Research › Search › Judgment

Calcutta High Court · body

2013 DIGILAW 698 (CAL)

Paritosh Saha v. Oriental Insurance Co. Ltd.

2013-09-18

ANINDITA ROY SARASWATI, INDIRA BANERJEE

body2013
JUDGMENT : This appeal, filed by the claimants, is against the judgment and order/award dated 15th March, 2012 in Motor Accident Claims Tribunal case No.92/2010, where by the Learned Tribunal has awarded to the claimants compensation of Rs. 28,000/- taking the income of the housewife to be Rs. 2000/- per month and applying the multiplier 8 by assuming her age to be 58 years, and adding a sum of Rs. 5000/- towards loss of consortium and a sum of Rs. 2000/- towards funeral expenses. The total compensation awarded was Rs. 1,35,000/-. The aforesaid sum of Rs. 1,35,000/- was directed to be paid within two months from the date of the order. In default the awarded amount would carry interest at the rate of 12 per cent from the date of filing of the case till payment thereof to the claimants. 2. The claimants herein are mainly aggrieved by the determination of the age of the victim as 58 years at the time of the accident even though the claimants had relied on the Postmortem report and the Voters Identity Card of the victim, which showed that the victim was only 50 years of age at the time of the accident. The appellant is also aggrieved by the determination of income of the housewife at Rs. 2000/-. 3. Mr. Banerjee, learned counsel appearing on behalf of the appellants cited the following three Division Bench judgments of this Court. (i) The New India Assurance Company Limited v. Shyamsundar Halder & Ors. Reported in (2009) 2 WBLR (Cal) 994. (ii) Narayan Chandra Paul @ Naryan Chandra & Anr. v. The National Insurance Company Limited & Ors. reported in (2009) 3 WBLR (Cal) 386. (iii) Sri Samudragupta Chowdhury & Anr. v. The New India Assurance Company & Ors. reported in (2011) 2 WBLR (Cal) 464. 4. In Narayana Chandra Paul & Anr. Supra, the Division Bench relied on a judgment of the Supreme Court in Lata Wadhwa & Ors. v. State of Bihar & Ors. Reported in AIR 2001 SC 3218 , where the Supreme Court held that the income of a housewife between the age group of 34-59 might be assessed at Rs. 3000/- per month and accordingly assessed the monthly income of the victim to be Rs. 3000/- per month instead of Rs. 1500/- per month as assessed by the Motor Accident Claims Tribunal. 5. Similarly, in Shyamsundar Halder & Ors. 3000/- per month and accordingly assessed the monthly income of the victim to be Rs. 3000/- per month instead of Rs. 1500/- per month as assessed by the Motor Accident Claims Tribunal. 5. Similarly, in Shyamsundar Halder & Ors. Supra, the Division Bench found that there was little scope of argument that the income of a housewife between age group of 34-59 should be treated as Rs. 3000/- per month having regard to the service that a housewife renders to the family. 6. In the case of Samudragupta Chowdhury & Anr. Supra, another Division Bench of this Court assessed the income of the housewife to be Rs. 3000/- per month. 7. As a Bench of coordinate strength we are bound by the aforesaid decisions of the earlier Division Benches of this Court. 8. We therefore, hold that the income of the victim should be assessed at Rs. 3000/- 9. The next issue before us is whether the learned Tribunal erred in applying multiplier 8 in stead of applying multiplier of 11 applicable to the age group of 50-55. 10. In the claim application the claimants claimed that the age of the victim was 50 years at the time of the accident. In support of their contention the claimants relied on the Voters Identity Card of the victim which showed that the age of the victim was 50 years at the time of the accident. The learned Tribunal however, proceeded on the basis of the age as recorded in the Postmortem report, which was 58 years and accordingly applied multiplier of 8. The finding of the learned Tribunal in this regard is as follows; "The P.M. report reflects that the deceased was aged about 58 years at the relevant time but the voter identity card of the deceased (marked exbt.6) shows that the deceased was in the age group of 50 to 55 at the relevant time. On further consideration of the materials on record no option is left with this tribunal but to accept the age of the deceased as given in P.M. report which is scientific one" 11. The learned Tribunal, in our view, erred in proceeding on the basis that the learned Tribunal had no option but to accept the age of the deceased as given in the Postmortem report, which was a scientific one. 12. As argued by Mr. The learned Tribunal, in our view, erred in proceeding on the basis that the learned Tribunal had no option but to accept the age of the deceased as given in the Postmortem report, which was a scientific one. 12. As argued by Mr. Banerjee, the age given in the postmortem report was only the approximate age and not the actual age. Moreover, a perusal of the postmortem report does not reveal any attempt to ascertain the age of the victim. The Autopsy Doctors were possibly more concerned with the cause of the death than the age of the victim. 13. The claimants in their application claimed that the age of the victim was 50 years. The claimant gave evidence that his wife was 50 years old and in support thereof relied on the Voters Identity Card of his wife, the victim of the accident. 14. We are of the view that the Tribunal erred in proceeding on the basis that it had no option but to accept the age of the deceased as given in the postmortem report and in holding that the aforesaid age computation was a scientific one when the concerned postmortem Doctors were not examined nor was any evidence whatsoever adduced as to whether it is the normal practice to ascertain the age of an accident-victim by carrying out the requisite ossification test. As observed above, the postmortem report does not reveal that any such tests were carried out and in any case even ossification test does not give the exact age but only the approximate age. 15. The learned Tribunal fell in error in overlooking the fact that the Voters Identity Card was an official document possibly based on the victims own declaration of her age. There was no reason for the victim to decrease her age by 8 years. Even assuming that there was some discrepancy in the Voters Identity Card, even then the multiplier of 11 would apply since multiplier of 11 is applicable for the age group of 50-55. 16. We are of the view that the multiplier of 11 should be applied in computing the compensation payable on account of the death of the victim. 17. Even assuming that there was some discrepancy in the Voters Identity Card, even then the multiplier of 11 would apply since multiplier of 11 is applicable for the age group of 50-55. 16. We are of the view that the multiplier of 11 should be applied in computing the compensation payable on account of the death of the victim. 17. We also find that the learned Tribunal directed the respondent/Insurer to pay the amount awarded within two months from the date of the award and in default whereof the award would carry interest at the rate of 12 per cent per annum. In our view the claimants are entitled to interest from the date on which the claim application was filed, till the actual payment is made. 18. Mr. Banerjee appearing on behalf of the appellant very fairly concedes that interest may be awarded at the rate of 8 per cent to maintain parity with the rate of interest which is usually granted by this Court in other similar cases. 19. We direct that the claimant shall be entitled to interest at the rate of 8 per cent from the date on which the claim application was filed till the actual liquidation of the entire compensation award to the claimants. 20. The balance amount shall be deposited with the learned Tribunal within one month from the date of receipt of certified copy of this order and the claimants will be at liberty to withdraw the same from the learned Tribunal.