National Insurance Company ... vs Anarul Islam & Ors
2022 Latest Caselaw 500 Cal

10    11.02.
      2022
AGM
RKB
 Ct
07                                 FMA 3498 of 2016

                       National Insurance Company Limited
                                         Vs
                                Anarul Islam & Ors.

                                 (Via Video Conference)

               Ms. Sucharita Paul
                               ... for the appellant.

               Ms. Susmita Saha Dutta,
               Mr. Niladri Saha.
                                ... for the respondent no. 2(a), 2(b)

Mr. Sjal Pandit, ... For the respondents.

IN Re: IA NO: CAN 2 of 2021

Emergence of CAN application, referred

hereinabove, pertains to a prayer for substitution of

the legal heirs and representatives of

claimant/respondent no.2.

Ms. Susmita Saha Dutta, learned advocate

appearing for the claimants/respondents submits

that during the pendency of the appeal,

claimant/respondent no.2 had expired and as such

the said claimant/respondent may be substituted by

his wife and daughter, as disclosed in para 3 of

instant application. Incidentally Mr. Niladri Saha

being led by Susmita Saha Dutta submits that a

fresh Vakalatanama has already been filed in the

department being No. A2228 dated 11.02.2022 for

the legal heirs of respondent no.2. Ms. Susmita Saha

Dutta submits that the names and addresses have

been mentioned in the substitution application being

CAN 2 of 2022.

Mrs. Sucharita Paul, learned advocate

appearing for the appellant/Insurance company does

not raise any objection against such substitution by

legal heirs of claimant/respondent no.2. Upon

perusal of the relevant averments contained in the

pleadings, it appears that the claimant no.2 had

expired on 22.09.2019 leaving behind his widow and

daughter as legal heirs. That being the position, the

prayer is allowed. As such the name of legal heirs left

by respondent no.2 be brought on record.

CAN application being CAN 2 of 2022 is

disposed of directing department to take steps for

substitution of the legal heirs, as regards

claimants/respondent no.2 in the memo of appeal

and ensure necessary correction therefor.

The application being IA No. CAN 2 of 2022 is

disposed of.

IN Re: F.M.A. 3498 of 2016

Both the learned advocates for the parties to the

appeal conjointly urge for expeditious disposal of this

appeal.

Learned advocate for both the parties are as

such ad idem on the point that the instant appeal

may be disposed of, if necessary, even giving a go by

to the technicalities involved in the process.

It is submitted by the learned advocates for the

parties that the appeal may be disposed of on the

basis of materials furnished by both the parties to this

case.

When learned advocates for both the parties are

agreeable to the expeditious disposal of the instant

appeal, the Court should not stand in the way.

This is an insurance appeal impugning the

judgment and award dated 31st August, 2015, passed

by learned Judge, M.A.C.T.-cum-Addl. Dist. &

Sessions Judge, F.T.C.- 2nd, Raiganj, Uttar Dinajpur,

in M.A.C. Case No. 11 of 2013 on a claim under

Section 163A of the Motor Vehicles Act, 1988,

granting award to the tune of Rs. 1,94,000/- to the

claimants being dependents of the deceased namely

Khaton Bibi, for a vehicular accident, occurred on 20th

Day of October, 2012, by reason of involvement of

Motorcycle bearing No. WB-60F/5022.

Mrs. Sucharita Paul, learned advocate

representing the appellant/Insurance Company

submits that the driver of the offending Motorcycle

was holding a fake driving licence on the date of

accident.

It is further submitted by Mrs. Paul that the

driver of the offending Motorcycle was none, other

than the owner himself. Therefore, since the owner of

the said vehicle knowingly violated the policy

conditions by driving his Motorcycle with a fake

licence, insurer should not be made liable indemnify

the claimant.

Adverting to the exhibited documents, like

Exhibit A, being the particulars of driving licnce,

issued by Licencing Authority, Uttar Dinajpur, Mrs.

Paul submits that the offending Motorcycle had been

used making contraventions/violations of the terms

and conditions of the insurance policy issued by the

appellant/Insurance Company in the name of

insured. The quantification of the award is thus

absolutely illegal requiring a revisit for granting just

compensation, if there be at all.

