S/L 8 18.08.2026 Court No.9 Swd IN THE High COURT AT CALCUTTA CIVIL APPELLATE JURISDICTION APPELLATE SIDE FMA 431 of 2025 The Oriental Insurance Company Ltd. Vs. Avik Chowdhury & Anr. Mr. Rajesh Singh. … for the Appellant/Insurance Co. Mr. Saidur Rahman. … for the Respondent/Claimant. 1. Learned Advocates for the parties are present. 2. Heard learned Advocates. 3. 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 10.08.2023 passed by the learned Additional District Judge, Fast Track, 4th Court, North 24 Paraganas at Barasat in M.A.C Case No.821 of 2016. 4. The case of the claimant before the learned Trial Court may be summed up thus: On 24.03.2016 at about 15:00 hrs, the victim Amit kumar Choudhury and others were travelling by the offending vehicle bearing No. WB-26T/1988 (Mahindra Scorpio), which was proceeding along N.H.5 towards Cuttack side. 2 The driver was driving his vehicle bearing no. WB-26T/1988 (Mahindra Scorpio) with a terrific high speed and in a most rash and negligent manner, endangering human life and safety to others, thereby disobeying and violating all traffic rules and regulations and when the said offending vehicle came near Neulpur, in between Panikoili to Chandikhole newly Constructed Railway over Bridge, under Dharmasala Police Station, under Jajpur District, all on a sudden the said vehicle capsized on the road on left side of N.H.5 due to reckless driving, as a result of which three persons were dead at the spot and other five persons sustained serious injuries due to accident. With the help of local people the injured person were shifted to the Badachana Hospital, District Jajpur, Odisha, through Ambulance, out of which other three persons expired including the victim, at the said hospital. Rash, reckless and negligent driving on the part of the driver of the offending vehicle bearing No. WB-26T/1988 (Mahindra Scorpio) was the sole cause of the pathetic accident, which could have been avoided if the driver of the offending vehicle would be cautious in driving the vehicle by observing the Traffic Rules & Regulations at the material time. 3 5. Pursuant to filing of this case, notice was issued upon opposite parties. The opposite party vehicle owner did not appear and contest the case. However, the opposite party Insurance Company contested the said claim case. Issues were framed and evidence was adduced. 6. Learned Trial Judge upon considering the evidence adduced and upon hearing the learned Advocates was pleased to dispose the claim case by observing and directing as follows: “Hence, it is ORDERED that the instant claim petition be and the same is allowed on contest against O.P. No. 2/ Oriental Insurance Co. Ltd and ex parte against O.P. No.1 i.e. the owner of vehicle namely, Sajal Das. The claimant is awarded a compensation of 2,02,21,664/- to be paid by the OP No. 2/ Oriental Insurance Co. Ltd. The OP No. 2/ Oriental Insurance Co. Ltd is directed to issue an account payee cheque in the name of the claimant Avik Chowdhury as per the order made above within 60 days from this day along with a simple interest calculated at the rate of 6% per annum from the date of filing of this application i.e. 28.09.2016 till realization of entire amount. 4 Any compensation already paid to the petitioner u/s 140 of M.V. Act shall be deductible from the award of compensation made herein above. The claimant is directed to furnish deficit Court Fees along with his photograph before withdrawing the cheque for compensation. However, considering the entire aspect this Tribunal passes no order as to costs. Copy of award be given to the parties free of cost. The case record be consigned to the Record Room. The claimant shall be at liberty to put this award into execution in accordance with law in case the OP No. 2/Oriental Insurance Co. Ltd. fails to comply the order within the stipulated period.” 7. The appellant Insurance Company being aggrieved by the judgment and award passed by the learned Trial Court has come up with the instant appeal. 8. Heard learned Advocate for the appellant insurance company and learned Advocate for the claimant respondent No.1. Perused the evidence adduced and the materials on records. 9. Learned Advocate for the appellant insurance company submits that, in the instant case, the learned Trial Judge failed to consider the net income of the victim and took into consideration the leave encashment amount also in computing the compensation. Learned Advocate further 5 submits that the learned Trial Judge ought to have adjusted the leave encashment and then proceeded to compute the compensation. 10. It is also submitted that the learned Trial Judge erred in not granting the right to recovery from the vehicle owner on the ground that police authority did not seize any driving license and, thus, he was not having any driving license. 11. Upon hearing the learned Advocates and considering the facts of the case, the Court is of the view that although the allowances which a person receives along with his salary should be taken into consideration at the time of computing the compensation under the motor vehicle claim law, however, it is to be proceeded with caution as to whether the allowances which a person receives are all recurring in nature or received at least once or twice or few times during the service tenure. 12. As leave encashment cannot be a recurring income in every year and the same may be once or for a few times during the lifetime of an employee, the leave encashment of Rs.9,19,363.56 is excessive and it cannot be a recurring income of every year. Thus, it would be just and reasonable to consider a proportionate leave encashment income for a particular year 6 and proceed with the annual income of Rs.12 lakh. 13. Thus, if annual income is considered as Rs.12 lakh, 1/3rd being deducted which is Rs.4 lakh, the total income comes to Rs.8 lakh. The multiplier of 13 being applied, the total dependency loss comes to Rs.1,04,00,000/-. Future prospect of 30% being added which is Rs.31,20,000/-, the total dependency loss comes to Rs.1,35,20,000/-. Further, general damages should be Rs.36,000/-. Thus, Rs.1,35,56,000/- is the total compensation which claimants respondents are entitled as per arithmetical calculation. 14. However, this Court is of the view that as under Section 168 of the Motor Vehicle Act, 1988, Courts and Tribunals are empowered to award compensation which in the view of Court is just and reasonable, this Court thinks that the compensation of Rs.1,40,00,000/- is just and reasonable. 15. Hence, this appeal FMA 431 of 2025 stands disposed. The judgment and award dated 10.08.2023 passed by the learned Additional District Judge, Fast Track, 4th Court, North 24 Paraganas at Barasat in M.A.C Case No.821 of 2016 stands modified to the extent that the claimants respondents are entitled to 7 Rs.1,40,00,000/- from the appellant insurance company. 16. The appellant insurance company shall deposit Rs.1,40,00,000/- before the Registrar General, High Court, Calcutta along with interest @ 6% per annum. Such deposit shall be made within 8 weeks from the date of communication of this order. 17. In the event, compensation awarded by the learned Trial Court is already deposited, no further deposit be made. The claimants respondents will be entitled to withdraw the compensation upon compliance of necessary formalities. Balance amount along with accrued interest, if any, be returned to the appellant insurance company with accrued interest. 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.)