Calcutta High Court (Appellete Side)
Gobinda Das vs The National Insurance Company ... on 22 September, 2022
14
22.09.2022
Ct. No.237
pg.
IN THE HIGH COURT AT CALCUTTA
CIVIL APPELLATE JURICTION
APPELLATE SIDE
FMA 851 of 2012
Gobinda Das
Vs.
The National Insurance Company Limited & Anr.
Mr. Subir Banerjee
Mr. Sandip Bandyopadhyay
Ms. Ruxmini Basu Roy
... For the appellant/claimant/driver
Mr. Parimal Kumar Pahari
... For the respondent/Insurance Co.
This appeal is directed against the judgment and
award passed on 29th November, 2011 by the learned
Additional District and Sessions Judge, 1st Court-cum-
Judge, Motor Accident Claims Tribunal, Raiganj, Uttar
Dinajpur, in MAC Case No.158 of 2008 under Section
163A of the Motor Vehicles Act, 1988 whereby the learned
Judge dismissed the claim petition.
The claim petition was filed on account of injuries
sustained by claimant Gobinda Das on 10th March, 2007
at about 9.15 a.m. while he was driving a vehicle (Matador)
bearing registration no.WB-03A/7703 met with an
accident due to burst of the front side tire. Consequently
he lost control and hit the vehicle with a roadside tree. At
the time of accident, the claimant/driver was aged about
42 years and he prayed for Rs.5,50,000/- as
compensation. National Insurance Company Limited
contested the said case by filing a written statement
denying all materials and documents.
In course of trial, the appellant/claimant examined
three witnesses, namely, the claimant himself as PW-1,
one Dr. Rash Behari Ghosh as PW-2 who proved the
medical certificate (Ext.-5) showing disability of the
claimant/driver and one Dr. Arabinda Tantri attached to
Raiganj District Hospital as Superintendent, was examined
as PW-3. In course of his evidence, he proved the disability
certificate (Ext.-6) and from his evidence, it appears that
he was one of the members of the Medical Board issuing
disability certificate in favour of the appellant/claimant/
driver.
The owner of the vehicle himself examined as OPW-
1 and he stated about the accident made by his driver on
10th March, 2007 and he sustained injury.
Learned Judge of the Tribunal after appreciation of
the evidences and documents available on record returned
his finding that the appellant/claimant is not entitled to
any compensation under Section 163A of the Motor
Vehicles Act as the accident happened on account of his
own negligence. In support of his observation, he relied on
a case reported in AIR 2008 Vol. III (Bombay) R 607.
In course of argument, learned advocate on behalf
of the appellant/claimant submitted that it is a case under
Section 163A of the Motor Vehicles Act and negligence of
the driver cannot be an issue to be determined and the
appellant/claimant is entitled to compensation as per the
structural formula. In support of his claim, learned
advocate appearing on behalf of the appellant/claimant
relied on a judgment of the Hon'ble Apex Court reported in
2018 (1) TAC 3 (SC) (United India Insurance Co. Ltd. v.
Sunil Kumar & Anr.) and a jdgment of this Court reported
in (2008) 2 WBLR (Cal) 59 (Arati Dolai @ Arati Rani
Dolai & Ors. v. Baser Ali Box & Ors.).
So, from the entire evidence and documents on
record, I find that the driver of the vehicle bearing
registration no.WB-03A/7703 (Matador) sustained injury
in an accident while he was driving the vehicle in the
Highway for which Rotua Police Station Case No.39 of
2007 under Sections 279/338/427 of the Indian Penal
Code was started and charge sheet was submitted against
the driver. From that point of view, it is needless to
mention that the driver was the person responsible for the
accident but in a case of 'no fault liability' under Section
163A of the Motor Vehicles Act, negligence or responsibility
cannot be an issue to be discussed. That apart, from the
observation of the Hon'ble Apex Court in Sunil Kumar
(supra) and also the view of this Court in Arati Dolai @
Arati Rani Dolai (supra), I find no other alternative but to
allow the compensation on 'no fault liability' under Section
163A of the Motor Vehicles Act.
Learned advocate on behalf of the respondent/
Insurance Company also submitted that the driver/
claimant is entitled to compensation on the ground of 'no
fault liability' within the meaning of Section 163A of the
Motor Vehicles Act.
Considering the age of the victim and the income
appearing from the evidence, I would like to determine the
compensation as follows:-
Gross Monthly Income Rs. 3,000/-
Annual Income Rs. 36,000/-
(Rs.3,000/- x 12)
Less: 30% Deduction (disability 70%) Rs. 10,800/-
Rs. 25,200/-
Multiplier 15 (Age 42 yrs.) Rs.3,78,000/-
Loss of dependency
In the aforesaid view of the matter, it is seen that
the appellant/claimant/driver is entitled to an amount of
Rs.3,78,000/- along with interest @ 6% per annum from
the date of filing of the claim petition.
The respondent/Insurance Company is directed to
deposit the amount of Rs.3,78,000/- 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 appellant/claimant/driver will be entitled to
withdraw the amount along with interest subject to
payment of ad valorem court fees on the amount.
The learned Registrar General will release the total
amount to the appellant/claimant/driver on proper
identification and subject to verification of the payment of
ad valorem court fees.
With the above observation, the appeal, being FMA
851 of 2012, stands disposed of.
All pending applications, if any, also stand
disposed of.
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.)
