Sudip Roy @ Gadan vs Debasish Sarkar (Bapi) & Ors
2022 Latest Caselaw 7371 Cal

21. 07.11.2022 NB Ct. 237 FMA 322 of 2007

Sudip Roy @ Gadan Vs.

Debasish Sarkar (Bapi) & Ors.

Mr. Subir Banerjee, Mr. Sandip Bandyopadhyay, Ms. Ruxmini Basu Roy.

...for the claimant/appellant.

Mr. Sanjoy Paul.

...for the Insurance Company.

This appeal is directed against the judgment

passed in MAC Case No.27 of 2004 under Section 166 of

the Motor Vehicles Act passed by the learned Judge, Motor

Accident Claims Tribunal, Fast Track Court, Alipurduar,

Jalpaiguri.

In fact, this Motor Accident Claim case arose out of

a claim petition filed by the injured, Sri Sudip Roy @ Gadan

who sustained injury in an accident on 26.02.2004 by the

involvement of one truck bearing no.WB 71/0607 while it

was moving with high speed, near Garambasti at about 7

a.m., made a collusion with another truck stationed in the

pavement. As a result, said Sudip Roy sustained serious

injury on his right leg, which was ultimately amputated.

The injured filed this claim application with a prayer

for an award of Rs.2,26,800/- (rupees two lakh twenty six

thousand eight hundred only). Both the owners of the truck

and Insurance Company contested this case by filing their

respective written statements denying all crucial allegations

of the claim petitions and prayed for refusal of any kind of

award.

In course of trial, injured examined himself as PW

1 and one witness namely Ravi Roy as PW2. Both the

injured and the eye-witness corborated with each other

regarding the accident alleged in this case due to negligent

driving by the truck bearing no.WB 71/0607.

In course of trial, owner of the vehicle, examined

himself as OPW-1. In course of his cross-examination, he

did not denied any accident alleged to have been taken

steps on 24th February, 2004 at about 7 a.m. by involvement

of the truck bearing No. WB 71/0607, he owned.

Learned Tribunal after considering the entire

evidence on record as well as evidence adduced in this

case, assessed income of the deceased per annum is

Rs.15,000/- (rupees fifteen thousand only). Learned Tribunal

assessed total compensation of Rs.2,70,000/- (rupees two

lakh seventy thousand only) and after deduction towards

disability of 60%, the total sum came at Rs.1,62,000/- (one

lakh sixty two thousand only). Learned Tribunal further

returned his finding regarding liability by drawing observation

that according to commercial vehicles package policy,

liability covered to driver and cleaner only. Therefore,

learned Tribunal exempted the Insurance Company from

paying any compensation and instead learned Tribunal

directed the owner to pay the award and compensation to

the tune of Rs.1,62,000/- (rupees one lakh sixty two

thousand only) to the claimant.

In course of argument in this appeal, learned

advocate appearing on behalf of the claimant submits that

both in the claim petition as well as evidence of the injured

clearly reflected the payment of salary of Rs.70+25=95/- per

day and that was also coroborated by the owner of the truck

(OPW1). It is further submitted on behalf of the claimant that

right leg of the injured was amputated, so functional

disability may be considered as 100%. The injured was not

in a position to work further as labour.

In opposition to that, learned advocate appearing

on behalf of the Insurance Company has referred to the

evidence on record adduced by PW1/injured and submitted

that injured was neither khalasi nor labour of the truck.

Injured was a manager of the business of trucks of the

owner and that evidence has been further strengthened by

the owner (OPW1) himself in his evidence. Learned

advocate appearing on behalf of the Insurance Company

himself has drawn attention of this Court to Exhibit "A" i.e.

insurance policy wherein insurance coverage shows legal

liability towards employee/driver. Learned advocate on

behalf of the Insurance Company has tried to make this

Court understand that injured was manager of the truck

business of the owner. So he will not come within the

meaning of employee/driver of the offending truck insured

with the Oriental Insurance Company Limited.

Accordingly, it is submitted that Insurance

Company has no liability to pay any compensation in this

case.

