Calcutta High Court (Appellete Side)
Smt. Tulsi Roy & Ors vs National Insurance Company Ltd. & ... on 28 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 720 of 2010
With
CAN 4 of 2018 (CAN 10291 of 2018)
Smt. Tulsi Roy & Ors.
Vs.
National Insurance Company Ltd. & Ors.
For the Appellants/ :Mr. Jayanta Banerjee, Advocate
claimants Ms. Ruxmini Basu Roy
For the Respondents/ :Mr. Rajesh Singh, Advocate
Insurance Co.
Heard on : September 22, 2022
Judgment on : September 28, 2022
Bibhas Ranjan De, J.
1. Being aggrieved by and dissatisfied with the Judgment and
Order dated 30.05.2009, passed by Ld. Judge, Motor Accident
Claim Tribunal, Katwa, Burdwan in connection with MAC Case
No. 120 of 2005 under Section 163A of the Motor Vehicles Act,
1988, this appeal has been preferred on the ground that the Ld.
Tribunal could not appreciate the evidence and documents
available on record and came to his erroneous findings.
2. The Motor Accident Claim Case no. 120 of 2005 arose out of an
application under Section 163A of the Motor Vehicles Act, 1988
on account of accidental death of Raju Roy, son of late Rama
Kanta Roy, aged about 39 years and an employee of the vehicle
involved in the accident. On 21.01.2005 at about 11.30 a.m.
said Raju Roy was travelling by the truck bearing no WB-57-
7657 which was moving rashly and negligently towards Nagar
and near Tentultala bus stand the said truck lost its control and
capsized. As a result, passengers travelling by the truck
sustained injury. One Subhodip Ghosh died at the spot and
Raju Roy among other injured passengers admitted to hospital
and died.
3. Claimed application has been filed with a prayer for
compensation to the tune of Rs. 4,000,00/- as Raju Roy was an
employee of the offending vehicle having monthly income of Rs,
3,000/-.
4. Both the Opposite party/ Insurance Company and owner
contested the case by filing their respective written statements
denying material allegations in the claim petition.
5. In course of trial of the case, claimant no. 1/ widow of deceased
Raju Roy examined herself as PW-1 and in course of her
evidence Police Reports, PM Report, Ration Card, Insurance
Policy were admitted in evidence.
6. On careful scrutiny of the judgment passed by Ld. Tribunal, it
comes to my view that Ld. Tribunal focused on the written
statement on behalf of owner of the vehicle involved in this case
and non-filing of documents in support of employment of Raju
Roy. Ld. Tribunal held that opposite party/owner denied his
ownership of the vehicle involved in this case, by filing a written
statement and thereby Ld. Tribunal returned his findings that
actual owner of the vehicle involved in this case has not been
made party and the Motor Accident Claim Case was not
maintainable. On the other hand, Ld. Tribunal disbelieved the
employment of Raju Roy and returned his findings that
deceased Raju Roy was gratuitous passenger of the vehicle
involved in this case. Thus, being the position, Ld. Tribunal
dismissed the claim application filed on behalf of the legal heirs
of deceased Raju Roy.
7. Mr. Jayanta Banerjee, Ld. Advocate, appearing on behalf of the
appellants has submitted that exhibit 6 (Insurance Policy) and
exhibit 8 (Registration Certificate) clearly proved that Anfar
Sekh was the owner of the vehicle involved in this case. It is
further submitted by Mr. Banerjee that though Insurance Policy
number and registration number were not supplied in the claim
petition at the time of filing but subsequently by filing an
amendment application the policy number and registration
number were supplied and accordingly claim petition was
amended.
8. Mr. Rajesh Singh, Ld. Advocate, appearing on behalf of the
National Insurance Company has contended that at the time of
accident admittedly there was no registration which was issued
on 02.03.2005 i.e. after the alleged accident. Assailing the
Registration Certificate and Insurance Policy, Mr. Singh has
tried to make this Court understand that Anfar Sekh was not
the owner of the said vehicle which was further corroborated by
the written statement filed on behalf of the so called owner/
Anfar Sekh. Before parting with his argument, Mr. Singh has
submitted that no evidence has been adduced in the case in
support of employment of deceased Raju Roy and that being the
position Raju Roy was a gratuitous passenger. Mr. Singh
concluded his argument by submitting that Ld. Tribunal rightly
dismissed the claim application.
