Calcutta High Court (Appellete Side)
The National Insurance Co. Ltd vs Smt. Urmila Kahar & Ors on 15 March, 2010
Author: Bhaskar Bhattacharya
Bench: Bhaskar Bhattacharya
1
15.3.2010
ss
F.M.A. 16 of 2006
With
C.A.N.10331 of 2008
The National Insurance Co. Ltd.
Vs.
Smt. Urmila Kahar & Ors.
Mr. Rajesh Singh
... For the appellant
Mr. Krishanu Banik
... For the respondents
We propose to hear out the appeal itself by treating the same as on day's list as the paper books have already been filed, the lower court records have come and the learned Counsel for the parties are also ready.
This appeal is at the instance of the Insurance Company in a proceeding under Section 166 of the Motor Vehicles Act and is directed against an award dated 19th March, 2005 passed by the Motor Accident Claims Tribunal, 3rd Court, Burdwan in Motor Accident Claim Case No. 57 of 2004 thereby awarding a sum of Rs.9,96,000/- as compensation with a direction upon the Insurance Company to pay the said amount within a specified period. Being dissatisfied, the Insurance Company has come up with the present appeal.
2There is no dispute as regards the death of the victim in an accident where the victim was driving a motor cycle and there was a collision of the said motor cycle with a dumper, which is insured by the Insurance Company.
In the claim application, it was alleged that the victim was aged about 37 years 8 months and 20 days and used to earn a sum of Rs.7,764.65 a month as salary as a permanent mazdoor of Eastern Coalfield Ltd.
In spite of service of summons, the owner of the dumper did not contest but the National Insurance Company contested the proceeding by taking leave under Section 170 of the Motor Vehicles Act.
The learned Trial Judge on consideration of the materials on record came to the conclusion that due to rash and negligent driving on the part of the driver of the dumper the death occurred and at the same time on the basis of salary certificate of the victim in the last month of his service and on the basis of multiplier of 16 the learned Judge arrived at the figure of Rs.9,96,000/-.
Being dissatisfied, the Insurance has come up with the present appeal.
Mr. Singh, learned Advocate appearing on behalf of the appellant at the first instance tried to convince us that in this case from the fact that the victim was travelling in a motor cycle along 3 with two other pillion riders itself suggest that it was a case of contributory negligence and as such, the learned Tribunal below erred in law in holding that the driver of the dumper was responsible for the accident.
After going through the materials on record, we are, however, unable to accept the aforesaid contention of Mr. Singh. It appears that against the driver of the dumper, a criminal case has been started and charge-sheet has already been submitted. In spite of being a party, the owner of the dumper did not come forward to deny the allegation of rash and negligence of his driver nor did he examine the driver who was the best person to say whether the victim himself was responsible for the accident.
Once in spite of making such allegation of rash and negligent driving, the owner of the offending vehicle does not care to appear and face cross-examination and at the same time, the Insurance Company after taking leave of the Tribunal under Section 170 of the Act even does not summon the said driver, we are left with no other alternative but to hold that the said driver was afraid of facing the cross-examination.
In such circumstances, without compelling the driver to face cross-examination of the claimant, a court cannot hold that the said driver was not responsible for the accident. We, thus, overrule the said contention of Mr. Singh.
4Mr. Singh next contended that the learned Tribunal below while assessing the amount of compensation did not take into consideration the amount of Income Tax payable by the victim. We find that total amount of monthly salary was Rs.7,764.65 and the learned Judge has assessed the amount on the basis of 7,700/- p.a. (approx.).
After going through the provision of the Income Tax Act for the relevant year we find that on the basis of the aforesaid income the total amount of income tax payable will be Rs.7000/- p.a. We, therefore, propose to deduct a sum of Rs.7,000/- from the annual income of Rs.92,400/- and thus it comes to Rs.85,400/- per annum. By applying multiplier of 16 on the aforesaid amount after deducting one-third therefrom, the total amount of compensation comes to Rs.9,10,944/-.
We, therefore, modify the award impugned by enhancing the same to Rs.9,10,944/-.
It appears that while this Court as a condition of stay of execution of the award impugned, directed the appellant to deposit the entire awarded sum with the learned Registrar General of this Court and out of the said amount the claimants/respondents were permitted to withdraw the sum of Rs.5 lac.
It further appears from the order dated 5th October, 2005 that the learned Registrar General was directed to deposit the balance 5 amount in a short term deposit with the State Bank of India, Main Branch, Calcutta till further order.
In such circumstance, we are of the view that the claimants/respondents should be entitled to get interest at the rate of 8% per annum from the date of filing of the application till actual payment made to the claimants/respondents. As the sum of Rs.5 lac have already been withdrawn by the claimants/respondents, on the aforesaid amount of Rs.5 lac, interest will be payable at the rate of 8% per annum from the date of filing of application till withdrawal of the deposit. On the balance amount of Rs.4,10,944/-, the interest will be payable at the aforesaid rate of 8% per annum from the date of filing of the application till 31st March, 2010. The learned Registrar General is directed to calculate the aforesaid amount of interest and should release the balance amount with such interest in favour of the claimants/respondents from the amount which is lying in the fixed deposit account with the State Bank of India. If after payment of amount any further amount remains, the same should be refunded to the appellant; the amount lying in the account does not cover the amount as per order of this Court, the appellant will deposit the balance amount with the learned Tribunal below within a month from the date of intimation by the learned Registrar General to the learned Advocate for the 6 appellant. The amount should be released in favour of the claimants/respondents within 7th April, 2010. In view of disposal of the appeal itself, the connected application is thus disposed of accordingly.
Office is directed to send down the lower court records immediately.
Urgent xerox certified copy of this order, if applied for, be handed over to the learned Advocates for the parties within one week from the date of making application upon compliance of all requisite formalities.
(Bhattacharya, J.) (Prasenjit Mandal, J.)