Calcutta High Court (Appellete Side)

Chhaya Sarkar & Ors vs The New India Assurance Co. Ltd. & ... on 11 August, 2023

                        IN THE HIGH COURT AT CALUTTA
                           Civil Appellate Jurisdiction
 11.08.2023
 SL No.4
Court No. 551
   Ali


                         F.M.A. 1250 of 2015
                 IA No.:CAN/1/2010 (Old No.:CAN/1893/2010)
                        CAN/2/2010 (Old No.:CAN/10423/2014)


                        Chhaya Sarkar & Ors.
                                  Vs.
                     The New India Assurance Co. Ltd. & Ors.

                  Mr. Saidur Rahaman
                                 ......for the appellants-claimants.
                  Mr. Rajesh Singh
                       ...........for the respondents-insurance Co.

The instant appeal has been preferred

against the judgment and order dated 7th April,

2009 passed by the learned Judge, Motor Accident

Claims Tribunal, 3rd Court, Malda in MAC Case No.

277 of 2005 under Section 166 of the M.V. Act.

The present appellant being the

claimants/appellants preferred an application under

Section 166 of the M.V. Act before the learned

tribunal for getting compensation on the ground

that their predecessor was died in a road traffic

accident due to the rash and negligent driving of the

driver of the offending vehicle being No. W.B.-65/

1467 (Maxi-Taxi). Recital of the claim application

stated the factum of accident is as follows:-

On 19th August, 1997 at about 17-30 Hrs.

while the deceased Mangal Sarkar was proceeding

towards the Milki from Nazirpur by availing Maxi-

Taxi No. W.B.-65 of 1467 near Nazirpur the said

Maxi-Taxi was about to capsize when the door of the

said Maxi-Taxi suddenly open, Mangal Sarkar fall

down from the Maxi-Taxi and sustained severe

injuries. The injure was shifted to Malda Sadar

District Hospital. He expired on the way from

Manikchak Hospital.

The claimants pleaded compensation for

rash and negligent driving of the driver of the

offending vehicle i.e. Maxi-Taxi. The claim

application was contested by the insurance

company by filing written statement. The evidences

were adduced by the claimants both oral and

documentary. The insurance company has adduced

no evidence. After hearing the parties, the learned

tribunal has rejected the claim application. Hence

this appeal.

In passing the impugned judgment the

learned tribunal is of opinion that the rash and

negligent driving of the driver of the offending

vehicle could not proved by the claimants and

claimant has no statutory right to get compensation

under Section 166 of the M.V. Act though it is the

fact that they have received compensation in a

proceeding under Section 140 of the M.V. Act in

respect of the self-same accident.

Learned advocate for the appellants

submitted before this court that the impugned

judgment passed by the learned tribunal suffer

illegality and liable to be set aside. The learned

tribunal has not considered the evidence of PW-1

and PW-2 also not considered the police papers,

thus, there is a miscarriage of justice. He also

argued that the investigation of the police suggested

the rash and negligent driving of the driver of the

offending vehicle thus the observation of the learned

tribunal in that score is erroneous and the

impugned judgment is liable to be set aside. One

argument was advanced on behalf of the learned

advocate for the claimants-appellants that the

accident has already been proved in this case for

which the compensation was awarded under Section

140 of the M.V. Act. Thus at this juncture, the

learned tribunal has no scope to raise doubt in the

application under Section 166 of M.V.Act.

Learned advocate for the insurance company

submitted before this court that the learned tribunal

has committed no error in passing the impugned

judgment. He also argued that the claimants have

failed to prove the rash and negligent driving of the

driver of the offending vehicle thus the claim petition

was rejected. He again placed the impugned

judgment wherein the learned tribunal has

mentioned that no document regarding R.C. Book,

D.L or other relevant documents of the vehicle were

produced before the learned tribunal.

Learned advocate for the insurance company

also repudiate the plea of the appellant that one

application under Section 140 when allowed the

accident regarding the involvement of the vehicle

has well been proved thus the claim application filed

under Section 166 of the M.V. Act need be allowed.

On the score, learned advocate for the insurance

company submitted that there are catena of

judgments of Hon'ble Supreme Court to the fact that

under Section 166 of the M.V.Act, the rash and

negligent driving of the driver of the offending

vehicle is a sine-qua-non and a mandatory fact

which has to be proved and established before the

learned tribunal. On the score, he cited the

decisions of Hon'ble Supreme Court passed in:

I) Deepal Girishbhai Soni and Ors.

versus United India Insurance

Co. Ltd., Baroda reported in

(2004) 5 SCC 385

II) Surender Kumar Arora and Ors.

versus Manoj Bisla and Ors.

reported in (2012) 4 SCC 552

III) Reshma Kumari and Ors.

versus Madan Mohan and Anr.

reported in 2013 (2) T.A.C. 369

(S.C.)

IV) Minu B. Mehta and Ors. versus

Balkrishna Ramchandra Nayan

and Ors. reported in (1977) 2

SCC 441

V) Lachoo Ram and Ors. versus

Himachal Road Transport

Corpn. And Ors. reported in

(2014) 13 SCC 254

VI) Nishan Singh and Ors. versus

Oriental Insurance Company Ltd.

and Ors. reported in (2018) 6 SCC

The principle regarding rash and negligent

driving of the driver of the offending vehicle is a

sine-qua-non of a claim case filed under Section 166

of the M.V. Act, is no doubt. It has been specifically

observed in different times by the Hon'ble Apex

Court that the claimants must have proved the rash

and negligent driving of the driver of the offending

vehicle for getting compensation under Section 166

of the M.V.Act. In this case, the learned tribunal is

of opinion that the claimant has not proved the rash

and negligent driving of the driver of the offending

vehicle. Learned advocate for the claimants submits

that the claim petition as well as PW-1 and PW-2

supported by police papers proved the rash and

negligent driving of the driver of the offending

vehicle. The learned advocate for the insurance

company contradicted and submitted that the

learned tribunal has committed no error. The

separate factum of manner of accident was pleaded

before the learned tribunal that is why the learned

tribunal could not believe any one of them.

