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2013 DIGILAW 852 (CAL)

Anjana Roy Chowdhury v. Arup Mondal

2013-11-26

R.K.BAG, TAPAN KUMAR DUTT

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Judgment : Tapan Kumar Dutt, J. This appeal arises out of a judgement/award dated 17.02.2007 passed by the learned Additional District and Sessions Judge, Fast Track Court, 5th Court and Motor Accident Claims Tribunal, Alipore, 24 Parganas(South) in M.A.C.C. No. 90 of 2006. This Court has heard the learned Advocates for the respective parties and has considered the materials on record. The widow and the married daughter of the deceased victim has filed the claim application as one Sandip Kumar Roy Chowdhury who happened to be the husband of the appellant no. 1 and the father of the appellant no. 2 died in a motor vehicle accident on 08.11.2002. The learned Tribunal came to the conclusion that the appellants/claimants are entitled to a compensation of Rs. 5,58,792/- minus Rs. 50,000/- which was already received by the claimants/appellants under the provisions of Section 140 of the Motor Vehicles Act, 1988. The learned Tribunal also granted funeral expenses of Rs.9,000/- and thus the total compensation came to Rs.5,17,792/-.There is no dispute with regard to the fact that the appellants/claimants have already received the said compensation before the learned Tribunal concerned. The learned Advocate for the claimants/appellants submits that the learned Tribunal ought not to have proceeded on the basis of net pay as certain deductions, appearing in the salary certificate, should not have been allowed to be deducted from the gross salary for the purpose of calculation of the compensation amount. The said learned Advocate submits that it is true that the travelling allowance and the C.C. Amount should be deducted from the gross salary apart from the professional tax but other deductions, shown in the deduction column, should not be allowed to be deducted from the gross salary while calculating the compensation amount. The said learned Advocate further submits, by referring to page 84 of the paper book, that the deceased, in due course of time, if he had been in service could have earned much more as the promotion was due sometime in July, 2006. We also find substance in such submission of the said learned Advocate. The learned Advocate appearing on behalf of the respondents/insurance company could not make any valid objection to such submission. Finally the learned Advocate for the appellants submitted that the learned Tribunal ought to have granted interest without attaching any default clause. We also find substance in such submission of the said learned Advocate. The learned Advocate appearing on behalf of the respondents/insurance company could not make any valid objection to such submission. Finally the learned Advocate for the appellants submitted that the learned Tribunal ought to have granted interest without attaching any default clause. It appears that such submission of the learned Advocate for the appellants/claimants is also of substantial merit. It may be recorded that the learned Advocate for the respondent/insurance company submitted that the pay certificate in respect of the deceased was issued by the Government Authorities as the deceased was working in a certain post office and, therefore, the learned Tribunal was quite justified in taking the net pay into account while calculating the compensation amount. We do not find any substance in such contention as in our view the relevant consideration is for the Court to consider as to what deductions should be allowed from the gross salary for the purpose of calculating the compensation amount. We find that the learned Tribunal has straightway based its calculation on the net pay without considering the question as to whether certain deductions ought to have been allowed to be deducted from the gross salary for the purpose of calculation of the compensation amount under the said Motor Vehicles Act. We do not find any substance made by the learned Advocate for the respondent/insurance company. In view of the discussions made above, we dispose of the instant appeal by modifying the impugned judgment/award to the following effect. In our view the claimants/appellants have proved that there is a question of loss of future prospect in the instant case and as it appears from the records that the promotion was due to the deceased some time in July, 2006. Accordingly, we calculate the monthly earning of the deceased at Rs.7230/-(Rs.7505-100-125-50). We increase the said amount by thirty percent as it appears that the deceased was due to earn more income and was also due to get a promotion in future. Thus, the monthly earning of the deceased comes to Rs. 9,399/-. We deduct one third of the said amount and thus the resultant figure is Rs. 6,266/-. Rs. 6,266/- , if multiplied by 12, comes to Rs. 75,192. If multiplier of thirteen is applied then the figure comes to Rs.9,77,496/-. Rs. Thus, the monthly earning of the deceased comes to Rs. 9,399/-. We deduct one third of the said amount and thus the resultant figure is Rs. 6,266/-. Rs. 6,266/- , if multiplied by 12, comes to Rs. 75,192. If multiplier of thirteen is applied then the figure comes to Rs.9,77,496/-. Rs. 9,500/-should be added to the said amount by way of general damages, thus the total compensation amount comes to Rs.9,86,996/-. It appears that the appellants/claimants have already received total sum of Rs. 5,67,792/- (including Rs. 50,000/- under Section 140 of the Motor Vehicles Act). Thus the balance amount of Rs. 4,19,204/- is required to be now paid by the respondent/insurance company to the claimants/appellants on account of principal amount of compensation. The respondent/insurance company are also required to pay interest at the rate of 8% p.a. on the sum of Rs.5,17,792/- in respect of the period commencing from the date of filing of the claim application till the date of deposit of the said amount. The respondent/insurance company is also required to pay interest at the rate of 8% p.a. on the sum of Rs.4,19,204/- in respect of the period commencing from the date of filing of the claim application till the date of deposit of the said amount. The respondent/insurance company shall make calculation of the interest in the manner indicated above and add the said amount to the amount of Rs.4,19,204/- and issue two account payee cheques in favour of the two claimants/appellants in equal shares and deposit the said account payee cheques before the learned Tribunal concerned within six weeks from the date of communication of this order to the learned Tribunal. After such account payee cheques are deposited by the respondent/insurance company the said cheques shall be handed over to the appellants/claimants in accordance with law and upon proper identification. The appeal is thus disposed of. Let the lower court records be sent back to the learned Tribunal concerned along with a copy of this order by special messenger and the special messenger cost shall be put in for such purpose by the claimants/appellants within two weeks. I agree.