The Oriental Insurance Company Ltd. v. Sajeda & Ors.

learned Trial Judge disposed of the claim case by observing and directing as follows: “Hence, it is

#5. O R D E R E D that the Motor Accident Claim being No. 40/2020 be and the same is allowed on contest against OP No. 2 and ex parte against OP No. 1 without any order as to cost. Claimant/petitioners, namely, Sajeda Irfani Begum, Zinat Begum, Anukha Begam and Sarmad Shah are entitled to get Rs. 10,84,764/- (Rupees Ten Lacs Eighty-four Thousand Seven Hundred Sixty-four only) along with interest. O.P. No. 2, the Oriental Insurance Co. Ltd. Is directed to pay the said amount of compensation by way of issuing a cheque of Rs. 6,50,858/- (Rupees Six Lakh Fifty Thousand Eight Hundred Fifty-eight only) in favour of petitioner no. 1, namely, Sajeda and two cheques of Rs. 2,16,952/- (Rupees Two Lakh Sixteen Thousand Nine Hundred Fifty-two only) each in favour of petitioner nos. 2 and 3, namely, Irfani Begum and Zinat Begum along with interest @ 6% per annum calculated simply following the judgment of Hon’ble High Court, Calcutta reported in 2014 (2) TAC 864 (Cal), (The calculation of payment of interest since 24.03.2020 till 31.12.2021 is exempted due to pandemic), within 90 (ninety) 4 days from the date of filing of this claim petition i.e., on and from 28.01.2020 till realization of the award i.d. the claimants/petitioners will be at liberty to realize the awarded amount through execution. Petitioner no. 1 is directed to deposit the share of Rs. 2,16,952/- (Rupees Two Lakh Sixteen Thousand Nine Hundred Fifty-two only) each in favour of petitioner nos. 4 and 5 namely, Sarmad Shah (minor son) and Anukha Begam (minor daughter), till attaining their majority, in any Nationalized Bank or Post Office. Let a copy of the judgment be supplied to the Ld. Lawyer for the OP, the Oriental Insurance Co. Ltd. As well as to the petitioners/claimants free of cost for information and compliance.”

#6. The appellant/Oriental Insurance Company Ltd. being aggrieved by the judgment and award passed by the learned Trial Judge has come up with the instant appeal. The respondent Nos. 1 to 5 being also aggrieved by the judgment and award passed by the learned Trial Judge has filed a cross objection being No. COT 112 of 2024.

#7. Heard learned advocate the appellant Insurance Company and learned advocate for the respondents/claimants. Perused the materials on record.

#8. Learned advocate the appellant/Oriental Insurance Company Ltd. submits that learned Trial Judge erred in considering the notional income of the victim as Rs.6,000/-when the 5 claimants were unable to prove the income of the victim as well as his occupation.

#9. Learned advocate further submits that the victim cannot be in the occupation of the driver as because the driving licence relied upon by the claimants expired long time before.

#10. Learned advocate also submits that there was no driving licence of the driver of the offending vehicle to drive the transport vehicle but the point was not taken into consideration by the learned Trial Judge.

#11. Learned advocate appearing claimants/respondents No. 1 to 5 submits that the learned Judge ought to have considered the income of the victim as Rs.6,500/- considering his occupation as driver as well as the income required to maintain the family.

#12. Learned advocate also relies upon the decision in the case of Latika Paul & Ors. Vs. The Oriental Insurance Company Limited & Anr. in FMA 27 of 2024.

#13. Learned advocate also submits that the Insurance Company did not adduce any evidence with regard to the driving licence and the said extract of driving licence relied upon by the Insurance Company was not exhibited before the learned Trial Court. 6

#14. Upon hearing learned advocates and considering the facts of the case with regard to first submission of the learned advocate for the appellant that the driver of the offending vehicle had no valid driving licence to drive a transport vehicle, the attention of the Court is drawn to exhibit-7 where the driving licence of offending vehicle was exhibited and in the said driving licence it was mentioned that it was valid till 25.06.2020. The extract of the driving licence relied upon by the leaned advocate for the appellant was not filed before the learned Trial Court nor was the driver of the said vehicle examined and nor the Insurance authority examined in this regard. In the facts and circumstances, there was no scope for the learned Trial Court to arrive at a findings that the driver of the offending vehicle had no valid driving licence to drive the transport vehicle. With regard to the income of the victim it appears that the driving licence of the victim already expired in the year 2014 and the accident took place in 2019. Thus, it cannot be concluded that the victim was engaged in driving occupation when is no corroboration by any third party witness that the victim was engaged in driving occupation nor is there any evidence by any persons that he had engaged a victim as a driver for driving his 7 vehicle. Thus, the claimants have failed to prove the occupation of the victim as well as his income. Thus, the learned Trial Court did not commit any error to proceed on the notional income of Rs.6,000/-. The annual income comes to Rs. 72,000/-. 1/4th is deducted on account of personal expenses and the annual dependency loss is Rs.54,000/-. The multiplier of 11 is applied to this annual dependency loss, dependency loss comes to Rs.5,94,000/-. Further the claimants are entitled to consortium of Rs.40,000/- and Rs.15,000/- as funeral expenses and Rs.15,000/- as loss of estate. Thus, Rs.70,000/- is payable to the claimants/appellants on account of general loss and damages. Further as medical expenses was incurred for the treatment of the victim the claimants are entitled to compensation of Rs.2,01,364/-. Thus total compensation to Rs.8,65,364 arithmetical calculation. However, in the view of this Court compensation of Rs.9,00,000/-is just and reasonable. Thus, the claimants/respondents No. 1 to 5 are entitled to compensation of Rs.9,00,000/- from appellant/Oriental Insurance Company Ltd. along with interest @ 6% per annum from the date of filing of the claim case till today. The appellant/ Oriental Insurance Company Limited shall deposit the compensation 8 amount of Rs.9,00,000/-along with interest within eight weeks from the date of communication of this order before the learned Registrar General, High Court, Calcutta. However, in the event the amount awarded by the learned Trial Court is already deposited no further deposit be made. The claimants/respondents No. 1 to 5 are entitled to withdraw Rs.9,00,000/- along with interest @ 6% per annum upon compliance of the necessary formalities the balance amount, if any, be returned to the appellant/Oriental Insurance Company Limited along with accrued interest if any.

#15. The appeal FMA 359 of 2024 along with COT 112 of 2014 stand disposed of.

#16. Urgent certified photocopy of this order, if applied for, be supplied as expeditiously as possible. (Biswaroop Chowdhury, J.)