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2009 DIGILAW 728 (CAL)

Lipika Ash v. New India Assurance Co. Ltd.

2009-09-10

Kishore Kumar Prasad, Pranab Kumar Chattopadhyay

body2009
JUDGMENT: Kishore Kumar Prasad, J. 1. THIS appeal is directed against the judgment and award dated June 23, 2000 passed by the learned Judge, Motor Accident Claims Tribunal, 4th Court, Barasat, North 24 Parganas in M.A.C. Case No. 127 of 1996. 2. LEARNED Tribunal, after trying the issues, allowed the claim in part and awarded a sum of Rs. 5,00,000/- to the appellant Nos. 1,3 and 4 herein as final compensation after deducting the statutory compensation of Rs. 50,000/- already paid to the claimant in a proceeding under section 140 M.V. Act out of the amount of compensation of Rs. 9,00,000/- as claimed by the claimants in their application under section 166 of the M.V. Act. Feeling the quantum of award insufficient, the appellants have preferred this appeal. 3. THE appellant Nos. 1, 2 and 4 according to Cause Title of the Memorandum of Appeal, are the widow, son and father of the victim Arun Kumar As alias Ash and the appellant No. 3 was the mother of the victim, who died during the pendency of this appeal before this Court. 4. THE only question to be considered in this appeal is whether the present appellants are entitled to get any further amount as compensation. Arun Kumar As @ Ash aged in between 48-49 years was a victim of an accident which occurred on 24.6.1995 at about 9.15 p.m. on B. T. Road near Bonhooghly crossing within the limits of Baranagar P.S. while he was standing there along with his cycle. 5. IT is an admitted position that the offending truck bearing No. W.M.K.- 8005 being driven rashly and negligently knocked down and ran over the victim causing his death instantaneously on the spot. 6. THE offending truck was admittedly insured with the New India Assurance Company Limited. Learned Counsel appearing on behalf of the appellants contended that the amount of compensation by no stretch of imagination can be said to be just and proper. The only grievance of the learned Counsel was that the learned Tribunal committed an error in applying 135 months (pre-retirement period) only in determining the compensation instead of applying multiplier of 13 as per structural formula contemplated by the Second Schedule of the M.V. Act on the face of the age of the deceased at the fateful time of accident. 7. 7. LEARNED counsel appearing on behalf of the respondent-Insurance Company on the other hand submitted that the award passed by the learned Tribunal is just and proper and the learned Tribunal upon materials on record rightly awarded a sum of Rs. 5,00,000/- as final compensation after deducting statutory compensation of Rs. 50,000/- already paid to the claimants in a proceeding under section 140 of the M.V. Act. 8. LEARNED Tribunal found that the income of the deceased was Rs. 6,000/- per month. This finding of the learned Tribunal is based on proper appreciation of the evidence. It is pointed out that on the death of the victim, his son, that is, the appellant No. 2 herein had been provided with compassionate appointment at United Bank of India and he was getting salary of Rs. 2,800/- per month. The learned Tribunal appears to have considered the effect of amount received on account of compassionate appointment. In view of the above facts, the learned Tribunal was justified not to pass order directing payment of any amount to this appellant out of the final compensation amount of Rs. 5,00,000/- awarded by it. In view of what has been stated above, there is hardly any ground to interfere with this finding of the learned Tribunal. 9. LEARNED Tribunal after deducting l/3rd amount which the deceased might have been spending on himself, had assessed the dependency at Rs. 48,000/- per annum (Rs. 4,000 X 12). This assessment of the learned Tribunal is also legal and correct. However, the learned Tribunal erred in applying the multiplier of 135 months (pre-retirement period) for ascertaining the financial loss caused to the appellant. There is oral evidence on record to show that the victim was aged more than 48 years but less than 49 years at the fateful time of the accident. Besides oral evidence, there is corroborative documentary evidence on record that is the Admit Card issued by West Bengal Board of Secondary Education (marked as Exhibit 5 before the Court of learned Tribunal) which clearly goes to show that the victim at the fateful time of accident was aged more than 48 years but less than 49 years. According to the Schedule under section 163A of the M.V. Act, for the age group of 45 to 50 years the multiplier of 13 is prescribed for evaluating compensation for third party in fatal accident. According to the Schedule under section 163A of the M.V. Act, for the age group of 45 to 50 years the multiplier of 13 is prescribed for evaluating compensation for third party in fatal accident. Multiplier prescribed in this Schedule might be followed in the cases under section 166 of the M.V. Act. 10. IN Trilok Chandra's case, reported in 1996 ACJ 831, the Hon'ble Supreme Court after reiterating the principles laid down in the case of General Manager, Kerala State Road Transport Corpn. vs. Susamma Thomas, 1994 ACJ 1 (SC), however, held that the operative (maximum) multiplier should be increased as 18 (instead of 16 indicated in Susamma Thomas) even in cases under section 166 of the M.V. Act by borrowing the principle underlying section 163A and Second Schedule of the M.V. Act. In the present case not only the parents of the deceased, but his widow and his son were also claiming compensation. 