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2013 DIGILAW 199 (CAL)

New India Assurance Co. Ltd. v. Saheli Sarkar

2013-04-12

JYOTIRMAY BHATTACHARYA, MRINAL KANTI SINHA

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JUDGMENT : Jyotirmay Bhattacharya and Mrinal Kanti Sinha, JJ. This miscellaneous appeal is directed against the judgment and/or award dated 28.11.2007 passed by the learned Chief Judge, City Civil Court (Motor Accidents Claims Tribunal) at Calcutta in M.J.C. Case No. 663 of 2006 at the instance of the appellant. The claimants' claim petition u/s 166 of the Motor Vehicles Act on account of accidental death of the victim in the motor accident occurred on 10.4.2006 due to rash and negligent driving of the offending vehicle bearing No. WB 23-A 0017 (oil tanker) by its driver, was partly allowed by learned Tribunal. Though the claimants claimed a sum of Rs. 21,17,020 on account of such compensation, but the learned Tribunal allowed their claim to the extent of Rs. 19,61,943. The insurance company was directed to pay the awarded compensation together with interest at the rate of 9 per cent per annum from the date of filing of the claim petition. 2. Both the claimants and the insurance company were aggrieved by the said judgment and/or award. Insurance company preferred the instant appeal challenging the legality and/or propriety of the said award. In connection with the said appeal, a cross-objection was taken out by the claimants contending, inter alia, that more amount of compensation should have been awarded to them. 3. Let us first of all consider the merit of the said appeal in the facts of the instant case. 4. The findings of the learned Tribunal regarding the cause of death of the victim due to motor accident remain unchallenged. Findings of the learned Tribunal regarding coverage of the offending vehicle under a policy of insurance also remain unchallenged. 5. The appellant challenges the legality of the impugned award by contending, inter alia, that the learned Tribunal ought not to have awarded any compensation to the claimants as the accident did not occur due to rash and negligent driving of the offending vehicle by its driver. 6. It is further contended by the appellant that the accident occurred due to contributory negligence of the victim. 6. It is further contended by the appellant that the accident occurred due to contributory negligence of the victim. It is further contended by the appellant that the learned Tribunal committed an error in holding that the accident occurred due to rash and negligent driving of the offending vehicle by its driver without considering the evidence of DW 1, viz., the driver of the offending vehicle who stated in his evidence that the victim was solely responsible for the accident and he was neither rash nor negligent in driving the vehicle at the time of such accident. 7. According to Mr. Pahari, learned advocate appearing for the appellant, the impugned award is thus vitiated by non-consideration of the material part of the evidence. He thus invited this court to set aside the impugned award. 8. In the context of such submission of Mr. Pahari, we have considered the pleadings of respective parties as well as the evidence on record. 9. On a careful consideration of the pleadings of the insurance company made out by it in its written statement, we find that this defence was not set up by the insurance company in its written statement. In fact, this plea regarding occurrence of the accident due to fault and negligence of the victim himself is absent within the four corners of its pleading. 10. It is settled law that no amount of evidence beyond pleadings can be considered by the court. Thus, we have no hesitation to hold that despite evidence given by the driver of the offending vehicle regarding the cause of death of the victim due to his contributory negligence, such part of the evidence cannot be considered as the same was beyond the pleadings of the insurance company. 11. As such, we hold that the learned Tribunal did not commit any illegality in not considering this part of the evidence of DW 1 while disposing of the said claim petition by passing the impugned award. 12. We thus do not find merit in this appeal. The appeal thus stands dismissed on contest. Re: COT No. 19 of 2008: 13. Let us now consider the merit of the cross-objection filed by the claimants in the facts of the instant case. 14. We have already recorded above that the accident was caused due to rash and negligent driving of the offending vehicle by its driver. The appeal thus stands dismissed on contest. Re: COT No. 19 of 2008: 13. Let us now consider the merit of the cross-objection filed by the claimants in the facts of the instant case. 14. We have already recorded above that the accident was caused due to rash and negligent driving of the offending vehicle by its driver. The vehicle was also duly insured under a policy of insurance issued by the insurance company. As such, the liability to pay compensation by the insurance company and/or the entitlement of the claimants to get compensation on account of such accidental death of the victim cannot be denied. 