Calcutta High Court (Appellete Side)

The National Insurance Company ... vs Samiresh Bhaduri & Another on 16 September, 2022

16.9.2022
sl no. 14 & 15
Ct No. 654
   Sk


                         F.M.A. 1640 of 2019

            IA No: CAN/1/2019 (Old No. : CAN/8603/2019)
                            With
                       COT 112 of 2019

                 The National Insurance Company Limited.
                                  versus
                        Samiresh Bhaduri & Another.

                   Mr. Sanjay Paul
                                        ...for the appellant.
                   Mr. Ashique Mondal
                                 ...for the respondent no.1-claimant.

This appeal is directed against the judgment and

award dated 21st June, 2019 passed by the learned

Judge, Motor Accident Claims Tribunal, 2nd Court,

Hooghly in M.A.C. Case No. 82 of 2012 granting

compensation in favour of the respondent-claimant to

the tune of Rs. 11,01,007/- alongwith interest @ 8%

per annum from the date of filing of claim application

till final realization under Section 166 of the Motor

Vehicles Act, 1988.

The brief fact of the case is that on 10.5.2020 in

the midnight at 12-00 hours the victim along with

other occupants was returning from Howrah Station

towards Chinsurah on a Tata Indica Car bearing No.

WB-74K/7737 and when they reached near

Maheshpur under Polba P.S., the driver stopped the

car and both the occupants came out from the said

car for urinating. One occupant after relieving himself

boarded the said car and driver immediately started

the car with a high speed. The injured-victim tried to

stop the car but the driver without stopping the

vehicle in a rash and negligent manner dashed the

injured-victim, as a result of which he sustained

grievous injuries all over the body including head and

was shifted to the hospital. The other occupant as

well as the driver of the offending vehicle died in the

said accident. The claimant herein being the injured-

vicitm filed claim application under Section 166 of the

Motor Vehicles Act, 1988 praying for compensation.

Upon considering the materials on record and oral

documentary evidence adduced by the parties, the

learned tribunal allowed the application of the

claimant granting compensation to the tune of Rs.

11,01,007/- together with interest @ 8% per annum

from the date of filing of claim application till final

realization.

Mr. Sanjay Paul, learned advocate appearing for

the appellant-insurance company at the very outset

submits that the insurance company cannot be made

liable to compensate the claimant as policy of the

vehicle did not cover the same. He further submits

that the policy of the vehicle was not a "Package

policy" to cover each and every liability rather it is an

statutory "Act policy" which covers liability of only a

third party. As on the date of incident the claimant

was travelling in the offending vehicle as a gratuitous

passenger and was not a third party, as such the

policy of the vehicle which is an "Act policy" does not

make the insurance company liable to compensate.

Furthermore, he draws the attention of the court that

specific pleadings has been made by the insurance

company that it was not liable to make payment as

the policy covers only third party and the claimant

not being a third party, the insurance company

cannot be called upon to compensate. He further

submits that in order to establish such fact the

insurance company has examined the Assistant

Manager of National Insurance Company Limited, as

Dw1, who has in clear terms deposed that the policy

was a one liability only insurance policy and as such

it is a third party policy. He further indicates from the

insurance policy (Exhibit A) that the policy holder

has deposited a sum of money towards third party

basic and the column under own damage has not

been covered which clearly also goes to show that the

policy was an "Act policy" covering only third party.

Save and except the version of the claimant (Pw1), he

submits, there is no other iota of materials that on

the date of incident, the claimant and the other

occupants got down from the vehicle in order to

urinate and thereafter the accident took place

resulting in injury to the claimant while he was

outside the offending vehicle. Rather the

corroborative witnesses failed to establish the fact

that the victim at the time of accident was outside the

vehicle. Further both Pw2 and Pw3 deposed that they

saw the victim lying on the road with pool of blood

which implies that the victim was thrown out of the

offending vehicle through the door of the car due to

sudden impact. Thus in the event the victim being a

passenger in the offending vehicle there cannot be a

liability of the insurance company to compensate in

the absence of "Package policy". Further referring to

the decision of Hon'ble Supreme Court passed in

National Insurance Company Limited versus

Balakrishnan & Another reported in (2013) 1 SCC

731 he submits that the Hon'ble Court has

extensively dealt with the matter concerning "Act

policy" and "Comprehensive policy or Package policy"

and laid down a clear distinction between the two. In

the light of his aforesaid submissions, he prayed for

setting aside the impugned judgment and award of

the learned Tribunal.

