Calcutta High Court (Appellete Side)
Prabir Sarkar vs United India Insurance Co. Ltd. & ... on 15 November, 2022
32
15.11.2022
Ct. No.237
pg.
IN THE HIGH COURT AT CALCUTTA
CIVIL APPELLATE JURICTION
APPELLATE SIDE
FMA 1067 of 2012
with
IA No. CAN 2 of 2013 (CAN 4247 of 2013)
Prabir Sarkar
Vs.
United India Insurance Co. Ltd. & 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
order passed on 5th March, 2009 by the learned Motor
Accident Claims Tribunal, Additional District Judge, 2nd
Court, Murshidabad, in MV Case No.103 of 2006 under
Section 163A of the Motor Vehicles Act, 1988 dismissing
the claim petition.
The claim petition filed under Section 163A of the
Motor Vehicles Act, 1988 by the claimant himself who
sustained grievous injury on his right leg due to an
accident happened on 6th July, 2004 by the involvement of
the two vehicles bearing registration nos.WB-57/3658
(Bus) and WB-57/3943. On that date of accident, while
the claimant/injured was going by Bus, bearing
registration no.WB-57/3658, collided with another Bus
bearing registration no. WB-57/3943 near Harurpara
under Police Station - Domkal. After the accident, injured
was shifted to Berhampore Hospital where he was treated
2
and subsequently at NRS Medical College and Hospital,
Kolkata. Thereby he sustained 60% disability. At the time
of accident, claimant used to work in a bookstall and
would receive salary of Rs.2,500/- per month. As the
injured was unable to work, he claimed Rs.5,00,000/- as
compensation.
The respondent no.1/United India Assurance
Company Limited contested the claim petition by filing the
written statement denying all materials allegations
contending, inter alia, that the claimant is not entitled to
any compensation.
In course of the proceedings, claimant examined
himself as PW-1. One Dr. Hriday Krishna Mondal was
examined as PW-2 and one Bablu Sk. as PW-3.
PW-1 narrated all the incident of accident when he
sustained injury on his right leg causing his disability. He
stated about his monthly income and his age was 19 years
at that time. In the cross-examination, he denied all the
suggestions put to him on behalf of the Insurance
Company.
PW-2 claiming himself to be a member of the
Medical Board for issuing Disability Certificate in favour of
the claimant, showing 60% disability, has stated that after
examining the patient by all members of the Board,
disability Certificate was issued. He also corroborated the
3
admission of the claimant in the hospital on 6th July, 2004
till 14th October, 2004 when he was discharged.
PW-3 corroborated the income of the claimant by
showing, inter alia, that the claimant was an employee in
his bookstall and used to earn Rs.2,500/- per month.
In course of evidence, charge sheet, injury report,
insurance policy and other medical papers, including
Disability Certificate, were admitted in evidence as Exhibit
1 to 8. It is not out of place to mention here that the
vehicle bearing registration no.WB-57/3658 was under
insurance coverage with the United India Assurance
Company Limited at the relevant point of time.
Learned Tribunal dismissed the claim petition on
two grounds. One is that the name of the claimant did not
appear in the First Information Report and secondly, the
claimant did not implead the Insurance Company of other
vehicle bearing registration no. WB-57/3943.
With regard to the first issue raised by the learned
Tribunal, I find that the First Information Report was
lodged by one Nisith Biswas immediately after the
accident. Naturally, the FIR maker may not know the
names of the injured but the charge sheet (Ext.-A), it is
found that in the accident happened on 6th July, 2004 by
the involvement of two vehicles bearing registration
nos.WB-57/3658 (Bus) and WB-57/3943, the claimant
sustained serious injury for which he had to admit in
4
hospitals and that has been corroborated by the injury
report (Ext.-5). Therefore, I am unable to agree with the
learned Tribunal that the claimant failed to prove his
injury by the involvement of the accident alleged in the
case.
With regard to the second issue raised by the
learned Tribunal that the claimant should have impleaded
the Insurance Company of the another vehicle bearing
registration no.WB-57/3943, I find it profitable to refer to
a decision of Khenyei v. New India Assurance Co. Ltd. &
Ors., 2015 (2) TAC 677 (SC) wherein the Hon'ble Apex
Court has observed as follows:-
"18. ... ... ...
(i) In the case of composite negligence, plaintiff/
claimant is entitled to sue both or any one of the
joint tort-feasors and to recover the entire
compensation as liability of joint tort-feasors is
joint and several."
Therefore, I am unable to get rid of the observation
of the learned Tribunal in dismissing the claim petition on
the aforesaid two grounds.
In this case, after careful scrutiny of the entire
evidence on record together with the documents, I find
that the appellant/claimant has successfully proved the
case of accident and injury and that is why he is entitled
to compensation in terms of 60% disability corroborated
by one of the members of the Medical Board (PW-2).
5
In the aforesaid view of the matter, I determine the
compensation as follows:-
Monthly Income Rs. 2,500/-
Annual Income (Rs.2,500/- x 12) Rs. 30,000/-
Multiplier 16 (Rs.30,000/- x 16) Rs.4,80,000/-
(Age 19 years)
Disability 60% (60% of Rs.4,80,000/-) Rs.2,88,000/-
Add: Non-Pecuniary Rs. 15,000/-
------------------
Total Award Rs.3,03,000/-
------------------
For the reasons, it is seen that the
appellant/claimant is entitled to the compensation
Rs.3,03,000/- along with interest @ 6% per annum from
the date of filing of the claim petition, i.e., on 17th
February, 2006, till the deposit of the amount before the
office of the learned Registrar General.
The respondent no.1/United India Assurance
Company Limited is directed to deposit the compensation
amount of Rs.3,03,000/- along with interest @ 6% per
annum from the date of filing of the claim petition, i.e., on
17th February, 2006, 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 appellant/claimant will be entitled to withdraw
the entire amount with interest.
The learned Registrar General will disburse the
amount to the appellant/claimant on proper identification.
With the above observation, the appeal, being FMA
1067 of 2012, stands disposed of.
All pending applications, if there be any, also stand
disposed of.
Accordingly, the judgment passed by the learned
Tribunal is set aside. Consequently, the appeal is allowed.
A copy of this order be forwarded to the learned
Tribunal 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.)
