Calcutta High Court (Appellete Side)
26 2021 Bajaj Allianz General ... vs 4 Nemai Chandra Khanra @ Nemi ... on 16 September, 2021
Ct.
No. 16.9 F.M.A. 1851 of 2018
26 2021 Bajaj Allianz General Insurance Co. Ltd.
Vs.
14 Nemai Chandra Khanra @ Nemi Khanra & Ors.
akb ( Via Video Conference )
Mr. Rajesh Singh ...For the Appellant/Insurance Co.
Mr. Krishanu Banik ...For the Claimants/Respondents
This appeal is directed against the judgment and
award dated August 30, 2017 passed by the learned Judge,
Motor Accident Claims Tribunal, 2nd Court, Tamluk, Purba
Medinipur, in M.A.C. Case No. 18 of 2015 / 118 of 2009,
for the death of one 34 years old lady 'Krishna Khanra' in a
vehicular accident dated February 14, 2009.
The appeal has been preferred by the appellant
Insurance Company, disputing its liability of satisfaction of
the award, on the ground that the offending vehicle, a
'Hyundai Santro Car', was not involved in the accident.
Insurer further pleaded that even after assuming that the said
car was involved, the rash and negligent driving of its driver
was not proved. The issue of 'contributory negligence' of
the deceased pillion rider, who was going on a motorcycle
which carried 4 (four) persons at the time of accident, was
also raised. Lastly, it was submitted that the rate of interest
of 8% per annum on the compensation amount, was
excessive.
Mr. Krishanu Banik, learned Counsel for the
respondents/claimants, supports the finding of the learned
Tribunal. The claimants pray for enhancement of
compensation amounting along with granting of interest
from the date of filing of claim application.
The involvement of the offending vehicle was
proved through the charge sheet filed by the police
authorities. The judgment of this Court in the case of
National Insurance Co. Ltd. Vs. Mita Samanta & Ors., reported in
2010 (3) CHN (Cal) 411 holds that after taking the leave under
Section 170 of the Motor Vehicles Act, 1988 from the
Tribunal, if the insurer fails to produce the driver and owner
of the offending vehicle, adverse inference may be drawn
that on the date of accident, the offending vehicle was
involved. Similarly, in AIR 1968 SC 1413 (Gopal Krishnaji
Ketkar Vs. Md. Haji Latif) the Hon'ble Supreme Court held that
until and unless the best witness, i.e. driver of insured
vehicle is summoned and examined in Court, the disputed
question of fact cannot be adjudged. In addition, the
decision of the Hon'ble Supreme Court in the case of
Laxmibai Vs. KSTRC, Bangalore, reported in AIR 2001 SC 2208,
decided that the alleged offending vehicle in the said case
was involved in the accident, as the respondent withheld the
evidence which were in its possession.
Similarly, in the instant case as well, the
appellant, being the insurer of the alleged offending Santro
Car, could not bring its best witness, the owner or the driver
of the said car to Court. To prove its case of 'non-
involvement of alleged offending car' or 'rash and negligent
driving of the car driver not being established', none of the
other occupants of the motorcycle came before the Tribunal.
There is not even an iota of evidence of 'contributory
negligence' of the deceased motorcycle occupant. The
offending car and its documents were seized and its driver
was charge sheeted and arrested. Thus, the involvement of
offending vehicle (Santro Car) and rash and negligent
driving of its driver cannot be questioned.
Accordingly, both the above points raised by the
insurer are devoid of merits and dismissed. The claimants
would be entitled to receive the compensation amount of
Rs.4,20,000/- as assessed by the Tribunal along with interest
to be calculated @ 6% per annum on the said amount, to be
calculated on and from the date of filing of the claim
application till realisation.
The learned Counsel for the appellant Insurance
Company submits that a total sum of Rs.4,44,832/- by way
of two separate deposits, has been secured by the insurer
with the learned Registrar General of this Hon'ble High
Court.
Accordingly, the claimants/respondents shall
furnish particulars of their respective bank accounts and also
proof of identity with the Registrar General of this Court as
expeditiously as possible. Upon receipt of such details, the
Registrar General is directed to pay the entire deposited
amount along with accrued interest to the
claimants/respondents in accordance with law within a
period of four weeks.
The Registrar General shall check the veracity of
the bank accounts and the identity of the claimants before
disbursing the amounts.
Upon receiving the said payment, the learned
Counsel for the claimants shall intimate the amount received
along with details of the bank account of the claimants, to
the learned Counsel for the Insurance Company. The
Insurance Company, within 45 days from the date of
receiving such details and bank particulars, shall calculate
and make over the deficit payment to the claimants by way
of NEFT/ RTGS in the respective bank accounts of the
respondent claimants directly in the same manner and
proportion as decided by the Court below.
With the aforesaid directions, the instant appeal,
being F.M.A. 1851 of 2018 shall stand disposed of.
Consequently, the connected application for stay
is also disposed of.
There shall be no further order as to costs.
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.)
