Research › Search › Judgment

Calcutta High Court · body

2015 DIGILAW 8 (CAL)

Baidyanath Hansda v. United India Insurance Co. Ltd.

2015-01-08

JYOTIRMAY BHATTACHARYA, TAPASH MOOKHERJEE

body2015
Judgment Jyotirmay Bhattacharya, J. This first miscellaneous appeal is directed against the Judgment and/or Award dated 15th March, 2012 passed by the Learned Additional District Judge, 2nd Court, Bankura in Motor Accident Claim Case No. 44 of 2011 (M.A.C.C No. 86 of 2009) at the instance of the claimants. Admittedly, the victim Smt. Chhabi Hansda died in a motor accident on 23rd April, 2009 due to rash and negligent driving of one tractor bearing No. WB-55/2986 which was insured under a policy of insurance issued by the United India Insurance Company Limited. The claimants are the legal heirs and representatives of the said victim. Claimant No.1 is the husband of the victim and the other two claimants are her minor children. The claimants claimed that the victim was working as a daily labourer in a brick field and she used to earn Rs.3000/- per month. They further claimed that at the time of her death, she was aged about 25 years. They claimed a sum of Rs.3,00,000/- on account of compensation. The Learned Tribunal held that the claimants failed to produce any documentary evidence to prove the income of the deceased as Rs.3000/- per month. The Learned Tribunal fixed the notional annual income of the deceased at Rs.24,000/-. Considering the age of the victim as 25 years on the date of death, the Learned Tribunal held that the appropriate multiplier would be 17. Thus, the Learned Tribunal assessed the compensation at Rs.2,80,000/- The Learned Tribunal directed the Insurance Company to pay the said compensation amount to the minor children of the deceased viz. the claimant Nos. 2 and 3 in equal share within 30 (thirty) days from the date of receiving copy of this judgment, failing which the Insurance Company was directed to pay interest on such awarded amount @8% per annum until realisation. The legality and/or propriety of the said award is under challenge before us in this appeal at the instance of the claimants. Mr. Banik, learned advocate appearing for the claimants/appellants submits that since the victim died in the motor accident in the year 2009, the Learned Tribunal ought to have held that the daily income of the victim was not less than Rs.150/- by applying the principle as laid down by the Hon’ble Supreme Court in the case of Laxmi Devi & Ors. Vs. Mohammad Tabbar & Anr. Vs. Mohammad Tabbar & Anr. reported in 2008 (2) TAC P 394 (S.C.) Mr. Banik further submits that since the victim was aged about 25 years at the time of her death, the Learned Tribunal ought to have accepted the multiplier of 18 by following the structured formula mentioned in the second schedule under the Motor Vehicles Act. Thus, according to Mr. Banik the compensation which was awarded by the Learned Tribunal, was inappropriate in the facts of the instant case. He invited us to assess the compensation payable to the claimants by accepting the daily earning of the victim as Rs. 150/- and by applying the multiplier of 18 as the victim was 25 years old at the time of her death. Mr. Kundu, learned advocate appearing for the Insurance Company refuted such submission of Mr. Banik by drawing our attention to the Cross-examination of the claimant No.1 who stated in his Cross-examination that the daily earning of the victim was Rs.50/- to 60/-. He also stated in his evidence that the victim did not regularly attend her duties in the brick field. Be that as it may, having regard to such admission made by the claimant No.1 who is none but the husband of the victim, in his evidence that the victim used to earn Rs.50/- to 60/- per day, we hold that the Learned Tribunal ought not to have assessed the notional annual income of the deceased at Rs.24,000/- per annum. Since the admission is best piece of evidence, we have no hesitation to hold that the victim used to earn not more than 60/- rupees per day. Thus, her monthly income should have been assessed at Rs.1800/-. If 1/3rd is deducted from the said sum of Rs.1800/- on account of her personal and living expenses, then the loss of dependency of the claimants will be Rs.1200/- per month. Thus, the annual loss of dependency of the claimants will be Rs.14,400/-. Let us now consider the dispute with regard to the age of the victim at the time of her death. Thus, the annual loss of dependency of the claimants will be Rs.14,400/-. Let us now consider the dispute with regard to the age of the victim at the time of her death. Though the husband of the victim claimed that his wife was aged about 25 years at the time of her death but after considering the age of her son who was aged about 17 years at the time of his mother’s death, it is hard to believe that the victim was aged about 25 years at the time of her death. However, after considering the fact that the findings of the Learned Tribunal about the age of the victim as 25 years at the time of her death, having not been assailed by the Insurance Company, we find no reason to disturb such finding of the Learned Tribunal. Thus, following the structured formula mentioned in the second schedule under the Motor Vehicles Act, we hold that 18 would have been the appropriate multiplier in the instant case. Thus, if we multiply the annual loss of dependency of Rs.14,400/- x 18, then the total loss of dependency will be Rs. 2,59,200/- and in addition thereto, the claimants are also entitled to an additional amount of Rs.9,500/- on account of statutory compensation. Thus, we hold that the claimants were entitled to Rs.2,68,700/-. In the present case, we find that the Learned Tribunal assessed the compensation amount at Rs.2,80,000/-. We are informed by the Learned advocates appearing for the parties that the said award has already been satisfied by the Insurance Company. Having regard to the fact that compensation was fixed by the Learned Tribunal at the higher side and the said award having been satisfied by the Insurance Company, we do not like to interfere with the impugned award. We, however, modify the award by declaring that the claimants are also entitled to statutory interest under Section 171 of the Motor Vehicles Act on the awarded compensation from the date of submission of the claim petition till realisation thereof. We, thus direct the Insurance Company to pay interest @ 8% per annum on the entire compensation amount from the date of filing of the claim petition before the Tribunal upto the date of actual payment thereof. Such payment should be made to the claimant nos. We, thus direct the Insurance Company to pay interest @ 8% per annum on the entire compensation amount from the date of filing of the claim petition before the Tribunal upto the date of actual payment thereof. Such payment should be made to the claimant nos. 2 and 3, i.e., the children of the victim who have attained the age of majority in the meantime in equal share directly by account payee cheques to be sent by registered post with A/D within six weeks from the date of communication of the order. The impugned award is thus modified to the above extent. Both the application for expeditious hearing and the appeal are thus disposed of. Urgent Photostat certified copy of this order, if applied for, be supplied to the Learned advocate for the appellant immediately.