Calcutta High Court (Appellete Side)
Nayani Das & Ors vs New India Assurance Co. Ltd. & Anr on 11 August, 2023
11.08.2023 IN THE HIGH COURT AT CALCUTTA
Ct.No.32 CIVIL APPELLATE JURISDICTION
Sl. No.27. APPELLATE SIDE
KB
F.M.A.T. (MV) 405 of 2022
with
IA No. CAN 1 of 2022
Nayani Das & Ors.
Vs.
New India Assurance Co. Ltd. & Anr.
Mr. Subhankar Mandal
... For the appellants/claimants.
Mr. Rajesh Singh
... For the Insurance Company.
In Re: IA No. CAN 1 of 2022
,,
Mr. Subhankar Mandal, Learned Advocate
appears for the appellants.
Mr. Rajesh Singh, Learned Advocate appears for
the Insurance Company.
Learned Advocate appearing on behalf of the
appellants submits that the instant appeal has been filed
beyond the period of limitation due to prevent by
sufficient cause. He also refers paragraphs 7 and 8 of the
said application to show the reasons for delay and prays
for condonation of delay.
On the other hand, Mr. Singh formally objected
the prayer.
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Heard and on perusal of the application filed
under Section 5 of the Limitation Act, it appears that the
appellants could not file the appeal within the limitation
as prescribed under Section 173 (1) of the Motor Vehicles
Act, 1988 due to prevent by sufficient cause as specified
in the application. Causes shown in the application are
sufficiently explained and accepted. Thus, delay in filing
appeal is stands condoned.
CAN 1 of 2022 is thus disposed of with the
above observation.
Accordingly, the appeal is formally admitted.
In Re: F.M.A.T. (MV) 405 of 2022
This appeal is exception to the judgment and award
dated 28th January, 2019 passed by the Ld. Additional
District & Sessions Judge-cum-Motor Accident Claims
Tribunal, 5th Court, Malda in M.A.C.C. No. 314 of 2017
thereby allowed compensation to the tune of Rs.
3,45,500/= in favour of the appellants/claimants together
with interest at the rate of 7% per annum from the date of
filing of this case, i.e. from 22nd December, 2017 till the
realization under Section 166 of the Motor Vehicles Act,
1988 by dismissing claim application on contest against
O.P. No. 2/Insurance company and allowed ex parte
against O.P. No.1/ owner observing therein that O.P. No.
1/owner of the offending vehicle is liable to pay the
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compensation as Insurance Policy filed by the claimants
was not covered on the date of accident, i.e. on 10th
October, 2016.
Learned Advocate appearing on behalf of the
appellants submits that the Ld. Tribunal erred in finding
Insurance policy was not valid on the date of accident
though claimants have mentioned the policy Number no.
51300031150100011228 and its validity from 12.11.2015
12 a.m. to 11.11.2016 in their claim application.
The said Insurance policy No.
51300031150100011228 clearly indicates on the left side
of the renewal policy certificate which was marked as
exhibits No. 5. However, the Learned Tribunal had taken
the period of the validity i.e. from 12.11.2016, 12 a.m. to
11.11.2017 of the renewal policy No.
51300031160100011897 and finally came to the
conclusion that the policy was not cover on the date of
accident that is on 10th October, 2016 ignoring the
validity of earlier policy number.
In support of his contention, filed copy of Insurance
policy before this Court is taken on record.
On the other hand, Learned Advocate appearing on
behalf of the Insurance Company on his usual fairness
submits, on instruction of Insurance company, it came to
know the offending vehicle no. WB-65/8039 was valid on
the dated of accident as such the instant matter can be
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disposed of without further delay and calling for lower
court record.
In the light of submission of the parties and on
perusal of record particularly insurance policy it appears
the previous Policy No. 51300031150100011228 has
been mentioned in the renewal Policy certificate marked
as exhibit No. 5 and copy of the said Policy filed by the
appellants today specifically indicates insurance policy
was covered from 12th November, 2015, 12 A.M. to 11th
November, 2016. Thus, this court is of the view that it
was valid on the date of accident on 10.10.2016.
The unfortunate accident took place on 10th
October, 2016, when the deceased was standing near
Bulbulchandi Rail Station by the side of the road at that
point of time, the offending vehicle, the bus bearing No.
WB-65/8039 was coming from Malda side towards
Nalagola side and suddenly dashed the deceased/victim.
The said accident took place due to rash and negligent
driving of the driver of the offending vehicle. It is proved
by adducing oral and documentary evidence before the
Learned Tribunal which is not disputed by the
respondent/insurance company as such interference of
decision on other issues by the Ld. Tribunal does not
arise.
There is no dispute regarding granting of
compensation amount Rs. 3,45,500/- by the Learned
Tribunal. However, the claim application was dismissed
on contest against O.P. No.2/Insurance Company and
allowed ex parte against O.P. No. 1 by Learned Tribunal
and further directed the owner/O.P. No. 1 to pay the
compensation amount to the claimants in the mode and
manner stipulated in the operative portion of the
judgment & award. Accordingly, judgment and award
dated 28th January, 2019 is required to be modified on
the basis of submission made by the parties and as facts
revealed from the face of record that the policy was valid
on the date of accident.
Hence, judgment and award dated 28th January,
2019 is hereby modified to the extent that the claim case
allowed on contest against O.P. No. 2/Insurance company
and ex parte against O.P. No. 1/ owner. The New India
Assurance Co. Ltd. being the insurer of the offending
vehicle is to indemnify the same and is liable to pay the
compensation amount.
Consequently, Insurance Company is directed to
deposit the compensation amount to the tune of Rs.
3,45,500/- within six weeks from this date together with
interest at the rate of 7% per annum from the date of
filing of the claim application, i.e. from 22nd December,
2017 till final payment in the office of the Learned
Registrar General, High Court, Calcutta.
It is directed the appellants/claimants to submit
bank details to the office of Registrar General within two
weeks from the date of this judgment and award.
The Registrar General, High Court, Calcutta shall
disburse the compensation amount so deposited in favour
of the claimants in the same mode and manner as
mentioned by the Learned Tribunal in its Judgment and
award dated 28th January, 2019 directly through
RTGS/NEFT in their respective bank accounts within two
weeks from the date of submission of bank details upon
full satisfaction and proper identification of the claimants.
FMAT (MV) 405 of 2022 is thus disposed of.
Let a copy of this judgement and award be sent to
the Learned Tribunal for information.
All parties to act in terms of a copy of the
judgement and order downloaded from the official
website of this Court.
Urgent Photostat certified copy of this order, if
applied for, be supplied to the parties on compliance of
necessary formalities.
< (Ajay Kumar Gupta, J.)
