The New India Assurance Co. Ltd vs Subal Saha @ Sulen Saha & Ors
2023 Latest Caselaw 5155 Cal

18.08. 2023
 item No.13
n.b.
ct. no. 551                FMAT 1553 of 2012

                     The New India Assurance Co. Ltd.
                                Vs.
                    Subal Saha @ Sulen Saha & Ors.

              Ms. Gopa Das Mukherjee,
                              .....for the appellant.
              Mr. Saidur Rahaman,
                              .... For the respondent.

The delay in preferring the instant appeal is hereby

condoned.

The instant appeal has been preferred against the

judgment and award dated June 30, 2011 passed by the

learned Judge, Motor Accident Claims Tribunal, 1 st Court,

Jalpaiguri, in M.A.C case no. 323 of 2009.

The brief fact of the case is that the claimants being

the fateful parents of the deceased filed an application

before the learned Tribunal under Section 163A of the

M.V. Act for getting compensation from the Insurance

Company on the ground that their son was died in a road

traffic accident due to rash and negligent driving of the

driver of the vehicle which was duly insured under the

policy of the present appellant. Learned Tribunal has

considered the application along with written statement

filed by the Insurance Company. After going through the

evidence on record, the claim application was allowed and

the claimants are awarded compensation amounting to

Rs.1,76,000/-.

Being aggrieved by and dissatisfied with the

impugned award, the Insurance Company has preferred

this appeal.

The brief fact of the accident is that on January 6,

2006 while a pick up van(WB-730 TC-192-32) carrying

picnic party was about to cross the high way; at that time

one truck(BP-2-1448) coming in high speed and rashed

and negligent manner dashed the pick up van.

Consequently, the present deceased who was among the

picnic party sustained severe injury and died in hospital.

The present Appellant/Insurance Company is the insurer

of pick up van.

Learned advocate for the appellant submitted before

this Court that the pick up van was not liable for the

accident. The FIR shows that the pick up van was not

running dangerously or high speed. When pick up van

was about cross the road at the time the truck bearing

registration no. B.P 2 1448 dashed the pick up van; by

such several passengers sustained injuries. Learned

Tribunal has committed error and come to finding that the

present pick van is liable, through it is not at all involved

in the alleged accident. The accident solely caused due to

rash and negligent driving of the offending truck. So, in

this case, the pick up van and the insurer of the pick up

van is not liable to pay the compensation.

Learned advocate for the claimant/respondent

submitted before this Court that the present claimants are

the parents of the deceased aged about 21 years. The

involvement of the vehicle that the pick up van is well

proved in this case. The instant case was filed under

Section 163A of the M.V. Act. At this juncture, it is not

necessary to proof, who is in-default for the commission of

the alleged accident. He submitted that the police paper

and Post Mortem report shows that the deceased died in

a road traffic accident.

He further submitted before this Court that the

learned Tribunal has erroneously adopted multiplier on

this basis of the age of the parents. Multiplier of this case

should be calculated according to age of the deceased.

Perused the materials on record and perused the

papers, it is a true fact of the accident was specifically

stated in the FIR; P.Ws are also stated the fact of the

accident in terms of the FIR. FIR suggests that the

accident was caused due to rash and negligent driving of

offending vehicle bearing registration no. BP 2 1448.

However, it appears that two vehicles are involved in the

accident and one of the insurer of one vehicle was made

party in this proceeding. The two vehicles are involved in

the accident. On perusing the paper and evidences on

record I am of the view that both the vehicles are equally

responsible for the accident. Thus, both the

owner/insurer are in liability to pay the compensation.

The 50% of the compensation must have to be shared by

the vehicles involved in the said accident. The insurer of

the vehicle that the appellant herein is at liberty to recover

the 50% of the compensatin amount of this case form the

insurer or the owner of other vehicle after paying the

entire compensation, in a separate proceeding. However,

the deceased was died in a road traffic accident and the

involvement of the vehicle is very well proved. At this

juncture, the claimants cannot be denied to the

compensation.

For the just and proper compensation of this case

yearly notional income of the deceased was considered to

24,000/- applicable multiplier of this case would 17,

considering the age of the victim to be 21 years.

Multiplying the multiplier the award comes to

Rs.4,08,000/-. 1/3 is to be deducted towards the personal

expenses. So, after the deductions of Rs.1,36,000/-, the

award comes to (Rs.4,08,000-1,36,000) Rs. 2,72,000/-.

The claimants are also entitled general damages

Rs.4,500/-. Thus the award comes to Rs.2,76,500/-. The

Insurance Company is directed to pay the compensation

along with 6% interest per annum form the date of filing of

the claim application. It appears that the Insurance

Company has already deposited the compensation

awarded by the learned Tribunal to the tune of

Rs.1.76,000/- with the Registrar of this Court.. The said

deposit must have carried some interest.

The Insurance Company is directed to deposit the

balance amount of (Rs.2,76,500-1,76,000) Rs.1,00,500/-

along with 6% interest per annum from the date of filing of

the claim application through the officer of the learned

Registrar General, High Court, Calcutta within eight

weeks from the date passing of this order. On such

deposit the claimants are at liberty to withdraw the

already deposited amount along with accrued interest and

the balance deposit subject to ascertainment of payment

of deposit Court Fees. The officer of the learned Registrar

General to pay the compensation amount to the both

claimants in equal shares.

The Insurance Company is at liberty to recover 50%

of the amount from the insurer or owner of the other

vehicle involvement in the said accident in a separate

proceeding.

Accordingly, FMAT 1553 of 2012 is disposed of.

All connected applications, if any, are also disposed

of.

All parties shall act on the server copy of this order

duly downloaded from the official website of this Court.

( Subhendu Samanta, J.)