Calcutta High Court (Appellete Side)
Iffco Tokio General Insurance Co. ... vs Saroj Devi Chopra & Ors on 22 August, 2023
22.08.2023
Ct. 654
D/L 9 & 10
Kb/ab
IN THE HIGH COURT AT CALCUTTA
CIVIL APPELLATE JURIDICTION
APPELLATE SIDE
FMA 479 of 2022
With
CAN 3 of 2021
IffCO Tokio General Insurance Co. Ltd.
-Vs-
Saroj Devi Chopra & Ors.
With
COT 43 of 2021
Saroj Devi Chopra & Ors.
-Vs-
IffCO Tokio General Insurance Co. Ltd
Mr. Rajesh Singh
... for the appellant-Insurance Company
Mr. Krishanu Banik
... for the respondent Nos. 1 & 2 -claimants
This appeal is preferred against the judgment and
award dated 29th July, 2019 passed by the learned
Judge, Motor Accident Claims Tribunal, IXth Bench,
City Civil Court, Calcutta in MAC Case No. 246 of 2015
granting compensation of Rs. 23,77,000/- together with
interest in favour of the claimants under Section 166 of
the Motor Vehicles Act, 1988.
The brief fact of the case is that on 8th June, 2015
at about 21.05 hours, while the victim was proceeding
on a motorcycle bearing registration no. WB-18B/7251
at that time the offending vehicle bearing registration
No. WB-41C/1656 (Truck) in a rash and negligent
manner dashed the motorcycle of the victim from
behind near Premises No. 57, Strand Road, as a result
of which the victim sustained grievous injuries and was
removed to R.G. Kar Medical College and Hospital,
Kolkata where he was declared brought dead by the
attending doctors. On account of sudden demise of the
victim, the claimants being the parents of the deceased
filed application for compensation of Rs. 40,00,000/-
together with interest under Section 166 of the Motor
Vehicles Act, 1988.
The claimants in order to establish their case
examined five witnesses and produced documents,
which have been marked as Exhibits 1 to 17
respectively.
The appellant-insurance company also adduced
the evidence of one witness and produced document,
which has been marked as Exhibit A.
Since the respondent no. 3, owner of the
offending vehicle did not contest the claim application,
service of notice of appeal upon the said respondent
stands dispensed with.
Upon considering the materials on record and the
evidence adduced on behalf of the respective parties,
the learned Tribunal granted compensation of
Rs.23,77,000/- together with interest in favour of the
claimants under Section 166 of the Motor Vehicles Act,
1988.
Being aggrieved by and dissatisfied with the
impugned judgment and award of the learned Tribunal,
the insurance company has preferred the present
appeal.
Challenging the impugned judgment and award of
the learned Tribunal, the claimants have also preferred
a cross objection being COT 43 of 2021.
Both the appeal and the cross objection are taken
up together for consideration and disposal.
Mr. Rajesh Singh, learned advocate for the
appellant-insurance company submits that the
offending truck was not insured at the time of accident
since the insurance premium for the said truck was
paid in cash on 14th June, 2015 whereas the accident
has taken place on 8th June, 2015. The agent of the
insurance company committed fraud upon the insurer
by issuing a backdated insurance policy in favour of the
owner of the alleged offending vehicle after the said
accident. The period of insurance coverage was
fraudulently made to commence from 5th June, 2015,
which was before the date of accident, which is clear
from the face of it, since the premium of the insurance
coverage of the offending truck was received by the
insurance company in cash on 14th June, 2015 after
the date of accident on 8th June, 2015. The insurance
policy and its coverage in regular course is to take effect
on or after the date of payment of premium and in no
case there can be any retrospective effect given to the
validity of the insurance policy and its coverage. Thus,
the insurance company cannot be held liable to
indemnify the owner of the alleged vehicle in the
absence of any valid policy of insurance on the relevant
date of accident. Since there is act of fraud by the agent
so far as the issuance of policy is concerned, in the
event the Court directs the insurance company to
compensate, the insurance company shall be given
liberty to recover the amount of compensation to be
paid to the claimants from the owner of the alleged
offending vehicle.
