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2008 DIGILAW 633 (CAL)

Chinu Rani Balo v. National Insurance Co Ltd

2008-06-27

B.BHATTACHARYA, R.N.BANERJEE

body2008
Judgment : B. BHATTACHARYA AND R.N. BANERJEE, J. (1) INSTEAD of disposal of the application, we propose to hear out the appeal itself by treating it as on days list. (2) THIS appeal is at the instance of the claimants and is directed against an award dated 2. 4. 2005 passed by learned Judge, motor Accidents Claims Tribunal, Uttar dinajpur in M. A. C. Case No. 159 of 2003 by which the learned Tribunal disposed of an application under section 163-A of the motor Vehicles Act by awarding a sum of Rs. 1,60,000 as compensation. (3) BEING dissatisfied, the appellants have come up with the present appeal. (4) THERE is no dispute that the victim died of a motor cycle accident. According to the appellants, he was a mason and used to earn Rs. 3,000 a month. (5) THE learned Tribunal below accepted the cause of death of the victim that his death arose out of an accident and that the offending vehicle was covered by the insurance. (6) HOWEVER, for arriving at the figure of compensation, he decided to apply the multiplier of 16, notwithstanding the fact that the deceased was 30 years of age at the time of death and thus, the applicable multiplier ought to have been 17. (7) REGARDING the income of the deceased, the learned Tribunal assessed the sum on the basis of notional income by discarding the evidence of the wife and ultimately held that Rs. 1,60,000 should be the appropriate amount of compensation even without adding the amount of funeral expenditure, loss to estate and loss of consortium. (8) THE learned Tribunal even forgot to give any amount of interest as enjoined under section 171 of the Act. (9) BEING dissatisfied, the appellants have come up with the present appeal. (10) AFTER hearing the learned counsel appearing for the parties, we are of the view that there was no necessity of considering the age of the mother of the victim along with the age of the wife and dividing the total by two in this case. The multiplier ought to have fixed simply on the basis of the age of the victim and thus, the multiplier should be 17. (11) WE find that the fact that the victim was a mason has not been disputed by the insurance company. The multiplier ought to have fixed simply on the basis of the age of the victim and thus, the multiplier should be 17. (11) WE find that the fact that the victim was a mason has not been disputed by the insurance company. Once we hold that the victim was a mason, there was no just cause for applying notional income to the fact of the present case. (12) THE claim of Rs. 3,000 as monthly income for a mason is not at all abnormal or exaggerated one, more so, when we find from the evidence that the victim had a motor cycle of his own, we thus, find that this is a fit case where Rs. 3,000 should be treated to be the monthly income of the victim. (13) AFTER taking into consideration the aforesaid amount and multiplying the same with 17 and adding Rs. 9,500 to the said amount as enjoined in the Second schedule to the Motor Vehicles Act, the amount comes to Rs. 4,17,500. (14) THE appellants are also entitled to get interest at the rate of 8 per cent per annum on the aforesaid amount from the date of filing of the application till the actual payment. (15) AT this stage, Mr. Singh, learned advocate appearing on behalf of the insurance company strenuously contends before us that the appellants having restricted their claim of Rs. 3,00,000 in the claim application, the amount cannot be enhanced beyond that limit. (16) WE are not at all impressed by such submission in view of the decision of the honble Supreme Court in case of Nagappa v. Gurudayal Singh, 2003 ACJ 12 (SC), where the Apex Court clearly held that if the just compensation assessed by learned Tribunal exceeds the limit claimed in the original application, there is no bar in granting the excess amount. (17) IN this case, having regard to the fact that the application was filed under section 163-A of the Act and the income of the victim was below Rs. 40,000, we are of the view that the amount assessed by us is the just amount of compensation and, therefore, notwithstanding the fact that it has exceeded limit, we can grant such amount as compensation. (18) THE appeal is, thus, allowed to the extent indicated above. 40,000, we are of the view that the amount assessed by us is the just amount of compensation and, therefore, notwithstanding the fact that it has exceeded limit, we can grant such amount as compensation. (18) THE appeal is, thus, allowed to the extent indicated above. (19) THE insurance company is directed to deposit the balance amount within one month from today before the learned Tribunal in the same manner and proportion as indicated in the award impugned. (20) IN view of disposal of the appeal itself, the connected application has become infructuous and the same is disposed of accordingly. (21) IT is needless to mention that the interest on the amount already deposited by the insurance company will stop running from the date such amount has been deposited before the learned Tribunal. (22) THE lower court records may be sent down immediately. (23) XEROX certified copy of this order, if applied for, be given to the learned counsel appearing for the parties within a week from today. Appeal allowed.