FMA/721/2024 of NATIONAL INS CO LTD Vs RABIN KUMAR MAJEE AND ANR on 30 July 2026

1. Learned Advocates for the parties are present.

2. Heard learned Advocates. The appellant before this Court was an opposite party in a case under Section 166 of the Motor Vehicles Act, 1988 and is aggrieved by the judgment and award dated 07.02.2024 passed by the learned Additional District Judge, 13th Court, Alipore, South 24 Paraganas.

3. The case of the claimant before the learned Trial Judge may be summed up thus: On 01.07.2021 at about 12 hours the claimant aged 57 years sustained injuries in an Motor Vehicles accident at the crossing of Kidderpore Road and Red Road crossing, while he was traveling by a mini bus bearing registration

No.WB-09-1996, which was being driven in a rash and negligent manner. The driver of the bus hit a motor cycle and completely lost control over his vehicle. He was taken to SSKM Hospital and sustained permanent disability owing to grievous injuries, including trauma in his head, open fracture of radial shaft and Ulna and was admitted for nine days in the said hospital in between 01-07-2021 and 09-07-2021 and underwent surgery. He was a Canteen Manager under Mukesh Aggarwal at PAC Kolkata Police earning Rs. 15,000/- per month and due to the said accident he has become permanently disabled and hence filed this case of compensation.

4. Pursuant to filing of this case notice was issued upon the opposite parties. The opposite vehicle owner did not contest the case. The opposite party Insurance Company contested the case by filing written statement. Issues were framed and evidence was adduced.

5. The learned Trial Judge upon considering the evidence and upon hearing the learned Advocates was pleased to dispose of the claim case by observing and direction as follows: “Accordingly, it is ORDERED

that the instant case, filed under Section 166 of the Motor Vehicles Act, 1988, is allowed on contest as against the OP no. 2/Insurer and ex-parte against the OP no. 1/Owner without any order as to cost. That the claimant does get an award of Rs.5,62,984.00 (Rupees five lacs sixty two thousand nine hundred eighty four only). That the amount of compensation, as awarded, shall carry a simple interest @ 9% per annum from the date of filing of this case till final realization of entire amount. That the OP no. 2/Insurer is directed to pay the awarded amount to the petitioner with interest, as directed, within 90 (ninety) days from the date of this order; in default the petitioner shall be at liberty to put this award into execution in accordance with law. As there will be 'pay and recovery" the O.P. no. 2/ Insurance Company shall first pay the amount of compensation to the claimant and then recover the same from the O.P. no. 17 Owner of the Offending Vehicle. Let a copy of this order be supplied to the OP no. 2/Insurer, tree of costs, for compliance.”

6. The appellant National Insurance Company Ltd. being aggrieved by the judgment and award passed by the learned Trial Judge has come up with the instant appeal.

7. Learned advocate for the appellant submits that the learned Trial Judge erred in considering the income of the claimant as Rs.9,000/- without any proper proof and documents. Learned Advocate further submits that the disability assessed by the learned Trial Judge of 28% on the basis of the certificate of a doctor who did not treat the claimant is excessive.

8. Learned Advocate also submits that the compensation awarded on account of pain, suffering and amenities as well as medical expenses is also excessive. It is submitted by the learned Advocate that the interest awarded 9% should be reduced to 6% per annum.

9. Learned Advocate for the claimant respondent submits that no suggestion was put with regard to X-Ray Plate of the claimant which was considered by the doctor being PW 3 while assessing the disability. Learned Advocate further submits that the date of accident and the date of treating the patient with regard to disability is not an unreasonable period. Learned Advocate also submits that the fact that the claimant was a canteen manager is corroborated by the evidence of PW 2.

10. Upon hearing the learned Advocate and considering the facts of the case, this Court is of the view that the claimant who has claimed himself to be a canteen manager has specifically stated the name of his employer being Mukesh Aggarwal and has also faced in the cross- examination. Such evidence with regard to his occupation as canteen manager cannot be disbelieved. Moreover, the evidence of PW1 claimant is corroborated by PW2 with regard to his being in occupation as a canteen manager.

11. As the occupation of canteen manager is accepted considering the price index and the remuneration paid with regard to such categories of employees, it was not unreasonable to consider the daily income of the claimant victim to be Rs.300/-. With regard to the future prospect as argued by the learned Advocate for the appellant that the future prospect cannot be 15%, this Court is of the view that such submission has some substance and the future prospect should be 10%.

12. With regard to the assessment of disability, it appears that the witness PW 3, Dr. Minoti Das has given the particulars of a treatment and considering the particulars of the treatment mentioned in the evidence as well as in the certificate and considering the percentage of disability, this Court is of the view that the learned Trial Judge did not commit any error in accepting the disability of 28%.

13. With regard to the submission of the learned Advocate that the compensation awarded on account of pain and suffering, loss of amenities and the medical expenses is excessive, this Court upon considering the period of stay in the hospital and the nature of injuries suffered does not find any justification to interfere with the award of granting Rs.1,00,000/- each for loss of amenities and pain and suffering and Rs.50,000/- on account of medical expenses.

14. Although, the future prospect is considered as 10%, this Court is of the view that instead of going into the arithmetical calculation it would be just and reasonable to award the claimants respondent compensation Rs.5,00,000/-

15. Thus, this appeal FMA 721 of 2024 stands disposed. The judgment and award dated 07.02.2024 passed by the learned Additional District Judge, 13th Court, Alipore, South 24 Paraganas stands modified to the extent that the claimants respondents are entitled to Rs.5,00,000/- from the appellant National Insurance Company Ltd.

16. The appellant National Insurance Company Limited shall deposit before the

Registrar General, High Court, Calcutta Rs.5,00,000/- along with interest at the rate of 6% per annum from the date of filing of the claim case till date. In the event, the compensation awarded is already deposited no further deposit be made.

17. The claimants respondents will be entitled to withdraw the compensation upon compliance of necessary formalities. Balance amount, if any, with accrued interest be returned to the Appellant Insurance Company.

18. Urgent Photostat certified copies of this order, if applied for, be supplied to the parties upon compliance of all necessary formalities.

(BISWAROOP CHOWDHURY, J.)