He further submits that from the evidence of
O.P.W-1, the Investigating Officer of the case, it is
manifest that the deceased was driving the motorcycle
along with two pillion riders on the relevant date of
accident, which is also corroborated by the facts
disclosed in the FIR as well as charge sheet. When three
persons travelled on the relevant date on a motorcycle,
the possibility of imbalance and contributing to the
accident cannot be brushed aside. The conduct of the
victim and the pillion riders, who were travelling on the
motorcycle, resulted in contributory negligence
especially when their action is contrary to the statute,
which does not allow to ride motorcycle with two pillion
riders. He also submits that none of the persons
travelling in the motorcycle including the victim on the
relevant date had protective helmets on their head
which is evident from the fact that there is no seizure of
helmets by the investigating agency from the place of
occurrence and thus, such fact lends support to
contributory negligence of the victim. To buttress his
contention, he relies on the decision of the High Court
of Madras passed in Managing Director, Tamil Nadu
State Transport Corporation (Coimbatore Division-I)
Ltd. versus Abdul Salam and Ors. reported in 2003
(2) TAC 103.
So far as the quantum of compensation is
concerned, he submits that the learned Tribunal erred
in granting an amount of Rs. 60,000/- under general
damages whereas it ought to have allowed Rs. 30,000/-
only under the conventional heads of funeral expenses
and the loss of estate in view of decision of Hon'ble
Supreme Court passed in National Insurance
Company Limited versus Pranay Sethi and Others
reported in 2017 ACJ 2700. He also submits for
scaling down the rate of interest on compensation from
10% per annum to 6% per annum bearing in mind the
prevalent baking rate of interest. In the light of the
aforesaid submissions, he prays for modification and/or
setting aside of the impugned judgment and award.
In reply to the contentions raised on behalf of the
appellant-insurance company, Mr. Krishanu Banik,
learned advocate for the respondent nos. 1 & 2-
claimants submits that the insurance company in their
written statement has not made out any case of fraud
by the agent of the insurance company in issuance of
the policy of insurance. He also indicates that no steps
have ever been taken by the insurance company for
cancellation of the policy on such ground. Further no
evidence of such fraudulent act of the agent has been
led before the learned Tribunal in issuance of such
policy of insurance. Once a policy is issued and it is
found that it is valid at the time of accident, the
insurance company under Section 149 of the Motor
Vehicles Act is duty bound to compensate a third party.
In support of his contentions, he placed reliance on the
decisions of the Hon'ble Supreme Court passed in
Oriental Insurance Co. Ltd. versus Inderjit Kaur
and others reported in 1998 ACJ 123 and New India
Assurance Co. Ltd. versus Rula and Others reported
in 2000 ACJ 630.
He further submits that no case of contributory
negligence has been made out by the appellant-
insurance company in its written statement. There is
also no evidence adduced by the insurance company in
support of the contributory negligence of the deceased
victim. Though on the relevant date of accident, the
victim was travelling on the motorcycle with two pillion
riders but such fact at best can be violation of law but
ipso facto cannot result in contributory negligence of the
victim in the absence of specific plea and evidence to
that effect. Further none seizure of helmet cannot also
lead to the fact that there was contributory negligence
on the part of the victim. In support of his contentions,
he relies on the decisions of the Hon'ble Supreme Court
passed in Mohammed Siddique & Anr. Versus
National Insurance Company Ltd. & Ors. reported in
(2020) 3 SCC 57 and Anjana Narayan Kamble and
others versus Branch Manager, Reliance General
Insurance Company Ltd. and Another reported in
2022 (3) T.A.C. 720 (SC) and another decision of this
Court passed in FMA 2095 of 2014 (Sri Baidyanath
Dhak & Anr. versus New India Assurance Co. Ltd.
& Ors.).
He further submits that the claimants are entitled
to an amount equivalent to 40% of the annual income of
the victim towards future prospect. So far as general
damages are concerned, he concedes that a sum of
Rs.30,000/- under the conventional heads is only to be
granted. He does not raise any objection with regard to
the percentage of interest on the compensation amount
argued on behalf of the appellant- insurance company.
