The New India Assurance Company ... vs Tukuli Dafadar & Ors
2022 Latest Caselaw 6246 Cal

    23
05.09.2022
Ct. No.237
    pg.
                        IN THE HIGH COURT AT CALCUTTA
                           CIVIL APPELLATE JURICTION
                                 APPELLATE SIDE

                                FMA 803 of 2012

                   The New India Assurance Company Limited
                                      Vs.
                             Tukuli Dafadar & Ors.


                    Mr. Rajesh Singh
                                ... For the Appellant/Insurance Co.

                    Mr. Amit Ranjan Roy
                         ... For the respondents/claimants

This appeal is directed against the judgment

passed in MAC Case No.509 of 2008 by the learned

District Judge, Motor Accident Claims Tribunal, Nadia,

under Section 163A of the Motor Vehicles Act whereby the

learned Judge directed the appellant/Insurance Company

to pay the compensation amount assessed at

Rs.3,69,500/- to be paid to the respondents/claimants in

the manner prescribed therein.

The brief facts of this case is that on 9th February,

2008 at about 6.30 a.m. the victim along with others were

travelling by one tractor, bearing No.WB-29/5416, as

labourers for unloading earth. All on a sudden the said

tractor turned upside down and as a result whereof the

victim Kashem Dafadar died instantaneously and others

were injured. With regard to the incident, one case being

Hanskhali P.S. Case No.54 of 2008 dated 9th February,

2008 was started and on completion of investigation,

charge sheet was submitted under Section 279/338/304A

of the Indian Penal Code and read with Section 184 of the

Motor Vehicles Act against the driver of the tractor.

The learned Tribunal after considering all materials

on records came to his finding that the victim was not

gratuitous passenger. The contention of the First

Information Report regarding the manner of accident, in

the opinion of the learned Judge, was not clear to the

effect that how and where the accident took place. That

apart, the learned Tribunal also returned a finding on the

issue of gratuitous passenger as driver of the alleged

vehicle did not come forward to deny the allegation. That is

why the learned Tribunal came to his final opinion and

assessed the amount of compensation to Rs.3,69,500/- to

be paid to all the claimants in the manner prescribed in

the order impugned itself.

Mr. Rajesh Single, learned advocate appearing on

behalf of the appellant/Insurance Company, submits that

the entire story in this case was changed after the filing of

the claim petition before the learned Tribunal. It is

submitted on behalf of the appellant that the facts

delineating in the charge sheet clearly show that it was an

accident after the tractor turned upside down and as a

result the victim sustained injury and succumbed to his

injuries ultimately. According to Mr. Singh, during the trial

witnesses adduced before the Court and told a different

story as stated in the claim petition. However, Mr. Singh

has prayed for giving a liberty to the appellant/Insurance

Company to recover the amount from the owner of the

tractor.

On behalf of the appellant/Insurance Company,

Mr. Singh submits that the incident stated by the elder

brother of the victim in the First Information Report that

the victim along with other labourers were travelling

through the alleged tractor and the tractor turned upside

down and victim died. Mr. Singh has submitted that the

victim was gratuitous passenger, according to the First

Information Report lodged in this case. Mr. Singh has

prayed for a liberty to recover the compensation from the

owner of the tractor.

Learned advocate appearing on behalf of the

respondents/claimants submitted that the learned

Tribunal has rightly passed the order of compensation in

favour of the claimants after perusal of the evidence on

record.

From the impugned order of the learned Tribunal, I

find that the learned Judge did not allow the issue of

gratuitous passenger contended before him on the

reasoning that the driver never came to the Tribunal to

deny the facts elucidated in the evidence. I am unable to

disagree with the learned Tribunal on the decision that the

Insurance Company did not take any effort to examine the

driver of the said tractor, at least to deny the case of the

claimants.

However, the appellant/Insurance Company is at

liberty to take appropriate steps for realising the

compensation on proof of the fact of gratuitous passenger

before any competent Court.

None of the advocates to this appeal raises any

objection regarding the assessment of compensation to the

tune of Rs.3,69,500/- in all.

In these circumstances, the judgment passed by

the learned Tribunal in MAC Case No.509 of 2008 stands

affirmed.

It is reported that the entire awarded amount of

Rs.3,69,500/- along with the accrued interest is lying with

the learned Registrar General of this Court.

So this Court directs the learned Registrar General

to release the amount by issuing four A/c payee cheques

of equal amount in the name of the four claimants,

including the minors after verifying the identity. The

cheques in the name of the minors shall be handed over to

the mother if the minors do not attain majority.

With the above observation, the instant appeal,

being FMA 803 of 2012, stands disposed of.

Urgent photostat certified copy of this order, if

applied for, be given to the parties, upon compliance of

necessary formalities.

(Bibhas Ranjan De, J.)