.5. Taking a cue from Govind Yadav (supra), we hold that the claimant (who was 30 years old at the time of the accident) for the remaining period of his life would suffer the trauma of not being able to do his normal work. He was born healthy, and without any physical deformity. He had spent the initial 30 years of his life as a normal human being. The rest of his life has to be 19 spent in grave uncertainty. It is doubtful whether any kind employer would pity the claimant and engage him, despite his 100% functional disability, for some desk work. This is apart from the pain and suffering that the accident might have caused to him and the serious injuries that he had sustained. We are not too sure whether the claimant was in the family way on the date of the accident, but Rs.1,00,000/- awarded by the tribunal does not appear to us to be abnormal for any interference; on the contrary, such sum could increase having regard to Mr. Mondal's arguments in support of the cross- objection.
16.6. Therefore, the contention of Mr. Singh stands overruled.
17. Contention-VI 17.1. Admittedly, the claimant was earning Rs.4,200/- per month working as a salesman in a medical store. This was proved by Ext.15, a certificate issued by the medical store where he was employed. Such certificate reveals that the yearly increment of the claimant was Rs.250/- and that since he could not resume duty after the accident, he had been replaced by another employee.
17.2. According to Mr. Singh, the tribunal should have looked into Ext.15 before awarding Rs.5,00,000/- for addition towards future prospect. An employee receiving Rs.250/- as yearly increment, he contended, by no standards could have been awarded such hefty sum under that head. 20 17.3. This contention commends to us to be one other contention urged by Mr. Singh that has some merit. We, however, propose to answer this contention while we deal with the cross-objection of the claimant.
18. Contention-VII 18.1. It has been shown by Mr. Mondal from the records that the proceedings were unnecessarily prolonged by the appellant. It took the appellant in excess of 4 (four) years from June, 2007 to file its written statement. According to him, this was an exceptional case where the tribunal ought to have awarded interest @ 1% per month on the determined sum of compensation instead of awarding it as a default clause. 18.2. Section 171 of the Act vests discretion on the tribunal to award interest whenever it allows a claim for compensation made thereunder. The rate at which interest is required to be paid and from which date post the presentation of the claim application, is left to the tribunal to decide. 18.3. In Alok Shanker Pandey v. Union of India, reported in (2007) 3 SCC 545, it has been held that interest is not a penalty or punishment but the normal accretion on capital and the rate at which interest is to be granted depends upon the facts and circumstances of each case. On facts, the Court held that grant of interest @ 12% per annum was appropriate. 18.4. In terms of Section 171, interest could be awarded from any date on or after the claim application is filed. Although the compensation is awarded quite some time after the claim application is decided, the interest is awarded to the victim, if his claim succeeds, on the premise that had the compensation 21 been awarded soon after the accident occurred, such victim could have invested the amount and earned interest on it. Since it has not been disputed by Mr. Singh that the appellant took 4 (four) years to file its written statement and also having regard to the fact that proceedings continued before the tribunal for 6 (six) years more after filing of such written statement without the claimant being at fault, we hold that the circumstances fully justified award of interest @ 1% per month, i.e. 12% per annum. In exercise of our power under Order XLI Rule 33 of the Code of Civil Procedure, we hold that the claimant was entitled to award of interest not merely by a default clause but from the date of presentation of the claim application as a matter of course.
18.5. This contention too, thus, fails.
The cross-objection
19. It is now time to consider the cross-objection of the claimant.
20. Mr. Mondal has submitted a chart containing a calculation of the quantum of compensation and non-pecuniary damages that the claimant deserves. The break-up thereof is as follows:
HEAD OF COMPENSATION FIGURE IN INR
ANNUAL INCOME Rs.50,400/-
FUTURE PROSPECTS @ 50% Rs.25,200/-
MULTIPLIER 17 (75,600 x 17) Rs.12,85,200/-
MEDICAL EXPENSES INCURRED Rs.6,04,963/-
FUTURE MEDICAL EXPENSES Rs.2,00,000/-
22
PAIN AND SUFFERINGS Rs.3,00,000/-
LOSS OF AMENITIES OF LIFE Rs.1,50,000/-
ATTENDANT CHARGES Rs.50,000/-
FOOD AND NOURISHMENT Rs.50,000/-
TRANSPORTATION CHARGES Rs.50,000/-
LOSS OF EXPECTATION OF LIFE Rs.50,000/-
TOTAL Rs.27,40,163/-
21. In addition to the above, Mr. Mondal has claimed interest @ 9% per annum on the excess sum of Rs.6,83,363/- (Rs.27,40,163/- - 20,56,800/-) from the date of presentation of the claim application till realization.
