Manju Roy And ORS v. Icici Lombard General Insurance Company Ltd. And ORS

01.08.

IN THE HIGH COURT, CALCUTTA

CIRCUIT BENCH AT JALPAIGURI CIVIL APPELLATE JURISDICTION FMA 12 of 2023 Smt. Manju Roy & Ors.

Versus

ICICI Lombard General Insurance Company Limited & Ors.

Mr. Gobinda Saha, Mr. Tamal Kr. Sen, Mr. Milan Ch. Laskar, Ms. Priyanka De. ..... For the Appellants. Mr. Hirak Barman.

..... For the Respondent/Insurance Company.

1. This appeal is directed against the judgment and Ct KS award passed by the learned Motor Accident Claim Tribunal (Additional District Judge, 1st Court, Siliguri) in connection with M.A.C. Case No.103(9) of wherein learned Tribunal awarded compensation to the tune of Rs.3,21,500/- after applying multiplier 13 and notional income of Rs.3,000/-.

2. From claim petition, it is found that one, Goutam @ Gautam Roy died in a motor accident by the involvement of one Maruti Van bearing Registration No. WB - 74-AA-1325 due to rash and negligent driving on 13.08.2023 at about 3:30 p.m. while the said Goutam @ Gautam Roy, since deceased, was going to Khoribari from

Ghoshpukur by his motorcycle bearing Registration No.WB-72-C-8747. In the result, Khoribari Police Station Case No.176/13 dated 14/08/2013 under Sections 279/304 of the Indian Penal Code was started and after investigation, charge sheet was submitted against the driver of the offending vehicle, which was duly insured with the ICICI Lombard General Insurance Company Limited at the relevant point of time.

3. Accidental death of Goutam @ Gautam Roy was duly corroborated by P.W.2, who stated in his evidence that on 13.08.2023, he was standing in front of gate of Sachindra Tea Factory and witnessed the accident by involvement Maruti Van bearing Registration No.WB-74-AA-1325 coming from the side of Khoribari towards Ghoshpukur with high speed.

4. That apart, it was further supported by the written complaint (Exhibit -10), Seizure Lists (Exhibit - 11 &

12) and charge-sheet (Exhibit - 23).

5. This appeal has been filed on the ground that the learned Tribunal did not consider the appropriate notional income, future prospect and general damages and also the interest in terms of Section 171 of the Motor Vehicles Act, 1988.

6. Learned counsel appearing on behalf of the appellants relied on a case of Muhammed Vs.

United India Insurance Co. Ltd. & Ors. reported in 2023 ACJ 894 and submitted that notional income of Rs.3,000/- is not at all appropriate even in terms of market price in the year 2013.

7. Learned counsel appearing on behalf of the respondent/Insurance Company relied on an unreported case in F.M.A. 32 of 2023 (Khukibala Das & Ors. Vs. The Oriental Insurance Co. Ltd. & Anr.), wherein Co-ordinate Bench of this Court held Rs.4,000/- as notional income for an accident alleged to have been taken place in the year 2014.

8. Learned Tribunal in the impugned judgment took notional income of the deceased at the relevant point time as Rs.3,000/- for assessing compensation.

9. Considering the ratio of Muhammed (supra), I find no other alternative but to hold notional income as Rs.6,000/- per month, which was assessed by the Hon'ble Apex Court for an accident which took place in the year 2008, whereas the accident alleged in the case at hand, took place in the year 2013.

10.

With regard to issue of future prospect and general damages, learned counsel on behalf of the appellants/claimants has submitted that learned Tribunal did not consider the future prospect as well as appropriate general damages in terms of the principle laid down by the Hon'ble Apex

Court in National Insurance Company Limited Vs. Pranay Sethi & Ors. reported in 2017 ACJ 2700.

11.

From the evidence of P.W.3, it appears that at the relevant of point of time, Goutam @ Gautam Roy was an employee of Das Agro Fertilizer and he used to earn Rs.9,500/-. In course of evidence, P.W.3 employer of the company could not file any other documents even salary register and that is why, the learned Tribunal did not consider the income in terms of salary certificate only.

12.

According to Pranay Sethi (supra), the claimants are entitled to future prospect and general damages along with the compensation awarded in favour of the claimants. That apart, learned Tribunal erred in taking multiplier 13 instead of 14. It is also apparent from the impugned award that the learned Tribunal did not consider the interest on the awarded compensation from the date of filing of the claim application in terms of Section 171 of the Motor Vehicles Act.

13.

In the aforesaid view of the matter, I modify the award of compensation in the following manner:-

1. Monthly Income be assessed as Rs.6,000/-

2. Annual Income be assessed as Rs.72,000/-

3. Future Prospect be assessed 25% i.e. Rs.18,000/-

4. Total Yearly Income Rs.90,000/-

5. Deduction 1/3rd on account of personal living expenses Rs.30,000/- Total Income = Rs.60,000/-

6. Use of Multiplier as per age of 43 (Rs.60,000/- X 14) = Rs.8,40,000/-

7. General Damages including loss of consortium, Loss of estate and funeral expenses Rs.70,000/-

8. Total Rs.9,10,000/- 14.

Therefore, the claimants are entitled to get the total compensation to the tune of Rs.9,10,000/- along with simple interest @ 6% per annum from the date filing claim application i.e.

26/09/2013.

15.

It is submitted on behalf of the Insurance Company that the awarded amount of Rs.3,21,500/- has already been received by claimants/appellants.

16.

Accordingly, Insurance Company is directed to pay the rest amount i.e. Rs.(9,10,000/- -3,21,500/-) =Rs.5,88,500/- along with simple interest @ 6% per annum on the entire awarded sum from the date of filing of the claim application i.e. 26/09/2013 within six weeks before the learned Tribunal by issuing three separate cheques in equal proportion from date.

17.

It is also directed that in the matter of minor daughter, the amount shall have to be deposited in

interest bearing fixed deposit scheme with any Nationalized Bank till she attained the age of majority.

18.

Learned Tribunal is requested to disburse the said cheques in equal proportion subject to payment of deficit Court fees, if any, by the appellants in terms enhanced compensation to appellants/claimants on proper identification and proof.

19.

With the above observation, the appeal being FMA 12 of 2023 stands disposed of.

20.

All pending applications, if there be any, stands disposed of.

21.

Department is directed to transmit the records of the learned Tribunal along with a copy of this order immediately.

22.

Urgent photostat certified copy of this order, if applied for, be given to the parties, upon compliance of necessary formalities.

(Bibhas Ranjan De, J.)