Calcutta High Court (Appellete Side)
National Insurance Company Ltd vs Samir @ Samiran Majumder & Anr on 25 June, 2021
29 25.06.2021 (Via Video Conference)
Sc
F.M.A.T 371 of 2020
with
I.A. No.CAN 2 of 2020
(Application for condonation of delay)
with
I.A. No.CAN 1 of 2020
with
I.A. No.CAN 3 of 2020
--------------
National Insurance Company Ltd.
Vs.
Samir @ Samiran Majumder & Anr.
Ms. Sucharita Paul
...For the Appellant/
Insurance Company
Mr. Rajdeep Bhattacharya
....For the Respondents/
Claimants
CAN 2 OF 2020
---------------
This is an application for condonation of delay in
filing the instant appeal.
On perusal of the pleadings, this Court is satisfied
that cause shown for delay in filing of the appeal is
sufficient and prayer for condonation of delay should be
allowed.
Accordingly, the application for condonation of
delay being CAN 2 of 2020 stands allowed. The appeal is
restored to its original file and number.
The application for condonation of delay is disposed
of.
FMAT 371 OF 2020
The instant appeal has been filed by the
appellant/Insurance Company against the judgment and
award dated September 27, 2019 passed by the Judge,
Motor Accident Claims Tribunal, 5th Court, Barasat,
North 24-Parganas in M.A.C. Case No. 28 of 2016.
Two grounds have been raised by the Insurance
Company in the appeal. The first ground is that at the
time of the accident the driver of the offending vehicle was
not holding a proper and effective driving licence.
Therefore, Insurance Company is not liable to pay
compensation in view of violation of the policy conditions
and the award should be satisfied by the owner of the
said vehicle. The second contention is that in a claim
under section 163A of the Motor Vehicle Act, 1988, there
is no provision to award future prospect and the amount
awarded under non-pecuniary expenses should have
been restricted to Rs.9,500/- instead of Rs.70,000/-
which has been granted by the tribunal while assessing
the quantum of compensation.
As to the first ground, the motor vehicle inspector
came and deposed as DW-1 on behalf of Insurance
Company and exhibited a report (Exhibit-B) issued by the
Licensing Authority, Alipore, South 24-Parganas. The
said report speaks that no record in connection with the
driving licence of the driver of the offending vehicle was
found in the office records of the said licensing authority.
During cross examination DW-1 however mentioned that
the report neither stated that the driving licence was a
fake document nor does it mention that the driving
licence had not been issued in the name of the driver of
the offending vehicle. The tribunal in its award observed
in the light of the above, since from the evidence of DW-1
it could not be stated that the driving licence was fake,
Insurance Company would remain liable to pay
compensation.
As to the second ground raised by the appellant, I
find that there is substantial basis to the appellants'
assertion that in a claim under section 163A, there is no
provision to award future prospect. Further, the amount
under the collective heads of general damages should
have been Rs.9,500/- only instead of Rs.70,000/- as has
been awarded.
Accordingly, the impugned award is modified and
recalculated. Since the income of the deceased was
Rs.3000/- per month, on an annual basis, such income
would be Rs.36,000/-. After deducting one-third on
account of personal expenses and applying a multiplier of
17, the net compensation comes to Rs.4,08,000/-. The
claimants would also be entitled to an amount of
Rs.2,500/- on account of loss of estate and Rs.2,000/- for
funeral expenses and Rs.5000/- as loss of consortium.
The gross compensation works out to Rs.4,17,500/-
together with interest thereon at the rate of 6% per
annum from the date of lodging the claim till the date of
receipt of the amount of compensation.
It will however be open to the Insurance Company
to file a civil suit against the owner of the offending
vehicle for recovery of the compensation paid or payable
on the ground that it was the sole obligation of the owner
of offending vehicle to pay the compensation, if it can
prove its case that the driver of the offending vehicle did
not possess a valid driving licence at the time of accident.
The Insurance Company is directed to make
payment of the sum indicated hereinabove into the Bank
Accounts of the claimants/respondents, within 45 days
from the date of receipt of such bank account particulars,
upon the same being furnished by their counsel to the
counsel for Insurance Company.
With the aforesaid directions the instant appeal is
disposed of. Accordingly, all connected applications are
disposed of. Department is directed to tag the
applications, if any, with the main appeal.
In view of the above order, execution case in the
court below, if any, remains stayed.
There will be no order as to costs.
Photostat certified copy of this order, if applied for,
be furnished upon compliance of all necessary formalities.
(Shekhar B. Saraf, J.)
