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2017 Supreme(Cal) 231
IN THE HIGH COURT OF JUDICATURE AT CALCUTTA
DIPANKAR DATTA, DEBI PROSAD DEY, JJ.
National Insurance Company Ltd. & Another - Petitioners
Versus
Sujata Manna & Others - Respondents
C.A.N. No. 10226 of 2016 in F.M.A. No. 3272 of 2016 & C.O.T. No. 24 of 2016
Decided On : 14-06-2017
Advocate Appeared:
Rajesh Singh, Rajesh Singh, Noni Gopal Chakraborty, Gopal Chakraborty
The burden of proof shifts to the insurer if the claimants' oral evidence is credible and in accordance with the law. The entitlement to enhanced compensation is supported by relevant legal provisions and previous decisions.
Headnote:
Motor Vehicles Act - Compensation - Section 173 - [MOTOR VEHICLES ACT] - [Section 166, Section 170] - The court discussed the acceptance of oral evidence regarding the victim's monthly income, the burden of proof on the insurer, and the entitlement to enhanced compensation. The court referred to the Indian Evidence Act and previous decisions to support its findings.
Fact of the Case:
The appellant, an insurer, appealed against an award of compensation to the claimants for the death of a victim in a motor accident. The claimants asserted the victim's monthly income without documentary evidence. The appellant contested the claim but did not provide evidence to refute the claimants' version.
Finding of the Court:
The court found that the claimants' oral evidence regarding the victim's income was credible and in accordance with the law. The burden of proof shifted to the insurer, which failed to cast doubt on the claimants' version. The court dismissed the appeal and allowed the cross-objection for enhanced compensation.
Issues: Acceptance of oral evidence on the victim's income, burden of proof on the insurer, entitlement to enhanced compensation.
Ratio Decidendi: The court relied on the Indian Evidence Act and previous decisions to emphasize the credibility of oral evidence, the burden of proof, and the entitlement to enhanced compensation in similar cases.
Final Decision: The appeal was dismissed, and the cross-objection for enhanced compensation was allowed. The appellant was directed to pay the enhanced sums to the cross-objector within a specified time.
Dipankar Datta, J.
1. The appellant in FMA 3272 of 2016, being an appeal under section 173 of the Motor Vehicles Act (hereafter the Act), is an insurer. It calls in question the award dated August 25, 2014 passed by the Motor Accident Claims Tribunal, Paschim Medinipore presided over by the Additional District Judge (re-designated Court), Paschim Medinipur in M.A.C. Case No. 339 of 2012 arising out of an application under section 166 thereof. By the impugned award, the respondents 1 to 3 in the appeal (hereafter the claimants) were held entitled to Rs. 7,92,500/- as compensation from the appellant along with interest @ 7% p.a. from the date of filing of the claim application till realization failing which the outstanding amount would 'carry further interest @ 8% till the arrear amount is liquidated in full'.
2. Originally, the claimants before the tribunal were the widow and the mother of a Srikanta Manna (hereafter the victim), aged about 35 years. On July 1, 2012 at about 8 a.m., he instantaneously died after being dashed by a truck which was being driven rashly and negligently. On the date of death of the victim, his wife was pregnant and later on she gave birth to a girl child who was brought on record of the proceeding before the tribunal by amendment of the claim application. It was pleaded therein that the victim was running a hair-cutting saloon and as barber had a monthly income of Rs. 6,000/- on the date of the fateful incident and, accordingly, compensation in a sum of Rs. 8,00,000/- was claimed. Considering Rs. 6,000/- per month as the notional income of the victim and selecting 16 as the appropriate multiplier, the tribunal proceeded to determine the compensation payable to the claimants. Since the offending truck was insured by the appellant, the entire liability was foisted on it.
3. CAN 10226 of 2016 is an application for stay filed in connection with the appeal.
4. While hearing the application for stay, we were apprised of a cross-objection having been tendered before this Court by the widow of the victim and the daughter born in their wedlock. Copy of the cross-objection was taken on record and we proceeded to hear the appeal as well as the cross-objection on merits with the consent of the parties, treating the same as on day's list, upon dispensing with all formalities.
5. The short point argued by Mr. Rajesh Singh, learned advocate appearing for the appellant is in respect of non-production of any documentary evidence by the claimants to support their claim that the victim had a monthly income of Rs. 6,000/- per month. He has relied on the decision of the Supreme Court reported in 2008 (2) T.A.C. 394 (S.C.) (Laxmi Devi and others v. Mohammad Tabbar and another) to drive home the point that an exaggerated figure regarding earning of the deceased victim must be carefully scrutinized by the court before determining compensation. According to him, in the absence of any documentary evidence to support the earning of the victim, Rs. 3,000/- per month as held in Laxmi Devi (supra) should have been taken to be the notional monthly income of the victim by the tribunal in course of determining compensation payable to the claimants. He has, accordingly, prayed for modification of the impugned award.
6. On behalf of the claimants, Mr. Noni Gopal Chakraborty, learned advocate contested the appeal and submitted that the tribunal did not commit any error of jurisdiction in treating Rs. 6,000/- per month as the notional monthly income of the victim. According to him, no case for interference with the award of the tribunal has been set up in the appeal and the same merits outright dismissal.
7. While pressing the cross-objection, Mr. Chakraborty contended that there have been decisions of the Supreme Court of late whereby enhanced amounts on account of loss of estate, loss of consortium, loss of love, affection an