It is the submission of the learned advocate

the insurance company that the recital of claim

application stated that the door of the Maxi-Taxi

suddenly open that is why the deceased fell down on

the Taxi and sustained injuries. On the other hand,

the PW-2 stated that the Maxi-Taxi was capsized

and at the time the deceased fell down from the taxi

and sustained injuries. The FIR stated that the

Maxi-Taxi was about to capsize when the deceased

fell down from the Maxi-Taxi and sustained severe

injuries on his person.

Let me considered whether the fact of

accident as stated by the claimants or PW-2 i.e. the

eye witness and the police papers i.e. in the FIR are

connected each other or they are different. The claim

application stated that the driver of the offending

vehicle was driven in the vehicle in a rash and

negligent manner that is why when the Maxi-Taxi

was about to capsize the door of the Maxi-Taxi was

opened, PW-2 stated that the Maxi-Taxi was over

turned because of the rash and negligent driving by

the driver of the said vehicle by which the deceased

and several persons sustained injuries. The FIR

which was registered by SI of police himself who

conducted the inquest over the dead body stated the

accident or suddenly the Maxi-Taxi about to capsize

when the deceased fell down from the Maxi-Taxi and

sustained severe injuries. The investigation of the

police also suggested the same fact; so considering

the facts stated in the claim application as well as

the statement of PW-2 and the police papers, it

appears to me that the Maxi-Taxi was at that time

capsized due to rash and negligent driving of the

driver of the offending vehicle. Whether the deceased

fell down due to the opening of the door or he felt

down due to the jerk of the rash and negligent

driving, is not necessary to prove here. The only

basic ingredience regarding the rash and negligent

driving of the driver of the offending vehicle has well

established in this case. The learned tribunal has

misguided himself in deciding the issue of opening

of gate of offending vehicle. The gate may be open or

may not be open in this case but the factum which

proved specifically that the Maxi-Taxi was capsized

due to rash and negligent driving of the driver of the

offending vehicle and the deceased sustained

injuries by such rash and negligent driving of the

driver of the offending vehicle thus in this the

observation of the learned tribunal is not correct.

In this case, I am of the view that the

impugned judgment of the leaned tribunal on that

score is not correct.

Another point was raised regarding the non

availability of the documents of the offending vehicle

before the learned tribunal. It appears that the

police papers were produced including the seizure

list before the learned tribunal. The seizure list

contained the specific D.L No. of the driver of the

offending vehicle which was renewed upto

10.10.1998. The tax token of the Maxi-Taxi was also

seized where the date of expiry is 22.02.18. The

permit was valid upto 28.02.98 and the pollution

certificate was also there valid upto 20.02.98.

Considering the same, it appears to me that the

learned tribunal has not concentrated upon the

police papers and the documents as placed before

him and come to an erroneous conclusion.

Considering the same, the impugned

judgment passed by the learned tribunal is appears

to be not justified and it is set aside. The claimants-

appellants are entitled to get the compensation

according to the structure formula. The income of

the deceased is taken to be Rs. 2,500/- per month,

yearly income comes to Rs. 30,000/-, 1/3rd which is

deducted towards personal leaving expenses. After

deducting the early dependency comes to Rs.

20,000/-. The claimants are also entitled to get the

40% upon his establishment income according to

the decision of the Hon'ble Apex Court passed in

Pranay Sethi towards the future prospect; so after

adding the future prospect the yearly dependency

comes to Rs. 28,000/-. Considering the age of the

deceased, the applicable multiplier of the case would

be 16. So after multiplying the multiplier the award

comes to Rs. 4,48,000/-. The appellants are also

entitled to get some more compensation towards the

general damages to the tune of Rs. 70,000/-; so

after adding all heads the award comes to Rs.

5,18,000/-. The claimants are already received

Rs.50,000/- towards the compensation under

Section 140 of the M.V. Act. Thus the balance

amount comes to Rs.4,68,000/- thus the balance

comes to Rs.4,68,000/-The just and proper

calculation is as follows:-

1.Monthly Income ......................................Rs.2,500/-

2. Annual Income.....................................Rs.30,000/-

3. Less 1/3rd...........................................Rs. 20,000/-

4. Future prospect .................................Rs. 28,000/-

5. Multiplier apply 16 ( Rs.28,000/- X 16)......Total Rs...................Rs.4,48,000/-

6. Add: General damages..........................Rs.70,000/-

Rs.5,18,000/-

Received already awarded...........Rs. 50,000/- Balance........................................Rs. 4,68,000/-

The insurance company is directed to pay

the balance amount of Rs. 4,68,000/- alongwith

interest @ 6% per annum from the date of filing of

this case i.e. from 07.09.2005 within eight weeks

through the office of the learned Registrar General,

High Court, Calcutta. On such deposit the claimants

are at liberty to receive the amount subject to the

ascertainment of payment of requisite court fees.