1 IN THE HIGH COURT AT CALCUTTA CIVIL APPELLATE JURISDICTION APPELLATE SIDE Present: The Hon’ble Justice Ananya Bandyopadhyay F.M.A 125 of 2024 United India Insurance Co. Ltd. vs Aparna Das and Others For the Appellant : Mr. Sanjay Paul, Ms. Jaita Ghosh For the Respondents : Mr. Jayanta Mondal, Mr. Sayantan Rakshit Heard & Judgment on : 06.05.2025 Ananya Bandyopadhyay, J.:- 1. The instant appeal was heard earlier and judgment was reserved. However, the matter was listed under the heading ‘For Hearing’ for further clarification. 2. The learned Advocates representing the appellant/insurance company as well as the respondents/claimants are present. 3. Three claimants filed an application under Section 166 of the M.V. Act in the Court of Motor Accident Claims Tribunal, , Additional District and Sessions Judge, fast Track Court- II at Tamluk, Puba Mednipur being MAC Case No. 587/2016 claiming an award of Rs. 60,00,000/- as well as interest and litigation cost whereby the aforesaid deceased expired due to a road traffic accident on 30.09.2016 at about 8:30 p.m. 4. The offending vehicle, one Maruti van bearing Registration No. WB- 30/9309 hit the aforesaid victim rashly and negligently. 2 5. Consequently, the victim was grievously injured and was taken to Purba Mednipur District Hospital at Tamluk where his right leg was amputated. He was later shifted to Apollo Gleneagles Hospital on 01.10.2016 and passed away 02.10.2016. 6. Subsequently, based on a complaint, Kolaghat District Purba Mednipur P.S. Case No. 530/16 dated 07.10.2016 was instituted against the driver of the offending vehicle as aforesaid. 7. The owner of the offending vehicle did not contest the case. 8. The respondent, United India Insurance Co. Ltd. contested the aforesaid MAC case. 9. The Learned Tribunal as aforesaid disposed of the issues framed considering the oral as well as documentary evidences and awarded a sum of Rs. 50,82,558/- plus interest at the rate of 6% per annum. 10. The Learned Advocate representing the Appellant submitted that the Learned Tribunal committed serious error in law while assessing monthly income of the deceased Rs.34,973/ considering ITR of the deceased pertaining to AY 2016-17 but fact, remains that the widow of deceased, Pw-1, adduced evidence before the tribunal that after death of her husband she took over business of her husband and running the same and regularly she used to file income tax return of said business. P.W. - 1 adduced evidence before the tribunal that after death of her husband she took over business of her husband and running the same and regularly she used to file income tax return of said business, disentitled her to claim ‘loss of income’. 11. The learned Advocate representing the appellant/insurance company relied on the decision cited 3 (a) in Rani Gupta -Vs- UII Co. Ltd. reported in 2009 (13) SCC 498 whereby the Hon'ble Apex Court held that "What was the actual loss of dependency to the family was his contribution to run the business. The assets of the business remained. The amount of compensation, therefore, was required to be determined keeping in view that factor in mind; (b) in NIA Co. Ltd. -Vs- Yogesh Devi reported in 2012 (3) SCC 613 whereby the Hon'ble Apex Court held that if the business of the deceased is running after his death by some other person or by family member of the deceased then loss of dependency should be assessed by deducting salary of a manager who can manage the business of the deceased. 11. It was further submitted that while assessing monthly income of the deceased to be Rs.34,973/ considering ITR of the deceased pertaining to AY 2016-17 without considering deposition of the widow of deceased, P.W.-1 submitted after death of her husband she took over business of her husband and running the same and regular she used to file income tax return was absolutely perverse and not tenable in the eye of law. Therefore, loss of income should be obliterated. 