Mr. Ashique Mondal, learned advocate for the

respondent-claimant submits that the injured-victim,

who is also the claimant herein is the best witness to

depose about the manner the incident that took place

on the date of incident, as the other occupants of the

car who could have thrown light on the manner by

which the actual incident took place has already

expired. He further submits that the evidence of the

claimant adduced in his examination in chief could

not be rebutted in the cross-examination. Save and

except some mere suggestions and denials there are

no other materials emanating from the cross-

examination to counter the evidence of claimant

adduced in his examination-in-chief. Mere denials

would not prove the defence case of the insurance

company and he relied on the decision of Hon'ble

Bombay High Court passed in New India Assurance

Company Limited versus Samidrabhai and Others

reported in 2018 ACJ 1827. Moreover, the claimant

has produced the best piece of evidence before the

learned tribunal to establish its case by discharging

its burden of proof whereas the insurance company

in spite of getting opportunity did not produce the

best evidence to thwart of the evidence injured

claimant. Furthermore, the maker of the FIR is the

son of the owner of the offending vehicle and as such

is an interested party and is also not an eye witness

to the occurrence and as such his statement in the

FIR cannot be taken to be sacrosanct. Further he

submits that PW-3 identified the victim-injured from

railway identity card and informed the mother (PW2)

of the claimant. The mother (PW2) of claimant has

also deposed in clear terms that she was informed by

PW-3. Both the witnesses have also stated that after

they reached the place of occurrence they found the

injured-victim lying on the road which fact presumes

that the victim-injured was not inside the vehicle at

the time accident and the finding of the learned

Tribunal on such score holds good. He further

submits that in Motor Accident Claims cases the

standard of proof should be best of one of

preponderance of probabilities and in support of his

contention he relied on the decision of Hon'ble

Supreme Court passed in Anita Sharma and others

versus New India Assurance Company Limited

reported in (2021)1 SCC 171. In the aforesaid

backdrop, submits that the evidence of claimant and

corroborative evidence is very much acceptable to

establish the manner of occurrence.

With regard to cross-objection for enhancement of

compensation amount being COT 112 of 2019, Mr.

Mondal, submits that the learned Tribunal did not

take into account the future prospect and has

wrongly adopted multiplier 15 instead of 16. He

further submits for increasing the non-pecuniary

damages as because the claimant has become totally

bed-ridden due to the injuries sustained in the

accident. Relying on the decision of Hon'ble Supreme

Court passed in Pappu Deo Yadav versus Naresh

Kumar and Others reported in 2020 SCC Online

SC 752 he submits that following the principal laid

down in Pranay Sethi's case the Hon'ble Court

observed that in case of injured future prospect @

40% should be taken into consideration

Having heard the rival contentions of the parties at

the first instance I proceed to consider the ground

taken by the appellant-insurance company in the

present appeal. Before delving into the merit I concur

with the argument advanced on behalf of the

appellant that an "Act policy" and a "Package policy"

are distinct, relying on the decision of the Hon'ble

Supreme Court in Balakrishnan (supra).

Now the question that has fallen for consideration

in this appeal is whether the insurance company in

the facts and circumstances of the case is liable to

pay the compensation or not. Bearing in mind the

insurance policy of the offending vehicle is admittedly

an "Act policy" covering third party so the principal

aspect which has to be ascertained is whether the

claimant was a third party or not.

