United India Insurance Company ... vs Ram Pada Sana & Ors
2022 Latest Caselaw 7884 Cal

    02
29.11.2022
Ct. No.237
    pg.
                       IN THE HIGH COURT AT CALCUTTA
                          CIVIL APPELLATE JURICTION
                                APPELLATE SIDE

                                FMA 979 of 2004

                     United India Insurance Company Limited
                                        Vs.
                              Ram Pada Sana & Ors.

                    Mr. Krishanu Banik
                          ... For the respondents/claimants

None appears on behalf of the appellant/United

India Insurance Company Limited even at the time of

second call.

Learned advocate appearing on behalf of the

respondents/claimants is present.

This appeal is pending since 2003. Considering

the pendency of the case for about 19 years, I find no

reason to adjourn further. Thus, the appeal is taken up

for disposal on merit in the presence of learned advocate

on behalf of the respondents/claimants.

This appeal is directed against the judgment and

award dated 31st July, 2003 passed by the learned Judge,

Motor Accident Claims Tribunal, 4th Court, Burdwan, in

MAC Case No.39/152 of 2001 under Section 163A of the

Motor Vehicles Act, 1988 whereby the learned Tribunal

awarded compensation of Rs.2,50,000/-.

The claim petition arose out of an accident which

took place on 27th March, 1999 at about 5.30 hours when

the victim boarded on the Tractor, bearing registration no.

WB-41/2015, as helper of the same. Suddenly, the said

Tractor overturned and as a result the victim died on the

spot. At the time of accidental death, the victim was aged

about 35 years and used to earn Rs.3,000/- per month by

working as helper of the same Tractor. Accordingly, the

claimants filed the claim petition with a prayer for

compensation to the tune of Rs.2,50,000/-.

The appellant/United India Insurance Company

Limited contested the claim petition by filing the written

statement denying all material allegations in the claim

petition contending, inter alia, that death of deceased was

not caused by any motor accident on the relevant date by

the involvement of vehicle bearing registration no. WB-

41/2015 and it was not insured with the United India

Insurance Company Limited at the relevant point of time.

In course of trial, the claimants examined two

witnesses. PW-1, brother of the deceased, has stated about

the accident and the victim boarded on the Tractor as

helper. He also stated about the income of the deceased. In

course of his evidence, documents viz. certified copy of

charge sheet, post-mortem report, insurance policy etc.

were admitted in evidence as Exhibit-1 to 5.

PW-2 saw the incident while the victim was

travelling the Tractor, bearing registration no.WB-

41/2015, on the relevant date. The said Tractor running at

a very high speed and suddenly overturned and as a result

the victim died on the spot. He denied the suggestion that

he did not see the accident.

On behalf of the Insurance Company, one Nirendra

Kumar Roy, an officer of the Insurance Company, came to

depose before the learned Tribunal. He specifically stated

that the Tractor, bearing registration no. WB-41/2015,

was duly insured with the United India Insurance

Company Limited from 3rd January, 1999 to 3rd January,

2000. The witness produced the policy which was marked

as Ext.-A, driving licence as Ext.-B and fitness certificate

valid upto 27th October, 1994 as Ext.-C.

Learned Tribunal after considering the entire

evidence on record, came to his finding that the victim

died in the accident by the involvement of the Tractor and

at the time of accident he was a helper, i.e., an employee of

the vehicle. Learned Tribunal accordingly awarded the

compensation after applying multiplier 12 to the tune of

Rs.2,50,000 though assessed at Rs.3,84,000/-.

I do not find any reason to interfere with the

observation regarding the accident alleged to have been

taken place on 27th March, 1999 at about 5.30 hours as it

has been proved by the evidence of PW-2. That apart, the

accidental death of the victim was further substantiated by

the documents viz. the FIR and charge sheet (Exts.-1 and

5).

In course of argument, learned advocate on behalf

of the respondents/claimants has submitted that there are

sufficient evidence in the record to show that the victim

was an employee/helper of the Tractor at the relevant

point of time and there was insurance coverage in respect

of the employee in the policy and for which Rs.15/- was

received as premium. After careful perusal of the policy

(Ext.-4), I find that persons employed in connection with

operation and/or loading, unloading of motor vehicle are

covered under the policy.

From the claim petition as well as the evidence, it

appears that at the relevant point of time the victim was a

helper/employee of the vehicle. Therefore, I cannot hold

that the victim was gratuitous passenger of the vehicle.

In that view of the circumstances, I find no reason

to interfere with the judgment passed by the learned

Tribunal in assessing the compensation to the tune of

Rs.3,84,000/- after applying the notional income of

Rs.3,000/- per month and applying multiplier 12 in terms

of age of the victim at the time of death. But I am not

agreeable with the learned Tribunal regarding

promulgation of final award of Rs.2,50,000/- out of total

compensation assessed at Rs.3,84,000/-.

Here in this case, the just compensation was

assessed at Rs.3,84,000/- but the learned Tribunal

awarded Rs.2,50,000/- out of Rs.3,84,000/- in terms of

prayer of the claim petition.

It is trite law that Court must have to assess just

compensation and to be awarded accordingly irrespective

of claim in the petition.

Considering all the facts and circumstances, the

respondents/claimants are entitled to compensation to the

tune of Rs.3,84,000/- along with interest @ 6% per annum

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

of the amount.

        It    is     seen     from     the    record     that     the

appellant/Insurance          Company    has   already     deposited

Rs.25,000/- as statutory liability on 17th May, 2004 and

also deposited the awarded amount of Rs.2,50,000/- on

23rd September, 2004.

Therefore, the appellant/Insurance Company is

directed to deposit Rs.1,09,000/- (Rs.3,84,000/- -

Rs.2,75,000/-) along with interest @ 6% per annum from

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

office of the learned Registrar General of this Court, within

six weeks from the date of this order.

The respondents/claimants are entitled to

withdraw the entire amount with accrued interest, subject

to payment of additional ad valorem court fees on the

amount of Rs.1,09,000/- (Rs.3,84,000/- - Rs.2,50,000/-)

before the learned Tribunal.

The learned Registrar General is requested to

disburse the amount to the appellants/claimants in equal

share on proper identification.

With the above observation, the appeal, being FMA

979 of 2004, is disposed of on merit.

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.)