National Insurance Company Ltd vs Samir @ Samiran Majumder & Anr
2021 Latest Caselaw 3426 Cal

23 25.06.2021                (Via Video Conference)
Sc
                              F.M.A.T 833 of 2019
                                        with
                              I.A. No.CAN 1 of 2019
                               (Old No.8563 of 2019)
                                        with
                              I.A. No.CAN 2 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

It appears to this Court that the instant appeal has

been filed out of statutory period. On the oral prayer of

the parties, this Court is satisfied and condones the delay

in filing the instant appeal.

The instant appeal has been filed by the

appellant/Insurance Company against the judgment and

award dated June 17, 2019 passed by the Judge, Motor

Accident Claims Tribunal, 5th Court, Barasat, North 24-

Parganas in M.A.C. Case No. 27 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, the

amount awarded under non-pecuniary expenses should

have been restricted to Rs.4,500/- 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 appellant's

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 claim is under section 163A, the

notional income of the 14 years old minor victim had to

be taken as Rs.15,000/- per month. After deducting one-

third on account of personal expenses and applying a

multiplier of 15, the net compensation comes to

Rs.1,50,000/-. 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. The gross compensation

works out to Rs.1,54,500/- 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.

It is submitted by the Insurance Company that they

have deposited a sum of Rs.25,000/- with the Registrar

General of this Court in aid of this appeal.

Upon 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, the

Insurance Company shall be entitled to claim refund of

the aforesaid sum of Rs.25,000/- together with any

accrued interest from the Registrar General of this Court.

With the aforesaid directions the instant appeal is

disposed of. Accordingly, all connected applications are

disposed of.

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.)