Calcutta High Court (Appellete Side)
The New India Assurance Company Limited vs Jasmin Bibi (Khatun) & Ors on 2 March, 2016
Author: Indira Banerjee
Bench: Indira Banerjee
Form No.J(2)
IN THE HIGH COURT AT CALCUTTA
Civil Appellate Jurisdiction
Appellate Side
Present :
The Hon'ble Justice Indira Banerjee
And
The Hon'ble Justice Sahidullah Munshi
F. M. A. T. No.769 of 2015
With
CAN 7961 of 2015
The New India Assurance Company Limited
Vs.
Jasmin Bibi (Khatun) & Ors.
For Appellant Insurer : Mr. Rajesh Singh.
For Respondent Claimants : Ms. Sima Ghosh.
Heard on : 02-03-2016.
Judgment on : 02-03-2016.
Indira Banerjee, J:
This appeal, filed by the New India Assurance Company Limited, hereinafter referred to as 'the appellant insurer', is against a judgment and award dated 20th April, 2015 passed by the Motor Accident Claims Tribunal, Fourth Court and Additional District and Sessions Judge, Suri, Birbhum in MAC Case No.179 of 2013 [Jasmin Bibi (Khatun) Vs. Kalpana Das & Anr.] being an application of the respondent nos.1 to 5, hereinafter referred to as 'the respondent claimants', for compensation under Section 163A of the Motor Vehicles Act, 1988 on account of the death of Sk. Kasu in a motor accident involving an ambulance bearing No.WB37B-8242, owned by the respondent no.6 and covered by a policy of insurance issued by the appellant insurer.
There can be no dispute that the accident was caused in course of use of the vehicle WB37B-8242, being driven by the victim, which collided with the bus bearing no.WB63-3506.
Section 163A of the Motor Vehicles Act, 1988 provides as follows:
" 163A. Special provisions as to payment of compensation on structured formula basis.- (1) Notwithstanding anything contained in this Act or in any other law for the time being in force or instrument having the force of law, the owner of the motor vehicle or the authorised insurer shall be liable to pay in the case of death or permanent disablement due to accident arising out of the use of motor vehicle, compensation, as indicated in the Second Schedule, to the legal heirs or the victim, as the case may be.
(2) In any claim for compensation under sub-section(1), the claimant shall not be required to plead or establish that the death or permanent disablement in respect of which the claim has been made was due to any wrongful act or neglect or default of the owner of the vehicle or vehicles concerned or of any other person.
(3) The Central Government may, keeping in view the cost of living by notification in the Official Gazette, from time to time amend the Second Schedule. "
It is well settled that compensation under Section 163A is irrespective of any fault or liability on the part of the owner or the driver or any other person and is payable only in case of death or permanent disablement. Compensation under Section 163A is to be computed as per the Second Schedule to the Motor Vehicles Act.
Before the learned Tribunal, the respondents claimed that the victim had income of Rs.3,300/- per month as a driver of an ambulance on 7th August, 2013, being the date of his death. The income was on the lower side considering the fact that the victim was driver of an ambulance, has been established. Evidence was also adduced in this regard. We are of the view that the learned Tribunal erred in law in assessing the income of the victim at Rs.3,000/- per month without any basis, ignoring the evidence adduced on behalf of the respondent claimants.
It is well settled that a low paid employee, who is not required to pay taxes, cannot possibly prove income with cogent documentary evidence. Some amount of reasonable guesswork and estimation is permissible. Considering that the accident took place in 2013, there was no reason for the Tribunal not to accept the evidence adduced by the respondent claimants to the effect that the victim earned Rs.3,300/- per month.
If the income was Rs.3,300/- per month, it should be multiplied by '12' to find out the annual income. This amount would have to be multiplied by the multiplier applicable to the age group to which the victim belonged at the time of his death, as rectified by the Supreme Court in its judgment in Sarla Verma Vs. Delhi Transport Corporation, reported in (2009) 6 Supreme Court Cases 121. The applicable multiplier would be "18", considering the fact that the victim was in the age group of 21-25 years. From the aforesaid amount, one-third would have to be deducted towards personal and living expenses. The respondent claimants would be entitled to Rs.2,000/- towards funeral expenses and Rs.2,500/- towards loss of estate and the widow wife would be entitled to Rs.5,000/- towards loss of consortium.
The learned Tribunal clearly erred in law in awarding Rs.1,00,000/- towards loss of consortium, Rs.2,00,000/- towards caring of minor children and Rs.25,000/- towards funeral expenses in an application under Section 163A. Similarly, future prospects would also not have been taken into account. Be it noted that Sarla Verma (supra) and the subsequent judgments with regard to addition of future prospects, all relate to claim cases under Section 166 of the Motor Vehicles Act, 1988.
The award is, thus, modified as follows:
Annual Income (Rs.3,300/- X 12) = Rs. 39,600/-
Less: one-third towards = (-) Rs. 13,200/-
personal expenses,
i.e., (Rs.39,600/- ÷ 3)
Rs. 26,400/-
Add: Multiplier '18', applicable = Rs. 4,75,200/-
to age group of 21-25
(Rs.26,400/- X 18)
Add: Funeral expenses = (+) Rs. 2,000/-
Add: Loss of estates = (+) Rs. 2,500/-
Total = Rs.4,79,700/-
In addition to above amount, the widow shall be entitled to Rs.5,000/- towards loss of consortium.
The award shall carry interest @ 9% per annum from the date of filing of the claim application till the date of deposit of the awarded amount in accordance with the direction of the Supreme Court in its Judgment dated 15th January, 2015 in Civil Appeal Nos. 348-349 of 2015 arising out of SLP (C) Nos. 4897-4898 of 2014 (Smt. Neeta W/O Kallappa Kadolkar and others Vs. The Divisional Manager, MSRTC, Kolhapur) and Surti Gupta Vs. United India Assurance Co. and another, reported in 2015 SAR (Civil) 571, where the Supreme Court held that the High Court had erred in awarding interest at the rate of 6% per annum only, instead of 9% per annum on the compensation amount, as per the principles laid by the Supreme Court in the case of Municipal Corporation of Delhi Vs. Association of Victims of Uphaar Tragedy.
The awarded amount shall be deposited in the learned Tribunal within 45 days from the date of receipt of a certified copy of this judgment along with interest accrued thereon, if any.
It will be open to the appellant insurer to withdraw the statutory deposit of Rs.25,000/- made in this Court.
The appeal and all connected applications are disposed of.
Urgent photostat certified copies of this judgment, if applied for, be supplied to the parties, subject to compliance of all requisite formalities.
( Indira Banerjee, J. ) I agree.
( Sahidullah Munshi, J. ) debajyoti.