Mahammad Ali Mondal vs Snehasish Mukhopadhyay and Others

Jyotirmay Bhattacharya, J—This first miscellaneous appeal was filed beyond the prescribed period of limitation. There was 42 days delay in filing this appeal. Reason for the delay has been explained by the appellant/applicant in this application for condonation of delay. It is stated therein that due to the accident, the appellant became permanently disabled to the extent of 50%. He lost his left hand from his wrist. It is further stated therein that he could not collect necessary fund for filing the appeal earlier. However, immediately after receiving the awarded compensation amount from the Insurance Company, he filed the instant appeal.

Considering the explanation given by the appellant in his application for condonation of delay, we are of the view that the reason for the delay has been sufficiently explained by the appellant/applicant in this application for condonation of delay. Accordingly, delay in filing this appeal is condoned. Let the appeal now be registered.

The application for condonation of delay being CAN 5929 of 2014 is thus disposed of.

Re: FMAT 559 of 2014

Immediately after the delay in filing the appeal is condoned and the appeal is regularized, we are requested by the learned Advocates appearing for the parties to consider the appeal on merit by dispensing with the requirement of filing paper book in this appeal. We are also informed by the learned Advocates of the parties that the appeal is of such nature which can be decided on the materials available before us. Accordingly by consent of the parties, we have taken up the appeal itself for hearing by dispensing with the requirement of filing paper book in this appeal.

Since the Insurance Company has already entered appearance and the primary liability to pay the compensation amount is of the Insurance Company, the requirement of service of notice of appeal upon the owner of the offending vehicle is dispensed with, on the prayer of the learned Advocate appearing for the appellant.

This first miscellaneous appeal is directed against an award dated 11th December, 2013 passed by the learned Motor Accident Claims Tribunal, 2nd Court of Additional District Judge, Krishnanagar, Nadia in M.A.C. Case No. 431/2011 at the instance of the claimant. It is contended by the claimant that the learned Tribunal failed to assess the just compensation payable to the claimant while passing the award. Accordingly, the appellant invited us to interfere with the impugned award.

In connection with this appeal, a cross-objection has also been taken out by the Insurance Company for challenging the legality of the said award passed by the learned Tribunal. It is contended therein that the claimant is not entitled to get any compensation from the Insurance Company as he also contributed negligence to the cause of the accident. Thus the Insurance Company has also invited us to set aside the impugned order.

Let us now consider the merit of this appeal and the cross-objection filed in connection therewith in the facts of the instant case.

Here is the case where we find that the claimant was injured in an accident occurred on 19th September, 2011 due to rash and negligent driving of the Bus being Registration No. WB57A/0721. At the time of the said accident, the claimant was sitting on the metal portion of the road where -accident occurred. He was a mason by profession and he used to earn a sum of Rs. 5,000 per month. Since the claimant lost his left hand from the position of his wrist in the said accident, the doctor has certified the extent of his permanent disablement as 50%. He was 45 years old at the time of the accident. He thus filed the said claim petition under Section 166, of the Motor Vehicles Act claiming a sum of Rs. 5,50,000 as compensation.

The owner of the offending vehicle did not contest the claim petition. The Insurance Company contested the said claim petition of the claimant by filing written objection denying the material allegations therein. According to the Insurance Company, the claimant is not entitled to get any compensation as he contributed negligence to the cause of such accident. It was stated therein that at the time of such accident, the claimant was sitting on the metal portion of the road. It was further contended that the metal portion of the road is not a place for taking rest for anybody and as such if an accident occurs causing injury to such a person who was taking rest on the metal portion of the said road, he cannot claim compensation. The occurrence of the accident itself and the injury sustained by the claimant due to such accident was denied by the Insurance Company. The Insurance Company also denied the claimant''s income of Rs. 5,000 per month. It was also contended by the Insurance Company that the driver of the offending vehicle had no valid driving licence and valid permit to drive the vehicle and as such the Insurance Company cannot be held liable to pay compensation.

After considering the aforesaid materials on record, the learned Tribunal disposed of the said claim petition of the claimant by holding, inter alia, that the claimant is entitled to get a sum of Rs. 3,00,000 as compensation for the injury he sustained due to road traffic accident. The Insurance Company was directed to pay such compensation to the claimant within 30 days from the date of the said order by way of crediting the said sum of Rs. 3,00,000 to the bank account of the claimant through NEFT with a rider that in case such payment is not made to the claimant within the stipulated period, the Insurance Company will have to pay interest @ 6% per annum from the date of filing of the claim petition.

Let us now consider as to whether the learned Tribunal was justified in coming to the conclusion that the applicant was entitled to get a sum of Rs. 3,00,000 as compensation for the injury he sustained.

