Smt. Sila Topwar @ Toppo & Ors vs The Oriental Insurance Co. Ltd. & ...
2023 Latest Caselaw 5334 Cal

                          IN THE HIGH COURT AT CALUTTA
                             Civil Appellate Jurisdiction
  21.08.2023
   SL No.7
Court No. 551
      Ali


                            F.M.A. 933 of 2009


                  Smt. Sila Topwar @ Toppo & Ors.
                                 Vs.
                The Oriental Insurance Co. Ltd. & Anr.

                  Mr. Saidur Rahaman
                                ......for the appellants-claimants.

                  Mr. Parimal Kumar Pahari
                      ...........for the respondent no. 1-insurance Co.

The instant appeal has been preferred

against the judgment and award dated 30th May,

2007 passed by the learned Judge, Motor Accident

Claims Tribunal, 1st Track, Fast Court, Alipurduar,

Jalpaiguri in MAC Case No. 70 of 2005.

The brief fact of the case is that the present

appellants being the claimants preferred an

application before the learned tribunal under

Section 163(A) of the M.V. Act for getting

compensation on the ground that their predecessor

was died in a road traffic accident due to

involvement of the vehicle duly ensured under the

policy of the respondent insurance company.

The learned tribunal has heard the matter

and awarded a sum of Rs. 89,750/-toward the

claimants as compensation. The claimants are the

appellants before this court for getting just

compensation.

Learned advocate for the appellants-

claimants submitted before this court that the

impugned award passed by the learned tribunal is

erroneous. The learned tribunal has wrongly

assessed the income of the deceased notionally to be

Rs. 15,000/- per annum. The deceased was a Tea

Garden employee and he used to earn at least

Rs.2,000/- per month. The learned tribunal must

have considered the evidences on record to assess

the compensation of the instant case. He also

argued that the learned tribunal is of opinion that

two vehicles are involved in the alleged accident

thus the 50% of total accounted compensation was

only awarded. The learned tribunal has erroneously

observed that the owner or insurer of other vehicle

who were not impleded in this case are liable to pay

the 50% of the compensation. Learned advocate for

the claimants-appellants further argued that the

view of the learned tribunal has not at all correct.

The claimants may have field a claim application

before the learned tribunal but the learned tribunal

must have award the compensation to the third

party-claimant from any of the insurer and on that

score the insurer may recover the same from the

other insurer. He further argued that the learned

tribunal was made an error in passing the impugned

order thus it is liable to be set aside.

Learned advocate for the insurance company

submitted before this court that from the evidence

on record it would be revealed that two vehicles were

involved in the alleged accident. There was a head

on collision thus both the vehicles are jointly and

equally responsible for the accident. The learned

tribunal has considered the fact and correctly

directed that the 50% of the compensation may be

paid by the Oriental Insurance Co. Ltd. and other

50% may be paid by the other insurer. The learned

tribunal has acted on the submission of the

claimants and passed the impugned award; there is

no error in passing the said award. He also argued

that the learned tribunal has categorically observed

that no scrap of paper was filed regarding the

income of the deceased thus the income of the

deceased was considered notionally to be

Rs.15,000/- per annum. There is no justification to

interfere with the impugned award. He prayed for

dismissal of the appeal.

Heard the learned advocate perused the

materials on record on considering the income of the

deceased it appears to me that the claim application

was filed by the claimants who are the legal heirs of

the deceased stating the income of the deceased to

be Rs. 2,000/- per month and from his occupation

of permanent Tea Garden employee. It is the

submission of the learned advocate for the claimants

that the deceased had at least the income of Rs.

2,000/- per month. He also argued that the

deceased and his family members belong to the poor

community, it is not possible to carry or possess

necessary income proof document; so he prayed for

the income of the deceased may be calculated Rs.

2,000/- per month. The evidence of PW-1 was

observed wherefrom it appears that she also stated

in her examination-in-chief that her son used to Rs.

2,000/- per month towards the salary. It is true that

there are no scraps of document to prove the

income. Accident of this case was occurred in the

year-2002. In the year 2002, the income of an able

bodied person was not less than Rs. 70/- per day.

The deceased was Tea Garden permanent employee.

Accordingly, his daily income must not be less than

Rs.70/- per day. Thus, the income of the deceased

can be considered Rs. 2,000/- per month. In that

score the observation of the learned tribunal is

appears to me erroneous.

It also appears from the impugned award

that the claimants are allowed to receive the 50% of

the compensation from the insurance company i.e.

Oriental Insurance Co. Ltd who is the respondent in

this matter. The learned tribunal is also of the view

that the other owner/insurer of the vehicle i.e. the

Scooter is also equally responsible for the accident.

For that reasons, the compensation in this case has

to be shared equally. The learned tribunal is of view

that due to non-joinder of necessary parties the 50%

of the compensation was not given to the claimants.

The view of the learned tribunal is appears to me not

correct in view of the present directives of the laws

enunciated by the Hon'ble Apex Court. It is the

settled law that the third party claimants are at

liberty to prefer an application for compensation

against either of the parties when more than one

vehicle is involved in accident. On that score, the

vehicle made party in a proceeding is liable to pay

the entire compensation and the compensation has

to be recovered by the insurance company from the

other owner of the insurance company according to

percentage of the negligence by preferring a separate

proceeding.

Considering the same, I find that the

impugned award passed by the learned tribunal

need be modified.

For just and proper compensation of this

case the income of the deceased is calculated Rs.

2,000/- per month, the yearly income comes to Rs.

24,000/-. 1/3rd of which is deducted towards the

personal expenses of the deceased thus the yearly

dependency comes to Rs. 16,000/-. At the time of

accident the deceased was 25 years. The applicable

multiplier of this case would be 17, so after

multiplying the multiplier the award comes to

Rs.2,72,000/-.

The claimants are also entitled to get

Rs.9,500/- towards the general damages after

adding the general damages the award comes to Rs.

2,81,500/-. The claimant has already received the

awarded compensation of Rs. 89,750/-. So the

balance amount comes to Rs. 1,91,750/-.

The insurance company is directed to pay

the compensation to the claimants alongwith

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

the claim application i.e. from 14.07.2005 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

same from the office of the learned Registrar

General, High Court, Calcutta according to the

prevalent rules subject to the ascertainment of

payment of requisite court fees.

The office of the learned Registrar General,

High Court, Calcutta is directed to issue the

compensation in favour of the claimants vide three

equal account payee cheques.

The respondent-Oriental Insurance Co.

Ltd. is 50% liable to pay the compensation and other

50% of the compensation must have to be paid by

the other owner or insurer of the another offending

vehicle (Scooter).

The Oriental Insurance Co. Ltd. is hereby

directed to pay the entire compensation of which

they are at liberty to recover the 50% of the

compensation from the owner/insurer of the vehicle

bearing No. WB 70/4519 involved in the accident

through a separate proceeding

The instant FMA is disposed of.

All connected applications, if any, stand

disposed of.

Interim orders, if any, stand vacated.

Parties to act upon the server copy and

urgent certified copy of this order be provided on

usual terms and conditions.

(Subhendu Samanta, J.)