The accident due to negligence of the truck bearing

no. WB 71/0607 has not been denied rather it was duly

coroborated by the eye witness (PW2). It is also not disputed

that injured met the alleged accident by involvement of the

offending truck bearing no.WB 71/0607.

Now I come to monthly income of the injured. From

the claim application, it is shown that the monthly income

was Rs.2,100/- (rupees two thousand one hundred) i.e. upon

coroborated by the injured himself on his evidence and that

was also further coroborated by the owner of the truck

(OPW1) together with the income certificate (Exhibit 9).

From the claim petition filed by the injured himself, it is seen

that Rs.2,100/- was the income per month, so I am unable to

take further Rs.25/- per day adduced by injured besides

Rs.70/- per day. In the aforesaid view of the matter, I

assessed monthly income of the injured as Rs.2,100/-

(rupees two thousand one hundred only).

From the record, it is found that in course of

evidence injured deposed that due to accident, his right leg

was amputated and he submitted all the documents

including disability certificate (Exhibit 'A') and those were

admitted in evidence with objection. On careful perusal of

the entire evidence of injured including his cross-

examination, I do not find any denial with regard to

amputation of his right leg. Therefore, in that view of the

matter, I cannot disregard the disability certificate issued by

the Medical Board from the office of the Superintendent S.D.

Hospital, Alipurduar, Jalpaiguri.

So far as 100% functional disability is concerned, I

find it difficult to accept. Injured was rather a manager of the

truck business of the owner and he is in a position to

continue with the said managerial work even after

amputation of his right leg.

What I have discussed earlier, I find no other

option but to determine the compensation in terms of settled

principle laid down by the Hon'ble Apex Court, as follows.

 Monthly Income                           Rs.    2100.00/-

                                                      x12
 Annual Income                            Rs.    25,200.00/-
 Add: Future Prospect @40%                Rs.    10,080.00/-
                                          Rs.    35,280.00/-
 Less: 40%                                Rs.    14,112.00/-
                                          Rs.    21,168.00/-
                                          Rs.    39,600.00/-
 Multiplier-17                                         x 17
                                          Rs.    3,59,856.00/-
 Add:Medical Expense                      Rs.      15,000.00/-
 Add: Pain and Suffering                  Rs.
50,000/.00/-
                                          Rs.    4,24,856.00/-

 Less: already received in
 the proceeding u/s 140 of
 the M.V. Act.      .                     Rs.       25,000.00/-

                                                 3,99,856.00/-

Thus claimant is entitled the balance compensation

to the tune of Rs.3,99,856/- (rupees three lakh ninety nine

thousand eight hundred fifty six only) along with interest at

the rate of 6% per annum from the date of filing of the

application till the deposit of the said amount before the

Office of the learned Registrar General, High Court,

Calcutta, subject to payment of ad valorem court fees.

Though learned advocate appearing on behalf of

the Insurance Company submitted before this Court that

insurance company is not liable to pay any compensation

but in view of the observation of the Hon'ble Apex Court in

Oriental Insurance Co. Ltd. v. Nanjappan and others

(2004) 13 SCC 224, it is initial liability on the part of the

insurance company to pay the compensation and to recover

it from the owner of the vehicle through execution process.

Therefore, respondent/insurance company is at

liberty to recover the entire compensation amount from the

owner of the truck directly through execution proceeding

before the Court having jurisdiction.

In the aforesaid view of the matter, the

respondent/insurance company is directed to make payment

of balance compensation to the tune of Rs.3,99,856/-

(rupees three lakh ninety nine thousand eight hundred fifty

six only) along with the interest of Rs.6% per annum from

the date of filing of the petition till deposit of the same before

the Office of the learned Registrar General of this Court. The

respondent/insurance company is directed to deposit the

amount within six weeks from the date of communication of

this order and recover from the owner through execution.

Learned Registrar General is requested to disburse

the amount to the claimant on proper identification and

verification and also verifying payment of additional ad

valorem court fees on the enhanced amount.

FMA 322 of 2007 stands disposed of accordingly.

Pending application, if there be any, stand

disposed of.

Records of the learned Tribunal be transmitted

back immediately.

Urgent photostat certified copy of this order be

supplied to the parties expeditiously, if applied for.

(Bibhas Ranjan De, J.)