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2019 DIGILAW 560 (CAL)

National Insurance Co. Ltd. v. Sandhya Devi

2019-05-02

HARISH TANDON, HIRANMAY BHATTACHARYYA

body2019
JUDGMENT : 1. The instant appeal is at the instance of the Insurance Company and the same has been preferred against an award dated August 28, 2015 passed by the learned Additional District Judge, 1st Court, Asansol,-cum-Motor Accident Claim Tribunal in M.A.C. Case No. 07 of 2013 where by the claimants got an award of Rs. 29,90,000/- as compensation along with interest at the rate of 6% per annum from the Insurance Company. 2. The claimants being the respondents in the instant appeal filed an application under Section 166 of the Motor Vehicles Act, 1988 praying for compensation on account of death of one Rakesh Bind who met with an accident on October 26, 2011 on N.H.2 near the main gate of D.S.P., Durgapur. It was alleged in the said claim petition that when the victim was going towards Durgapur Bhiringi side from Durgapur main gate, near the main gate, a Bolero vehicle being No. WB-38 U/9695 (hereinafter referred to as "the offending vehicle") dashed him as a result of which he sustained severe injuries on his person. The local people shifted him to Mission Hospital Durgapur, but the Doctor of the said Hospital declared him dead. The death occurred due to the accident which took place as a result of rash and negligent driving by the driver of the offending vehicle. The victim was aged about 39 years at the time of the accident and used to work at Food Corporation of India Durgapur. At the relevant point of time, the deceased used to earn Rs. 38,000/- per month. 3. The owner of the offending vehicle who was impleaded as the Opposite party No. 1, after entering appearance in the said proceeding, filed his written statement denying the material allegations contained in the claim petition but did not participate in the said proceeding any further. As a result, the case was heard ex parte against him. 4. The Insurance Company was impleaded as Opposite No.2 in the said proceeding and contested the same by filing a written statement denying the material allegations contained in the claim petition and prayed for dismissal of the claim petition. 5. The learned Judge of the court below by an award dated August 28, 2015 allowed the Motor Accident Claim case upon holding that the Opposite Party Nos. 5. The learned Judge of the court below by an award dated August 28, 2015 allowed the Motor Accident Claim case upon holding that the Opposite Party Nos. 1and 2 in the claim petition are jointly and severally liable to pay the total compensation amount awarded. The claimants got an award of Rs. 29,90,000/- as compensation along with interest at the rate of 6% per annum from the Insurance Company. The Insurance Company was directed to pay the said compensation amount together with interest at the rate of 6% per annum from the date of application to the claimants within two months from the date of the award, in default, the awarded amount shall carry further interest at the rate of 8% per annum from the date of the order till realisation. 6. Mr. Rajesh Singh, the Learned Advocate appearing on behalf of the Insurance Company/appellant herein assailed the award dated August 28, 2015 on the following points: (1) Non-involvement of the offending vehicle in the instant case due to the delay in lodging of F.I.R.. (2) Treating incentive as a part of salary while assessing the amount of just compensation is unjustified. (3) The evidence of the PW 1 who is one of the claimants is not trustworthy as she could not state the number of the alleged offending vehicle during her cross-examination. (4) The evidence of the eye-witnesses is also not trustworthy. The claimants/respondent herein have filed a cross-objection in connection with the said appeal on the ground that the learned court below while assessing the compensation did not take into consideration the future prospect of the deceased. 7. Mr. Singh, Learned Advocate appearing on behalf of the appellant submits that the accident took place on October 26, 2011 and the F.I.R. was lodged on January 12, 2012 as such there has been a delay of about 77 days in lodging the F.I.R. from the date of the accident. He further submits that the eye-witness was not a listed witness in the criminal case. He also submitted that the charge-sheet submitted by the Police Officer in the criminal case initiated on the complaint relating to the accident does not prove that the accused is responsible for the accident. He further submits that the learned Court below erred in law by treating the incentives to be a part of salary. He also submitted that the charge-sheet submitted by the Police Officer in the criminal case initiated on the complaint relating to the accident does not prove that the accused is responsible for the accident. He further submits that the learned Court below erred in law by treating the incentives to be a part of salary. By placing the summary of the pay slip for the month of October, 2010 to September, 2011 he submits that the incentives is a variable component and the same cannot be treated to be a part of salary for the purpose of assessing the compensation. By referring to the cross-examination of the eye-witness, Mr. Singh submits that the eye-witness has stated to have been at the hospital with the dead body of the injured but did not sign on any document, at the hospital. He argues that the evidence of the eye-witness is not trustworthy as he could remember the registration number of the offending vehicle but cannot state his Pan Card Number and Voter Identity Card Number. 8. The said Learned Advocate submits that the involvement of the alleged offending vehicle could not be proved as one of the claimants who deposed as PW1 could not state in her cross-examination the number of the offending vehicle. 