Asit Hait And Others vs Oriental Insurance Company Limited

It is unfortunate that no steps were taken to attend to this matter for nearly two decades. As it transpires, the accident was of the year 1989 and till 2019 there has been no closure.

The original first appellant has died and her name has been struck off from the array of parties since her heirs are already on record. The original first appellant was the widow of the victim who was killed in the motor accident on July 5, 1989.

By the impugned award dated February 14, 2001 the claim under Section 110A of the Motor Vehicles Act, 1939 was rejected since the tribunal was not satisfied that rash and negligent driving on the part of the offending vehicle was established. Further, the tribunal was not satisfied that the claimants were dependent on the victim and the tribunal recorded that there was no evidence that the 65-year-old victim earned Rs.2,000/- a month.

It appears from the records that one Sintu Biswas was examined as PW-3. Such witness claimed that he was at a tea-stall near the place of occurrence and saw the accident from the tea-stall. Such witness described that a bus approached the place of occurrence from the Howrah side at a high speed and, though victim Kanailal Hait was standing on the opposite side of the road, the bus tried to overtake another vehicle and knocked the victim down. The witness indicated the registration number of the vehicle and asserted that the accident took place because of the negligence of the driver and the nature in which he was driving at the time.

Such evidence is not discussed in the impugned award in any great detail apart from noticing that the witness may have been alerted by the hue and cry after the accident took place and may not have been a witness to the accident taking place. The stray sentence from the cross-examination of the witness cannot be understood to imply that the witness did not see the offending vehicle being driven in a rash and negligent manner or that such offending vehicle was attempting to overtake another vehicle and had crossed over to the other side of the road. It is true that the witness said that he was talking to others at the tea-stall, but it is possible that he had seen the manner in which the offending vehicle was being driven, though he may not have been attentive enough to notice that it had knocked a pedestrian down before the hue and cry was raised. What is of importance is that the manner in which the offending vehicle was driven at the time was established, even if it be acknowledged that the witness may not have seen the victim being hit by the offending vehicle. The cross-examination was not elaborate; in the sense that witness was not asked of his relative position qua the bus and the victim. If the bus had crossed the witness and had then knocked the victim down, it would have been difficult for the witness to see the accident, though the witness could have given a perfect account of the manner in which the offending vehicle was being driven at the time of occurrence.

It is true that the victim was 65 years old at the time of his death, but in the absence of anything contrary being demonstrated, a nominal income of about Rs.2000/- a month does not appear to be too much of an exaggeration. The claimants have waited for nearly 30 years and even though the matter has to be governed under the 1939 Act which has been replaced by the 1988 Act and the successor statute has been modified several times since, the assessment made herein is on the basis of the law as it stands at present without awarding the full quantum on account of general damages.

By accepting the income of the victim at the time of his death to be Rs.2000/- a month and annualising the same and applying the multiplier of seven, the product comes to Rs.1,68,000/- from which one-third has to be deducted in lieu of personal expenses of the victim, leaving the net amount of Rs.1,12,000/-. In addition, the widow was entitled to loss of consortium and the claimants were collectively entitled to funeral expenses. Upon adding a further amount of Rs.55,000/- on such account, the gross amount of compensation works out to Rs.1,67,000/- together with interest thereon at the rate of 8 per cent per annum from the date of lodging the claim till the receipt of payment.

The insurance company should calculate the amount due to the claimants in terms of this order correct upto October 31, 2019 and deposit such amount with the appropriate tribunal by November 15, 2019 so that the tribunal can hand over the money to the claimants upon proper verification and identification.

FMA 399 of 2001 is disposed of.

Let the records of the tribunal be immediately sent down.

There will be no order as to costs.

Urgent certified website copies of this order, if applied for, be made available to the parties upon compliance with the requisite formalities.