Calcutta High Court (Appellete Side)
Smt. Roydhani @ Raidhoni Garai vs The New India Assurance Company ... on 5 December, 2022
51
05.12.2022
Ct. No.237
pg.
IN THE HIGH COURT AT CALCUTTA
CIVIL APPELLATE JURICTION
APPELLATE SIDE
FMA 484 of 2013
with
IA No. CAN 2 of 2013 (CAN 10010 of 2013)
(Application not in the file)
with
CAN 3 of 2016 (CAN 4327 of 2016)
Smt. Roydhani @ Raidhoni Garai
Vs.
The New India Assurance Company Limited & Anr.
Mr. Amit Ranjan Roy
... For the appellant/claimant
Mr. Parimal Kumar Pahari
... For the respondent no.1/Insurance Co.
This appeal is directed against the judgment and
award dated 7th April, 2010 passed by the learned Motor
Accident Claims Tribunal, Special Court, Asansol, in MAC
Case No.55 of 2008/6 of 2008 under Section 163A of the
Motor Vehicles Act, 1988, whereby the learned Tribunal
assessed the compensation and directed the owner of the
offending vehicle to pay the awarded amount.
Being aggrieved by and dissatisfied with the said
order, the appellant/claimant preferred the instant appeal
with a prayer for direction upon the Insurance Company to
pay the compensation on the ground that policy coverage
was in respect of third party.
The respondent no.1/New India Assurance
Company Limited contested the claim petition under
Section 163A of the Motor Vehicles Act, 1988 filed on
account of death of one Mithun Gorai in a motor accident
by the involvement of one Tata Sumo, bearing registration
no.WB-38J/6460, denying all material allegations of the
claim petition contending, inter alia, that the claimant is
not entitled to any compensation as there was no policy in
respect of occupant.
In course of the trial, one witness was examined on
behalf of the claimant. In course of evidence, a good
number of documents were exhibited, including insurance
policy, charge sheet, First Information Report, seizure list
and post-mortem report.
On behalf of the Insurance Company, one Bipod
Taran Saha, Branch Manager, Raniganj Branch of the New
Indian Assurance Company Limited was examined as DW-
1.
In this appeal, both the learned advocates
appearing on behalf of the parties have submitted that the
Insurance Company may be given liberty to realise the
amount of compensation from the owner of the vehicle
after payment of compensation to the appellant/claimant.
On this, the learned Tribunal directed the owner of
the offending vehicle to pay compensation on the ground of
relationship between the deceased and the claimant and
absence of any additional premium as per the Insurance
Policy (Ext.-A) by the owner of the said vehicle, for taking
coverage of the passenger proceeding in the said vehicle,
which is a private vehicle. So the learned Tribunal relying
on the decisions of this Court reported in 2007 ACJ 1676
(United India Insurance Co. Ltd. v. Bhagyalakshmi & Ors.)
and 2008 (1) TAC 51 (Cal) (Amit Bar & Ors. v. National
Insurance Company Ltd.), directed the owner of the vehicle
to pay compensation.
After considering the evidence of DW-1, Bipod
Taran Saha, who testified that the policy was private car
policy and in such type of policy no additional premium
was paid for taking coverage of passengers proceeding in
the said vehicle. From the policy itself, I find that though it
is a third party basic but it is private car policy "B"
package and no premium was paid in respect of
passengers.
In that view of the circumstances, considering the
object of enactment of the Act as well as catena of
decisions of the Hon'ble Apex Court in respect of payment
of compensation even in case of gratuitous passenger and
to recover the compensation from the owner, I am
constrained to hold that the New India Assurance
Company Limited should be directed to pay the
compensation and recover the same from the owner of the
vehicle, bearing registration no.WB-38J/6460.
In the aforesaid view of the matter, the appellant/
claimant is entitled to the compensation amount as
awarded by the learned Tribunal to the tune of
Rs.3,64,500/- along with interest @ 6% per annum from the
date of filing of the claim petition, i.e., on 28th July, 2008
till the deposit of the same.
Accordingly, the respondent no.1/New India
Assurance Company Limited is directed to deposit the
entire awarded amount granted by the learned Tribunal to
the tune of Rs.3,64,500/- along with interest @ 6% per
annum from the date of filing of the claim petition, i.e. on
28th July, 2008 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 respondent no.1/New India Assurance
Company Limited is at liberty to recover the entire
awarded sum with interest from the owner of the vehicle,
bearing registration no. WB-38J/6460, 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 learned Registrar General is requested to
disburse the amount to the appellant/claimant on proper
identification.
With the observation, the appeal, being FMA 484 of
2013, stands 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.)
