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2015 DIGILAW 146 (CAL)

New India Assurance Company Ltd. v. Mala Das

2015-02-20

JYOTIRMAY BHATTACHARYA, TAPASH MOOKHERJEE

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Judgment Tapash Mookherjee, J. 1. The present First Miscellaneous Appeal is directed against the order passed on 05.10.2007 by the Motor Accident Claim Tribunal, 4th Court at Burdwan, in M.A.C. Case No. 112 of 2006/323 of 2006. 2. One Mala Das along with her minor daughter and parents-in-law filed the Motor Accident Claim Case against Md. Samsul Haque and New India Assurance Company Ltd. alleging that on 26.05.2006 at about 10 O-clock at night while their predecessor-in-interest Late Ajoy Prakash Das was standing on the flank of the G.T. road in front of ‘Bishalakshmi Petrol’ Pump, a Tata Sumo vehicle bearing No. WB 42E/1200 suddenly appeared there and knocked down Ajoy Prakash Das, due to which Ajoy Prakash Das sustained serious injuries and he ultimately succumbed to his injuries. It is further alleged that the rash and negligent driving of the vehicle was the cause of the accident and hence the claimants claimed compensation from O.P. No. 1 who happened to be the owner and O.P. No. 2 the insurer of the aforesaid offending vehicle. It was the further case of the claimants that the deceased was aged about 37 years at the time of the accident and monthly income of the deceased at that time was Rs. 7,200.00 (rupees seven thousand two hundred only). 3. The O.P. No. 1, in the Tribunal, the owner of the alleged offending vehicle, submitted his written statement but he had not ultimately contested the case. 4. O.P. No. 2, in the Tribunal, the New India Assurance Company Ltd. contested the case by submitting a written statement and thereby denying all the material allegations in the claim-petition in general terms. Besides, it was their specific case that the deceased himself was responsible for the accident and hence they are not liable to pay any compensation in the case. 5. Learned Tribunal framed six issues in the case. Three witnesses had been examined on behalf of the claimants and some documents had also been admitted on behalf of the claimants. 6. Besides, it was their specific case that the deceased himself was responsible for the accident and hence they are not liable to pay any compensation in the case. 5. Learned Tribunal framed six issues in the case. Three witnesses had been examined on behalf of the claimants and some documents had also been admitted on behalf of the claimants. 6. Considering the evidence on record, Tribunal came to the conclusion that the accident which resulted in the death of Ajoy Prakash Das was due to the rash and negligent driving of the vehicle bearing No. WB 42E/1200 and hence Tribunal passed an award for compensation against the O.P./Insurance Company and considering the age and earning of the deceased, the Tribunal fixed the amount of compensation at Rs. 8,96,000.00 (rupees eight lakh ninety-six only). Tribunal also awarded interest at the rate of 10 per cent per annum on the aforesaid amount but to be paid, in default of its payment within a prescribed period. 7. Being dissatisfied with and aggrieved by the aforesaid award the New India Assurance Company Ltd. filed the present appeal assailing the award on several grounds. 8. The claimants are not also satisfied with the award and as such they have also filed a cross appeal (C.O.T. No. 16 of 2011). 9. The fact that the husband of the claimant Mala Das died on 05.10.2007 in a motor accident involving a Tata Sumo vehicle bearing No. WB 42E/1200 has not been disputed but Mr. Das, the learned Counsel for the Insurance Company disputed the award of the Tribunal mainly on the grounds that the Tribunal committed error by believing P.W.2 on the point of the accident, although, P.W.-2 was the brother of the deceased and many other eye-witnesses to the accident were available and named in the charge-sheet. Next contention of Mr. Das was on the point of alleged income of the deceased. 10. Sri Satya Ranjan Karmakar examined as P.W.-3 is the proprietor of a newspaper under the name and style ‘Dainik Lipi’. He stated that the deceased was his employee and the monthly salary of the deceased was Rs. 7,200.00 (rupees seven thousand two hundred only) including basic pay and all other allowances. Mr. Das argued that the basic salary of the deceased was Rs. 6,000.00 (rupees six thousand only) per month only and Rs. He stated that the deceased was his employee and the monthly salary of the deceased was Rs. 7,200.00 (rupees seven thousand two hundred only) including basic pay and all other allowances. Mr. Das argued that the basic salary of the deceased was Rs. 6,000.00 (rupees six thousand only) per month only and Rs. 900.00 (rupees nine hundred only) per month was towards allowance for visiting and staying at different places for official purpose and Rs. 300.00 (rupees three hundred only) per month was travelling allowance as stated by P.W.-3 n cross examination. According to Mr. Das, the aforesaid components of Rs. 900.00 (rupees nine hundred only) per month and Rs. 300.00 (rupees three hundred only) per month were not fixed allowances but variable perks and hence Tribunal should not have included them in the salary of the deceased. Mr. Das further pointed out that the date of issue of the salary certificate issued by P.W.3 was 31.05.2005 (the document is found in L.C.R. though not exhibited in the Tribunal) and as such the salary of the deceased on the date of the accident has not been properly assessed by the Tribunal. 11. Mr. Banik, learned Counsel for the claimants disputed the aforesaid views of Mr. Das. Mr. Banik alleged further that the Tribunal has wrongly omitted to award any amount on point of future prospect of the deceased and that awarding of interest on the award amount on a condition was also against the law and for such reasons the claimants have also filed a cross-objection in this appeal. 