The cause of accident due to rash and negligent driving of the offending vehicle remains unchallenged. Though it is true that the metal portion of the road is not a place for taking rest, but merely because of the fact that the applicant was sitting on the metal portion of the road, he cannot be denied of payment of compensation, if it is found that such accident occurred due to rash and negligent driving of the offending vehicle. In other words, we will have to consider as to whether by taking sufficient care, the accident which occurred could have been avoided by the driver who was driving the offending vehicle. The driver of the offending vehicle was not examined in the instant case. As such, we are of the view that the accident occurred due to rash and negligent driving of the offending vehicle by its driver. As such, We agree with the findings of the learned Tribunal that the applicant sustained such injury due to rash and negligent driving of the offending vehicle by its driver. The appellant is thus entitled to get compensation.

Let us now consider as to whether the amount of compensation which was awarded in favour of the claimant was just in the facts of the instant case.

Though the applicant claimed that he used to earn a sum of Rs. 5,000 per month, he could not produce any reliable evidence for enabling us to come to the conclusion that he used to earn a sum of Rs. 5,000 per month. However, since the accident occurred in 2011, we, by following the principle as laid down by the Hon''ble Supreme Court in the case of Laxmi Devi and Others Vs. Mohammad Tabbar and Another, (2008) ACJ 1488 : AIR 2008 SC 1858 : (2008) 2 CTC 621 : (2008) 4 JT 637 : (2008) 151 PLR 452 : (2008) 4 SCALE 983 : (2008) 12 SCC 165 : (2008) AIRSCW 2605 , can safely hold that the income of the deceased at the time of his accident was not less than Rs. 100 per day, as the Hon''ble Supreme Court in the said decision held that even an unskilled labourer could have earned Rs. 100 per day in 2004. Thus, we hold that the learned Tribunal did not commit any illegality in assessing the compensation by accepting the notional income of the claimant as Rs. 3,000 per month.

We, however, hold that while assessing such compensation, the learned Tribunal ought not to have deducted 1/3rd from his total income on account of his personal expenses as this is not a case of fatal accident. He is still alive. As such, he is still required to spend 1/3rd of his total income for his personal expenses. As such, deduction of 1/3rd from his monthly income which was done by the learned Tribunal while assessing the compensation payable to the claimant was not justified. We thus hold that the notional yearly income of the claimant was Rs. 36,000.

Having regard to the fact that the claimant was aged about 45 years at the time of such accident, the learned Tribunal correctly selected the multiplier of 15 in the instant case.

Let us now assess the compensation which is payable to the claimant on account of pecuniary loss.

Having regard to the fact that his yearly income was Rs. 36,000 and if his said yearly income of Rs. 36,000 is multiplied by 15, then we find that his pecuniary loss was Rs. 5,40,000 (Rs. 36,000 x 15 = Rs. 5,40,000 Since the extent of his permanent disability was certified by the doctor as 50%, he thus lost his earning capacity to the extent of 50% of Rs. 5,40,000. Thus, his actual pecuniary loss will be Rs. 2,70,000. In addition thereto, he is entitled to get a sum of Rs. 10,000 on account of medical expenses. So far as the non-pecuniary damages are concerned, we award a consolidated sum of Rs. 1,00,000 on account of non-pecuniary loss.

Thus, we hold that a sum of Rs. 3,80,000 (Rs. 2,70,000 + Rs. 10,000 + Rs. 1,00,000 = Rs. 3,80,000) would be just compensation which is payable to the claimant.

We direct the Insurance Company to pay a sum of Rs. 3,80,000 to the claimant on account of compensation together with interest @6% per annum from the date of filing of the claim petition till such amount of compensation is paid up.

We are informed by Mr. Roy, learned Advocate appearing for the Insurance Company that pursuant to the direction passed by the learned Tribunal in the award, the Insurance Company has already paid a sum of Rs. 3,00,000 to the claimant. Such contention of Mr. Roy is not disputed by the learned Advocate appearing for the claimant/appellant. As such, we direct the Insurance Company to pay the balance amount of Rs. 80,000 to the claimant within three weeks from date. The Insurance Company is further directed to pay interest @ 6% per annum on the amount of compensation already paid i.e. Rs. 3,00,000 from the date of filing of the claim petition up to the date of payment thereof. We further direct the Insurance Company to pay interest @ 6% per annum on the balance awarded compensation of Rs. 80,000 from the date of filing of the claim petition till the payment thereof. Such payments should be made by the Insurance Company in the same mode of payment as prescribed by the learned Tribunal in the impugned award.

The impugned award of the learned Tribunal is modified accordingly. The appeal is thus disposed of.

Re: COT 11 of 2015

The cross-objection filed by the Insurance Company/respondent No. 2 is also disposed of accordingly.

Urgent photostat certified copy of this order, if applied for, be given to the parties as expeditiously as possible.