Sushumita Pal & Ors Vs Oriental Insurance Co. Ltd. & Anr. (Calcutta High Court)
The Calcutta High Court heard together two connected appeals arising from the judgment and award dated 16 April 2024 passed by the Learned Additional District Judge, 4th Court, Krishnanagar, Nadia, in MAC Case No. 125 of 2018. The claim arose from a motor accident that occurred on 12 May 2018, when the deceased, Debashish Pal, aged about 43 years, was walking along NH-34 near Debagram Chaurasta More. A truck allegedly driven in a rash and negligent manner struck him from behind, causing fatal injuries. He was declared dead at Panighata Health Centre.
Before the Trial Court, the vehicle owner did not contest the proceedings, while the insurer, Oriental Insurance Company Ltd., filed a written statement and contested the claim. After framing issues and recording evidence, the Trial Court awarded total compensation of Rs. 47,44,446 to the claimants, namely Sushmita Pal, Minor Anaya Pal, and Maya Pal, in equal shares. The insurer was directed to pay the amount within two months, failing which interest at 7.5% per annum would be payable until realization. The Trial Court also directed that the minor’s share be invested until attaining majority.
The claimants challenged the award, contending that the Trial Court had applied an incorrect multiplier of 14 instead of 15 and that compensation of Rs. 50,50,000 ought to have been awarded. The Insurance Company, on the other hand, contended that the compensation awarded was excessive and submitted that the widow would receive pension and other service-related benefits.
The claimants relied upon Rashmirekha Tripathy and Anr. vs. Manager (Legal Claims) Shriram General Insurance Company Ltd. and Ors., SLP(C) No. 27220 of 2024. The High Court held that the said decision was not applicable to the facts of the present case. It observed that the deceased in the cited case carried on a construction business requiring income tax returns for assessment of income, whereas in the present case the deceased was a State Government employee whose income could be determined from salary slips. The Court noted that the income of a Government employee is ordinarily ascertainable from salary records and is enhanced over time through increments. Accordingly, it found no error in the Trial Court determining compensation on the basis of the deceased’s salary slips.
Regarding the multiplier, the High Court observed that although a multiplier of 15 could be applied instead of 14, it was necessary to examine whether the compensation awarded was just and reasonable. Referring to observations reproduced from the Supreme Court decision in Rashmirekha Tripathy and the principles discussed therein, including references to V. Pathmavathi and Ors. v. Bharthi Axa General Insurance Co. Ltd. and Anr. and Reshma Kumari v. Madan Mohan [(2013) 9 SCC 65], the Court reiterated that compensation under the Motor Vehicles Act is intended to provide just and fair compensation rather than place dependants in a better financial position than they would have occupied had the deceased survived.
The High Court further observed that although applying a multiplier of 15 would increase the compensation, the total compensation already awarded, together with the fact that widows of Government employees may receive widow pension or compassionate appointment, was relevant in considering whether the compensation was just and reasonable. It noted that claimant Sushmita Pal had deposed that she had applied for compassionate appointment. Consequently, the Court declined to interfere with the principal compensation awarded by the Trial Court.
However, the High Court modified the direction regarding interest. It held that the claimants were entitled to interest at 6% per annum from the date of filing the claim petition till the date of the judgment.
Accordingly, both appeals, FMA-1004 of 2024 and FMA-1303 of 2024, were disposed of by confirming the principal compensation of Rs. 47,44,446 awarded by the Trial Court. The Oriental Insurance Company Ltd. was directed to deposit the compensation together with interest at 6% per annum before the Registrar General, High Court at Calcutta, within eight weeks from communication of the order. If the Trial Court’s awarded compensation had already been deposited, only the balance amount, if any, was directed to be deposited. The claimants were permitted to withdraw the compensation upon compliance with the necessary formalities, and any residuary amount was directed to be returned to the Insurance Company.
