Calcutta High Court (Appellete Side)
National Insurance Co. Ltd vs Smt. Padma Saha & Ors on 26 September, 2022
12 & 13
26.09.2022
Ct. No.237
pg.
IN THE HIGH COURT AT CALCUTTA
CIVIL APPELLATE JURICTION
APPELLATE SIDE
FMA 1331 of 2010
with
IA No. CAN 2 of 2010 (CAN 4470 of 2010)
with
CAN 5 of 2017 (CAN 3878 of 2017)
(Application not in the file)
National Insurance Co. Ltd.
Vs.
Smt. Padma Saha & Ors.
with
COT 29 of 2016
Smt. Padma Saha
Vs.
National Insurance Co. Ltd. & Ors.
Mr. Parimal Kumar Pahari
... For the appellant/National Insurance Co.
in FMA 1331 of 2010 & respondent no.1
in COT 29 of 2016
Mr. Krishanu Banik
... For the respondent/claimant in FMA
1331 of 2010 & appellant/cross
objector in COT 29 of 2016
Mr. Sayak Majumder
... For the respondent no.4/ICICI Lombard
General Insurance Co. Ltd.
This appeal is directed against the judgment and
award passed on 25th August, 2009 by the learned Judge,
Motor Accident Claims Tribunal and Additional District
Judge, Fast Track Court-II, Sealdah, South 24-Parganas in
MAC Case No.57 of 2006 under Section 166 of the Motor
Vehicles Act, 1988 whereby the learned Judge allowed
compensation to the tune of Rs.5,22,307/- along with
interest @ 6% per annum.
The claim application was filed on account of death
of one Suman Saha @ Suman Kumar Saha, son of late
Sudhir Saha, in a motor accident on 23rd March, 2006 at
about 10.30 p.m. On the alleged date and time, the
deceased was proceeding with a Maruti 800 Car bearing
registration no. WB-02H-0232 from Parama Island to
Chingrighata while a Hyundai Santro Car bearing
registration no. WB-02N-6379 suddenly dashed the said
Maruti 800 from the backside. As a result, the said Maruti
Car badly damaged and Suman Saha @ Suman Kumar
Saha along with other persons sustained severe injuries.
Subsequently, Suman Saha @ Suman Kumar Saha died in
hospital. It was alleged that the victim was young,
energetic and qualified computer engineer and he was the
only earning member of his family and that is why the
claim application was filed with a prayer for compensation
to the tune of Rs.10 lacs.
Both the Insurance Companies and owners of the
vehicles were made parties to this case but both the
owners of the two vehicles did not contest this case.
Rather, two Insurance Companies in respect of the two
vehicles contested this case by filing their respective
written statements denying all material allegations in the
claim petition.
In course of the trial, the claimant examined three
witnesses, namely, the claimant herself Smt. Padma
Saha, mother of the deceased Suman Saha @ Suman
Kumar Saha as PW-1. In course of her evidence, a good
number of documents were admitted in evidence as
Exhibits 1 to 21. One Surajit Sharma was examined as
PW-2 and he claimed himself to be the eye-witness to the
incident. One Gulu Balani claimed himself to be the
employee of Embee Software Pvt. Ltd. duly authorised by
the Managing Director of the company as PW-3. He
proved employment and remuneration of the deceased
Suman Saha @ Suman Kumar Saha. One Banhee Roy
was examined as DW-1 on behalf of the ICICI Lombard
General Insurance Co. Ltd. She claimed herself as
employee of the Insurance Company. One Susanta
Kumar Das was examined as DW-2 who claimed himself
as the driver of the Santro Car.
According to the National Insurance Company
Limited/appellant in FMA 1331 of 2010, the accident
took place due to rash and negligent driving of the Santro
Car duly insured with ICICI Lombard General Insurance
Co. Ltd. and the driver of that car was solely responsible
for the accident as the Santro Car moving with high
speed and in negligent manner dashed the Maruti 800
Car from behind. Accordingly, police case was started,
being Tiljala Police Station Case No.93 dated 24th March,
2006 under Sections 279/338/427/304A of the Indian
Penal Code. It is submitted on behalf of the appellant/
National Insurance Company Limited that after
investigation, charge sheet was filed against the driver of
the Santro Car only. Thereby learned advocate appearing
on behalf of the appellant/National Insurance Company
has tried to make this Court understand that National
Insurance Company is not liable to pay any
compensation as it is not a case of contributory
negligence.
