Calcutta High Court (Appellete Side)

Mst. Rupsuna Bibi &Ors vs New India Assurance Company ... on 2 December, 2022

               IN THE HIGH COURT AT CALCUTTA

                  (Civil Appellate Jurisdiction)

                          Appellate Side
Present:
The Hon'ble Justice Bibhas Ranjan De




                       F.M.A 1574 of 2008
                               With
             IA No. CAN 2 of 2015 (CAN 1614 of 2015)
                      Mst. Rupsuna Bibi &Ors
                               Vs.
           New India Assurance Company Limited & Ors.


For the Appellants/                  :Mr. Krishanu Banik, Advocate
Claimants


For the Respondent No. 1/            :Mr. Rajesh Singh, Advocate
New India Assurance Co. Ltd.


For the Respondent No. 2/            :Mr. Parimal Kumar Pahari
Oriental Insurance Co. Ltd.


Hearing concluded on            : November 24, 2022
Judgment on                     : December 02, 2022
 Bibhas Ranjan De, J.

1. One Sk. Samsul Haque died on account of injuries sustained

in a motor accident which took place on 08/09. 02. 2002 at

about 2.45 a.m. on G.T Road, near village Fagupur under PS

Burdwan by the involvement of one truck bearing registration

no. HR/38C-2365 and one bus bearing no. WB-41A/5952. As

a result, both the drivers of the two vehicles died. This is the

claim application filed by the legal heirs i.e. wife of deceased

Sk. Samsul Haque and her three minor children. Deceased Sk.

Samsul Haque was driver of the bus bearing registration no.

WB 41A/5952. After the accident Burdwan PS Case No.25/96

of 2002 dated 09.02.2002 under Section 279/ 337/338/422 &

304A I.P.C was started. Claimants filed the application under

Section 166 of the Motor Vehicles Act,1988 claiming

compensation to the tune of Rs. 6,48,000/-.

2. Both the Insurance Companies i.e. New India Assurance

Company Ltd. and Oriental Insurance Company Ltd. were

made parties to the claim application. New India Assurance

Company contested the claim application by filing a written statement denying all contentions of the claim petition

contending, inter alia, that compensation should be awarded

against the vehicle no. HR 38C/2365 and the New India

Assurance Company Ltd. is not liable to pay any

compensation to the claimants.

3. Oriental Insurance Company also contested the claim petition

by filing a written statement denying any liability whatsoever.

4. In course of trial, wife of the deceased was examined as PW-1.

She stated in her evidence that owner of the bus informed her

about the accident as her husband was the driver of the bus.

She stated that her husband used to earn Rs. 4,500/- per

month and he was 30 years at the time of death.

5. PW-2, Sk. Lal Chand was sitting in the driver's cabin at the

time of accident. At that time, bus was coming from the side of

Deoghar and the lorry was proceeding towards Durgapur from

Burdwan with random speed. An accident took place due to

rash driving of the truck bearing no. HR 38C/2365. In cross-

examination on behalf of the New India Assurance Company

Ltd., PW-2 stated that bus driver (deceased) did not violate any

traffic rule but lorry was being driven rashly and negligently.

6. In cross-examination on behalf of Oriental Insurance

Company, PW-2 stated that he lodged FIR and both the bus

and the truck were in running condition and it was head on

collision. He denied the suggestion that accident took place

due to rash driving of the bus.

7. PW-3, owner of the bus, deposed in this case and proved the

income of the deceased as driver.

8. In course of the evidence, Insurance Policies, certificate of

Police Morgue, formal FIR and Post Mortem report were

admitted in evidence as exhibit 1 to 4.

9. After considering the evidence Ld. Tribunal awarded total

compensation of Rs. 6,24,000/- but Ld. Tribunal only asked

the Oriental Insurance company Ltd. to pay the 50% of the

compensation i.e. Rs. 3,12,000/- on the ground that both the

vehicles were liable for the accident and New Indian Assurance

Company in respect of bus no. WB-41A/5952 is not liable to

pay compensation because of the accident on account of rash

driving of both the vehicles (bus & truck).

10. Being aggrieved by and dissatisfied with the award, the

instant appeal has been preferred by the claimants.

11. Mr. Krishanu Banik, Ld. Advocate appearing on behalf of

the claimants, has tried to make this Court understand that

there was no fault or negligence on the part of the driver,

deceased Sk. Samsul Hawk, of the bus no. WB 41A/5952.

Accordingly, Mr. Banik prayed for entire compensation along

with future prospect i.e. 40% of the income and general

damages of Rs. 70,000/- in support of his contention he

relied on the following cases:

 Mohammed Siddique & anr. Vs. National Insurance

Company Ltd. & Ors., ACJ 2020 (VL-1) 751.

 Usha Rajkhowa and others Vs. Paramount Industries

and others, 2009 ACJ 1314

 United India Insurance Company Limited Vs. Smt.

Anumita Paul, 1 (2015) ACC 628 (DB) (Cal)

12. Mr. Banik has further tried to make this Court

understand that the claim petition of this case did not involve

any accident due to contributory negligence of the two

vehicles. He relied on the evidence of eye-witness and

submitted that accident took place due to rash and negligent driving on the part of the driver of the truck bearing no. HR

38C/2365.

13. Per contra, Ld. Advocate, Mr. Parimal Kumar Pahari,

appearing on the behalf of the Oriental Insurance Company

has contended that it was a case of contributory negligence on

the part of the drivers of both the vehicles and therefore,

Oriental Insurance Company is not liable to pay entire

compensation. Mr. Pahari has referred to FIR (exhibit-iii) in

support of his contention.

