Calcutta High Court (Appellete Side)

The Oriental Insurance Co. Ltd vs Smt. Shyamali Debnath & Ors on 16 November, 2022

    34
16.11.2022
Ct. No.237
    pg.
                       IN THE HIGH COURT AT CALCUTTA
                          CIVIL APPELLATE JURICTION
                                APPELLATE SIDE

                               FMA 1294 of 2013

                         The Oriental Insurance Co. Ltd.
                                       Vs.
                         Smt. Shyamali Debnath & Ors.
                                       with
                                 COT 39 of 2013

                         Smt. Shyamali Debnath & Ors.
                                       Vs.
                      The Oriental Insurance Co. Ltd. & Anr.



                    Mr. Parimal Kumar Pahari
                          ... For the appellant/Insurance Co. in
                            FMA 1294 of 2013 & respondent no.1

in COT 39 of 2013

Mr. Jayanta Kumar Mondal Ms. Sima Ghosh ... For the respondents/claimants in FMA 1294 of 2013 & Cross-appellant in COT 39 of 2013

This appeal is directed against the judgment and

award passed on 15th December, 2012 by the learned

Judge, Motor Accident Claims Tribunal, 2nd Court at Suri,

District - Birbhum, in MAC Case No.45 of 2002 under

Section 166 of the Motor Vehicles Act, 1988 whereby the

learned Judge awarded compensation to the tune of

Rs.1,89,500/-.

On 26th April, 2001 at about 7.30 a.m. the

husband of the claimant no.1 Bijoy Debnath sustained

injury on his person in an accident by the involvement of a

Bus bearing registration no.WGD-928. On the alleged date

of incident, the victim was riding a bicycle through eastern

side of the road near Suri bus stand. The offending vehicle

coming with high speed dashed the cycle and in effect ran

over the said Bijoy Debnath who died on the spot. Suri

Police Station Case No.84 of 2001 dated 3rd May, 2001

under Sections 279/304A of the Indian Penal Code was

started against the driver of the Bus. At the time of death,

the victim was 25 years of age.

The owner filed written statement denying all

material allegations contending, inter alia, that the victim

committed suicide and the Insurance Company is liable to

pay the compensation, if allowed.

The Oriental Insurance Company Limited also

contested the case by filing written statement denying all

material allegations in the claim petition contending, inter

alia, that the petitioners/claimants are bound to prove

that the policy beyond doubt.

On behalf of the claimants, four witnesses were

examined. The wife of the victim was examined as PW-1,

one Nasem Ali Khan was examined as PW-2 (eye-witness),

one Joydeb Debnath, brother of the victim, was examined

as PW-3 and one Ashok Kumar Ghosh, the then Vice-

Chairman, Nalhati Municipality, was examined as PW-4.

In course of their evidence, First Information Report,

charge sheet, post-mortem report and xerox copy of the

insurance policy were admitted in evidence. Certificate of

the Chairman of the Municipality were admitted in

evidence. After scrutiny of the evidence on record, the

learned Tribunal came to his opinion that the claimants

were entitled to compensation to the tune of Rs.1,89,500/.

Challenging the quantum on behalf of the

claimants, one cross-objection has also been filed in this

appeal with a prayer for enhancing the claim amount.

Learned advocate appearing on behalf of the

respondents/claimants also prayed for enhancing the

quantum of compensation on the ground of monthly

income of the deceased, future prospect and towards non-

pecuniary damages.

Learned advocate appearing on behalf of the

appellant/Insurance Company has referred to the evidence

of OPW-1 coupled with the documents marked as Exhibit

A and Exhibit B. It is submitted on behalf of the

appellant/Insurance Company that at the time of accident,

there was no insurance policy so the Insurance Company

is not liable to pay any compensation.

In course of the argument, learned advocate

appearing on behalf of the respondents/claimants submits

that at the time of accidental death of the deceased Bijoy

Debnath, he used to run his family consists of four

persons and he was a fruit seller having monthly income of

Rs.5,000/- and that has been corroborated by the

evidence of the wife of the victim. It has further been

submitted on behalf of the respondents/claimants that the

dispute of fake policy was not averred in the written

statement so, without pleading, no such evidence could be

adduced on behalf of the Insurance Company. In support

of his contention, he relied on a case of V. Ravi. v. M/s.

New India Assurance Co. Ltd. & Ors., 1997 (2) TAC 693

(Cal).

So far as the fake policy is concerned, it is true

that the Insurance Company contested the claim petition

by filing a written statement, referred to policy,

particularly, in paragraph 13 but nothing specific was

mentioned in the written statement challenging the policy

in any manner. Further, from evidence of OPW-1, it

transpires that there was policy bearing no.034227/99/

2000-2001 valid up to 9th May, 2001. From the Exhibit-B

(seizure list of the police case), it appears that the

insurance policy was seized and it was valid at the time of

accident.

In V. Ravi (supra), it was observed by this Court

that "question of fraud and misrepresentation arises by

and between the insurer and the insured, the third party

claimant is not concerned therewith." It was further

observed that "remedy of the respondent may be to initiate

a separate proceeding for realisation of the amount so paid

by the owner of the vehicle, but keeping in view the letter

and spirit of the Motor Vehicles act, we are of the opinion

that a third party claimant shall not suffer therefore."

In the aforesaid view of the matter, I am unable to

accept all the submissions made on behalf of the

appellant/Insurance Company in terms of evidence of

OPW-1 with reference to Exhibit A and Exhibit B.

On careful perusal of the evidence adduced on

behalf of the respondents/claimants, I find that both PW-

1, i.e., wife of the deceased, and PW-2 (eye-witness) have

succeeded to prove the accident due to negligent act on the

part of the driver of the Bus. That apart, wife of the

deceased, i.e., PW-1 has stated in her evidence that her

husband used to earn Rs.5,000/- per month from the fruit

selling business but no other evidence has been adduced

in support of the income of Rs.5,000/- per month.

In that view of the matter, I find that Rs.3,000/-

would be justified to assess the compensation instead of

Rs.15,000/- per annum. Therefore, I determine the

compensation in terms of separate heads as follows:-

  Monthly Income                              Rs.    3,000/-

  Annual Income (Rs.3,000/- x 12)             Rs. 36,000/-


  Add: Future prospect (@ 40%)                Rs. 14,400/-
                                              -------------------
                                              Rs. 50,400/-

Less: 1/3rd Deduction (personal expenses) Rs. 16,800/-

-------------------

Rs. 33,600/-

Multiplier by 18 (Rs.33,600/- x 18) x 18 Rs.6,04,800/-

  Add: General Damages                        Rs. 70,000/-

                                    Total     Rs.6,74,800/-

  Less - Awarded by ld. Tribunal              Rs.1,89,500/-

                ENHANCEMENT                   Rs.4,85,300/-





        For        the    reasons,   it   is     seen     that      the

respondents/claimants          are    entitled     to    the       total

compensation to the tune of Rs.6,74,800/- along with

interest @ 6% per annum from the date of filing of the

claim petition till the deposit of the amount before the

office of the learned Registrar General.

It is reported that the respondents/claimants have

already received Rs.1,89,500/- along with interest as

awarded by the learned Tribunal. Therefore, the

respondents/claimants are entitled to the balance amount

of Rs.4,85,300/- along with interest @ 6% per annum from

the date of filing of the claim petition till the deposit of the

amount before the office of the learned Registrar General.

Accordingly, the appellant/Insurance Company is