Calcutta High Court (Appellete Side)
(Smt. Upasi Singha & Ors vs The Oriental Insurance Co. Ltd. & Ors.) on 23 June, 2010
Author: Bhaskar Bhattacharya
Bench: Bhaskar Bhattacharya
ah (30) 23.06.2010 F. M. A. T. No. 4447 of 2005
with
C. A. N. 4078 of 2009
(Smt. Upasi Singha & Ors. -vs- The Oriental Insurance Co. Ltd. & Ors.)
Mr. Jayanta Kr. Mandal
... for the appellants.
Mr. Rabindra Nath Saha
... for the O.I.C.-respondent No.1.
Mr. Parimal Kr. Pahari ... for the N.I.C.-respondent No.2.
The defect pointed out by the Stamp Reporter may be ignored inasmuch as all the persons mentioned in the memorandum of appeal figured in the claim-application. Instead of disposal of the application, we propose to hear out the appeal itself by treating it as on day's list with the consent of the learned Counsel for the parties. This appeal is at the instance of the claimants in a proceeding purportedly under Section 163A of the Motor Vehicles Act and is directed against an award dated 21st July, 2005 passed by the Motor Accident Claims Tribunal, Uttar Dinajpur at Raiganj, in M.A.C. Case No. 42 of 2003 by which the learned Tribunal allowed the said application by awarding a sum of Rs. 1,65,000/- in favour of the claimants with a direction upon the two Insurance Companies to pay the said amount in the ratio of 75% :
25% according to the negligence of the drivers of the two offending vehicles. The Insurance Companies were directed to pay such amount within sixty days from the date of award with further stipulation that in default, both the 2 Insurance Companies should be liable to pay interest at the rate of 6% per annum from the date of filing of the claim- application (11.2.2003).
Being dissatisfied, the claimants have come up with the present appeal.
At the very outset, the learned Counsel appearing on behalf of the Insurance Companies have taken a preliminary objection as to the maintainability of the application under Section 163A of the Act alleging that the claimants having asserted that the victim had monthly income of Rs.3,500/-, the application under Section 163A of the Act was not maintainable because such benefit is given only to those claimants whose predecessor had annual income of less than Rs.40,000/- per annum. After going through the materials on record, we, however, find that although the proceeding was described as one under Section 163A of the Act, the learned Tribunal specifically framed issue as to whether the drivers of the two vehicles involved were negligent and the parties led evidence and even argument was advanced at the time of trial on such issue. It further appears that the learned Counsel appearing on behalf of the Insurance Companies even admitted the negligence on the part of the drivers of the offending vehicles.
It is now settled law that mere caption of an application cannot decide the real nature of the same and if it appears 3 that the court dealing with such application has jurisdiction to grant appropriate relief under a different provision of Statute, such wrong caption cannot be a ground for rejection of the proceeding.
We further find that ultimately, the learned Tribunal did not accept the assertion of the claimants that the victim had income of Rs.3,500/- a month but proceeded to apply notional income. If the court or the tribunal decides not to accept the contention of the claimants that the victim had income of more than Rs.40,000/- per annum, there is no bar in even granting relief under Section 163A of the Act. We, thus, find no substance in the preliminary objection raised by Mr. Saha and Mr. Pahari, the learned Counsel appearing on behalf of the Insurance Companies. In this case, there is no dispute as regards the involvement of the two vehicles and the fact that those two vehicles were insured by the concerned Insurance Companies. It has also been established from evidence on record that the two drivers of the involved vehicles were responsible for the accident and the Tribunal below fixed their liability in the ratio of 75% : 25%.
The Insurance Companies have not preferred any appeal against such order.
Therefore, the only dispute involved in this appeal is as regards the amount of compensation.4
The grievance of Mr. Mandal, the learned Advocate appearing on behalf of the appellants is that there was no justification of applying the principle of notional income in the facts of the present case when it has been established that the victim was a businessman dealing with sari by way of hawking.
We find that both P.W.1 and P.W.2 stated in their affidavit-in-chief that the victim was a businessman dealing with sari by way of hawking. The Insurance Companies did not even give any evidence controverting such fact and no suggestion was even given to these witnesses that the victim was not dealing with any business. In such circumstances, we are of the view that we can safely treat the income of the victim as Rs.3,000/- a month when the Supreme Court in the case of Smt. Laxmi Devi & Ors. -vs- Mohammad Tabbar & Anr, reported in 2008(2) T.A.C. 394 (S.C.), has held that now a days even an unskilled labourer earns Rs.100/- a day. We, therefore, propose to reassess the compensation by treating the income of the victim as Rs.3,000/- a month after deducting one-third for his personal expenditure. It appears that the victim was aged 37 years as would appear from the Voter Identity Card exhibited as well as the Post Mortem Report. Thus, by applying the multiplier of 16, on that basis, the amount comes to Rs.3,84,000/-. 5 We are quite conscious that in the claim-application, the appellants restricted their claim to Rs.3,00,000/-. As pointed out by the Supreme Court in the case of Nagappa - vs- Gurudayal Singh & Ors., reported in AIR 2003 Supreme Court 674, even if the just amount of compensation found on the basis of evidence on record by a tribunal or a court appears to be in excess of the amount claimed in the application, such fact is not a ground of refusal of payment of just amount of compensation though in excess of the amount claimed.
We, therefore, set aside the award impugned and enhance the same to Rs.3,84,000/- with interest at the rate of 8% per annum from the date of filing of the application (11th February, 2003) till the actual payment. It is needless to mention that running of interest on the amount already deposited by the Insurance Companies will stop running from the date of deposit of such amount. The two Insurance Companies are directed to pay the balance amount in the same manner and proportion as indicated in the award impugned within a month from today by depositing the same in the Tribunal below The appeal is, thus, disposed of with the above observations.6
In view of disposal of the appeal itself, the connected application being CAN 4078 of 2009 has become infructuous and the same is disposed of accordingly. Xerox certified copies of this order, if applied for, be given to the parties within a week from the date of making of such application upon compliance of all requisite formalities.
( Bhaskar Bhattacharya, J. ) ah ( Raghunath Bhattacharya, J. )