Calcutta High Court (Appellete Side)
Rosenara Bewa &Anr vs B.M.Oriental Insurance Co. Ltd. & ... on 8 September, 2022
1
IN THE HIGH COURT AT CALCUTTA
(Civil Appellate Jurisdiction)
Appellate Side
Present:
The Hon'ble Justice Bibhas Ranjan De
F.M.A 469 of 2009
Rosenara Bewa &Anr.
Vs
B.M.Oriental Insurance Co. Ltd. & Anr.
For the Appellants : Mr. Krishanu Banik, Advocate
For the Respondent : Rajesh Singh, Advocate
Hearing concluded on : September 07, 2022
Judgment on : September 08, 2022
Bibhas Ranjan De, J.
1. This appeal is directed against the judgment and order dated
05.07.2008 passed by the Ld. Judge Motor Accident claimed
Tribunal 3rd Court Malda, whereby Ld. Judged awarded
compensation to the tune of Rs. 1,79,500/- in disposing an
application 166 of Motor Vehicles Act (for short MV Act).
2. The claim petition under Section 166 of the MV Act was filed
before the jurisdictional tribunal with a prayer for compensation
owing to death of husband of the appellant no. 1 in an accident
on 01.06.1996 at about 04.00 hours on National Highway 34
near Dariapur Petrol Pump under PS Kaliachak by the
involvement of a vehicle no. WB 65/1592 after it dashed against
a rickshaw and a road side tree. The vehicle turned upside down
and husband of the appellant no. 1, travelling in that vehicle
succumbed to his injuries. At the relevant point of time victim
was 25 years of age.
3. Both the owner and the Insurance Company of the vehicle
contested the application by filing their respective written
statement.
4. During trial of the claim petition Insurance Company took a
plea that the deceased was not the labourer of the vehicle in
question rather he was a gratuitous passengers and that is why
OP insurance has no liability.
5. Ld. Judge after appreciation of evidence including the Police
reports returned his findings that both the owner of the vehicle
as well as Insurance Company was responsible for the accident.
6. After considering the entire evidence particularly the fact of
travelling by the involved vehicle (Lorry) Ld. Judge returned his
findings that deceased was gratuitous passengers and claimants
are not entitled to compensation form the Insurance Company.
Accordingly, Ld. Judge calculated the total compensation of Rs.
1,79,500/- compensation after applying multiplier 18 and after
adding general damage of Rs. 9500/-. Thus, Ld. Judge directed
the owner of the vehicle/ respondent no. 2 to pay the awarded
amount to the claimants/ appellants.
7. Ld. Advocate appearing on behalf of the claimant relied on a
case reported in 2004 ACJ 721 (Oriental Insurance Company
Limited Vs. Nanjappan and other) and submitted that in this
case claimants are entitled to claim payment from the Insurance
Company who, thereafter can realize them same from the
owner.
8. In the aforesaid reported decision Hon'ble Apex Court dealt with
an incident where a passenger travelling in a goods vehicle
sustained injuries when the vehicle met with the accident. In
that case Hon'ble Apex Court ordered Insurance Company to
pay and recover the same from the owner through execution
proceeding directly without filling any separate case.
9. Ld. Advocate appearing on behalf of the appellants has
submitted that Ld. Tribunal did not add future prospect and
less amount added towards general damages.
10. Ld. Advocate appearing on behalf of the respondent Insurance
Company strenuously argued that though incident took place in
the year 1996 but surprisingly the claim application was filed in
the year 2003, so, claimants are not is entitled to any
compensation at the enhanced rate.
11. Considering all facts and circumstances, as well as
observation in Hon'ble Apex Court in Nanjappan (supra) I find
no other option but to direct the respondent Oriental Insurance
company to a pay the entire awarded sum but insurance
Company entitle to realize the amount from the owner of the
vehicle.
12. Considering the entire facts of this case as well as the ratio of
National Insurance Co. Ltd. vs. Praney Sethi (2017) 16 SCC
680 the award is being computed as follows:-
Annual Income (Rs. 3000 x 12) : 36,000.00
Future Prospect be assessed 40% i.e Rs. :14,400.00
_________
:50.400.00
After 1/4th Deduction : 37,8000.00
Multiplier x 18 : 6,80,400.00
Add:- General Damages : 70,000.00
_____________
Total : 7,50,400.00
Less award amount : 1,79,500
Enhanced award : 5,70,900.00
13. After hearing both sides as well as from the record it appears
that appellants did not receive the awarded amount of
Rs.1.79.500/-. Considering the aforesaid facts and
circumstances respondent/ Oriental Company is directed to
deposit the aforesaid awarded sum to the Ld. Registrar General
along with interest at the rate of interest 6 % per annum within
6 weeks.
14. However, respondent/Oriental Insurance Company is at
liberty to realize the awarded amount from the owner of the
vehicle no. WB 65/1592.
15. Let the records of the tribunal be sent back immediately.
16. Ld. Registrar General will release the amount in favour of the
claimants on proper identification and also after verification of
Court fees paid on the amount enhanced.
17. F.M.A 469 of 2009 is being disposed of without any order as to
cost.
18. All pending applications, if any, stand disposed of accordingly.
19. Urgent Photostat certified copy of this order, if applied for, be
supplied to the parties upon compliance with all requisite
formalities.
[BIBHAS RANJAN DE, J.]
