1 IN THE HIGH COURT AT CALCUTTA CIVIL APPELLATE JURISDICTION APPELLATE SIDE Present: The Hon’ble Justice Ananya Bandyopadhyay F.M.A. 479 of 2023 Malay Chatterjee -Vs- ICICI Lombard General Insurance Company Ltd. & Anr. For the Appellants/Claimants : Ms. Sima Ghosh For the Respondents/ : Ms. Gopa Das Mukherjee Insurance Company Heard on : 23.08.2024, 02.09.2024, 07.10.2024, 02.12.2024 Heard & Judgment on : 15-05-2025 Ananya Bandyopadhyay, J.:- 1. The instant appeal was heard earlier and judgment was reserved. However, the matter listed under the heading “For Hearing” for further clarification. 2. The Learned Advocates representing respective parties are present in Court. 3. The claimant who is the victim of the accident filed an application under Section 166 of the M.V. Act in the Court of Motor Accident Claims Tribunal, Birbhum at Rampurhat being MAC Case No.08/2014, claiming an award of Rs. 12,00,000/- whereby the aforesaid case was involved in a road traffic accident on 22.05.2013 at about 10:20am. The offending vehicle being a dumper (tipper) bearing Registration No. WB-23TC/108 hit the aforesaid victim. As a result of being hit, the victim was grievously hurt. Consequently, the victim was taken to Suri District Hospital for treatment. On the basis of a complaint, P.S Case 79/2013 dated 22/05/2013 was instituted at P.S MD Bazar under Sections 279/337/338/427 of the IPC. 2 4. The owner of the offending vehicle did not appear before the Court to contest the MAC Case No.8 of 2014, in the Court of Motor Accident Claims Tribunal, Rampurhat, Birbhum. 5. The respondent, Bharati Axa General, the company by which the offending vehicle was insured and ICICI Lombard Motor Insurance, the company by which the victim’s vehicle was insured contested the aforesaid MAC case. 6. The Learned Tribunal as aforesaid disposed of the issues framed considering the oral as well as documentary evidences and awarded a sum of Rs. 11,16,360/- from the insurance company (80% payable by Bharati Axa General and 20% payable by ICICI Lombard Motor Insurance Co. Ltd.) along with 7% interest per annum from the date of filing the case till the date of realization. Bharati Axa General was at the liberty to recover the amount from the owner of the offending vehicle by applying the principle of pay and recovery as per the law. 7. The Learned Advocate representing the appellant/claimant argued as follows: - a. The appellant had been hospitalized at Suri Sadar Hospital, Bhattacharya Orthopaedic, other related research canters as well as Bakshi Orthopaedic Trauma and Rehabilitation Centre at Kolkata. He had been admitted at these institutions for more than six months. He had also required future treatment however these expenses had not been considered by the Learned Trial Court when determining the amount of compensation awarded to him. b. The Learned Trial Court had not awarded Future Prospect when injured person earned a monthly income of 20,000/- from his business as a contractor and paid tax regularly 3 c. The appellant incurred medical bills amounting to Rs. 70955/- and also other expenditures which were established in evidence and his disability has been assessed at 70% d. The pecuniary and non-pecuniary loss should be accessed as the appellant was a healthy person at the time of the accident e. The amount of compensation awarded should have included mental shock, pain, agony, deprivation of leading a normal and pleasurable life, loss of earning and loss of earning capacity. f. An interest payable at 12% per annum should have been awarded over the total claim as prayed for on the date of filing of the claim application. 8. The Learned Advocate representing the respondent No.1/insurance company submitted the involvement of two vehicles and the present respondent No.1/insurance company should not be liable to pay the compensation award. 9. Considered the submission of the Learned Advocates representing both the parties. 10. Since the occurrence of the accident, the driving license and other ancillary issues have not been disputed by the Learned Advocate representing the appellant/claimant, this Court restricts itself only to the points agitated by the Learned Advocate representing the appellants/claimants as well as respondent No.1/insurance company. The calculation in order to compute the compensation to be granted in the instant case where the victim suffered injuries had the deduction to 1/3rd from the annual income should be deleted from the table dilated by the learned Tribunal in the impugned judgment. 4 11. Considering the observations of the Hon’ble Apex Court in National insurance company Ltd. Vs. Pranay Shetty & Anr1 and Sarala Verma & Ors. Vs. Delhi Transport Corporation & Anr.2 The impugned award of Rs. 11,16,360/- is modified as follows: Monthly Income Annual income Future Prospect (10%) Multiplier 11 Disability (70%) Medical Expenses Pain and Suffering Loss of amenities and Enjoyment of Life Less Entitlement Rs. 19000/- x 12 Rs. 2,28,000/- Rs. 22,800/- Rs. 2,50,800/- X 11 Rs. 27,58,800/- Rs. 19,31,160/- Rs. 70,955/- Rs. 50,000/- Rs. 50,000/- Rs. 21,02,115/- Rs. 11,16,360/- Rs. 9,85,755/- 12. The Learned Advocate for the appellant/claimant submitted that the appellant/claimant has withdrawn a sum of Rs. 11,16,360/-. The appellant/claimant is entitled to a sum of Rs. 9,85,755/- along with interest at the rate of 6% per annum to be paid from the date of filing of the claim application till the date of realization. 13. The Learned Advocate for the respondent No.1/insurance company is to deposit the balance sum of Rs. 9,85,755/- along with interest as aforesaid before the office of the learned Registrar General High Court at 1 2017(4)TAC 673(S.C) 2 (2009) 6 SC 121 5 Calcutta within five months from the date of passing of this order and recover the 80% of the enhanced compensation amount from the owner of the offending vehicle subject to strict proof before the appropriate forum. 14. The office of the Learned Registrar General, High Court, Calcutta shall encash the said cheque and, thereafter, disburse the same to the present appellant/claimant as mentioned in the impugned judgment and order passed by the Learned Motor Accident Claims Tribunal, Birbhum at Rampurhat being MAC Case No.08/2014 on proof of proper identification of the appellant /claimant subject to payment of ad valorem Court’s fees within four weeks. 15. The instant appeal is disposed of accordingly. 16. The pending applications, if any, stands disposed of. 17. Copy of the order be sent to the Department as well as the concerned tribunal as expeditiously as possible. (Ananya Bandyopadhyay, J.)