12. P.W. -2 was an eye-witness of the accident and immediately after the accident he had taken the deceased to the local Hospital. The fact has been stated in the F.I.R. of the police-case. There is no such mandatory rule that a ‘related witness’ has to be always disbelieved. Number of witnesses examined in a case is not also important in a Motor Accident Claim Case. So having regard to the facts and circumstances we find nothing wrong in the Tribunal accepting the evidence of P.W.2 to be true. We are also of the further view that the claimants have proved it in the Tribunal that the rash and negligent driving of the ‘Tata Sumo’ vehicle bearing number WB 42E/1200 was the cause of the accident resulting in the death of the husband of the claimant Mala Das. 13. We are also of the further view that the claimants have proved it in the Tribunal that the rash and negligent driving of the ‘Tata Sumo’ vehicle bearing number WB 42E/1200 was the cause of the accident resulting in the death of the husband of the claimant Mala Das. 13. During an earlier hearing (08.05.2009) Mr. Banik accepted the view of Mr. Das, that the monthly income of the deceased may be considered as Rs. 6,000.00 (rupees six thousand only). Mr. Banik cannot be, therefore, permitted now to retreat from his earlier submission before the Court on the point. Having thus regard to the submissions of the learned Counsels on both sides we are of the view that the monthly income of the deceased should be treated as Rs. 6,000.00 (rupees six thousand only). 14. It was not a case of the Insurance Company that the monthly salary of the deceased had ever been reduced. Nor any such question had been put to P.W.-3 during cross examination. So, the date of the salary certificate in question is not an important factor in this case. 15. The deceased was in the age group of 35-40 years at the time of his death as decided by the Tribunal. So, the multiplier in the case should be 16. No dispute has been raised regarding it. 16. The claimants speak about the future prospect of the deceased but there is no evidence whatsoever to suggest that the deceased had ever any better future prospect in career and in absence of any such evidence, such a claim should not be entertained. 17. On the point of interest we do support the view of Mr. Banik. According to the provision of Section 171 M.V. Act interest on award should be allowed on and from the date of the presentation of the claim-petition, till the realisation of the amount of award. Allowing interest in default of payment of the award amount within a prescribed period is not the right approach and according to us, interest should have been awarded in this case from the date of filing of the claim application till its payment. 18. As held above, the monthly income of the deceased was Rs.6,000.00 (rupees six thousand only). So, the annual income of the deceased was Rs.72,000.00 (rupees seventy two thousand only). 18. As held above, the monthly income of the deceased was Rs.6,000.00 (rupees six thousand only). So, the annual income of the deceased was Rs.72,000.00 (rupees seventy two thousand only). An amount of Rs.24,000.00 (rupees twenty four thousand only) being one third of the total income, being deducted on account of personal consumption of the deceased, the figure will be Rs.48,000.00 (rupees forty eight thousand only) and the said income multiplied by 16, the figure will be 7,68,000.00 (rupees seven lakh sixty thousand only) and an amount of Rs.9,500.00 (rupees nine thousand five thousand only) added on account of general damages the final figure comes at Rs.7,77,500.00 (rupees seven lakh seventy-seven thousand five hundred only). As held above the claimants are also entitled to interest on the aforesaid amount @ 6 per cent per annum from the filing of the claim-application, i.e., 12.07.2006 till payment of the same. 19. We are informed by Mr. Das, learned Counsel appearing for the Insurance Company that pursuant to the earlier direction passed by this Court a sum of Rs. 8,96,000.00 (rupees eight lakh ninety-six thousand only) was deposited by the Insurance Company with the learned Registrar General of this Court and a sum of Rs. 5,36,000.00 (rupees five lakh thirty-six thousand only) out of the said deposit, was allowed to be withdrawn by the claimants and the rest amount was invested in short term fixed deposit in the Nationalised Bank. 20. The insurance company is thus directed to pay the balance amount of compensation together with interest from the date of filing of the claim petition till realization thereof less the amount already withdrawn by the respondents out of the deposited amount, to the respondents in the same manner and proportion as directed by the learned Tribunal in the impugned order within six weeks from date. 21. Be it mentioned here that liability to pay interest on the amount already withdrawn by the respondents will cease to operate from the date of withdrawal of the same by the claimants. 22. The insurance company is thus permitted to receive the amount still lying in deposit together with accumulated interest thereon from the learned Registrar General of this Court who is directed to refund the said amount to the Insurance Company upon compliance of necessary formalities in this regard. 23. 22. The insurance company is thus permitted to receive the amount still lying in deposit together with accumulated interest thereon from the learned Registrar General of this Court who is directed to refund the said amount to the Insurance Company upon compliance of necessary formalities in this regard. 23. The award by the Tribunal is modified as stated above and the Appeal and the cross-objection are accordingly disposed of. 24. Urgent certified photocopy of this judgment, if applied for, be supplied to the learned Counsels for the parties upon compliance of all formalities. Jyotirmay Bhattracharya. J. : I agree.