Cases Discussed
- Rashmirekha Tripathy and Anr. VS Manager (Legal Claims) Shriram General Insurance Company Ltd. and ors. (Supreme Court of India), SLP(C) No. 27220 of 2024
- Reshma Kumari v. Madan Mohan, (2013) 9 SCC 65
FULL TEXT OF THE JUDGMENT/ORDER OF CALCUTTA HIGH COURT
The above appeals are taken up together for their interconnectiveness. The above appeals are instituted against the judgment and award dated 16th April 2024 passed by Learned Additional District Judge 4th Court Krishnanagar Nadia in MAC Case No. 125 of 2018.
The case of the claimants before the Learned Trial Court may be summed up thus;
On 12-05-2018 at around 8.30 hrs deceased Debashish Pal aged about 43 years was travelling on foot along by on the left side of N-H-34 and reached at Debagram Chaurasta More, while a truck bearing registration No. WB-51B/6097 was driven at a high speed in rash and negligent manner which came from palassey side proceeding towards Krishnanagar side. The driver all on a sudden dashed him from behind. As a result the person fell down on the ground and received grievous hurt on his person. Local people took him to nearby Panighata Health Centre where the doctor declared him dead. Accident took place due to rash and negligent driving of the driver of the truck.
Pursuant to filing of this case notice was issued upon the opposite parties. Opposite Party vehicle owner did not contest the case. However opposite party Insurance Company 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 Advocate was pleased to dispose the claim case by observing and dereeting as follows:-
‘Hence it is ordered that the MAC Case No. 125 of 2018 be and the same is allowed on contest against the OP No-2 and ex-parte against the OP No-1.
The claimants/petitioners namely Sushmita Pal, Minor Anaya Pal and Maya Pal do get an award of total compensation to the tune of Rs. 47,44,446/-(Rupees Forty Seven Lakhs forty four thousand four hundred forty six only) equally.
The O.P. No. 2/The Oriental Insurance Company Ltd. is directed to pay the aforesaid compensation to the claimants/petitioners namely Sushmita Pal, Minor Anaya Pal and Maya Pal in equal shares through A/C payee cheque within two months from this date of order, in default interest @7.5% p.a. to be paid on the awarded amount till realization of the entire amount, failing which the claimants/petitioners shall be at liberty to execute the order in accordance with Law.
Petitioner No. 1 is hereby directed to invest the amount in the name of the minor in any Nationalized Bank or other Nationalized Organization till the minor attains the age of majority.’
The claimants/appellants being aggrieved by the Judgment and Award passed by the Learned Trial Judge has preferred the appeal being FMA-1004 of 2024. On the other hand the Insurance Company being aggrieved by the Judgment and Award Passed by Learned Trial Court has preferred Appeal being 1303/2024.
The ground of challenge by the claimants is that the Learned Trial Court has not applied the correct multiplier, and the compensation of Rs. 50,50,000/- ought to have been awarded.
The ground of challenge by the Insurance Company is that the compensation awarded is excessive, and the widow of victim would be receiving pension and other benefits.
Heard Learned Advocates perused the materials on record. The following decision is relies upon by Learned Advocate for the appellant.
Rashmirekha Tripathy and Anr. VS Manager (Legal Claims) Shriram General Insurance Company Ltd. and ors.
SLP(C) No. 27220 of 2024.
(Supreme Court of India)
Upon hearing the Learned Advocates and considering the facts of the case and the Judicial decision relied upon by Learned Advocate this Court is of the view that the decision of the Hon’ble Supreme Court in the case of Rashmirekha. Tripathy and anr (supra) is not applicable to the facts of the case. In the said case the victim had construction business for which Income Tax Return for 3 years is necessary. In the instant case the victim was a state Government Employee and the Salary can be ascertained from salary slips, as the income of Government employees is not reduced by the Authorities but enhanced from time to time by grant of increment. Thus the Learned Trial Judge did not commit any error in proceeding to decide compensation on the basis of salary slip of the victim.
