Calcutta High Court (Appellete Side)
National Insurance Company ... vs Bakul Adhikari & Ors on 30 September, 2022
10
30.09.2022
Ct. No.237
pg.
IN THE HIGH COURT AT CALCUTTA
CIVIL APPELLATE JURICTION
APPELLATE SIDE
FMA 867 of 2012
with
IA No. CAN 3 of 2013 (CAN 955 of 2013)
(Application not in the file)
with
CAN 4 of 2022
National Insurance Company Limited
Vs.
Bakul Adhikari & Ors.
Mr. Rajesh Singh
... For the appellant/Insurance Co.
Mr. Amit Ranjan Roy
... For the respondents/claimants
In re: CAN 4 of 2022
This application was filed by the respondents/
claimants on 29th August, 2022 but the original
application is not in the record. Learned advocate on
behalf of the respondents/claimants has submitted a copy
which is being treated as original.
In this application, a prayer is made for expunging
the name of the claimant/respondent no.4, namely,
Kalyani Adhikari, supported by one death certificate
showing the death of Kalyani Adhikari on 5th September,
2016. It is submitted that other legal heirs are already on
record.
In such circumstances, the prayer for recording the
death of Kalyani Adhikari is allowed.
The Department is directed to expunge the name of
the appellant/claimant no.4, namely, Kalyani Adhikari,
from the Memorandum of Appeal.
The application, being CAN 4 of 2022, stands
disposed of.
In re: FMA 867 of 2012
Being aggrieved and dissatisfied with the judgment
and award dated 13th June, 2011 passed by the learned
Judge, Motor Accident Claims Tribunal, 1st Court,
Asansol, in MAC Case No.169 of 2007 under Section 166
of the Motor Vehicles Act, 1988 granting award of
Rs.6,04,500/- along with interest @ 8% per annum from
the date of filing of the claim petition, this appeal has been
preferred.
The claim petition was filed on account of death of
one Dayamoy Adhikari in a motor accident which took
place on 31st July, 2007 at about 10.30 p.m. by the
involvement of one JCB Pay Loader bearing registration
no.WB-37A/0729. When the victim was returning to his
home from service place, the said vehicle coming with rash
and negligent manner, dashed the victim who sustained
fatal injuries. He was shifted to hospital and succumbed to
his injuries. The victim being the only earning member of
the family, the claim petition was filed with a prayer for
compensation to the tune of Rs.5,00,000/-.
The appellant/National Insurance Company
Limited contested the claim application by filing written
statement, denying all material allegations made in the
claim petition.
In course of the trial, three witnesses were
examined on behalf of the respondents/claimants. The
widow of the deceased as PW-1 corroborated the claim
petition and submitted that her husband was 38 years of
age and used to earn Rs.5,000/- per month. One Subrata
Adhikari claimed himself to be the eyewitness to the
incident being accompanied the deceased on the relevant
date and time. He stated the entire incident. PW-3 was the
owner of a Security Agency who has come before the
learned Tribunal and proved the salary of the victim who
was an employee of a Security Agency. The salary certified
was admitted in evidence.
On behalf of the appellant/Insurance Company,
one witness examined from the Motor Vehicles
Department, Asansol as OPW-1. In course of his evidence,
it appears that at the relevant point of time, the driver of
the offending vehicle had no licence.
In course of the argument, learned advocate on
behalf of the appellant/Insurance Company submits that
there was no direction given in the order by the learned
Tribunal to recover the award from the owner of the
vehicle.
Learned Judge of the Tribunal on careful perusal
of the authorities relied on behalf of the Insurance
Company, came to his final opinion that the claimants are
entitled to get award and the Insurance Company shall
make payment of compensation to the claimants at the
first instance and recover the same from the owner of the
vehicle, as obiter in the judgment without mentioning in
the order.
None of the parties to this appeal raised any other
points except omission of the order of recovery from the
owner, in the column of "order". None of the parties to this
appeal raised any dispute regarding quantum of award as
well.
Considering the entire evidence and judgment
passed by the learned Tribunal, I do not find any reason to
interfere with the observation except giving liberty to the
appellant/National Insurance Company Limited to recover
the award from the owner of the vehicle.
It is reported on behalf of the respondents/
claimants that the National Insurance Company Limited
did not deposit the interest awarded by the learned
Tribunal, though awarded sum of Rs.6,04,500/- has
already been deposited by the appellant/Insurance
Company before the office of the learned Registrar General.
In the premise set forth above, I direct the
appellant/ National Insurance Company Limited to deposit
interest @ 6% per annum on the awarded compensation of
Rs.6,04,500/- from the date of filing of the claim petition,
i.e., on 4th December, 2007, till the date of deposit of
principal amount which is lying with the office of the
learned Registrar General of this Court as per the order of
the learned Tribunal, within six weeks from date.
The respondents/claimants are entitled to the
awarded compensation of Rs.6,04,500/- along with
interest @ 6% per annum from the date of filing of the
claim petition till the date of deposit of principal amount.
The appellant/Insurance Company is at liberty to
recover the entire awarded sum with interest from the
owner of the vehicle bearing registration no.WB-37A/0729
through execution proceeding in terms of the observations
of the Hon'ble Apex Court in Shamanna & Ors. v. The
Divisional Manager, The Oriental Insurance Co. Ltd. &
Ors. reported in AIR 2018 SC 3726 and Oriental
Insurance Co. Ltd. v. Nanjappan & Ors. AIR 2004 SC
1630 : (2004) 13 SCC 244.
The respondents/claimants will be entitled to
withdraw the entire amount with interest.
The learned Registrar General will disburse the
entire amount with accrued interest to the respondent/
claimant nos.1, 2 and 3 on equal share on proper
identification.
With the observation, the appeal, being FMA 867 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.)
