Calcutta High Court (Appellete Side)
The National Insurance Company ... vs Smt. Shreosi Paul Nee Das & Ors on 5 December, 2022
43-44
05.12.2022
Ct. No.237
pg.
IN THE HIGH COURT AT CALCUTTA
CIVIL APPELLATE JURICTION
APPELLATE SIDE
FMA 191 of 2012
The National Insurance Company Limited
Vs.
Smt. Shreosi Paul nee Das & Ors.
with
FMA 1127 of 2012
with
IA No. CAN 2 of 2018 (CAN 7723 of 2018)
(Application not in the file)
Smt. Shreosi Paul & Anr.
Vs.
The National Insurance Company Limited & Anr.
Mr. Afroze Alam
... For the appellant/Insurance Company
in FMA 191 of 2012
Mr. Amit Ranjan Roy
... For the respondents/claimants in
FMA 191 of 2012 & appellants/
claimants in FMA 1127 of 2012
Mr. Arabinda Kundu
... For the respondent no.1/Insurance Co.
in FMA 1127 of 2012
On behalf of the claimants, the appeal, being FMA
1127 of 2012 has been filed for enhancement of
compensation only to the extent of future prospect as the
same was not considered by the learned Motor Accident
Claims Tribunal, 5th Court, Howrah, in connection with
MAC Case No.306 of 2004.
On the other hand, the National Insurance
Company Limited has preferred an appeal, being FMA 191
2
of 2012, being aggrieved by and dissatisfied with the
judgment and award dated 10th May, 2011 passed in MAC
Case No.306 of 2004 whereby the learned Tribunal did not
allow to give liberty to the National Insurance Company
Limited to recover the compensation from the owner of the
offending vehicle, bearing registration no.WB-02/N-2381.
Both the appeals are being taken up together for
disposal by this common judgment.
The claim petition was filed under Section 166 of
the Motor Vehicles Act, 1988 on 10th August, 2004 by the
claimants for compensation of Rs.10,00,000/- on account
of death of one Rabidas Paul @ Rabin Paul in a road
accident which took place on 4th July, 2004 at about
21.30 hours over Madhu Sudun Mukherjee Road near
Shankar Pharmacy. The accident took place due to rash
and negligent driving of a vehicle, bearing registration
no.WB-02/N-2381.
The National Insurance Company Limited
contested the claim application by filing written statement
denying all material allegations made in the claim petition
contending, inter alia, that the claimants are not entitled
to any compensation as the policy was cancelled at the
relevant point of time.
In course of the trial, two witnesses were examined
on behalf of the claimants. They corroborated the entire
incident of accident, the age and income of the deceased.
3
On behalf of the Insurance Company, one witness
was also examined in this case as DW-1 to show that
cheque issued by the owner of the vehicle towards
premium was dishonoured.
All the learned advocates on behalf of the National
Insurance Company Limited as well as the claimants are
present. After hearing the learned advocates, it comes to
my view that the only issue in appeal, being FMA 1127 of
2012, is that the learned Tribunal did not consider the
future prospect and the issue of appeal, being FMA 191 of
2012, is that the learned Tribunal did not give any liberty
to the Insurance Company to recover the compensation
amount from the owner of the vehicle as no premium was
ever been paid by the owner of the vehicle.
From the judgment itself, it is clear that the
learned Tribunal did not consider the future prospect
according to the settled principle laid down by the Hon'ble
Apex Court in Sarala Verma (Smt.) & Ors. v. Delhi
Transport Corporation & Anr. reported in (2009) 6 SCC
121.
Therefore, it is needless to mention that the
claimants are entitled to future prospect to the extent of
15% of the income.
With regard to the payment of premium is
concerned, I find that at the time of examination of DW-1
on behalf of the Insurance Company, the dishonoured
4
cheque along with notices were admitted in evidence as
Exhibit-A to G/1. From the entire evidence of DW-1
together, I do not find any reason to come to a conclusion
that after dishonoured of the cheque, the Insurance
Company served notice upon the owner of the offending
vehicle. It also appears from the record that the owner of
the offending vehicle did not appear before the learned
Tribunal in spite of notices and also in the appeal.
Learned advocate appearing on behalf of the
National Insurance Company Limited in the appeal, being
FMA 191 of 2012, has submitted that the owner never
paid premium by any other mode except the cheque which
was dishonoured.
From the records, it also appears that the
Insurance Company could not serve notice upon the owner
after dishonoured of the cheque and also could not file any
criminal case under Section 138 of the Negotiable
Instruments Act to that effect.
Be that as it may, it cannot be the reason for
disregarded the prayer for recovery of the amount from the
owner after payment of compensation to the claimants.
Thus, the National Insurance Company Limited is at
liberty to recover the total awarded amount from the owner
of the vehicle.
Considering the aforesaid facts and circumstances,
I find it justified to modify the award as follows:-
5
Monthly Income Rs. 9,970/-
Less: Professional Tax Rs. 110/-
-----------------
Rs. 9,860/-
Annual Income (Rs.9,860/- x 12) Rs. 1,18,320/-
Less: 1/3rd Deduction Rs. 39,440/-
------------------
Rs. 78,880/-
Add: Future prospect 15% Rs. 11,832/-
------------------
Rs. 90,712/-
------------------
Rs. 9,97,832/-
Add: General Damages Rs. 70,000/-
------------------
Total Rs.10,67,832/-
-----------------
It is reported that the National Insurance Company
Limited only deposited the statutory amount of
Rs.25,000/- at the time of filing of the appeal before the
office of the learned Registrar General of this Court.
In the aforesaid view of the matter, the claimants
are entitled to compensation of Rs.10,67,832/- along with
interest @ 6% per annum from the date of filing of the
claim petition, i.e., on 10th August, 2004 till the deposit of
the same.
Accordingly, the National Insurance Company
Limited is directed to deposit the awarded amount of
Rs.10,67,832/- along with interest @ 6% per annum from
the date of filing of the claim petition, i.e. on 10th August,
2004 till the actual deposit of the amount before the office
of the learned Registrar General of this Court, within six
weeks from the date of this order.
The National Insurance Company Limited is at
liberty to recover the entire awarded sum with interest
from the owner of the vehicle, bearing registration no.WB-
02/N-2381, through execution proceeding in terms of the
observations of the Hon'ble Apex Court in Shamanna &
Ors. v. The Divisional Manager, The Oriental Insurance
Co. Ltd. & Ors. reported in AIR 2018 SC 3726 and
Oriental Insurance Co. Ltd. v. Nanjappan & Ors. AIR
2004 SC 1630 : (2004) 13 SCC 244.
The National Insurance Company Limited is also at
liberty to withdraw the statutory deposit of Rs.25,000/-
along with accrued interest thereat from the office of the
learned Registrar General.
The claimants will be entitled to withdraw the
entire amount with interest.
The learned Registrar General is requested to
disburse the amount to the claimants in equal share on
proper identification.
With the observation, both the appeals, being FMA
191 of 2012 and FMA 1127 of 2012, stand disposed of.
All pending applications, if there be any, stand
disposed of.
Records of the learned Tribunal along with a copy
of this order be transmitted back immediately.
Urgent photostat certified copy of this order, if
applied for, be given to the parties, upon compliance of
necessary formalities.
(Bibhas Ranjan De, J.)
