Calcutta High Court (Appellete Side)
Rita Devi Singh & Ors vs Bharti Axa General Insurance on 29 September, 2021
9 29.9.2021 (Via Video Conference)
Sc
F.M.A.T. 489 OF 2019
with
I.A. No. CAN 1 OF 2021
--------------
Rita Devi Singh & Ors.
Vs.
Bharti Axa General Insurance
Company Limited & Anr.
Mr. Ashique Mondal
...For the Appellants/
Claimants.
Ms. Gopa Das Mukherjee
...For the Respondent
Insurance Co. Ltd.
The appeal, is directed against the judgement and
award dated January 29, 2019 passed by the learned
Judge, Motor Accident Claims Tribunal, Additional
District Judge, 13th Court, Alipore, South 24-Parganas in
M.A.C. Case No. 06 of 2014.
The claim was filed under section 166 of the Motor
Vehicles Act, 1988. The appeal has been preferred by the
appellants/claimants, inter alia, primarily on the ground
that the tribunal has affixed the responsibility to pay
compensation to the appellants/claimants on the
respondent no.2/owner of the vehicle instead of the
respondent no.1/insurance company. The quantum of
compensation is also challenged by the
appellants/claimants on account of deduction towards
personal expenses, non-awarding of future proposals and
also inadequacy of compensation under non-pecuniary
heads.
Counsel for the respondent no.1/insurance
company submits that the driver of the offending did not
hold a valid driving licence and was in a drunken state at
the time of accident which tantamounts to breach of
terms of policy and thus the respondent no.1/insurance
company is not liable to pay any compensation. She
further submits that there is no further scope for
enhancement of quantum of compensation.
The case of the appellants/claimants is that the
tribunal has placed selective reliance on FIR, Motor
Accident Report, and the Chargesheet, while completely
ignoring the evidence of P.W. 2 (eyewitness) as well as the
evidence of D.W. 2 (investigating officer). Counsel for the
appellants/claimants submits that from the deposition of
the D.W. 2 (investigating officer) it is clear that the said
investigating officer admittedly reached the place of
occurrence of the accident after almost two and half
hours from the time of accident and that no breath
analysing test was conducted to confirm that the
offending driver was drunk at the time of accident. It is
also the case of the appellants/claimants that there is no
other document on record which confirms with absolute
certainty that the offending driver was driving the vehicle
under the influence of alcohol.
I find substance in the submission of the counsel
for the appellants/claimants. In order to satisfy the
mandate of section 185(a) of the M.V. Act, 1988, a person
has to be detected with 30 mg. alcohol Per 100 ml. of
blood by a test of breath analyser. In the instant case,
the investigating officer has admittedly reached the place
of occurrence after almost two and a half hours and has
not conducted any breath analyser test on the accused.
In such circumstances, the basic requirements of section
185 have not been satisfied and the D.W. 2 (investigating
officer) has framed charges against the offending driver
relating to driving in an intoxicated condition merely on
the basis of hearsay avowals. In such circumstances, the
tribunal ought not to have considered the deposition of
D.W. 2 (investigating officer) as sacrosanct.
Insofar as the absence of a valid driving licence is
concerned, the allegation has been adequately proved by
the respondent no.1/insurance company. In terms of
binding precedents in this regard the tribunal ought to
have directed the insurance company to pay the due
compensation to the appellants/claimants and then
recover the same from the respondent no.2/owner of the
vehicle. The decision of the Hon'ble Apex Court passed in
Parminder Singh -vs.- New India Assurance Co. Ltd.
reported in (2019) 7 SCC 217 lends support to the long
line of decisions in support of pay and recovery principle
in this regard. As such although the offending driver was
not holding a valid driving licence at the time of accident,
the insurance company shall pay the compensation
amount and shall be at liberty to recover it from the
owner of the vehicle.
On quantum of compensation, the tribunal has
erred in deducting 1/3rd of the income of the deceased
towards his personal expenses instead of 1/4th since the
deceased had four dependants. Future prospect also
ought to have been awarded @ 30% of the income of the
deceased since he was aged between 40-50 years and was
an employee of Calcutta Port Trust. The remaining
factors of computation of payable compensation has been
well-settled by the Hon'ble Apex Court in National
Insurance Company Limited -vs.- Pranay Sethi & Ors.
reported in (2017) 16 SCC 680. Be that as it may,
considering the rival submissions of the parties as well as
judgments of the Hon'ble Apex Court as well as general
practice of this Court, the above award passed by the
tribunal is modified and recalculated as follows :
Particulars Amount (Rs.)
Monthly income Rs.35,012/-
Less 1/4th towards personal
Expenses (Rs.8,753/-) Rs.26,259/-
Add 30% additional income
Towards future prospect
(Rs.7,877/-) Rs.34,136/-
Annual income (x12) Rs.4,09,632/-
Multiplier (13) Rs.53,25,216/-
Loss of consortium Rs.44,000/-
Loss of estate Rs.16,500/-
Funeral expenses Rs.16,500/-
Total Rs.54,02,216/-
Since no amount has been paid by the respondent
no.1/insurance company to the appellants/claimants, the
entire awarded amount which comes to Rs.54,02,216/-
together with interest @ 6% per annum from the date of
claim application till payment shall be paid to the
appellants/claimants within thirty days of receipt of
particulars of their respective bank accounts to be
supplied by their counsel to the counsel for the
respondent no.1/insurance company.
It is made clear that the payment shall be made by
the respondent no.1/insurance company by way of
NEFT/RTGS in the respective bank accounts of the
appellants/claimants directly in accordance to the
proportionate share as indicated in the impugned
judgment dated January 29, 2019.
It is further made clear that the respondent
no.1/insurance company shall pay the compensation
amount to the claimants and shall be at liberty to recover
it from the owner of the vehicle thereafter.
With the aforesaid directions the instant appeal is
disposed of.
In view of disposal of this appeal, connected
applications, if any, are also disposed of. The department
concerned is directed to tag the applications, if any, with
the main appeal.
There will be no 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.)
