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2010 DIGILAW 1322 (CAL)

Md. Motiar Rahaman Mallick v. United India Insurance Co. Ltd.

2010-11-12

AMIT TALUKDAR, M.K.CHAUDHURI

body2010
JUDGMENT Dr. M.K. Chaudhuri, J. 1. THE point for consideration as raised in this appeal by the appellant, i.e., the claimant, Md. Motiar Rahaman Mallick, is the quantum of compensation granted by the learned trial court. 2. IT is submitted that learned trial court calculated the income of the appellant on notional basis; but the fact remains that PW 1 in his evidence adduced that he used to carry on fertilizer business and used to earn Rs. 4,000 per month. The learned trial court held that no document of income has been produced. It appears from Exh. 7, the certificate of registration to carry on the business of selling fertilizers as a wholesale/retail dealer in the State of West Bengal, which has been produced before us, that the said certificate was issued on 26.6.2000 and was valid up to 31.3.2003. The accident took place on 3.5.2001. So during the validity period of the registration accident took place. Therefore, the income of the appellant-claimant as stated by PW 1 can- not be ignored and calculation of income of the appellant-claimant must be based on Rs. 4,000 per month. In the instant case the accident took place when appellant was 24 years old. He sustained 90 per cent (ninety per cent) disability as would appear from the disability certificate dated 19.4.2006 issued by Walsh (S.D.) Hospital, Seram- pore, Hooghly, which has been produced before us. 3. WE have heard the submissions made by the learned counsel for the parties and have perused the evidence adduced and the documents as exhibited. 4. THERE is nothing to disbelieve that appellant-claimant used to earn Rs. 4,000 per month at the age of 24 years and suffered 90 per cent disability. So, calculation should be arrived on the basis of the same through multiplying the sum of Rs. 4,000 by 12 = Rs. 48,000; again multiplying by 17 = Rs. 8,16,000. It has been further submitted that due to his 90 per cent disability the appellant is not in a position to carry on his business and earn. So considering the extent of disability of 90 per cent, the appellant-claimant is entitled to get 90 per cent of the total income as rightly held by the learned trial court. So, 90 per cent (ninety per cent) of Rs. 8,16,000 comes to Rs. 7,34,400 and 2/3rd of the said amount comes to Rs. 4,89,600. So considering the extent of disability of 90 per cent, the appellant-claimant is entitled to get 90 per cent of the total income as rightly held by the learned trial court. So, 90 per cent (ninety per cent) of Rs. 8,16,000 comes to Rs. 7,34,400 and 2/3rd of the said amount comes to Rs. 4,89,600. In addition to the said amount, he is also entitled to medical expenses for Rs. 1,89,211 as per the documents (Exhs. 2 and 2A) produced before us. He is also entitled to a sum of Rs. 5,000 towards his pain and suffering as awarded by the learned trial court. So, total amount comes to (Rs. 4,89,600 + Rs. 1,89,211 + Rs. 5,000) = Rs. 6,83,811. Thus, compensation of Rs. 2,49,154 awarded by the learned trial court in favour of the appellant stands enhanced. The appellant will get an amount to the tune of Rs. 6,83,811 (rupees six lakh eighty-three thousand eight hundred and eleven). It is submitted that the appellant has already received an amount of Rs. 2,49,154. So, he is entitled to get the balance amount of Rs. 4,34,657 together with interest at the rate of 9 per cent per annum from the date of filing of the suit till the date of realization from the respondent No 1. 5. THE respondent No. 1, the insurance company herein, is directed to pay a sum of Rs. 4,34,657 together with interest thereon at the rate of 9 per cent per annum from the date of filing of the suit till the date of payment within two months from date through learned Tribunal, failing which the appellant will be at liberty to put the award in execution. Appeal, accordingly, stands disposed of. There will be no order as to costs. Appeal disposed of.