14. Let me have an attention to the observations of the

Hon'ble Supreme Court and High Court in interpreting

contributory negligence in terms of respective case.

15. In Mohammed Siddique (supra) Hon'ble Apex Court

dealt with a case of accident between Motor Cycle and Car. In

that case, Hon'ble High Court observed contributory

negligence on the part of the Motor Cycle, on the ground, that

said motor cycle was changing lane to allow another vehicle to

overtake, besides there were two persons on the pillion. In that

case, the car hit the bicycle from behind and Hon'ble Supreme

Court bifurcated the liability of the motor cycle under Section 128 of the Motor vehicles Act, 1988 for carrying two pillion

riders and came to a finding that the case was not within the

purview of contributory negligence.

16. Usha Rajkhowa (supra) dealt with head on collision

between a truck and a Maruti Car and entire evidence focused

on the evidence of PW-3, who asserted specifically that the

truck was coming from the opposite direction in a high speed

from Jorhat side and it hit the car, as a result of which, two

persons sitting in the car died and claimant received injuries.

PW-3, specifically denied the suggestion thrown at him that

accident took place because of the fault of Maruti Car. PW-3

also testified that he could not say clearly as to which vehicle

was at fault. In this conjecture, Hon'ble Apex Court, keeping

an eye to the size and power of the two vehicles, took re-course

of the doctrine of 'res ipsa loquitur' and came to the finding

the truck was responsible for the accident in spite of head on

collision between the truck and Maruti Car.

17. In Anumita Paul & Binapani Paul (supra) Hon'ble

Division Bench of this Court, came across a case of head on

collision between Qualish Car and Oil Tanker. In that case also Hon'ble Division Bench of this High Court took the

assistance of ratio of Usha Rajkhowa (supra) and got rid of

the issue of contributory negligence.

18. In the case in hand, I have come across an accident out

of head on collision between a tourist bus and lorry. Mr. Banik

has tried to make this Court understand, that there was no

negligence on the part of the deceased driver of the bus and in

support of his contention, he has referred to the evidence of

one Sk. Lal Chand who has been examined as PW-2.

19. PW-2, testified that at the relevant point of time he was

sitting in the cabin of the bus. PW-2 further stated that, the

lorry coming from the opposite side in a random speed dashed

the bus at its right portion and bus was along the left side of

the road. In cross-examination, he has specifically stated that,

he did not suppress or exaggerate any fact in the F.I.R lodged

by him.

20. From the FIR (exhibit-iii), it is seen that accident took

place on 09.02.2002 at about 2.45 a.m. and FIR was lodged

within two hours on 09.02.2002 at Burdwan Police Station.

Therefore, it is clearly presumed that, PW-2 lodged FIR almost immediately after the accident. Now turning to FIR, I find that

PW-2 stated that accident took place due to rash and negligent

driving of both the tourist bus and lorry. So, the cases dealt

with by the Hon'ble Apex Court and the High Court is not at

all identical to that of ours. In our case, by no stretch of

imagination, I can come to any conclusion applying the

doctrine 'res ipsa loquitur' in view of the oral evidence of PW-

2 who deviated from the facts stated in the FIR (exhibit-iii)

during his evidence, after one year.

21. For the reasons, claimant i.e. heirs of deceased driver of

the tourist bus cannot claim entire compensation from the

insurer of the lorry as it is a case of contributory negligence.

22. Accordingly, I do not find any reason to interfere with the

judgement and award passed by the Ld. Tribunal except the

award towards future prospect, general damages and amount

towards deduction on account of personal expenses.

23. In terms of age group of deceased, claimants are entitled

to 40% of the annual income of the deceased at the time of

death, towards future prospect. Admittedly, Sk.Samsul Haque

passed away in motor accident leaving behind his wife and three children. Therefore, deduction towards personal

expenses should be 1/4th instead of 1/3rd of total income.

Claimants are also entitled to Rs. 70,000/- towards general

damages. In view of the principle laid down in Sarla Verma

and others vs. Delhi Transport corporation and another

(2009 (2) T.A.C 677 SC).

24. In the aforesaid view of the matter, Oriental Insurance

Company is liable to pay 50% of the total awarded amount

modified as follows:-

  Monthly income                             :Rs. 4,500/-

  Annual income (Rs.4,500/- X12)            :Rs. 54,000/-

  Future prospect 40%                        :Rs. 21,600/-
                                            ______________


  Total income                              :Rs.75,600/-

  Deduction 1/4th (personal expenses)       :Rs. 56,700/-
    (75,600-18,900)

  Multiplier 16 (56,700X16)                 :Rs. 9,07,200/-

  General damages                           :Rs. 70,000/-

  Total of Rs.                              :Rs. 9,77,200/-

  Less: Already received                   :Rs. 3,12,000/-
                                           ___________________
          Balance amount                    Rs. 6,65,200/-

25. As, I find from the record that Oriental Insurance

Company already paid Rs. 3,12,000/- to the claimants as per

order of Ld. Tribunal, therefore, Oriental Insurance Company

is now liable to pay rest awarded amount of Rs. 1,76,600/- to

the claimants.

26. Claimants are entitled to received Rs. 1,76,600/- along

with interest @ 6% per annum from the date of filing of the

Claim petition till the deposit of the amount.

27. Oriental Insurance Company is directed to pay the rest

awarded amount of Rs. 1,76,600/- along with interest @ 6%

per annum from the date of filing of the claim petition till

deposit with the office of the Ld. Registrar General, within