2019 Supreme(Cal) 782

IN THE HIGH COURT OF JUDICATURE AT CALCUTTA
Dipankar Datta, Protik Prakash Banerjee, JJ.
National Insurance Co. Ltd. & Another - Appellants
Versus
Sohna Singh & Others – Claimants
F.M.A. No. 464 of 2017 with COT. No. 7 of 2017
Decided On : 15-11-2019

The death of the victim was caused due to the accident and the accident was the proximate cause. There was no contributory negligence or composite negligence on the part of the victim. The income of the deceased should be taken as Rs. 34,78,756/- per annum and the multiplier to be applied should be 15. The claimants are entitled to an additional amount towards loss of estate, loss of consortium, and funeral expenses of Rs. 15,000/-, Rs. 40,000/-, and Rs. 15,000/- respectively. The claimants are entitled to the amount of medical expenses incurred by them as an effect of the accident, on the ground that the Mediclaim policy is taken out by the victim from his own income and the payment thereunder to the victim's nominee is based on a contractual obligation to the victim by his insurer.

Headnote:

MOTOR VEHICLES ACT - Section 173 - Appeal - Claim for compensation - Death of victim due to accident - Contributory negligence - Composite negligence - Income of deceased - Consortium - Medical expenses - Mediclaim policy.

Fact of the Case:

The victim was grievously injured in a road accident and died due to the injuries sustained. The claimants, being the mother, widow, and two daughters of the victim, filed a claim petition for compensation under Section 166 of the Motor Vehicles Act, 1988. The learned tribunal awarded compensation to the tune of Rs. 1,59,46,360/- in favor of the claimants. The insurer of the offending vehicle filed an appeal challenging the correctness of the judgment and award passed by the learned tribunal. The claimants filed a cross-appeal challenging the finding of contributory negligence or even composite negligence on the basis of the evidence recorded.

Finding of the Court:

The court held that the death of the victim was caused due to the accident and the accident was the proximate cause. The court also held that there was no contributory negligence or composite negligence on the part of the victim. The court further held that the income of the deceased should be taken as Rs. 34,78,756/- per annum and the multiplier to be applied should be 15. The court also held that the claimants were entitled to an additional amount towards loss of estate, loss of consortium, and funeral expenses of Rs. 15,000/-, Rs. 40,000/-, and Rs. 15,000/- respectively. The court also held that the claimants were entitled to the amount of medical expenses incurred by them as an effect of the accident, on the ground that the Mediclaim policy is taken out by the victim from his own income and the payment thereunder to the victim's nominee is based on a contractual obligation to the victim by his insurer.

Issues: 1. Whether the death of the victim was caused due to the accident and the accident was the proximate cause? 2. Whether there was contributory negligence or composite negligence on the part of the victim? 3. What should be the income of the deceased? 4. What should be the multiplier to be applied? 5. Whether the claimants are entitled to an additional amount towards loss of estate, loss of consortium, and funeral expenses? 6. Whether the claimants are entitled to the amount of medical expenses incurred by them as an effect of the accident?

Ratio Decidendi: 1. The court held that the death of the victim was caused due to the accident and the accident was the proximate cause based on the following reasons: a. The victim suffered from quadriplegia resulting out of the accidental injuries received by him. b. The discharge summary of the victim issued by Apollo Gleneagles Hospital stated that the victim suffered from quadriplegia resulting out of the accidental injuries received by him. c. The deposition of Dr. P.K. Pooviah, medical practitioner working at A.M.R.I. Hospital, Salt Lake, who deposed as P.W. 2 before the learned tribunal, stated that the death of the victim was caused due to pulmonary embolism in a cause of quadriparesis. 2. The court held that there was no contributory negligence or composite negligence on the part of the victim based on the following reasons: a. The deposition of the only ocular witness to the scene of the accident, being the driver of the victim's vehicle, clearly showed that the said accident occurred when the offending vehicle dashed the victim's vehicle on the middle right side rather than a head-on collision as held by the learned tribunal. b. The evidence on record did not show that the victim's vehicle was travelling at a high speed. c. The evidence on record did not show that the victim was rash and negligent in driving his vehicle. 3. The court held that the income of the deceased should be taken as Rs. 34,78,756/- per annum based on the following reasons: a. The Form-16 of the deceased/victim submitted for the period between April 1, 2007, and April 30, 2007, showed the monthly income of the victim at Rs. 3,40,394/- and Tax deducted at source at Rs. 61,536/- and the tax refundable for that month at Rs. 11,099/-. b. The TDS for the said amount was made, that is to say, the deduction was made, prior to the death of the victim, and therefore stood to his credit as what had already been paid as tax. 4. The court held that the multiplier to be applied should be 15 based on the following reasons: a. The age of the victim at the time of the accident was below 40 years. b. The multiplier to be applicable in this case would be 15 and not 14 as taken by the learned tribunal. 5. The court held that the claimants were entitled to an additional amount towards loss of estate, loss of consortium, and funeral expenses of Rs. 15,000/-, Rs. 40,000/-, and Rs. 15,000/- respectively based on the following reasons: a. The Hon'ble Supreme Court in Pranay Sethi (supra) has held that the amount towards loss of estate, loss of consortium, and funeral expenses has already been quantified by the Hon'ble Supreme Court at Rs. 15,000/-, Rs. 40,000/- and Rs. 15,000/- respectively. b. Therefore, no further amount shall be granted towards loss of consortium beyond the figure provided above. 6. The court held that the claimants were entitled to the amount of medical expenses incurred by them as an effect of the accident, on the ground that the Mediclaim policy is taken out by the victim from his own income and the payment thereunder to the victim's nominee is based on a contractual obligation to the victim by his insurer.

Final Decision: The appeal was dismissed and the cross-objection was allowed partially. The court directed the Insurer to make payment of the balance amount of the award being Rs. 4,28,27,655/- by four separate account payee cheques made out for one fourth of the said amount to each of the claimants on account of the death of the victim along with interest @ of 7% per annum from the date of filing of the claim petition i.e. July 23, 2007 within three months from the date of the order. The court also directed the Insurer to pay the remaining 50% of the sum deposited (Rs.1,59,46,360/-) which is Rs. 79,73,180/-, and any accumulation thereto on count of interest, to the claimants through the widow (claimant No.1). The court also dismissed the appeal and partially allowed the cross-objection, and modified the award dated June 28, 2016 to the extent mentioned above.