9. From the entire Police reports including First Information
Repot, seizure list and charge-sheet in connection with
Khargram PS Case No. 10/2005 dated 21.01.2005 under
Section 279/ 338/304A of the Indian Penal Code as well as Post
Mortem report in respect of deceased Raju Roy, I find no reason
to disbelieve that an accident took place on 21.01.2005 at about
11:30 hours by the involvement of a vehicle bearing no. WB-57-
7657 and Raju Roy was travelling by that vehicle along with
other passengers.
10. Registration Certificate (exhibit 8) clearly shows that Anfar
Sekh, son of Sekh Rajemal is the owner of the vehicle and
Insurance Policy (exhibit-6) also shows the policy was issued in
the name of insured/ Anfar Sekh, son of Sekh Rajemal. Now, if I
turn to the written statement filed on behalf of the Anfar Sekh, I
find that, though he stated that he was not the real owner of
the vehicle but he admitted that he was authorized by his father
Rajemal Sekh, who is the owner of the said vehicle. Tone and
tenor of the written statement filed by Anfar Sekh together with
the Insurance Policy and Registration Certificate in respect of
vehicle in question clearly show that Anfar Sekh was the owner
of the vehicle.
11. Mr. Singh has strenuously contended that on the alleged date
of accident, the vehicle was driven without any registration
certificate. It is true that registration certificate was issued on
02.03.2005 and accident alleged in the case took place on
21.01.2005. Now the question is whether driving of a vehicle
without registration can be the ground for refusal of claim
under Section 163A of the Motor Vehicles Act. Section 192 of
the Motor Vehicles Act speaks volume of the consequences for
driving a vehicle without Registration certificate. Actually,
driving of a vehicle without registration certificate is a
punishable offence under section 192 of the Motor vehicles Act,
1988. Therefore, I am of the view that driving of the offending
vehicle on the alleged date of accident without registration
certificate does not make any difference to the claim application
filed by the legal heirs of deceased Raju Roy.
12. It is true that no evidence has been adduced before the
Tribunal showing employment of deceased Raju Roy who was
then a gratuitous passenger. Considering minimum wages,
monthly income of the deceased at the time of death may be
taken as Rs. 3,000/-.
13. For the reasons, I propose to determine the compensation as
follows:-
Annual Income (Rs. 3000 x 12) : 36,000.00
Less:-1/3rd for the personal expenses :12,000.00
__________
24,000.00
Adding Multiplier:- x '16' :24,000.00 x16
3,84,000.00
Add:- General Damages :9,500.00
Total Award :3,93,500.00
14. National Insurance Company is directed to deposit the entire
amount of compensation before the Ld. Registrar General, along
with interest @ 6% per annum from the date of filing of the
claim petition till the date of deposit of compensation amount,
within six (6) weeks from date.
15. Respondent/ National Insurance Company is at liberty to
recover the entire compensation amount with interest from the
owner of the vehicle being registration no. WB-57-7657 directly
through execution proceeding instead of filing separate suit.
16. Claimant is entitled to the amount of compensation subject to
payment of ad velorem Court fees, if not already paid, thereon.
17. Ld. Registrar General will disburse the amount in favour of the
claimant on proper identification and also on verification of
payment of Court fees on the award of compensation.
18. In the result, the judgment passed in MAC Case No. 120 of
2005 stands set aside.
19. Mr. Banerjee has drawn attention to this case to the CAN 4 of
2018 (CAN 10291 of 2018), whereby it is prayed for recording
the attainment of majority of the appellant No. 2 & 3. The prayer
is allowed. I record the attainment of majority of the appellant
no. 2 & 3 namely Mampi Roy and Chumki Roy respectively.
Department to make necessary correction in the cause title of
the memo of appeal.
20. F.M.A 720 of 2010 stands disposed of without any order as to
cost.
21. All pending applications stand disposed of accordingly.
22. Let the records of the Tribunal be sent back immediately.
23. 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.]
