Calcutta High Court (Appellete Side)

Ashapurna Mandal vs The New India Assurance Company ... on 25 April, 2023

               IN THE HIGH COURT AT CALCUTTA

                   (Civil Appellate Jurisdiction)

                          Appellate Side
Present:
The Hon'ble Justice Bibhas Ranjan De


                        F.M.A 168 of 2010


                        Ashapurna Mandal
                                Vs.
           The New India Assurance Company Ltd. & Anr.


For the respondent       :Mr. Saidur Rahaman, Adv.


For the Insurance Company :Mrs. Sucharita Paul, Adv.


Heard on                         : April 13, 2023
Judgment on                      : April 25 , 2023



Bibhas Ranjan De, J.

1. This is an appeal in connection with Motor Accident Claim Case.

2. On 22.02.2004 at about 13.00 hours one Sudhir Chandra

Mandal s/o. Late Naresh Chandra Mandal was going to Satrasia

from Aiho by a trekker No. WB-65/4189 to attend his niece

marriage. On the way said trekker dashed on buffalo cart at

Krishnagar, Dargapara in front of the pond of Juttu Mandal. In

effect, said Sudhir Chandra Mandal sustained fatal injury in

abdomen and he was shifted Malda Railway Hospital where a

major operation was held and he was referred to B.R.Singh

Hospital, Kolkata, due to his physical condition. Sk. Sudhir

Chandra Mandal remained under treatment from the date of

accident i.e. 22.02.2004 to 29.06.2004 when he succumbed.

Thereafter, dead body was post mortemed at N.R.S Medical

College and Hospital, Kolkata.

3. At the time of death Sudhir Chandra Mandal, a man of 45

years, was an employee of railway as D/ Teth. Gr. II and used to

earn Rs. 8,000/- per month. It is alleged that accident

happened due to rash and negligent driving of the trekker no.

WB-65/4189. Accordingly, wife and mother of the deceased filed

the claim petition under Section 166 of the Motor Vehicles Act

with a prayer for claim of Rs. 10,00,000/-.

4. Both owner of the trekker and the Insurance Company entered

appearance and filed their respective written objection. Though,

owner of vehicle stated in his written statement that the vehicle

was duly insured with the New India Assurance Company

Limited and driver possessed valid driving licence but did not

contest the claim petition. The Insurance Company contested

the proceeding and denied all material averments of the claim

petition and also denied particularly the alleged injury

sustained by Sudhir Chandra Mandal by the involvement of the

trekker no. WB-65/4189.

5. Learned Advocate, Mr. Saidur Rahaman, appearing on behalf of

the appellant /claimant has referred to the evidence on record

and tried to establish proximity between the alleged accident

and the death of Sudhir Chandra Mandal. In support of his

contention, he relied on a case of Divisional Manager, New

India Assurance Co. Ltd. Vs. Tumu Gurava Reddy and

another reported in 1999ACJ 1077, Divisional Manager,

New India Assurance Co. Ltd. Vs Raj Kishore Jethy and

others reported in 1999 ACJ 858 and Yallwwa and others

Vs. National Insurance Co. Ltd. and another reported in

2007 ACJ 1934.

6. Per contra, Learned advocate, Ms. Sucharita Paul appearing on

behalf of the Insurance Company heavily relied on the

judgement impugned in this appeal and submitted that grant of

interim compensation under Section 140 of the Motor Vehicles

Act does not create a right to compensation automatically under

Section 166 of the Motor Vehicles Act, 1988. In support on her

contention she relied on a case of Indra Devi and ors. Vs.

Bagada Ram and ors. reported in Manu/SC/0613/2010 and

relied on a case of Nishan Singh and ors. Vs. Oriental

Insurance Company ltd. & ors. reported in

MANU/SC/0463/2018.

7. I have gone through all the decisions cited above in terms of

argument advanced on behalf of the parties to this appeal.

8. To prove the case Ashapurna Mondal, wife of deceased, and one

Prafulla Kr. Sarkar adduced in this case as PW1 and PW2. A

good number of documents including FIR, salary certificate,

copy of PM report, seizure list, charge sheet, policy etc., were

admitted in evidence.

9. Learned Tribunal took up the claim petition and after framing of

issues recorded his findings. After evaluating evidence learned

Judge could not find any evidence regarding treatment of said

Sudhir Ch. Mondal either at Malda Railway Hospital or at B.R.

Singh Hospital, Kolkata. Learned Judge focused on a surgical

operation at Malda Railway Hospital before deceased was

referred to B.R. Singh Hospital and thereby a doubt has been

created in the mind of the Tribunal regarding proximity between

the accident by the involvement of the alleged vehicle and death

of said Sudhir Chandra Mandal. Learned Tribunal further

recorded the following lines for the reason best known to him:-

" She stated in her petition that her husband died at B.R.