12. The Learned Advocate for the respondent/claimants submitted that rash and negligent driving of the offending vehicle was proved which resulted in the death of the victim. The learned Tribunal justifiably considered the element of future prospect, selection of multiplier and deduction towards personal expenses of the deceased victim in a case of death under Section 166 of the Motor Vehicles Act, 1988. The claimants being the dependent family members of the deceased victim was entitled to the compensation awarded and relied on the decision cited in - 4 i. (2009)6 SCC 121 [Sarla Verma (Smt.) VS. Delhi transport Corporation and another) ii. 2021 SAR (Civ) 147 [Kirti & Anr. Etc. VS. Oriental Insurance Company Ltd.] iii. 2020SAR (Civ) 905 [Smt. Sangita arya and Ors. Vs. Oriental Insurance Co. Ltd. & Ors.) 13. The learned Advocate representing the appellant further submitted that the family pension received by the wife of the deceased victim, the hereditary commission of LICI agent received by the claimants, the business of the deceased being inherited or bequeathed to the claimants would not be considered as pecuniary advantage irrespective of the accident which could otherwise devolved upon the claimants in the event of the death of the victim and relied upon the following decisions:- i. 2015) 1 WBLR (Cal) 1017 [The National Insurance Company Ltd. VS. Smt. Ayesha Sekh & Ors.] ii. AIR 2013 SC (Civil) 1783 | Vimal Kanwar & Ors. VS. Kishore Dan & Ors.] iii. (2010)1 WBLR (Cal) 531 [Madhumita Sarkar & Ors. VS. Oriental Insurance Co. Ltd. and Ors.] iv. (2008)3 WBLR (Cal) 851 (Sharmila Singh & Ors. VS. Sri Rabin Ghosh and another] v. 2022 (4) Τ.Α.C. 380 (SC) (K. Ramya and others VS. National Insurance Co. Ltd. and another] 5 vi. 2022 (1) Τ.Α.C. 59 (Cal) [Bajaj Allianz Insurance Company Ltd. and another VS. Bipasa Roy and others; 14. The learned tribunal erred in not adding adequate amount on the conventional heads such as loss of consortium, filial/ parental consortium, love and affection upon children, loss of estate and funeral expenses etc. as per present position of law and the learned tribunal below also has not added 10% for every three (3) years by following the case of Pranay Sethi and as such the compensation amount was liable to be enhanced as per the decision of the Hon'ble Apex Court. 15. Interest should be calculated on the awarded amount from the date of filing the claim case till the date of actual payment. 16. The learned Advocate representing the respondents/claimants submitted that the additional benefits as cited by the learned Advocate representing the appellant/insurance company with regard to the pension benefits, LIC maturity benefit would have otherwise be received by the claimants in natural course of demise of the victim which did not have any nexus or direct correlation to have been diminished or evacuated in case of an accident and, therefore, the learned Tribunal had rightly assessed the compensation awarded which should not be interfered with. 17. Considered the rival contentions of the learned Advocates representing the respective parties. 18. Since the occurrence of the accident, insurance policy, the driving licence, route permit etc. and other ancillary issues are not disputed by the learned advocate representing the appellant/insurance company, 6 this Court restricts itself only to the extent of issues agitated by the learned Advocates representing both the parties. P.W. 1 being the wife of the deceased victim in her examination-in-chief stated after the accidental demise of her husband the business of private security services discontinued. Since the claimants dependent on the husband’s income for their sustenance they were devoid of any source of income to maintain themselves. However, during her cross-examination P.W. 1 stated to continue the business of private security agency under the name and style Loknath Security Service after taking loan from other people since 2016 and had been filed the income-tax return. The appellant/insurance company did not plead before the learned Tribunal that the claimants were debarred from claiming the compensation awarded in continuing to operate the business of the deceased. Whether the claimant successfully functioned the business as aforesaid or not could not be an embargo or an impediment to preclude the claimants to claim compensation under the Motor Vehicles Act. The possibility of the claimant to successfully survive through the business cannot be guaranteed to yield usufruct for the entire life. Success or failure of a business are correlated and one cannot be intuitive or sanguine of its success till eternity to comprehend or to assume such unpredictable scenario which should not be an obstacle for the claimants to their prejudice. The learned Tribunal taking into account the oral and documentary evidence justifiably pronounced the impugned judgment and order which should not be interfered with. 19. The instant appeal is disposed of accordingly. 7 20.The Trial Court Records shall be sent down to the concerned tribunal forthwith. 21. Copy of the order be sent to the Department as well as concerned tribunal for information. (Ananya Bandyopadhyay, J.) Srimanta, A.R. (Ct.)