On the other hand, learned advocate on behalf of
the ICICI Lombard General Insurance Co. Ltd. submitted
before this Court that the accident took place by the
involvement of both the vehicles and in support of his
submission, he has drawn attention of this Court to the
evidence of DW-2 who has stated in his evidence that on
the alleged date of accident and time, he was driving the
vehicle bearing registration no. WB-02N-6379 (Hyundai
Santro) through E.M. Bye-pass, when he reached near
Metropolitan Housing Society under Tiljala Police Station,
suddenly the driver of one Maruti 800 Car, bearing
registration no. WB-02H-0232 applied sudden brake
without showing any signal. As a result of which Santro
Car dashed the said Maruti Car. Therefore, according to
the learned advocate on behalf of the ICICI Lombard
General Insurance Co. Ltd., Santro Car is not solely
responsible for the accident. It is the case of contributory
negligence. Accident would not have taken place if Maruti
Car had not applied the sudden brake.
From the evidence adduced on behalf of the
claimant, it is found that one Surajit Sharma (PW-2) was
examined in this case as eyewitness to the accident. In
his evidence, he has stated that on 23rd March, 2006 at
about 10.30 p.m. near Metropolitan Cooperative Housing
Society on E.M. Bye Pass Chingrighata Flank, the
accident occurred while one Santro Car dashed the
Maruti 800 Car with excessive high speed from its back
side and as a result, Maruti 800 Car fell into the cannel
and damaged.
According to PW-2, Santro Car was solely
responsible for the accident and according to DW-2 the
accident took place due to negligence on the part of both
the vehicles.
According to PW-2, after the accident Maruti 800
Car fell into cannel but from the charge sheet (Ext.-3), it
is found that on 23rd March, 2006 at about 22.30 hours,
one Maruti Van was coming from Parama Island and
proceeded towards Chingrighata through EM Bye Pass
and one silver colour vehicle was coming in rash and
negligent manner dashed the front side of the Maruti Car
on EM Bye Pass near Metropolitan Gate No.1.
So if we consider the evidence of PW-2 as well as
the accident enumerated in the charge sheet, I find
glaring discrepancies. In these circumstances, I do not
find any other option but to rely on the evidence of DW-2
who was the driver of Santro Car. DW-2 has stated in his
evidence that all on a sudden Maruti 800 Car applied
sudden brake and that is why there are no other option
but to dash the said Maruti 800 Car.
However, from the evidence of PW-2, DW-2 and
also police reports, I am unable to come to any
conclusion that Santro Car was solely responsible for the
accident.
In that view of the matter, I am unable to interfere
with the observation of the learned Tribunal on the point
of liability of the two vehicles.
Learned advocate on behalf of the claimant has
submitted that his client has filed a Cross-Objection,
being COT 29 of 2016, to this appeal on the ground that
the learned Tribunal mistakenly applied multiplier 13
instead of 17 and the learned Tribunal also did not allow
the future prospect and general damages.
It is pertinent to mention here that none of the
Insurance Companies has disputed regarding the award
of compensation.
In the aforesaid view of the matter, I propose to
modify the award of compensation afresh as follows:-
Annual Income Rs. 59,747/-
(Rs.4,500/- x 12)
Add: Future prospect (@ 40%) Rs. 23,898.80
(Rs.59,747 + Rs.23,898.80) ------------------
Rs. 83,645.80
Less: 1/2nd Deduction Rs. 41,822.90
Rs. 41,822.90
Multiplier 17 (Rs.41,822.90 x 17) Rs.7,10,989.30
Loss of dependency
Add: General Damages Rs. 30,000/-
Total Rs.7,40,989.30
50% of the liability of both Insurance Co.
i.e. (Rs.7,40,990/2) = Rs.3,70,495/-
In the aforesaid view of the matter, it is seen that
the claimant/cross-objector is entitled to Rs.7,40,990/-
along with interest @ 6% per annum from the date of filing
of the claim petition, i.e., on 21st August, 2006, till the
deposit of the amount before the learned Registrar General
of this Court.
Both the Insurance Companies are directed to
deposit Rs.3,70,495/- along with interest @ 6% per annum
from the date of filing of the claim petition till the deposit
of the amount before the learned Registrar General of this
Court within six weeks from the date of this order.
It is submitted on behalf of the ICICI Lombard
General Insurance Co. Ltd. that the Insurance Company
has already paid Rs.2,61,153.50 to the claimant/cross-
objector after the award promulgated by the learned
Tribunal.
In the aforesaid view of the matter, ICICI Lombard
General Insurance Co. Ltd. is directed to pay the
differential amount of Rs.1,09,341.50 along with interest
@ 6% per annum from the date of filing of the claim
petition, i.e., on 21st August, 2006, before the learned
Registrar General within six weeks from the date of this
order.
National Insurance Company Limited is also
directed to pay Rs.3,70,495/- after deducting the amount
already deposited with the learned Registrar General along
with interest @ 6% per annum from the date of filing of the
claim petition, i.e., on 21st August, 2006, till the date of
deposit.
The claimant/cross-objector will be entitled to
withdraw the amount with interest.
The learned Registrar General will disburse the
amount to the claimant/cross-objector after calculating
the accrued interest on proper identification.
With the above observation, the appeal, being FMA
1331 of 2010 and the Cross-Appeal, being COT 29 of
2016, stand 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.)