15. Let us now consider as to how far the learned Tribunal was justified in computing the compensation at Rs. 19,61,943 in the present case. 16. Though it is proved in evidence that the victim was a Central Government employee having future prospects in his service and he used to earn a sum of Rs. 23,000 and odd, on account of net salary, but the learned Tribunal computed the compensation by accepting the net income of the deceased as Rs. 15,896 per month and without even giving any weight age to the future prospects of the deceased in his service under the Indian Railways. 17. Thus, we hold that assessment of compensation made by the learned Claims Tribunal is not acceptable by us. We, thus, propose to reassess the compensation payable to the claimants by applying the multiplier process by accepting the net income of the deceased as Rs. 20,000 per month. Thus, the annual income of the deceased was Rs. 2,40,000. Considering the future prospect of the deceased in his service under the Indian Railways, we allow further addition of 30 per cent, amounting to Rs. 72,000, of his income for ascertaining the annual loss of dependency of the dependants of the claimants. Thus, we find that annual income of the deceased would be Rs. 3,12,000. If one-third is deducted from the said annual income of the deceased on account of his living and personal expenses, then the annual loss of dependency of the claimants will be Rs. 2,08,000. Considering the age of the victim as 43 years, we propose to apply the multiplier 14 in the instant case by following the decision of the Hon'ble Supreme Court in Smt. Sarla Verma and Others Vs. Delhi Transport Corporation and Another,. 2,08,000. Considering the age of the victim as 43 years, we propose to apply the multiplier 14 in the instant case by following the decision of the Hon'ble Supreme Court in Smt. Sarla Verma and Others Vs. Delhi Transport Corporation and Another,. Thus, by multiplying the annual loss of dependency of the claimants of Rs. 2,08,000 by 14, we find that the total loss of dependency of the claimants was Rs. 29,12,000. We further hold that in addition to the said sum of Rs. 29,12,000 the claimants are also entitled to get a further sum of Rs. 9,500 towards statutory compensation. In addition to the said amount of compensation, the claimants are also entitled to get a further sum of Rs. 92,443 which was spent for the medical treatment of the deceased in Apollo Gleneagles Hospital. Thus, we hold that the claimants are entitled to get total compensation of Rs. 30,13,943. 18. We are informed by Mr. Pahari, learned advocate appearing for the insurance company, that his client has deposited the entire awarded compensation of Rs. 19,61,943 in this court, in pursuance of an order passed by this court and the said amount has also been invested in fixed deposit with a nationalised bank. We are also informed by him that the claimants were permitted to withdraw a sum of Rs. 5,00,000 out of such deposit made by the insurance company with the leave of the court. Thus, if the said amount of Rs. 5,00,000 is deducted from their entitlement of Rs. 30,13,943, then the insurance company is required to pay a further sum of Rs. 25,13,943 together with interest at the rate of 6 per cent per annum on the entire compensation amount from the date of filing of the claim petition before the Tribunal up to the date of actual payment thereof. 19. The insurance company is, thus, directed to deposit the balance amount of such compensation with the learned Registrar General of this court within 30 days from the date of communication of this order and the claimants/cross-objectors are permitted to withdraw the entire compensation amount together with interest. 20. 19. The insurance company is, thus, directed to deposit the balance amount of such compensation with the learned Registrar General of this court within 30 days from the date of communication of this order and the claimants/cross-objectors are permitted to withdraw the entire compensation amount together with interest. 20. The learned Registrar General of this court is directed to disburse the awarded compensation amount to the claimants in equal share within one month from the date of deposit of the balance amount of compensation by the insurance company subject to deposit of the deficit court-fees on the claim amount and compliance of all the necessary formalities by the appellant in this regard. 21. On receipt of the said awarded compensation amount, the claimant/cross-objector No. 1, Saheli Sarkar, will have to invest the minor's share in the compensation in fixed deposit with any nationalised bank and such deposit should be renewed by her from time to time till the attainment of majority of the minor. 22. The insurance company is permitted to withdraw the amount of deposit which still remains undisbursed and the Registrar General of this court is directed to pay such undisbursed amount of deposit including interest accrued thereon to the insurance company subject to compliance of the necessary formalities in this regard. Both the appeal and the cross-objections are disposed of.