9. Mr. Amit Ranjan Roy, learned Advocate appearing on behalf of the claimants/respondents herein submitted that the evidence of the witnesses on behalf of the claimants taken as a whole proves that the victim died due to rash and negligent driving of the driver of the offending vehicle. He further submits that the delay in making complaint was duly explained in the letter to the police authority and as such the claim petition cannot be dismissed on such ground. In support of his cross- objection Mr. Roy submits that the learned court below ought to have considered the future prospect of the deceased. In this regard he submits that since the victim was aged about 39 years at the time of the accident and had a permanent job, an addition of 50% of actual salary to the income of the deceased towards future prospects is to be made while determining the income of the deceased. In this regard he submits that since the victim was aged about 39 years at the time of the accident and had a permanent job, an addition of 50% of actual salary to the income of the deceased towards future prospects is to be made while determining the income of the deceased. In support of the said submission he refers to paragraph 61 of the decision of the Constitution Bench of the Hon'ble Supreme Court of India in the case of National Insurance Company -vs- Pranay Shethi reported at (2017) 16 SCC 680 . We have heard the learned advocates appearing on behalf of the respective parties and have perused the materials available on records. The accident took place on October 26, 2011 and the victim died as a result of such accident. The widow of the deceased lodged a complaint before the Officer-in-Charge of Durgapur Police Station on January12, 2012. It was specifically stated in the said complaint that the widow had to go to the native village in the State of Bihar to perform the last rituals of the deceased so that the soul of the deceased may rest in peace. This resulted in the delay of lodging the F.I.R.. It is no longer res Integra that the delay in lodging F.I.R. cannot be a ground to doubt the claimant's case. In the Indian Society we cannot expect a common man to rush to the Police Station immediately after an accident takes place. It is quite natural that more importance is given to get the victim treated immediately after the accident takes place rather than to rush to the police Station to lodge a complaint. The Hon'ble Supreme Court in the decision reported at 2011 AIR SCW 1530 (Ravi -vs- Badrinarayan and Ors.) has been held that even if there is a delay in lodging F.I.R. the claim case cannot be dismissed merely on that ground. Paragraph 20 and 21 of the said reported judgment runs thus: "Paragraph 20: 10. It is well-settled that delay in lodging F.I.R. cannot be a ground to doubt the claimant's case. Knowing the Indian conditions as they are, we cannot expect a common man to F.I.R. rush to the Police Station immediately after an accident. Paragraph 20 and 21 of the said reported judgment runs thus: "Paragraph 20: 10. It is well-settled that delay in lodging F.I.R. cannot be a ground to doubt the claimant's case. Knowing the Indian conditions as they are, we cannot expect a common man to F.I.R. rush to the Police Station immediately after an accident. Human nature and family responsibilities occupy the mind of kith and kin to such an extent that they give more importance to get the victim treated rather than to rush to the Police Station. Under such circumstances, they are not expected to act mechanically with promptitude in lodging the F.I.R. with the Police. Delay in lodging the F.I.R. thus, cannot be the ground to deny justice to the victim. In cases of delay, the courts are required to examine the evidence with a closer scrutiny and in doing so; the contents of the F.I.R. should also be scrutinized more carefully. If court finds that there is no indication of fabrication or it has not been concocted or engineered to implicate innocent persons then, even if there is a delay in lodging the F.I.R., the claim case cannot be dismissed merely on that ground." "Paragraph 21: 11. The purpose of lodging the FIR in such type of cases is primarily to intimate the police to initiate investigation of criminal offences. Lodging of FIR certainly proves factum of accident so that the victim is able to lodge a case for compensation but delay in doing so cannot be the main ground for rejecting the claim petition. In other words, although lodging of FIR is vital in deciding motor accident claim cases, delay in lodging the same should not be treated as fatal for such proceedings, if claimant has been able to demonstrate satisfactory and cogent reasons for it. There could be variety of reasons in genuine cases for delayed lodgement of FIR. Unless kith and kin of the victim are able to regain a certain level of tranquillity of mind and are composed to lodge it, even if, there is delay, the same deserves to be condoned. In such circumstances, the authenticity of the FIR assumes much more significance than delay in lodging thereof supported by cogent reasons." 12. The eye witness adduced evidence as PW 2. He narrated in details about the said accident and has also stated the number of the offending vehicle. In such circumstances, the authenticity of the FIR assumes much more significance than delay in lodging thereof supported by cogent reasons." 12. The eye witness adduced evidence as PW 2. He narrated in details about the said accident and has also stated the number of the offending vehicle. He further stated that he had been to the hospital with the dead body of the injured where Bablu Shaw, Sanjay Das and Ravi Singh were present. Sanjay Das, Bablu Shaw and Ravi Singh were all named as witnesses in the said F.I.R.. The Insurance Company could not bring out anything by way of cross-examination of the eye witness which will go to show that the evidence of the eye-witness is not trustworthy. A person who has read only up to Class 3 might not be able to state his Pan Card Number and Voter identity card Number. Failing to do so cannot be a ground for treating the evidence of the eye-witness to be not trustworthy. The mere fact that the name of the eye witness was not mentioned in the F.I.R. cannot be a ground to discard his evidence as has been held by the Hon'ble Supreme Court in the decision reported at AIR 2011 Supreme Court (SC) 1234 (Kusum Lata and Ors. -vs- Satvir and Ors.) It is well known that in