Having heard the Learned Advocates for
respective parties, following issues have fallen for
consideration.
Firstly, whether the offending vehicle was validly
covered by the insurance policy on the relevant date of
accident. Secondly, whether the victim was guilty of
contributory negligence. Thirdly, whether the Learned
Tribunal erred in granting Rs.60,000/- under general
damages instead of Rs.30,000/-. Fourthly, whether the
claimants are entitled to an amount equivalent to 40%
of the annual income of the victim towards future
prospect and lastly, whether the interest on
compensation should be 6% in stead of 10% granted by
the Learned Tribunal.
With regard to the issue relating to validity and
coverage of insurance policy on the relevant date of
accident, it is found that the validity period of the
insurance policy was made on and from 5th June, 2015
till 4th June, 2016 though the payment towards
premium of such policy was made on 14th June, 2015.
Mr. Singh, Learned Advocate for the appellant-
insurance company has strenuously argued that there
cannot be retrospective effect given to the coverage for
which the premium has been paid on 14th June, 2015
and he also indicated of fraudulent activities on the part
of the agent in issuance of such policy. Per contra, Mr.
Banik, Learned Advocate for Respondents-Claimants
has placed that since Insurance Policy was issued and
was valid on the date of accident the insurance
company is liable to make payment to the third party
relying on Inderjit Kaur (supra) and Rula (supra). Upon
perusal of the written statement filed by the insurance
company, it found that no case has been made out of
any fraudulent activity of the agent in issuance of such
policy. In the proceedings before the Learned Tribunal
no evidence has also been led by the insurance
company to primarily establish the fraudulent activity of
its agent, if any, in issuance of such policy. Rather in
Paragraph No. 4 of the written statement the insurance
company admitted that the offending vehicle was
covered at the material time under the policy of
insurance issued by it and such insurance policy issued
bearing no. 92800744 was valid from 05.06.2015 to
04.06.2016. The policy of the insurance was produced
by P.W.1 Saroj Devi Chopra which has been marked as
Exhibit 12. At the time of marking of the document as
Exhibit, the insurance company did not raise any
objection. That apart upon going through the cross
examination of P.W.1 who produced the insurance
policy, there is nothing in the evidence to suggest that
such policy of insurance was challenged or objected to
at the time of cross examination of the witness by the
insurance company. To be precise no suggestion
whatsoever has been given to the witness challenging
the validity, veracity or acceptability of the said
document namely, the insurance policy. It is now
settled law that if a document is marked as exhibit on
consent without reservation the contents are not only
taken as evidence but are taken as admitted. In the
case at hand even if for the sake of argument it is held
that insurance policy has been exhibited not on consent
but on formal proof dispensed with, the insurance
company was free to examine witnesses on the question
of validity, veracity and acceptability of such policy
thereof or even lead evidence of rebuttal. The insurance
company in the present case has not led to any
evidence challenging the policy of insurance produced
at the instance of the respondents-claimants. Since the
insurance company has admitted the issuance of
insurance policy and its coverage it cannot raise
contention before the appellate Court that the same has
been issued out of any fraudulent activity of the agent
and make out a new case which has never been pleaded
before the learned Tribunal. Further, it is pertinent to
note that there are no materials that any steps have
been taken on the ground of fraud of its agent for
cancellation of such policy. Due to the aforesaid reasons
arguments advanced on behalf of the insurance
company falls short of merit. I find substance in the
submissions of Mr. Banik relying on Inderjit Kaur
(supra) and Rula (supra) that since the insurance
company has issued policy which had valid coverage on
the relevant date of accident it is duty bound to
indemnify the third party.
With regard to the second issue relating to
contributory negligence of the victim it is found at the
very outset that no such fact of contributory negligence
of the victim has been pleaded in the written statement.
That apart no evidence has been led from the side of the
insurance company to establish the factum of
contributory negligence on the part of the victim in the
said accident. Mr. Singh, learned advocate for
appellant-insurance company has vociferously argued
relying on decision of High Court of Madras in Abdul
Salam (supra) that since three persons were travelling in
the motor cycle on the relevant date of accident the
conduct of the persons clearly indicates of contributory
negligence especially when their actions were contrary
to the statute. In the cited decision specific case was
pleaded that the deceased was travelling in the motor
cycle as a pillion rider along with another deceased.
