Calcutta High Court (Appellete Side)
The New India Assurance Co. Ltd vs Smt. Parul Ghosh & Ors on 23 August, 2021
S/L 9
23.8.2021
Court No.26
SD
FMAT 776 of 2017
With
CAN 1 of 2017
(Old CAN 7295 of 2017)
With
CAN 2 of 2017
(Old CAN 10537 of 2017)
(Via Video Conference)
The New India Assurance Co. Ltd.
Vs.
Smt. Parul Ghosh & Ors.
Mr. Parimal Kumar Pahari
... for the Appellant/Insurance Co.
Mr. Amit Ranjan Roy
... for the Claimants/Respondents.
The appeal is directed against the judgment and
award dated April 29, 2017 passed by the learned Additional
District Judge, Motor Accident Claims Tribunal, Fast Track
Court No.1, Barrackpore, North 24 Parganas in M.A.C. Case
No.5 of 2015 on a claim under Section 166 of the Motor
Vehicles Act, 1988 for death of one 'Dilip Ghosh' in a road
accident dated August 26, 2014.
Mr. Parimal Kumar Pahari, counsel appearing on
behalf of the appellant, preliminary put forth his submission
on the proposition that if the offending vehicle did not
possess a valid permit, the Insurance company could not be
made liable to pay compensation.
Per contra, counsel for the claimants submits that
defence provided to the Insurance company under Section
149(2) of the Motor Vehicles Act, 1988 doe not absolve the
Insurance company for making the payment to the
claimants. He submitted that the liability of the insurance
company to pay the victim very much remain and the
defence under Section 149(2) only allows the insurance
company to seek the reimbursement of the amount paid to
the victim from the owner of the offending vehicle.
He relied on the judgments of National Insurance
Company Limited vs. Swaran Singh & Ors. reported
in (2004) 3 SCC 297 and Amrit Paul Singh vs. TATA
AIG General Insurance Company Limited reported in
2018 SAR (Civil) 768 and Shamanna & Anr. vs. The
Divisional Manager Oriental Insurance Company
Limited & Ors. reported in 2018 SAR (Civil) 1021.
On an examination of the judgments cited by the
parties, I am of the view that the judgment in Swaran
Singh (supra) is the judgment to be followed which held
that in cases where insurance company is able to put up a
good defence under Section 149(2), it is upon the insurance
company to first pay the claimants and thereafter recover
from the owner of the offending vehicle in question.
Mr. Roy further submitted that one cross objection
being COT 2 of 2021 has been filed by the claimants against
the self same award passed by the Tribunal. Mainly two
points have been taken by the cross objectors in the said
cross objection. He submitted that the monthly income of
Rs.3,000/- of the victim, considered by the Tribunal, was
inadequate and claimants are entitled to get future prospect
on the income of the deceased.
Accordingly, it was argued that lesser quantum of
compensation has been wrongfully awarded by the Tribunal.
In support of his case, he relied on Supreme Court judgments
of Smt. Sarla Verma & ors. vs. Delhi Transport
Corporation & Anr. reported in (2009) 6 SCC 121 and
National Insurance Company Limited vs. Pranay
Sethi & Ors. reported in (2017) 16 SCC 680. I find
substance in the argument of the appellant for the year 2014,
in a claim case under Section 166 of the Motor Vehicles Act,
1988, an amount of Rs.4,000/- per month does not appear to
be exorbitant. Appellants are justified in praying for 40%
addition on account of 'future prospect' on the income of the
33 years old deceased.
Accordingly, the impugned award is modified and
recalculated in the manner referred hereinafter:-
Particulars Amount (Rs.)
Monthly income 4,000.00
Annual income (4,000x12) 48,000.00
After deduction 1/3rd (-)16,000.00
32,000.00
Addition 40% future prospect (+) 12,800.00
44,800.00
Multiplier of 16 to be used (x) 16
7,16,800.00
Add: General damages (+) 70,000.00
Total compensation 7,86,800.00
Less: Awarded amount (-) 4,17,500.00
Enhanced amount 3,69,300.00
Since the entire awarded sum together with interest
has already been deposited in terms of the order passed in
the instant appeal, liberty is granted to the
claimants/respondents to apply before the Registrar General
of this Court for withdrawal of the awarded amount. On such
application for withdrawal, the Registrar General shall
transmit the entire deposited amount along with accrued
interest thereon directly to the bank account of the
claimants/respondents in equal share as expeditiously as
possible preferably within four weeks from the date of receipt
of the bank accounts details.
The appellant/insurance company is further directed
to pay the differential/enhanced amount of Rs.3,69,300/- to
the claimants/respondents together with 6% interest from
the date of filing of the claim case till the date of payment
within a period of 45 days from the date of receipt of the bank
account particulars of the claimants/respondents.
For such purpose, counsel for the claimants will
forward the bank accounts of the claimants within fortnight
from date to the Registrar General and counsel for the
appellant/insurance company. Payment shall be made by the
insurance company to the claimants in equal share.
The insurance company shall upon payment of the
enhanced amount, be entitled to recover the entire awarded
amount paid to the claimants from the owner of the
offending vehicle, in accordance with law.
With the aforesaid directions, the instant appeal is
disposed of.
There shall be no order as to costs.
In view of the disposal of this appeal, connected
applications, if any, are also disposed of.
The Registry is directed to send down the lower court
records at once, if received by this time.
Urgent photostat certified copy of this order, if
applied for, be given to the parties, upon compliance of all
formalities, on priority basis.
(Shekhar B. Saraf, J.)