a case relating to Motor Accident Claims, the claimants are not required to prove the case as it is required to be done in a criminal trial and the claimants are merely to establish their case on the touchstone of preponderance of probability. A proceeding under Section 166 of the Motor Vehicles Act is inquisitorial in nature and the same does not require the strict proof as in the case of an adversarial litigation. The scheme of the statute and the rules make it imperative for the tribunal to inquire into the question of what is just compensation, fixation of liability, and determining who is to pay what amount and to whom and the requirements of adversarial proceedings take a back seat in the interest of the quest for truth. Reliance may be placed on an unreported decision of the Division Bench of the Hon'ble Court in FMA No. 857 of 2012 with FMAT No. 1415 of 2007 (Srikrishna Kanta Singha -vs- Parameswar Achutanan Nair & Ors.). Reliance may be placed on an unreported decision of the Division Bench of the Hon'ble Court in FMA No. 857 of 2012 with FMAT No. 1415 of 2007 (Srikrishna Kanta Singha -vs- Parameswar Achutanan Nair & Ors.). Since the proceeding of the instant nature is inquisitorial in nature, the strict proof as in an adversarial litigation, is not needed and after considering the evidences as available on record it is evident that the victim died due to the accident which took place as a result of rash and negligent driving of the driver of the offending vehicle. 13. It appears from the statement of the salary for the period of October, 2010 to September, 2011 that incentives are a part of salary as per the condition of service. The said incentive is taken into consideration for the purpose of arriving at the Gross earning of an employee of the FCI and the Income Tax is deducted on the said amount. The employer has treated the said incentive as a part of the salary and thus we are of the view that the said incentive is a part of salary and the same is to be taken into consideration for the purpose of determining the amount of compensation. The learned Judge of the court below was perfectly justified in holding that the annual income of the deceased after deduction of 30% income tax is Rs. 2,97,500/-. After deducting 1/3rd income as personal expanses the actual salary of the deceased after deduction comes to Rs. 1,98,000/-. Thus, we find that there is no force in the submission of Mr. Singh, the Learned Advocate for the appellant, and the instant appeal fails. 14. However, we find substance in the submission of Mr. Roy, Learned Advocate for the respondent that the learned court below erred in law by not taking into consideration the future prospect of the deceased while determining the income for the purpose of assessing the compensation amount. The Constitution Bench of the Hon'ble Supreme Court of India in the case of Pranay Sethi (supra) has held that where the deceased had a permanent job and was below the age of 40 years, an addition of 50% of actual salary to the income of the deceased towards future prospects should be made. The Constitution Bench of the Hon'ble Supreme Court of India in the case of Pranay Sethi (supra) has held that where the deceased had a permanent job and was below the age of 40 years, an addition of 50% of actual salary to the income of the deceased towards future prospects should be made. Paragraph 61 (iii) of the said judgment runs thus: "Paragraph 61(iii): In view of the aforesaid analysis, we proceed to record out conclusions: (iii) while determining the income, an addition of 50% of actual salary to the income of the deceased towards future prospects, where the deceased had a permanent hob and was below the age of 40 years, should be made the addition should be 30%, if the age of the deceased was between 40 to 50 years. In case the deceased was between the age of 50 to 60 years, the addition should be 15%. Actual salary should be read as actual salary less tax". 15. In the instant case the victim was aged about 39 years at the time of accident, and as such 50% of actual salary after deduction of tax is to be added with the income of the deceased towards future prospect. The cross-objection of the respondents is allowed to the extent as indicated above and the award dated August 28, 2015 is modified only to that extent. 16. It appears from the order dated September 16, 2016 that the appellant has deposited Rs. 37,45,972/- with the Registrar General of this Hon'ble Court. 17. The claimants are given liberty to file application before the Registrar General, High Court, Calcutta praying for release of the amount which the claimants are entitled to in terms of this judgment. The Registrar General is directed to release the amount in favour of the claimants in terms of this judgment and in the proportion as indicated in the award dated August 28, 2015. The said amount is to be released by the Registrar General, in favour of claimants with a period of fortnight from the date of this judgment and upon verifying the identity of the respective claimants. Such payment is to be made by account payee cheques drawn in the name of the respective claimants and the said cheques are to be en-cashed through the bank accounts standing in the individual names of the claimants. 18. Such payment is to be made by account payee cheques drawn in the name of the respective claimants and the said cheques are to be en-cashed through the bank accounts standing in the individual names of the claimants. 18. The Insurance Company is directed to pay the balance amount in terms of this order to the claimants. The Insurance Company shall remit the same to the bank accounts standing in the individual names of the claimants through Electronic means within a period of fortnight from the date of furnishing the particulars of the bank accounts by the claimants to the Insurance Company. 19. The instant appeal is accordingly dismissed and the cross- objection is allowed. 20. There shall be however no order as to costs. 21. Photostat certified copy of this order, if applied for, be supplied to the applicant expeditiously, subject to compliance of all the required formalities. I agree.