Whereas in the case at hand no such specific pleadings
has been made in the written statement.
Now the question arises whether driving motor
cycle along with two pillion riders ipso facto lead to
contributory negligence of the victim or not. It is a fact
that P.W.2, Santosh Kumar Shaw, who was one of the
pillion rider deposed in cross-examination that no such
person by the name of Sandip Sharma sustained
injuries in the same accident. However, O.P.W.1, Pintu
Biswas, Investigating Officer, in clear terms stated that
in the said accident one person died and two other
persons sustained injuries namely Santosh Shaw and
Sandip Sharma. The F.I.R, and the charge sheet also
shows that on the date of accident there were two
pillion riders. Thus P.W.2 did not state correctly of the
number of pillion riders. Accordingly, from the materials
on record, it is manifest that there were two pillion
riders on the motorcycle driven by the victim on the
relevant date of accident. In a similar situation, the
Hon'ble Supreme Court in Mohammed Siddique (supra)
negating the finding of High Court that a motor vehicle
meant for only two persons to ride was carrying, besides
the driver, two persons on the pillion would
undoubtedly have added to the imbalance observed as
follows:
"12. But the above reason, in our view, is
flawed. The fact that the deceased was riding on
a motor cycle along with the driver and another,
may not, by itself, without anything more, make
him guilty of contributory negligence. At the most
it would make him guilty of being a party to the
violation of the law. Section 128 of the Motor
Vehicles Act, 1988, imposes a restriction on the
driver of a two wheeled motor cycle, not to carry
more than one person on the motor cycle. Section
194 inserted by the Amendment Act 32 of 2019,
prescribes a penalty for violation of safety
measures for motor cycle drivers and pillion
riders. Therefore, the fact that a person was a
pillion rider on a motor cycle along with the
driver and one more person on the pillion, may
be a violation of the law. But such violation by
itself, without anything more, cannot lead to a
finding of contributory negligence, unless it is
established that his very act of riding along with
two others, contributed either to the accident or
to the impact of the accident upon the victim.
There must either be a causal connection
between the violation and the accident or a
causal connection between the violation and the
impact of the accident upon the victim. It may so
happen at times, that the accident could have
been averted or the injuries sustained could
have been of a lesser degree, if there had been
no violation of the law by the victim. What could
otherwise have resulted in a simple injury, might
have resulted in a simple injury, might have
resulted in a grievous injury or even death due to
the violation of the law by the victim. It is in such
cases, where, but for the violation of law, either
the accident could have been averted or the
impact could have been minimized, that the
principle of contributory negligence could be
invoked. It is not the case of the insurer that the
accident itself occurred as a result of three
persons riding on a motor cycle. It is not even the
case of the insurer that the accident would have
been averted, if three persons were not riding on
the motor cycle. The fact that the motor cycle
was hit by the car from behind, is admitted.
Interestingly, the finding recorded by the
Tribunal that the deceased was wearing a
helmet and that the deceased was knocked
down after the car hit the motor cycle from
behind, are all not assailed. Therefore, the
finding of the High Court that 2 persons on the
pillion of the motor cycle, could have added to
the imbalance, is nothing but presumptuous and
is not based either upon pleading or upon the
evidence on record. Nothing was extracted from
PW3 to the effect that 2 persons on the pillion
added to the imbalance.
13. Therefore, in the absence of any
evidence to show that the wrongful act on the
part of the deceased victim contributed either the
accident or to the nature of the injuries
sustained, the victim could not have been held
guilty of contributory negligence. Hence the
reduction of 10% towards contributory
negligence, is clearly unjustified and the same
has to be set aside."
In Anjana Narayan Kamble (supra), the Hon'ble
Supreme Court observed as follows:
"7. In the present case, there is no such
evidence of contributory negligence except fact of
three riders on the motor cycle and of not
wearing helmet by the deceased. Therefore, in
view of the enunciation of law, we find that the
High Court was not justified in deducting 30% of
the amount of compensation assessed by the
Tribunal for the reason that the deceased was
triple riding the Motor Cycle or was not wearing
a helmet. The violation of rules for driving a
motor cycle is not a ground to deduct the amount
of compensation awarded unless there is proof
of either the accident could have been averted or
the impact could have been minimized."