From the evidence of the injured-claimant(PW1), it

is found that he has categorically stated that on the

date of incident he along with one Suroj De and the

driver was returning from Howrah Station towards

Chinsurah and when they reached near Maheshpur

under Polba P.S, the driver stopped the vehicle he

and Suroj De got down from the vehicle in order to

urinate. Thereafter, Suroj De boarded the vehicle and

the driver all on a sudden started the car with high

speed. He tried to stop the car but the driver without

stopping dashed him, due to which he sustained

injuries. On going through the cross-examination of

witness-claimant (PW1) it is found that his evidence

as above has remained unshaken. Save and except

mere suggestions nothing substantial has cropped up

during cross-examination to disbelieve the witness-

claimant (PW1). It is pertinent to note that the

claimant is the injured-victim in this case and has

also witnessed the accident. The claimant has also

adduced the evidence of his mother (PW-2) and one

independent witness (PW-3), who informed his

mother. PW-3 deposed that he saw two persons were

inside the car with bleeding injuries and another

person was lying by the side of the road with pool of

blood and he further went on to depose that he was

informed by the other persons regarding the identity

of the injured-claimant from his identity card. He has

also deposed that he informed the mother of the

claimant. PW-2 mother of the claimant also deposed

that she was informed by an unknown boy and

thereafter she rushed to the spot and found her son

lying by the side of the road with pool of blood and

two persons were inside the car with bleeding

injuries. The above evidence of both the aforesaid

witnesses has remained unshaken in cross-

examination. Mr. Paul, learned advocate for the

appellant-insurance company tried to impress upon

the court that there might occasion that the door of

the car broke down and the complainant fell on the

road due to sudden impact of the accident. I failed to

accept such proposition as advanced on behalf of the

appellant-insurance company for reason that the

police during the course of investigation did not make

any seizure of any broken door of the car from the

place of occurrence, although, mechanical test was

undertaken. Thus such contention on behalf of the

appellant-insurance company does not stand to

reason.

In view of the above discussion from the evidence

on record it manifests that the claimant was outside

the vehicle when he was dashed by the offending

vehicle resulting in injuries and thus the claimant

was a third party. The policy of the vehicle being an

"Act policy" covers such liability and the insurance

company cannot disown from compensating the

injured-claimant who sustained injuries in the said

accidents.

Accordingly, the appeal falls short of merit and is

liable to be dismissed.

Now I proceed to consider the cross objection being

COT 112 of 2019.

Mr. Mondal, learned advocate for the respondent-

claimant submits that the income of the claimant

should have been considered @ Rs. 4,500/- per

month. Although, such argument has been pressed

into service, however, it is found from the materials

on record that no supportive documents have been

produced before the learned Tribunal. The incident

has been taken place in the year 2010 and bearing in

mind the price index prevailing at that period of time,

I do not find any perversity in the order of the learned

tribunal considering the income of the claimant to the

extent of Rs. 3,000/- per month.

With regard to the multiplier on going through the

judgement of the learned tribunal, I find that a

multiplier of 15 has been adopted for calculating the

compensation however in view of the observation of

Hon'ble Supreme Court made in Sarala Verma

versus Delhi Transport Corporation, reported

2009 (2) T.A.C. 677 the multiplier should be 16 as

on the date of accident, admittedly, the claimant was

aged 32 years.

Further following the observation of the Hon'ble

Supreme Court made in National Insurance

Company Limited versus Pranay Sethi and others

reported in 2017 ACJ 2700 as well as Pappu Deo

Yadav (supra) an amount equalling to 40% of the

annual income should be added towards future

prospect.

Last but not the least Mr. Mondal argues

vociferously for enhancement of non-pecuniary

damages. It appears from the impugned judgement

that an amount of Rs. 3,50,000/- has been allowed

towards non-pecuniary damages by the learned

tribunal. Bearing in mind the extent of permanent

disability and also that the victim cannot move

without assistance the non-pecuniary damages is

enhanced to the extent of Rs. 4,00,000/-.

In the aforesaid backdrop, the compensation is

calculated as hereinunder.

Monthly Income........... Rs. 3,000/- Annual income( 3000/-x12)......Rs. 36,000/- Add: Future Prospects @ 40%.....Rs 14,400/-

Rs. 50,400/-

   Adopting Multiplier 16
            (Rs.50,400/-X16)              Rs.8,06,400/-
   Disability (50%)                     Rs. 4,03,200/-
   Medical Expenses                     Rs. 4,81,007/-
   Non-pecuniary damages                Rs. 4,00,000/-
                                        Rs.12,84,207/-

Thus the claimant is entitled to a compensation

amount of Rs. 12,84,207/- together with interest @

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

claim application till realisation.

The learned advocate for the insurance company

submits that an amount of Rs. 19,55,572/- as well as

statutory deposit of Rs. 25,000/- has been made

before the learned Registrar General, High Court,

Calcutta.

Accordingly, the aforesaid already deposited along

with accrued interest be adjusted against the entire

compensation amount together with interest. Balance