Singh hospital, Calcutta while undergoing treatment there

but the death certificate produced by the petitioner put the

death nail to the claim of the petitioner. In the death

certificate Ext. 7 the place of death is mentioned as

District Hospital, Malda and the date of death as

14.01.07. The petitioner was disparate to sustain her

claim. Of course, she has been employed by the Railway

department on compassionate ground following the death

of her husband."

10. I am of the humble view that at the time of evaluation of the

evidence learned Tribunal should have been circumspect in

passing such caustic remark. Actually, exhibit 7 did not disclose

the death certificate of one Daupadi Mondal and she may be the

mother of the deceased not the deceased.

11. However, from the First Information Report lodged by wife of

the deceased, I find that after 7 days of accident FIR was

lodged with the officer-in-charge of Habbibpur Police Station,

District Malda and in the FIR reason of 7 days delay in lodging

FIR has duly been explained. It is stated in the FIR that

immediately after the accident on 22.02.2004 deceased was

taken to Malda Railway Hospital and he underwent a major

operation thereat and considering his serious condition he was

referred to BR Singh Hospital Calcutta. Therefore, I am unable

to disbelieve the reasons explained in the FIR itself.

12. Now I come to the proximity between the accidental injury

sustained by Sudhir Chandra Mandal on 22.02.2004 and his

death on 29. 06.2004 at B.R. Singh Hospital, Calcutta . It is fact

that widow of the deceased could not file the medical papers of

the two railway hospitals but she clearly stated in the claim

petition about the treatment of her husband and that statement

of the claim petition was duly corroborated by her evidence

(PW1) before the Tribunal. In her cross-examination she has

specifically stated that she was employed as reservation clerk at

Chandra, Malda and she got job on Compassionate ground after

demise of her husband. On carful perusal of cross-examination,

I do not find any single contradiction let alone any specific

suggestion. Learned Tribunal also accepted the fact of getting

job of the wife of deceased in the railway on compassionate

ground. Claimant also produced the salary certificate (exhibit 6)

issued by the railway authority showing income of the deceased

at the time of death. So there is no dispute that at the time of

deceased was a railway employee. Besides , entire facts of

treatment immediately after the accident till death of the Sudhir

Chandra Mandal has not been contradicted in the cross

examination of PW-1 which was further supported by the Post

Mortem report and the charge sheet . Post Mortem report shows

the final opinion of doctor regarding cause of death which was

due to the effect of the injuries - antimortem in nature.

13. PW2, brother of PW1, claiming himself to be an eye witness

also corroborated the entire fact of accident and death of Sudhir

Chandra Mandal. Though, suggestion was thrown to him in

cross-examination denying death of Sudhir Chandra Mandal

due to accidental injury but that was not substantiated by any

evidence adduced on behalf of the insurance company. It was

not disputed that offending vehicle was duly insured with New

India Assurance Company at the relevant point of time.

14. On scrutiny of unchallenged testimony of PW1 further

corroborated by FIR, charge sheet and Post Mortem Report, I

find hardy any space to draw any adverse presumption against

the claim.

15. I also do not find any reason to disbelieve the salary certificate

issued by the Railway Authority (exhibit 6) which was produced

before the Tribunal from the natural possession of the wife of

the deceased and that too admitted in evidence without any

objection. Therefore, after deduction of professional tax,

monthly income of the deceased stands as Rs. 8,000/- per

month.

16. Now, I propose to assess the compensation in terms of

aforementioned income after applying multiplier in terms of

deceased as follows:-

  Monthly salary                                Rs. 8,000/-

   Yearly income                                Rs. 96,000/-



   Future Prospects (30%)                   Rs.28,800/-
                                         _________________
                                             Rs. 1,24,800/-

  Less: Personal Experience (1/3rd )         Rs. 41,600/-
                                       ____________________
                                             Rs. 83,200/-

  Multiplier X 14(45 years)                Rs.11,64, 800/-

  General damages                          Rs. 70,000/-

  Total compensation                      Rs.12, 34, 800/-

  Already paid                            Rs. 50,000/-

  Balance to be paid                      Rs.11,84, 800/-

17. Therefore, claimant is entitled to compensation to the tune of

Rs. 11,84,800/- along with interest @ of 6% per annum from

the date of the filing of the claim application till the date of

deposit of the amount.

18. New India Assurance Company is directed to deposit the

amount of Rs. 11,84,800/-- along with interest as stated above,

before the office of the Ld. Registrar General, within 6(six) weeks

from date.

19. Ld. Registrar General is requested to disburse the amount in

favour of appellant/ claimant on proper identification and proof.

20. With the aforesaid observation this appeal being FMA 168 of

2010 stands disposed off.