Bearing in mind the aforesaid observation of
Hon'ble Court since there are no evidence of
contributory negligence only that the victim was
travelling along with two pillion riders on a motorcycle
and that the helmets were not seized by the
investigating agency cannot ipso facto result in
contributory negligence of the victim. Due to above
reasons, I most humbly differ from the proposition of
High Court of Madras made in Abdul Salam (supra) in
this regard.
With regard to the next issue relating to the
general damages it is found that the learned Tribunal
has granted general damages under the conventional
heads of funeral expenses and loss of estate to the tune
of Rs.10,000/- and Rs.50,000/- respectively. However,
following observation of Hon'ble Supreme Court in
Pranay Sethi (supra), the claimants, being the parents
are entitled to general damages under the conventional
heads of funeral expenses and loss of estate to the tune
of Rs.15,000/- and Rs.15,000/- respectively.
With regard to the future prospect, it is found
that at the time of accident the victim was of 30 years of
age and was on fixed salary. Following the observation
of Hon'ble Supreme Court in Pranay Sethi (supra), the
claimants are entitled to an equivalent amount to 40%
of annual income of the victim towards future prospect.
Coming to the last issue relating to rate of
interest on the compensation amount, it is found that
the Learned Tribunal has granted 10% per annum of
interest on the compensation amount. However, bearing
in mind the prevailing banking rate of interest, the
compensation amount shall carry interest @ 6% per
annum from the date of filing of the claim application
till payment.
Other factors have not been challenged in this
appeal.
Bearing in mind the aforesaid, calculation of
compensation is made hereunder.
Calculation of Compensation
Monthly income Rs.21,954/-
Yearly income Rs.2,63,448/-
(Rs.21,954/- x 12)
Add: Agency Commission Rs.9,071/-
Total income Rs.2,72,519/-
Add: 40% of the total income Rs.1,09,008/-
towards future prospect
Rs.3,81,527/-
Deduction:1/2 towards personal Rs.1,90,763/-
and living expenses
Rs.1,90,764/-
Multiplier 17 Rs.32,42,988/-
(1,90,764/- x 17)
Add: General damages Rs.30,000/-
Loss of estate: Rs.15,000/-
Funeral expenses: Rs.15,000/-
Total compensation Rs.32,72,988/-
Thus the total compensation comes to
Rs.32,72,988/- together with interest @ 6% per annum
from the date of filing of the claim application till
payment.
It is found that the Insurance Company has
deposited a sum of Rs.23,77,000/- vide OD Challan no.
357 dated 2nd May, 2022 and has also deposited an
amount of Rs.25,000/- vide OD Challan no. 2379 dated
7th January, 2020. Both the aforesaid deposits together
with accrued interest may be adjusted against the
entire compensation amount and the interest thereon.
Accordingly, the appellant-insurance company is
directed to deposit the balance amount of compensation
of Rs. 8,70,988/- together with interest at the rate of
6% per annum from the date of filing of the claim
application till payment by way of cheque before the
learned Registrar General, High Court, Calcutta within
six weeks from date.
The respondents-claimants are directed to deposit
ad valorem court fees on the amount of compensation, if
not already paid.
Upon deposit of balance amount of compensation
and the interest as indicated above, the learned
Registrar General, High Court, Calcutta shall release
the aforesaid amount in favour of the respondent nos.
1 & 2 (claimants) in equal proportion upon satisfaction
of their identity and payment of ad valorem court fees, if
not already paid.
With the aforesaid observations, the present
appeal and the cross-objection stand disposed of. The
impugned judgment and award of the learned Tribunal
is modified to the above extent. No order as to costs.
All connected applications, if any, are also
disposed of.
Interim order, if any, stands vacated.
Urgent certified photocopy of this order, if applied
for, be supplied to the parties expeditiously upon
compliance of all necessary legal formalities.
( Bivas Pattanayak, J.)
