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2024 Supreme(Cal) 543
IN THE HIGH COURT AT CALCUTTA
Subhendu Samanta, J.
Smt. Kamini Kamat – Petitioner
Versus
The Oriental Insurance Company Limited & Anr. – Respondents
F.M.A No. – 55 of 2023
Decided On : 14-03-2024
Advocate Appeared:
For the Appellant : Mrs. Chinmoyee Roy Bhattacharya, Adv.,
For the Respondent: Ms. Sucharita Paul, Adv.
The main legal point established in the judgment is the correct assessment of compensation under the Motor Vehicles Act, including income, functional disability, and future prospects, based on evidence and legal principles.
Headnote:
Compensation - Motor Accident Claims Tribunal - MV Act Section 166 - Summary
Fact of the Case:
The case involved a claim for compensation under Section 166 of the Motor Vehicles Act for injuries sustained in a road accident. The claimant's husband was seriously injured when his motorcycle was hit by a bus. The Tribunal awarded compensation, which the claimant appealed for enhancement.
Finding of the Court:
The court found that the Tribunal erred in calculating the income, functional disability, and future prospects of the injured. It held that the income should be considered as Rs. 20,000 per month, the functional disability as 100%, and the future prospects as 40%. The court also modified the compensation amount to Rs. 53,23,200 with 6% interest per annum.
Issues: The key issues were the calculation of income, functional disability, and future prospects of the injured, as well as the entitlement to attendance charge and non-pecuniary damages.
Ratio Decidendi: The court relied on the evidence presented and legal principles established by the Hon’ble Apex Court to determine the correct assessment of income, functional disability, and future prospects. It also distinguished the case from precedent to decide on the entitlement to attendance charge and non-pecuniary damages.
Final Decision: The court directed the Insurance Company to pay the modified compensation amount with interest to the claimant.
JUDGMENT :
Subhendu Samanta, J.
1. Instant appeal has been preferred against the judgment and award dated 31st day of May, 2022 passed by the learned Judge Motor Accident Claims Tribunal 10th Bench City Civil Court in MACC No. 190 of 2012.
2. The brief of fact of the case is that the husband of the present claimant namely one Shambhu Kumar Kamat on 21.03.2012 at about 11:30 hrs was proceeding along a APC Bose Road by his Motor Cycle bearing Registration No. WB 012/3000 from Sealdah side to Maniktala by his motor cycle and stopped at traffic signal at the time the offending bus bearing No. WB 04 C/ 5354 coming in high speed and rash and negligent manner dashed the victim motor cycle from behind. As a result Sambhu Kamat became seriously injured all over his person and was removed to NRS Medical College and Hospital and therefrom he was shifted Apollo Gleneagles Hospital Kolkata for better treatment. Subsequently again admitted to Flemming Nursing Home and thereafter again admitted at Santosh Chest hospital at Chennai.
3. By such accident the said S. Kammat became permanently disabled. The wife of the said injured preferred an application before the Learned Tribunal on behalf of his husband u/s 166 of MV Act for getting compensation on the ground accident happened due to sustained negligent driving of the offending vehicle which was duly insured under the policy of the Insurance Company and the Insurance Company is liable to pay the compensation.
4. The claim case was contested by the Insurance Company by filing written statement. After hearing the parties and after recording the evidences the Learned Tribunal has awarded a Sum of Rs. 23,50,000/-(twenty three lakh fifty thousand) towards the compensation and directed the Insurance Company to pay the compensation.
5. Being aggrieved by and dissatisfied with the said award the claimants has preferred this appeal for enhancement of the award, Learned Advocate Mrs. Chatterjee appearing on behalf of the clamant/appellants submits that the instant appeal has preferred challenging the impugned award on the following grounds:
i) Income of the injured was not properly calculated.
ii) Functional disability of the injured was not properly calculated.
iii) Future prospects was not properly calculated.
iv) Attendance charge and future medical expanses also not considered.
Firstly, Mr. Bhattacharya Learned Advocate submits that the claim application was filed stating the income and avocation of the injured. It has been stated therein that injured was an employer of M/s. Loknath Printing Industries Ltd, the monthly income of the Injured was stated to be Rs. 20,000/-. The employer of the injured as appeared before the Learned Tribunal and deposed as PW 7. During his evidence PW 7 stated that the injured was one of the employees of the concern namely Loknath Printing Industry and used to earn salary of Rs 20,000/-per month.
6. He further submits that, the Learned Tribunal has not considered the evidences and abruptly adopted the notional income to be Rs. 5,000/-.Mr. Bhattacharya further argued that the income and avocation has been categorically proved by the claimant, on the other hand the Insurance Company has not produced a single evidence to contradict the pleadings and proof of the claimant so in this case the monthly income assessed by the Learned Tribunal (Rs 5,000/-) is erroneous. He submits that for calculation of just and proper compensation of this case the income of the injured should be calculated to Rs. 20,000/-per month.
7. Mrs. Sucharita Paul Learned Advocate appearing on behalf of the Insurance Company submits that the Learned Tribunal has not committed any error in fixing monthly notional income of the claimant to Rs. 5,000/-Mrs. Paul pointed out the cross-examination of PW 7, wherein the PW 7 admitted that he does not have any document to show that he is the manager of that firm. She further argued that the document i.e. the document showing income certificate (Exhibit 29), issued by the
