Calcutta High Court (Appellete Side)
Malay Santra @ Natu vs The New India Assurance Co. Ltd. & ... on 7 August, 2023
IN THE HIGH COURT AT CALUTTA
Civil Appellate Jurisdiction
07.08.2023
SL No.31
Court No. 551
Ali
FMA 1835 of 2014
IA No: CAN/1/2023
Malay Santra @ Natu
Vs.
The New India Assurance Co. Ltd. & Anr.
Mr. Amit Ranjan Roy
...for the appellant-claimant.
Ms. Sayanti Santra
...for the respondent-Insurance Co.
The instant appeal has been preferred
against the judgment and award dated 3rd day of
December, 2013 passed by the learned Judge, Motor
Accident Claim Tribunal, 2nd Court, Burdwan in
M.A.C. Case No. 92/279 of 2008 under Section 166
of the M.V. Act.
The brief fact of the case is that the present
appellant being a claimant filed an application
before the learned tribunal under Section 166 of the
M.V. Act for getting compensation from the
insurance company on the ground that he became
permanently disabled due to the injury suffered in a
road traffic accident. The learned tribunal has
considered the pleadings of both claimant and the
insurance company and after perusing the evidences
on record both oral and documentary, passed the
impugned award of compensation amounting to Rs.
3,64,100/-in favour of the claimant appellant and
directed the owner of the vehicle to pay the
compensation. Now the claimant is before this
appellate court for enhancement of the award on
several grounds and also on the ground that the
insurance company may be directed to pay the
compensation instead of the owner.
Heard the learned advocate perused the
impugned award. Learned advocate for the appellant
submitted before this court that the learned tribunal
has not correctly assessed the compensation of the
instant case. He argued that the offending vehicle
bearing No. WB-25A/6615 (truck) was well covered
under the policy of the insurance company at the
date of alleged accident. Learned tribunal has
observed that the driver of the offending vehicle had
no valid driving licence.
He argued by the observation of the Hon'ble
Apex Court in several judgments has held that when
the offending vehicle was well covered of the
insurance company, the insurance company may be
directed to pay the compensation to the third party
and further the insurance company may have the
opportunity to recover the same from the owner of
the vehicle. So he argued that the same guidelines
may be followed in this case.
Learned advocate for the insurance company
submitted before this court that the responsible
person of the concerned R.T.O. appeared before the
learned tribunal as OP No. 1 who deposed and
submitted a letter issued by the concerned R.T.O.
containing the fact that the alleged D.L. bearing
No.WB-25-082441 was not available with the record
of the concerned R.T.O. He further argued that the
owner is liable to pay the compensation as he has
violated the terms of the policy. She again argued
that by virtue of the impugned order the owner may
have paid the compensation or any execution case
may have filed.
On the score, learned advocate for the
claimant appellant submitted that no farthing was
paid by the owner, hence in the present appeal is
preferred.
Heard the learned advocates. On perusal of
LCR, it appears that no payment was made before
the learned tribunal. After hearing both the parties
it appears to me that the Hon'ble Apex Court set out
a format in case of disobedience of the terms of the
policy by the owner, the insurance company is at
liability to pay the compensation as fixed by the
tribunal and on that score they are at liberty to
recover the same from the owner by virtue of the
judgment of the Hon'ble Apex Court passed in
Swaran Singh and Challa Bharathamma. Thus
by virtue of decision of the Hon'ble Apex Court as
above, in my view the insurance company is directed
to pay the compensation to the owner and the
insurance company is further at liberty to recover
the same from the owner according to the directions
laid down by the Hon'ble Supreme Court in Challa
Bharathamma.
Learned advocate for the claimant also
submitted before this court that the alleged accident
was happened in the month of October, 2007 and
the appellant was admitted to the hospital till
January 2008; a huge amount of money of
Rs.2,00,000/- was spent but learned tribunal has
only awarded Rs. 25,000/- for medical expenses. It
appears to me that no document was produced
before the learned tribunal by the claimant to prove
the cost incurred by him in the head of medical
expenses and no oral evidence was adduced except
by himself regarding the cost and the treatment.
Considering the same, I find no justification
to enhance the award on the ground of medical
expenses. However, in considering the long
treatment of the present appellant in the hospital
and also considering the disability certificate issued
by the concerned Government Medical College, it
appears to me that the appellant must have suffered
huge pain and suffering and also lost the amenity of
future life due to such accident. It appears that the
right hand of the present appellant is appeared to
me under discomfort till the disability certificate was
issued i.e. after one year of such accident.
Considering the same, I think it necessary to
award Rs. 50,000/- towards non pecuniary
damages. The claimant is also entitled to get the
amount towards the future prospect @ 40% of his
establishment income according to the direction of
Apex Court in Pranay Sethi. Thus after considering
all the heads, I think it necessary to recast the
compensation in this case. Thus the impugned order
passed by the learned tribunal is hereby modified.
The income of the deceased is taken to be
Rs.3,000/- thus yearly income comes to Rs.
36,000/-. The future prospect is added to be 40%
i.e. Rs. 14,400/- thus the loss of yearly income
comes to Rs. 50,400, 55% of which is comes to
Rs.27,720/-. Applicable multiplier is 18. Thus the
award comes to Rs. 4,98,960/-.
The claimant is also entitled to get an
amount of Rs. 25,000/- towards the medial
expenses and Rs.2,500 for loss of earning during his
treatment at the hospital and also Rs. 50,000/-
towards non pecuniary damages i.e. pain and
suffering and loss of future amenities after adding
all the heads the award comes to Rs.5,76,460/-.
Thus, the just and proper compensation of
this case is as follows:-
Calculation of compensation
1.Monthly Income ...............................Rs.3,000/-
2.Annual Income
...(Rs.3,000/- X 12)......... Rs.36,000/-
3. Add 40% future prospect...................Rs.14,400/-
Rs.50,400/-
4. 55% disabilities....................................X 55%
Rs. 27,720/-
5. Multiplier apply 18
( Rs.27,720/-X 18)......Total Rs...................Rs.4,98,960/-
6. Add: Medical Exp. .............................Rs.25,000/-
Loss of earning...................................Rs.2,500/-
Non Pecuniary loss..................... Rs.50,000/-
Total awarded amount................Rs. 5,76,460/-
The insurance company is directed to pay
the compensation alongwith interest @ 6% per
annum from the date of filing of the claim
application i.e. from 03.09.2008.
The insurance company is directed to
deposit the compensation amount within eight
weeks from the date of passing of this order to the
office of the learned Registrar General, High Court,
Calcutta. On such deposit the claimant is at liberty
to withdraw the same from the office of the learned
Registrar General, High Court Calcutta subject to
the ascertainment of payment of requisite court fees.
The insurance company is at liberty to recover the
same amount from the owner of the vehicle
according to the provision laid down by the Hon'ble
Supreme Court passed in Swaran Singh & Challa
Bharathamma.
The instant FMA is disposed of.
All connected applications, if any, stand
disposed of.
Interim orders, if any, stand vacated.
Let the record send down to the
department.
Parties to act upon the server copy and
urgent certified copy of this order be provided on
usual terms and conditions.
(Subhendu Samanta, J.)
