Smt. Gita Ghosh (Basu) vs The Chairman-Cum-Managing Director, SBSTC

Biswaroop Chowdhury, J:

The appellant before this Court was a claimant in a case under Section 166 of the Motor Vehicles Act 1988 and is aggrieved by the Judgment and award dated 29^th August 2016 passed by Learned Additional District Judge 5^th Court Burdwan in MAC 13/74 of 2013.

The case of the claimant before the Learned Trial Court may be summed up thus:-

On the fateful date and time the victim went out in his house in order to attend his Office at Zilla Parishad Burdwan with his own Motor Cycle no. WB-42T/3919 and while he reached near Bam Bambabattala Anamoy Hospital on GT Road suddenly the offending bus coming from Kolkata and towards Durgapur with very high speed in rash and negligent manner by coming to its wrong side dashed the victim from behind resulting which the victim sustained severe bleeding injuries and died at the spot. Rash and negligent driving on the part of the driver of the said bus was the sole-cause of pathetic accident. The victim was the sole earning member of his family and the petitioner was dependent upon him and the victim as well as the petitioner had no issue and due to sudden demise the petitioner has suffered a great loss besides suffering from pain and mental agony.

Pursuant to the filing of the case notice was issued upon the respondent/opposite party. The respondent/opposite party filed written statement and contested the case. Issues were framed and evidence was adduced. Learned Trial Judge upon considering the evidence adduced and upon hearing the Learned Advocates was pleased to dispose the claim case by observing and directing as follows:-

The claimant/appellant being aggrieved by the quantum of compensation the Learned Trial Judge has preferred the instant appeal. The respondent Chairman-cum-managing Director South Bengal State Transport Corporation being also aggrieved by the Judgment and award passed by the Learned Trial Judge has filed Cross-objection.

Heard Learned Advocate for the appellant and Learned Advocate for the respondent. Perused the evidence adduced and materials on record.

Learned Advocate for the appellants/claimants submits that the Learned Trial Judge erred in applying multiplier of 2 as the multiplier to be applied is 8.

Learned Advocate further submits that the Learned Judge erred in deducting from salary contribution to GPF and payment to co-operative and not confining deduction to income tax and profession Tax. Learned Advocate also submits that compensation awarded should be enhanced.

Learned Advocate for the respondent SBSTC submits that the FIR was lodged after 21 days. Thus the case of the claimant is doubtful. Learned Advocate further submits that although P.W. 2 is an eye-witness but P.W. 1 stated him to be nephew but P.W. 2 did not state that he is nephew thus the evidence are contradictory. Learned Advocate further submits that P.W. 2 in Examination in chief has stated that the offending vehicle being Government Bus bearing No. WB. 39A/1345 overtook him at high speed and recklessly hit a motor cycle but in cross examination he stated that name of the route of the bus was written on the front side of the bus. It is submitted that when vehicle overtook him it was not possible to see the front side of the vehicle. Thus the evidence is not reliable.

With regard to the first submission of Learned Advocate for the respondent SBSTC that FIR is lodged after 21 days it is decided in different judicial pronouncements that mere delay in lodging the FIR is not fatal. In Indian society family members of injured rushes to hospital and not to Police Station. In the instant case the wife of the victim has explained why delay was caused in lodging FIR thus this delay is not fatal. With regard to the evidence of P.W. 2 Manik Dutta who has claimed himself to be eye witness of the case in his evidence has stated how the accident took place. Although the said witness was cross-examined but nothing could be shaken with regard to he being at the place of occurrence and witnessing the accident. He has specifically stated that the victim was riding a TVS super Motor Cycle. On the said day he noticed Amal babu for the first time after the accident. The Motor Cycle as well as the offending bus were on metal road. Although Learned Advocate for the appellant submits that it is not possible for P.W. 2 to see the route of the bus which is written in front of the bus but the non-mentioning of route is not fatal. It is the vehicle number which is important. P.W. 2 in his examination in chief did not mention the route, but he simply mentioned the vehicle number and that it was a Government Vehicle. Mentioning of vehicle number and type of vehicle is only necessary in motor accident claim case which is done. Although upon witnessing vehicle number route can be ascertained from enquiry and mentioned in any statement but non-mentioning route is not fatal. Moreover it is not the case of Insurance Company that accident spot does not fall in the route of vehicle no. WB-39A/1345. The Learned Trial Judge has considered the evidence of P.W. 2 and has assigned reasons for comings to the findings of rash and negligent driving. Thus this Court does not find any error with regard to the findings of the Learned Trial Judge. However with regard to the multiplier although it is submitted that multiplier should be 8 but in view of this Court multiplier should be 5 and general damages on accident of Loss of consortium coss of estate and funeral expenses should be Rs. 70,000/-. Further the deduction from salary should only be Income Tax and Profession Tax. Upon Income Tax and profession Tax being Rs. 650/- deducted from Gross salary net salary comes to Rs. 27,070/-. Thus Rs. 27,000/- can be considered as monthly income. In the event monthly income is Rs. 27,000/- 1/3^rd being deducted on account of personal expenses net monthly income comes to Rs. 18,000/-. The yearly income comes to Rs. 2,16,000/-. The multiplier of 5 being applied total compensation comes to Rs. 10,80,000/-. Further the claimants are entitled to Rs. 70,000/- on account of loss of estate, loss of consortium and funeral expense. Thus total compensation comes to Rs. 11,50,000/- by arithmetical calculation. However as Section 168 of the Motor Vehicles Act 1988 empowers the Courts and tribunals to award Just Compensation, upon considering the fact that the claimant widow is receiving family pension compensation of Rs. 10 lakhs is just and proper.

Hence this Appeal FMA-531 of 2018 stands disposed. The Judgment and Award dated 29^th August 2016 passed by Learned Additional District Judge 5^th Court Burdwan in MAC Case No-13/74 of 2013 stands modified to the extent that Appellant Gita Ghosh is entitled to compensation of Rs. 9 lakhs along with interest @6% per annum from date of filing claim case till today. The respondent South Bengal State Transport Corporation shall deposit before Registrar General High Court at Calcutta Rs. 10 lakh along with interest @6% per annum. Such deposit shall be made within 8 weeks from the date of communication of this order. In the event compensation awarded by trial Court is paid or deposited balance amount be deposited.

The claimant/respondent will be entitled to withdraw the compensation upon compliance of necessary formalities.

Deficit Court fees on enhanced compensation be paid within 4 weeks.

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