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2010 DIGILAW 431 (CAL)

Karuna Tripathi v. New India Assurance Co. Ltd.

2010-04-22

B.BHATTACHARYA, PRASENJIT MANDAL

body2010
JUDGMENT: Bhaskar Bhattacharya, Prasenjit Mandal 1. 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. 2. THIS appeal is at the instance of the claimants in a proceeding under Section 166 of the Motor Vehicles Act and is directed against an award dated 15th September, 2005 passed by the Motor Accident Claims Tribunal 1st Court. Howrah, in M.A.C. Case No. 393 of 2000 thereby disposing off the said proceeding by awarding a sum of Rs.2,20,000.00 as compensation with the direction upon the Insurance Company to pay the said amount within forty days from the date of order with further stipulation that in default, the amount should carry interest at the rate of 5% per annum till realization. Being dissatisfied, the claimants have come up with the present first miscellaneous appeal. 3. THERE is no dispute as regards the death of the victim at the age of 48 years in an accident where the New India Assurance Company was the insurer of the offending vehicle. According to the claimants, the victim was a businessman and his yearly income from the business was Rs.1,33,845/- 4. THE owner of the offending vehicle did not contest the proceeding and the Insurance Company by taking leave contested the same, although no evidence of its own was adduced. At the time of hearing, the income Tax Return and the assessment order showing acceptance of the income of Rs.1,33,845/- from the business of the victim were proved. The said Return was filed on 25th August, 2000, whereas the accident occurred on 25th October, 2000. 5. THE learned Tribunal below, however, without assigning any reason accepted the contention of the Insurance Company as appearing from the written argument that the income of the victim should be taken into Rs.2,000/- per month and after deducting one-third from the said amount for personal expenses and by applying the multiplier of 13, the amount should be assessed at Rs.2,20,000/- after adding Rs.12,000/- as loss of consortium and funeral expenses. 6. AFTER hearing the learned Counsel for the parties and after going through the materials on record, we are unable to approve the award passed by the Tribunal below as the same was a perverse award. 6. AFTER hearing the learned Counsel for the parties and after going through the materials on record, we are unable to approve the award passed by the Tribunal below as the same was a perverse award. No reason has been given justifying exclusion of the income tax assessment order for the last year death showing that the income from the business was Rs.1,33,845/-. We have already pointed out that from the evidence on record the Tribunal found that due to rash and negligent driving on the part of the driver of the offending vehicle, the accident occurred and that the said vehicle was insured by the New India Assurance Company Limited. 7. WE, thus, find that the award should be reassessed on the basis of round figure of Rs.1,28,000/- after deducting a sum of Rs. 5,000/- which was paid for Income Tax from the said Rs.1,33,845/- for the relevant year. On the basis of the said annual income after deducting one-third as personal expenses of the victim and by multiplier of 13, the amount comes to Rs.11,09,333/- 8. IN this case, the claimants limited their claim to Rs. 10,00,000/-. However, in view of the decision of the Supreme Court in the case of Nagappa v. Gurudayal Singh and others reported in 2003 (1) An. W.R. 135 (SC) = AIR 2003 SC 674 = 2003 (1) TAC 241, even if it appears that the just amount assessed by the Tribunal or a Court is higher than the amount of just compensation assessed by the Tribunal or a Court. We, therefore, set aside the award impugned and enhance the same to Rs. 11,09,333.00 by making it a round figure of Rs.11,09,000.00 with interest at the rate of 8% per annum from the date of filing of the application till actual deposit of the amount. Out of the aforesaid amount, however, a sum of Rs.50,000.00 already paid in the earlier proceeding under Section 140 of the Act should be deducted and the total amount just comes to Rs.10,59,000.00 with interest as indicated above. 9. THE Insurance Company is directed to pay the balance amount within a month from today by depositing the same in the Tribunal below in the same manner and proportion as indicated in the award impugned. 10. THE appeal is, thus, allowed to the extent indicated and the same is disposed off. 9. THE Insurance Company is directed to pay the balance amount within a month from today by depositing the same in the Tribunal below in the same manner and proportion as indicated in the award impugned. 10. THE appeal is, thus, allowed to the extent indicated and the same is disposed off. Let the lower Court records be sent down immediately. 11. IN view of disposal of the appeal itself, the connected application being CAN 9654 of 2008 has become infructuous and the same is disposed off accordingly. 12. XEROX certified copy 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.