22. The claim on account of future prospects @ 50% has been lodged before us on the basis of the decision in National Insurance Co. Ltd. v. Pranay Sethi, reported in (2017) 16 SCC 680.
23. It would further appear from the above chart that the claimant has prayed for Rs.1,04,963/- more on account of medical expenses incurred by him. Such expenses, though might have been incurred, was not proved by having the relevant documentary evidence in this behalf, viz. the medical prescriptions, bills, etc., which had accompanied the claim application taken on record in a legal manner and marked as exhibits.
24. The decision in Rajan v. Soly Sebastian, reported in (2015) 10 SCC 506, was relied on by Mr. Mondal to support the quantum mentioned against 'loss of amenities of life' and 'future medical expenses'. 23
25. The claimant has also claimed enhanced sum on account of mental pain and agony by referring to the decision in R.D. Hattangadi v. M/s. Pest Control (India) Pvt. Ltd., reported in (1995) 1 SCC 551.
26. The issue of addition of future prospect to determine the multiplicand is dealt with in Pranay Sethi (supra). Paragraph 53 onwards of such decision reminds the tribunals and the Courts to bear in mind that the basic principle lies in pragmatic computation which is in proximity to reality. Although it is well accepted that money cannot substitute a life lost but an effort has to be made for grant of just compensation having uniformity of approach by maintaining a balance between two extremes, i.e., a windfall and a pittance. The principle of standardization was approved. Considering the issue from all aspects, conclusions with regard to addition of future prospects were summarised in paragraphs 59.3 and 59.4.
27. The Constitution Bench while deciding Pranay Sethi (supra), however, did not have the occasion to deal with a situation of the present nature where the claimant, admittedly, was entitled to an increment of Rs.250/- per year on his salary. It has to be remembered that each decision is an authority for what it decides and not what can logically follow therefrom. We are, thus, of the considered view that the claimant can derive no advantage from the discussions and conclusions reached by the Constitution Bench in Pranay Sethi (supra).
28. Much emphasis has, however, been laid by Mr. Mondal on the decision in Rajan (supra). In fact, the chart extracted (supra) seems to have been 24 prepared factoring in sums under different heads as found in paragraph 22 of such decision.
29. Considering the said decision as well as R.D. Hattangadi (supra), we are of the view that on facts and in the circumstances, determination made by us as indicated below would amount to "just compensation" payable to the claimant:
HEAD OF COMPENSATION FIGURE IN INR
Rs.50,400/-
ANNUAL INCOME
Rs.4,200/- x 12 months
Rs.250/- x 30 years= Rs.7,500/-
FUTURE PROSPECTS
(assuming the claimant would have
worked till 60 years of age)
MULTIPLIER 17 Rs.9,84,300/-
MEDICAL EXPENSES FOR Rs.4,10,000/-
TREATMENT
Rs.2,00,000/-
FUTURE MEDICAL EXPENSES
Rs.2,00,000/-
PAIN, TRAUMA AND SUFFERINGS
Rs.1,50,000/-
LOSS OF AMENITIES OF LIFE
Rs.50,000/-
ATTENDANT CHARGES
Rs.50,000/-
FOOD AND NOURISHMENT
Rs.20,000/-
TRANSPORTATION CHARGES
Total = Rs.20,64,300/-
30. Since we have not disturbed the rate of interest awarded by the tribunal, the claimant shall be entitled to interest @ 12% per annum on the excess sum of Rs.7,500/- (Rs.20,64,300/- - Rs.20,56,800/-), to be paid by the appellant to the claimant directly within a month from date. The interest component has 25 to be calculated from the date of presentation of the claim application before the tribunal.
31. With the aforesaid directions, FMA 1544 of 2018 and the connected application for stay together with COT 45 of 2018 stands disposed of. There shall be no order for costs.
32. We have noted earlier that the claimant has since withdrawn Rs.10,00,000/- from the amount of compensation secured by the appellant together with interest. With the disposal of the appeal and the cross- objection on the above terms, we direct the Registrar, City Civil Court, Calcutta to release according to law the balance sum in favour of the claimant together with accrued interest as early as possible but positively within a month from date of production of a certified copy of this judgment and order before him.
(Saugata Bhattacharya, J.) (Dipankar Datta, J.)