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2024 DIGILAW 361 (CAL)

United Insurance Co. Ltd v. Sonali Das Roy

2024-02-19

SUBHENDU SAMANTA

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JUDGMENT : Subhendu Samanta, J. 1. The instant appeal is preferred against a judgment and award dated 6th January 2014 passed by the Learned Judge, Motor Accident Claims Tribunal 1st ADJ Alipur, in MAC Case No. 3 of 2009. 2. The brief fact of the case is that the present respondent filed an application u/s 166 of Motor Vehicles Act before the Learned Tribunal for getting compensation on the ground that her only unmarried son Lalu Roy alias Debu Roy died in a road traffic accident due to rash and negligent driving of the driver of the offending vehicle duly insured under the policy of the Insurance company. 3. During the pendency of the claim application, claimant expired and the present respondent was substituted at his place. The claim case was contested by the Insurance Company by filing written statement. After hearing the parties and after receiving evidences the Learned Tribunal has awarded a sum of Rs. 1,24,500/-in favour of the claimant and directed the Insurance Company to pay the compensation. 4. Being aggrieved by and dissatisfied with the said award the present appeal has been preferred by the Insurance Company. The claimant also preferred one cross-appeal being COT 43 of 2015. The appeal and the cross-appeal by taken up together for uniformity of decisions. 5. Learned Advocate for the Insurance Company submits that the present respondent/claimant is the married sister of the deceased. The married sister is not at all dependant upon the income of the deceased. She is living at her husband’s house; so the respondent/claimant is not entitled to get any compensation. 6. He further argued that the driver of the offending vehicle was not possessed the requisite driving license at the time of accident. Thus, the insurance company is not liable to pay the compensation rather owner of the offending vehicle is required to pay the compensation. He further argued that the income adopted by the Learned Tribunal is erroneous and deduction towards the personal expenses should be 50% as the deceased was a bachelor. On the above grounds, he prayed for dismissal on the impugned award. 7. The learned Advocate appearing on behalf of the claimant/cross objector submits that the Learned Tribunal has not considered the law of the land to award the compensation in favour of the claimant. The income of the deceased was erroneously taken to be 15,000/-per anumm. On the above grounds, he prayed for dismissal on the impugned award. 7. The learned Advocate appearing on behalf of the claimant/cross objector submits that the Learned Tribunal has not considered the law of the land to award the compensation in favour of the claimant. The income of the deceased was erroneously taken to be 15,000/-per anumm. The observation of the Learned Tribunal is erroneous. The deceased was a hawker of Ganashakti Patrika and other magazine seller. So, his notional income cannot be less than 3,000 per month. He further argued that the claimant are entitled to get future prospects and general damages according to the observation of the Hon’ble Supreme Court passed in National Insurance Company Vs. Pranay Sethi. 8. Refuting the contention of the Learned Advocate for the Insurance Company he submits that the claimant is the sole legal heir of the deceased and was always dependent upon the income of the deceased. She is entitled to get the compensation. 9. Heard the Learned Advocate. Perused the materials on record it appears that the deceased was a bachelor and the claim case was filed by the mother of the deceased. After demise of the original claimant the present respondent being the sole legal heir was substituted. The present respondent being the sister of the deceased is legally entitled to represent estate of the deceased. Accordingly the claimant/respondent is entitled to get the compensation. 10. In considering the driving licence possessed by the driver of the offending vehicle. It appears to me that the investigation of the police arising out of the said accident was concluded by filing charge sheet. It has been stated in the final report that the offending scooty was driving by one Anirban Bose (accused) possessing the DL No. – WB 01-297376. The Insurance Company has produced one UDA of Beltala Motor Vehicles Department as DW 1. 11. The said DW 1 has produced extract of driving licence before the Tribunal. On production of such DL he deposed that, the DL was issued in the name of one Kailash Roy. He further stated that the person possessing the DL is authorised for driving LMV, non-export. The driver was not authorise to drive scooter or motor cycle with or without gear. 12. On production of such DL he deposed that, the DL was issued in the name of one Kailash Roy. He further stated that the person possessing the DL is authorised for driving LMV, non-export. The driver was not authorise to drive scooter or motor cycle with or without gear. 12. Considering the evidence of DW 1 it appears to me that the driver of the offending vehicle had not possessed required driving licence to drive the scooter. Thus in this case the Insurance Company has no liability to pay the compensation. 13. However, according to the direction of the Hon’ble Apex Court in National Insurance Company limited Vs. Swaran Singh. The Insurance Company may be directed to pay the compensation to the third party and in tern Insurance Company is at liberty to recover the same from the owner of the offending vehicle. 14. It further appears to me that the deceased was 38 years old at the time of accident so, according to the observation of Hon’ble Supreme Court passed in Sarala Verma and Ors. Vs. Delhi Transport Corporation and Anr. The applicable multiplier would be 15. 15. The deceased was bachelor so, the deduction towards the personal expenses would be 50%. The claimants is entitled to get the future prospects and general damages according to the observation of the Hon’ble Supreme Court in Pranay Sethi (Supra). 16. The deceased was a hawker of Ganashakti Patrika as well as the magazine seller; so his notional income cannot be less than 3,000/-per month. 17. On the basis of the above observation the award passed by the Learned Tribunal need be modified. Monthly Income = 3,000/- Yearly Income = 3,000 X 12= 36,000/- Less 50% deduction = 18,000/- Add 40% future prospects = 7,200/- Total = 25,200/- Multiplier X 15 3,78000/- + General Damages 30,000/- Total = 4,08,000/- 18. After calculation of the award comes to Rs. 4,08,000/-. The claimant has already received Rs. 50,000/-by virtue of order of Tribunal u/s 140 of Motor Vehicles Act, so the balance award comes to Rs. 3,58,000/- 19. The Insurance Company is directed to pay the above mentioned award together with 06% interest per annum from the date of filing of the claim application within 06 weeks from this date through the office of Learned Registrar General High Court, Calcutta. 3,58,000/- 19. The Insurance Company is directed to pay the above mentioned award together with 06% interest per annum from the date of filing of the claim application within 06 weeks from this date through the office of Learned Registrar General High Court, Calcutta. On such deposit the claimant is entitled to get the awarded amount together with the interest according to the prevalent rules from the officer of Learned Registrar General, High Court, Calcutta. 20. The payment of compensation is subject to the ascertainment of payment of deficit court fee, if any. 21. The office of the Learned Tribunal shall act upon, certificate copy of this order to receive the deficit court fee if any. 22. FMA along with pending CAN applications are disposed of. 23. Parties to act upon the server copy and urgent certified copy of the judgment be received from the concerned Dept. on usual terms and conditions.