Emphasis has been made by Mrs. Paul that as

per Exhibit A, the said driving licence was in the name

of one Ranjan Kumar Das and not in the name of

driver/owner namely, Arun Kr. Das of the said

Motorcycle. Therefore, obviously there had been gross

violation of the terms and conditions of policy, for

which the appellant/Insurance Company should not

be fastened with the liability to pay any compensation

responding to the claim application.

Referring the terms and conditions of the policy,

Mrs. Paul strongly contends that compensation, if

any, should have been paid by the owner of the

offending vehicle himself, and not by the Insurance

Company, for the apparent violation of the terms and

conditions of the policy being ex facie shown in the

instant claim case.

Reliance has been placed on the judgement

passed by Hon'ble Supreme Court in the case of

National Insurance Co. Ltd. vs. Swaran Singh &

ors. reported in (2004) 3 SCC 297.

It is also submitted that the rate of 9% interest

awarded by the learned Tribunal is excessive and is

not in accordance with the rate of interest provided by

the banks, or post offices at different schemes.

Accordingly, Mrs. Paul prays for reduction of such

rate of interest.

Ms. Susmita Saha Dutta, submits that Exhibit-

A was not proved in accordance with law. It is

submitted that no officer from Motor Vehicle

Department came forward to prove the genuineness of

"Exhibit-A".

Ms. Saha Dutta further submits that the

concerned driving licence was seized by police

authorities and was found to be valid and in the name

of the driver/owner namely, Arun Kr. Das.

Ms. Saha Dutta thus supports the order of the

Tribunal.

Reference is drawn to a decision of Hon'ble Apex

Court rendered in the case of Singh Ram -vs.-

Nirmala & ors. reported in (2018) 3 SCC 800.

For the violations/contraventions of the terms

and conditions of the insurance policy, due to

inadequacy of the driving licence, the dependents of

the deceased should not be subjected to starvation for

their financial distress in a claim case under Section

163A of the M.V. Act. The points so raised, in the

appeal by the appellant/Insurance Company may be a

subject of consideration before the appropriate forum

in connection with appropriate litigation, if any,

undertaken by the Insurance Company intending to

recover the amount payable to

claimants/respondents.

Therefore, in the given context of this case,

there cannot be any reverse decision of law against

the settled propositions of law already decided by the

Apex Court, "Pay and Recovery".

The claimants are therefore, found entitled to

the awarded amount of Rs.1,94,000/- together with

interest assessed @ 6 per cent per annum on and

from the date of filing of the claim petition.

It appears that a sum of Rs.2,29,866/-, apart

from statutory deposit of Rs.25,000/-, has already

been deposited by respective challans with the

Registrar General of this Court,

Department shall calculate the amount payable

to the claimants in terms of the above order and shall

ensure that the entitled amount is paid to the

claimants as expeditiously as possible, preferably

within a period of three (03) weeks from the date of

receipt of bank account details of the claimants.

Liberty is given to claimants to make proper

approach to learned Registrar General for release of

such modified award, and if any approach is made by

claimants, the learned Registrar General of this Court

shall cause order releasing such modified sum of

award forthwith upon establishing identity of

claimants.

         Learned              advocate               for            the

respondents/claimants               shall    forward        the    bank

account details of the respondents/claimants within a

fortnight from date to the learned Registrar General to

this Court. The payment shall be made in the same

manner and proportion, as already decided by the

learned court below. The share of deceased

claimant/respondent no.2 shall be paid to his legal

heirs, as mentioned in the application for

substitution, being his widow and daughter.

Upon payment of the sum, as indicated

hereinabove into the bank account of the

claimants/respondents, the entire remaining balance

amount if any, shall be refunded to Insurance

Company from the learned Registrar General of this

Court as expeditiously as possible. Insurance

Company shall be at liberty to claim refund of the

remaining balance amount from this Court.

Insurance Company is further given liberty to

take steps in accordance with law to recover the

amount payable to the respondents/claimants from

the owner of the offending vehicle.

With the aforesaid direction, the instant appeal

is disposed of.

In view of the disposal of this appeal, connected

applications, if any, are also disposed of.

L.C.R. if any, may be returned back to the

learned court below.

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.

(Subhasis Dasgupta, J)