Now with regard to the choice of multiplier although the multiplier chosen by Learned Trial Court is 14, and multiplier of 15 can be applied but before proceeding to decide the issue it is necessary to consider as to whether compensation awarded is just and reasonable. In this regard it would be proper to quote certain observations made by the Hon’ble Supreme Court in the case of Rashmirekha Tripathy and Anr (Supra). In the said case the Hon’ble Supreme Court observed as follows:-
“15. At the outset, we must reiterate that it is settled law that the objective behind the claim process in the Motor Vehicles Act 1988 is to grant „just and fair compensation‟. Recently, a two-judge Bench of this Court in V. Pathmavathi and Ors. v. Bharthi Axa General Insurance Co. Ltd. and Anr.7 had succinctly summarised this position and observed:
“12. We ought to remind ourselves, at the outset, that when an individual dies as a result of a fatal road accident and his distressed dependents apply for compensation either from the owner of the vehicle responsible for the death or the insurance company with whom such vehicle is insured, no amount of money can truly compensate for the loss.
Compensation is nothing but a rough estimate, being a token attempt to ease the financial burden on the dependents. Take consortium, for example. It is impossible to put a price on the loss of a loved one’s companionship. Spousal, filial or parental compensation are all about acknowledging the emotional void but the payout can never be more than a rough approximation. It is like trying to measure the immeasurable. Considering the income of the deceased, the needs of his dependents and the emotional toll of the loss, the best that can be ensured is that the compensation is fair and reasonable, without being either arbitrary or niggardly. This would be in accord with the foundational principle governing the determination of “just compensation” under Section 168 of the Act.
13. In Reshma Kumari v. Madan Mohan [(2013) 9 SCC 65], a three-Judge Bench of this Court held that the purpose of award of compensation under section 166 read with section 168 of the Act is to place the distressed dependents of the victim of a fatal road accident, if the victim had been the sole bread earner, in almost the same position financially if he lived his natural span of life. It is obviously not intended to put such distressed dependents in a better financial position in which they would otherwise have been if the accident had not occurred. At the same time, the determination of compensation is not an exact science and the exercise involves an assessment based on estimation and conjectures, here and there, as many imponderable factors and unpredictable contingences have to be taken into consideration. Obviously, award of damages in each case would depend on the particular facts and circumstances of the case but the element of fairness in the amount of compensation so determined is the ultimate guiding factor.”
In the instant case although applying the multiplier 15 would enhance the compensation but considering the total compensation awarded and the fact widows of Government Employee gets Government jobs or widow pension and to award just compensation the issue of widow pension or compassionate appointment may be taken into consideration it is necessary whether compensation computed is just and reasonable. In the instant case claimant Sushmita Pal deposed that she applied for compassionate appointment. Thus this Court does not think fit to interfere with the Principal Compensation Awarded by the Learned Trial Court. However with regard grant of interest this Court is of the view that respondents/claimants are entitled to interest @6% per annum from date of filing claim case till today.
Hence this Appeal FMA-1004 of 2024 and FMA-1303 of 2024 stands disposed by confirming the Judgments so far the principal Compensation awarded by Learned Additional District Judge 4th Court Krishnanagar Nadia in MAC Case No. 125 of 2018 is concerned. However the claimants/respondents are entitled to interest on the Compensation @6% per annum from date of filing claim case till today. The appellant Oriental Insurance company shall deposit before Registrar General High Court Calcutta Compensation of Rs. 47,44,446/-along with interest @6% p.a. within 8 weeks from the date of communication of this order. In the event compensation awarded by Learned Trial Court is already deposited the balance amount if any be deposited.
The claimants/respondents will be entitled to withdraw the compensation upon compliance of necessary formalities. Residuary amount if any be returned to appellant/Insurance Company.
Urgent photostat certified copy of this order, if applied for, should be made available to the parties upon compliance with the requisite formalities.
