HALIMA KHATUN Vs. NATIONAL INSURANCE COMPANY LIMITED

JUDGEMENT

(1.) Appellants/claimants have filed this First Miscellaneous Appeal being aggrieved by and dissatisfied with a judgment and award dated 30th day of August, 2011 passed by the Motor Accident Claims Tribunal, R-D Court, Additional District Judge, Paschim Medinipur in M.A.C. Case No. 363 of 2010 thereby the learned Tribunal awarded a compensation to the tune of Rs.4,17,500.00 from the Respondent No.1/National Insurance Company Limited together with simple interest @ 9% per annum from the date of filing of this claim application i.e. 29/9/2010 till final realization in an application filed by the wives and his minor children under Sec. 166 of the Motor Vehicles Act, 1988 in connection with death of victim, Sk. Manirul Islam caused due to motor traffic accident.

(2.) The brief fact of the case of the appellants/claimants to the effect that on 7/9/2010 at 3.40 pm when the deceased was coming back to his residence from Kolaghat and when he reached near Mechogram on NH-6, one Maruti van bearing No. WB-34T/4997 was coming from opposite side with tremendous speed dashed the motorcycle of the victim in a rash and negligent manner as a result, the victim died on the spot. He was the sole earning member of the family and prior to the date of accident, he used to earn Rs.25,000.00 per month from his potato and transport business. His age was 29 years old at the time of accident. Claimants have claimed a total sum of Rs.30.00 Lakhs as compensation. However, the learned Tribunal Judge, after appreciation of evidence both oral and documentary, finally allowed the compensation as aforesaid considering his income as Rs.36,000.00 per annum as notional income since the claimants have unable to prove his business and his actual income by way of documentary evidence. In such circumstances, the appellants/claimants herein filed this instant appeal praying for enhancement of the compensation as the compensation amount, awarded by the learned Tribunal, is inadequate. 2a. At the same time, the Respondent No.1/Insurance Company filed a cross-objection against the aforesaid judgment and award dated 30th day of August, 2011 and thereby the National Insurance Company Limited has asserted the grounds that the learned Tribunal has erred in law by granting excess compensation in favour of the claimants. Furthermore, the learned Tribunal adopted the multiplier following the 2nd Schedule of the Motor Vehicles Act since the 2nd Schedule of the Motor Vehicles Act is not at all applicable in an application filed under Sec. 166 of the Motor Vehicles Act. The National Insurance Company further challenged the rate of interest, allowed by the learned Tribunal, is excessive. Accordingly, both the First Miscellaneous Appeal and Cross-Objection are taken up together for their disposal. Submissions on behalf of the Appellants/Claimants:

(3.) Learned counsel appearing on behalf of the appellants/claimants submitted that only few issues are involved in the instant appeal. The first issue raised by the learned counsel that the learned Tribunal erred in accepting the notional income of the deceased though the claimants have proved his actual income by filing PAN Card and income tax return for the assessment year 2010-2011. If the income tax return had been considered, the amount of compensation would have increased. Apart from that, the learned Tribunal did not add the future prospect and awarded very low amount of general damages. Learned Advocate prays for addition of future prospect and actual general damages in view of the judgment passed by Hon'ble Supreme Court in National Insurance Company Limited vs. Pranay Sethi and Ors. (2017) 16 SCC 680 though it has been delivered by the Hon'ble Supreme Court after passing the judgment by the learned Tribunal but the said ratio of the said judgment is applicable in this case as such future prospect @ 40% and general damages to the tune of Rs.84,000.00= are also entitled by the claimants. Furthermore, the learned Tribunal also erred in deducting the personal expenses of the deceased as 1/3rd though the family members of the deceased are more than five in number. He placed a reliance of a judgment reported in Pranay Sethi Case (Supra) to support his contention that actual deduction would be 1/4th as such the amount awarded by the learned Tribunal may be modified adding the compensation towards the heads of future prospect and general damages and considering the actual income of the deceased. Finally, he prays for enhancement of compensation on the basis of provisions of law and judgment of the Hon'ble Supreme Court. Submissions on behalf of the Respondent No. 1/Insurance Company: