Calcutta High Court (Appellete Side)
The New India Assurance Co. Ltd vs Durga Rani Maity @ Durga Maity & Ors on 6 September, 2021
Ct.
No. 06.9 F.M.A.T. 908 of 2013
26 2021 With
IA No. CAN 1 of 2013 (Old No. CAN 7912 of 2013)
10 With
& IA No. CAN 2 of 2013 (Old No. CAN 7913 of 2013)
11 With
akb IA No. CAN 3 of 2018 (Old No. CAN 6322 of 2018)
The New India Assurance Co. Ltd.
Vs.
Durga Rani Maity @ Durga Maity & Ors.
With
C.O.T. 81 of 2018
With
IA No. CAN 1 of 2019 (Old No. CAN 1753 of 2019)
Durga Rani Maity @ Durga Maity & Ors.
Vs.
The New India Assurance Co. Ltd. & Anr.
( Via Video Conference )
Mr. Parimal Kumar Pahari ...For the Appellant/Insurance Co. &
Respondent in COT 81 of 2018
Mr. Krishanu Banik ...For the Respondents/Claimants &
Appellants in COT 81 of 2018
By consent of the parties, both the appeals are
taken up for hearing analogously by treating the cross
appeal, being COT 81 of 2018, as on day's list.
The concerned Department is directed to trace out
and tag the said cross appeal along with this appeal, being
FMA 4454 of 2016.
Being aggrieved by and dissatisfied with the
judgment and award dated June 10, 2010 passed by the
learned Judge, Fast Track, 3rd Court, Tamluk, Purba
Medinipur, in M.A.C. Case No. 18/117/254 of
2010/2008/2008, the appellant/Insurance Company has filed
the present appeal on various grounds out of which the main
ground canvassed by the appellant is that the learned
Tribunal ought to have exempted the Insurance Company
from the liability altogether since the victim was a gratuitous
passenger in the mini truck which caused the accident.
The appeal has been filed out of time before this
Court. An application for condonation of delay, being CAN
7912 of 2013 and an application for stay being CAN 7913 of
2013 have been filed. The delay in filing the present appeal
has been explained in paragraphs 3 to 5 of the said
application for condonation of delay.
The reasons for causing the said delay have been
properly explained and this Court is inclined to accept the
said explanation and accordingly the delay in filing the
appeal be condoned and hence the application for
condonation of delay is allowed and the appeal is registered.
The concerned department is directed to proceed
with the said appeal in accordance with law.
Mr. Parimal Kumar Pahari, learned Counsel
appearing for the appellant/Insurance Company submits that
the learned Tribunal ought to have exempted the Insurance
Company from its liability altogether since the victim was a
gratuitous passenger in the mini truck which caused the
accident. He further contends that the learned Judge passed
the impugned award on lump sum basis and not in
accordance with law. He further submits that in case of
gratuitous passenger in a transport vehicle, the learned Judge
ought to have passed a direction to make the payment of
compensation by the Insurance Company towards the third
parties - victims of the motor accident at first and thereafter
the Insurance Company may recover the said amount from
the owner of the offending vehicle who has violated the
terms and conditions of the Insurance policy.
Per contra, Mr. Krishanu Banik, learned Counsel
for the respondents / claimants submits that the
appellant/Insurance Company has failed to establish that the
victim was a gratuitous passenger in the said mini truck and
further the award passed by the learned Tribunal is justified
in assessing the compensation in accordance with law and
therefore this Hon'ble Court may not interfere for granting
the quantum of compensation.
After considering the submissions made on behalf
of the parties and following the recent guidelines of the
Hon'ble Apex Court in some reported cases with regard to
payment of compensation by the Isurance Company towards
the third parties and recover the same from the owner of the
offending vehicle, this Court is inclined to accept the
submission of Mr. Banik, Counsel appearing for the
respondents/claimants and on the basis of the submission of
Mr. Phari, Counsel for the Insurance Company, the
impugned award is thus modified as stated hereinafter :
Monthly income Rs. 3,000/-
Annual Income Rs. 36,000/-
1/3rd deduction for personal Expenses Rs. 12,000/-
Use Multiplier (15) (24,000 X 15) Rs. 3,60,000/-
Add: General Damages Rs. 9,500/-
Principal Compensation Rs. 3,69,500/-
Mr. Pahari learned Counsel appearing for the
appellant/Insurance Company submits that his client has
deposited the entire awarded sum of Rs.4,00,000/- with the
learned Registrar General, High Court, Calcutta and the
same has been invested in a nationalised bank in short term
auto renewal basis.
This Court directs the Registrar General to release
the amount of Rs. 3,69,500/- with accrued interest from the
date of deposit till the date of disbursement and the balance
amount of Rs.30,500/- with accrued interest from the date of
deposit till the date of disbursement shall be refunded to the
appellant/Insurance Company within a period of four weeks
from the date of receipt of this appeal file.
It is further directed that after the payment of
compensation towards the respondents/claimants, the
appellant/Insurance company is at liberty to recover the said
payment of compensation payable to the
respondents/claimants from the owner of the offending
vehicle in accordance with law.
The payment shall be made directly in the bank
accounts of the claimants through NEFT/RTGS, in the
proportion decided by the Court below and in conformity
with the order given hereinbefore.
With the aforesaid directions, the instant appeal
being F.M.A.T. 908 of 2013 along with the cross objection
of the claimants, being COT 81 of 2018 are disposed of.
There shall be no further order as to costs. In view
of the disposal of the appeals, connected applications are
also disposed of.
LCR, if any may be returned back to the Court
below.
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.)
