Calcutta High Court (Appellete Side)
The New India Assurance Co. Ltd vs Smt. Sikha Ghorai & Ors on 14 September, 2022
17
14.09.2022
Ct. No.237
pg.
IN THE HIGH COURT AT CALCUTTA
CIVIL APPELLATE JURICTION
APPELLATE SIDE
FMA 373 of 2011
with
IA No. CAN 2 of 2012 (CAN 4727 of 2012)
(Application not in the file)
with
CAN 3 of 2013 (CAN 1518 of 2013)
with
CAN 6 of 2015 (CAN 2685 of 2015)
The New India Assurance Co. Ltd.
Vs.
Smt. Sikha Ghorai & Ors.
with
COT 25 of 2011
Smt. Sikha Ghoroi & Ors.
Vs.
The New India Assurance Company Limited
Mr. Parimal Kumar Pahari
... For the appellant/ Insurance Company
in FMA 373 of 2011 & respondent no.1
in COT 25 of 2011
Mr. Subir Banerjee
Mr. Sandip Bandyopadhyay
... For the respondents/claimants
in FMA 373 of 2011 & appellants in
COT 25 of 2011
This appeal is directed against the judgment and
award passed on 31st July, 2010 by the learned Judge,
Motor Accident Claims Tribunal, 2nd Court, Howrah in
MAC Case No.01 of 2005 under Section 166 of the Motor
Vehicles Act, 1988 whereby the learned Judge passed an
award to the tune of Rs.5,85,500/- and the
respondent/New India Assurance Company Limited
directed to pay the amount in the manner prescribed in
the order.
Being aggrieved by the judgment and award, the
New India Assurance Company Limited has preferred this
appeal.
The claimants/respondents also filed one
Memorandum of Cross Objection assailing the amount of
the award on the ground of not allowing future prospect,
general damages and percentage of statutory deduction as
well as the mandatory interest on the awarded amount.
Briefly stated, the claim case arose out of an
accident which took place on 13th December, 2004 at
about 16.45 hours on Shyampur - Gadiyarah Road near
Khalore Kalabari, while a vehicle bearing no.WB-11/A-
5986 moving with high speed and in negligent manner,
dashed the victim who sustained severe injury all over the
body and succumbed to his injuries ultimately.
After the accident, the claim petition was filed
before the leaned Tribunal under Section 166 of the Motor
Vehicles Act claiming compensation to the tune of Rs.4
lacs along with interest thereon and New India Assurance
Company as well as the owner of the vehicle were made
parties to the claim petition.
During the trial of the case, claimants examined as
many as three witnesses, including Sikha Ghoroi as PW-1,
one eye-witness as PW-2 and the one witness as PW-3 to
prove the employment of the victim at the relevant point of
time. In course of their evidence, a good number of
documents were admitted in evidence as Exhibits 1 to 8,
including the post-mortem report, police reports and
insurance policy. On the other hand, on behalf of the
appellant/Insurance Company one witness was examined
as OPW-1 namely Samir Kumar Saha as the
Administrative Officer of New India Assurance Company
Limited. In course of his evidence, three documents were
marked as Ext.-A, Ext.-B and Ext.-C.
In course of argument, Mr. Parimal Kumar Pahari,
learned advocate for the appellant/Insurance Company,
has submitted that at the relevant point of time there was
no policy coverage in respect of the vehicle in question.
Therefore, the Insurance Company was not liable to pay
compensation. In support of his contention, he relies on
the exhibited documents admitted on behalf of the
Insurance Company. That apart, he also relied on a case
reported in 2008 ACJ 581 (Daddappa & Ors. v. Branch
Manager, National Insurance Co. Ltd.).
On the other hand, learned advocate appearing on
behalf of the claimants/respondents submitted that at the
time of accident the vehicle was duly covered by insurance
policy (Ext.6) and cancellation of that policy, if at all, was
never informed or intimated to the insured as it appears
from the evidence on record.
It is evident from the record, particularly, the
evidence of OPW-1, it is seen that the policy was issued in
favour of the insured showing the period from 15th
December, 2003 to 14th December, 2004. He stated that
the policy was cancelled and it was intimated to the
Regional Transport Officer by a letter (Ext.6). This witness
also testified that the issue of cancellation was also
intimated to the insured/owner of the vehicle but no
document has been field in support of his claim and even
the letter of intimation has not been admitted in evidence.
In Daddappa (supra), the Hon'ble Apex Court
exempted the Insurance Company from the liability to pay
compensation where insurance policy was cancelled by the
Insurance Company and that was duly communicated to
the insured as well as the RTO as per postal
acknowledgement. Unfortunately, in our case, no such
document was even produced before the learned Tribunal
to prove that the cancellation of policy was informed to the
insured/owner of the vehicle involved in this case.
Therefore, I am sorry to rely on the ratio of the decision of
Daddappa (supra) in our case.
Considering the aforesaid evidence on record, I am
not inclined to hold that the alleged vehicle was not
ensured at the time of accident.
So far as the accident is concerned, both PW-1 and
PW-2 have categorically stated about the accidental death
of the victim on 13th December, 2004 with the involvement
of the vehicle bearing no.WB-11/A-5986.
So far as the income of the victim is concerned,
PW-3 has specifically stated that the victim was an
employee of M/s. Royal Construction and used to ear a
salary of Rs.4,000/- per month and in support of his
evidence, one salary certificate has been filed and admitted
in evidence as Ext.8.
Keeping an eye to the Memorandum of Cross
Objection filed by the claimants/respondents, I find it
appropriate to calculate the compensation as follows:-
Gross Monthly Income Rs. 4,000/-
Annual Income Rs. 48,000/-
(Rs.4,000/- x 12)
Add: Future prospect (@ 40%) Rs. 19,200/-
Rs. 67,200/-
Less: 1/4th Total loss of income (5 persons) Rs. 16,800/-
Rs. 50,400/-
Multiplier 17 (Age 28 yrs.) (Rs.50,400/- x 17) Rs.8,56,800/-
Add: General Damages Rs. 70,000/-
Total Rs.9,26,800/-
Less - Awarded by ld. Tribunal Rs.5,85,500/-
ENHANCEMENT Rs.3,41,300/-
From the records, it appears that the learned
Tribunal awarded Rs.5,85,500/- and the appellant/
Insurance Company has already deposited the amount
before the learned Registrar General before filing of the
appeal.
In the aforesaid view of the matter, it is seen that
the respondents/claimants are entitled to further
enhanced amount of Rs.3,41,300/- along with interest @
6% per annum from the date of filing of the claim petition
till the actual payment and also the accrued interest on
the amount of Rs.5,85,500/- awarded by the learned
Tribunal.
The appellant/Insurance Company is directed to
deposit the enhanced amount of Rs.3,41,300/- along with
interest @ 6% per annum from the date of filing of the
claim petition till the actual deposit of the amount before
the learned Registrar General of this Court within six
weeks from the date of this order.
The respondents/claimants will be entitled to
withdraw the entire amount with interest subject to
payment of ad valorem court fees on the enhanced
amount.
The learned Registrar General will release the total
amount equally among the claimants/respondents no.1, 3,
4 and 5 on proper identification and subject to verification
of the payment of ad valorem court fees.
With the above observation, the appeal, being FMA
373 of 2011 and the Cross-Objection, being COT 25 of
2011, are disposed of.
All pending applications, if any, also stand
disposed of accordingly.
Records of the learned Tribunal 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.)