11. KEEPING in view the parameters indicated above and looking to the age group of the deceased, the proper multiplier to be adopted shall be 13 instead of 135 months which had been applied by the learned Tribunal. 12. ON multiplying the dependency figure of Rs. 48,000/- by 13, the financial loss comes at Rs. 48,000 X 13 = Rs. 6,24,000/-. The learned Tribunal had allowed Rs. 5,000/- towards consortium. The said amount shall also be allowed as compensation. 13. THE learned Tribunal had also allowed Rs. 5,000/- towards pain and sufferings. THE amount of Rs. 5,000/- granted by the learned Tribunal towards pain and sufferings is clearly unsustainable since general damage towards pain and sufferings is only admissible in cases of injuries and disabilities and not in cases of death as prescribed under Second Schedule. THErefore, the amount of Rs. 5,000/- granted by the Tribunal towards pain and sufferings is contrary to law and the same cannot be sustained. 14. IT will also be proper to add a total sum of (Rs.2,000/- Rs. 2,500/-) for taking care of the amount of compensation awardable under different conventional heads, such as, funeral expenses and loss of estate respectively. Thus, a total sum of Rs. 6,24,000 + Rs.5,000 + Rs. 4,500 = Rs. 6,33,500/- will be a just and proper and adequate sum awardable as compensation. Consequently, this appeal is allowed in part. 2,500/-) for taking care of the amount of compensation awardable under different conventional heads, such as, funeral expenses and loss of estate respectively. Thus, a total sum of Rs. 6,24,000 + Rs.5,000 + Rs. 4,500 = Rs. 6,33,500/- will be a just and proper and adequate sum awardable as compensation. Consequently, this appeal is allowed in part. The impugned award is modified by enhancing the total amount awardable to the appellant Nos. 1 and 4, that is, to the widow and father of the deceased from Rs. 5,50,000/- to Rs.6,33,500/-. As such, the appellant Nos. 1 and 4 namely (Lipika As @ Ash and Shri Paresh Chandra As @ Ash) shall be entitled for the total sum of Rs. 6,33,500/- from the Insurance Company and the owner jointly and severally. 15. WE find that the learned Tribunal has not granted statutory interest in the instant case. The same should be granted at the rate of 6% per annum from the date of filing of the claim application till the date of deposit. 16. THE Insurance Company (New India Assurance Co. Ltd.) has admittedly paid a sum of Rs. 50,000/- (statutory award) Rs. 5,00,000 (awarded by the learned Tribunal) = Rs. 5,50,000/-. THErefore, after adjusting the aforesaid amount the appellants namely, Smt. Lipika As @ Ash (widow of the deceased) and Shri Paresh Chandra As @ Ash (father of the deceased) are now entitled to Rs. 6,33,500/--Rs. 5,50,000/- = Rs. 83,500/- together with interest at the rate of 6% per annum on the awarded enhanced amount of Rs. 6,33,500/- from the date of filing of the claim application (that is from 8.12.1995) till the date of deposit for making payment. The Insurance Company (New India Assurance Company Limited) is directed to pay Rs. 83,500/- together with simple interest at the rate of 6% per annum on the already paid awarded amount of Rs. 5,50,500/- from the date of filing of the claim application till the date of deposit and on the balance enhanced awarded amount of Rs. 83,500/- aforesaid interest to be paid from the date of filing of the claim application till the date of making payment to the appellants, namely, Smt. Lipika As @ Ash and Shri Paresh Chandra As @ Ash in equal share through the Tribunal. 83,500/- aforesaid interest to be paid from the date of filing of the claim application till the date of making payment to the appellants, namely, Smt. Lipika As @ Ash and Shri Paresh Chandra As @ Ash in equal share through the Tribunal. The learned Tribunal is to disburse the amount to the aforesaid appellants upon actual verification and subject to deposit the deficit amount of Court fees, if any. 17. THE appeal is thus disposed of. 18. THERE will, however, be no order as to costs. Lower Court Records with the copy of the judgment to go down forthwith to the Court of learned Tribunal for information and necessary action. 19. URGENT xerox certified copy of this judgment, if applied for, be supplied to the learned Counsel appearing for the parties upon compliance of all formalities. Pranab Kumar Chattopadhyay, J.: I agree.