Mustakim Sk. @ Mustakin Sk vs Md. Jasimuddin Khan & Ors
2023 Latest Caselaw 5520 Cal

                       IN THE HIGH COURT AT CALUTTA
                          Civil Appellate Jurisdiction
 24.08.2023
  SL No.26
Court No. 551
   Ali


                          FMAT 1105 of 2015
                          IA No.:CAN/1/2023
                     Mustakim Sk. @ Mustakin Sk.
                                Vs.
                     Md. Jasimuddin Khan & Ors

                 Mr. Muktakesh Das
                          ................ for the appellant-claimant.
                 Ms. Sayanti Santra
                             ...for the respondent No 3- New India

assurance insurance Co Ltd.

Mr. Parimal Kumar Pahari ...for the respondent No 4- Oriental insurance Co. Ltd.

IA No. CAN 1 of 2023

Delay in preferring the instant appeal is

hereby condoned.

Appeal is formally admitted.

The respondent Nos. 1 and 2 herein never

contested the matter before the learned tribunal.

Accordingly, the notice of appeal upon the

respondent Nos.1 and 2 are dispensed with.

The respondent Nos. 3 and 4, the insurance

companies have already made their appearance

before this court so the appeal can be heard in

presence of respondent Nos. 3 and 4.

Learned advocate for the appellant has

submitted that he has prepared the informal paper

book alongwith all the documentary evidences after

obtaining the certified copy the same from the office

of the learned tribunal. He wants to proceed the

matter. He files the informal paper book. Let it be

kept on record.

The appeal is taken up for hearing.

The instant appeal is preferred against the

judgment dated 19th day of February, 2015 passed

by learned Judge, Motor Accident Claims Tribunal,

3rd Court, Krishnanagar, Nadia, in M.A.C. Case no.

68 of 2004.

The brief fact of the case is that the instant

appellant being the claimant filed one application

under Section 166 of the Motor Vehicles Act before

the learned tribunal for getting compensation from

the insurance company on that ground that the

claimant has sustained fatal injuries due to rash

and negligent driving of the drivers of the offending

vehicle duly insured by the insurance company.

The owners of the vehicle did not contest the

matter before the learned tribunal but the insurance

companies have contested the matter by filing their

written statement.

Learned tribunal has heard the matter in

presence of both of the insurance companies and

passed an award of Rs. 1,50,000/- in favour of the

claimant and directed the respondent No. 4-Oriental

Insurance Co. Ltd. to pay the compensation. No

compensation amount was paid by the insurance

company. Thus, the instant appeal is preferred by

the claimant for enhancement.

Learned advocate for the appellant

submitted before this court that the compensation

assessed by the learned tribunal is on the lump sum

basis. The claimant was able bodied person who

sustained severe injuries; by such road traffic

accident and for sole cause of that accident he

sustained disability to the extent of 75%. Learned

tribunal has not considered the said disability but

allow the compensation in a lump sum amount. He

further pointed out that the deceased was a

Cultivator cum green vegetable vendor who used to

earn Rs.3,000/- per month. But, the learned

tribunal has failed to pass any award through the

structure formula as enumerated by the Hon'ble

Supreme Court in several decisions specially in

Sarla Verma. He also argued that the learned

tribunal has committed error for not awarding the

compensation alongwith the future prospects. So, he

prayed for just and proper compensation.

Learned advocate appearing on behalf of the

Oriental Insurance Co. Ltd. submits that the

claimant has not produce the policy paper of the

Oriental Insurance Co. Ltd. The number of policy

which was mentioned in the claim application is not

a correct number. The offending vehicle may have

covered by the Oriental Insurance Co. but after such

long period of accident it is not possible that the

insurance company to find out the interest with the

owner and the insurance company regarding the

alleged offending vehicle. He further argued that the

claim applications stated two vehicles are involved

in the alleged accident. Both the insurance

companies were made party. Charge sheet was filed

against the driver of both the offending vehicles. The

evidence of PWs of this court has also stated

regarding the involvement of the two vehicles in the

alleged accident. Thus, the liability to pay the

compensation may be fixed equally upon both the

insurance companies.

Learned advocate appearing on behalf of the

New India Assurance Co. Ltd. submits that from the

FIR as well as the fact of the accident mentioned in

paragraph 23 of the claim application, it would be

revealed that the Tractor was plying on the road by

maintaining the speed and line correctly. The

offending vehicle (Lorry) which was coming on

excessive high speed lost control and dashed the

Tractor by which the Tractor was dashed the

present claimant. So, the tractor cannot be said to

be responsible for the accident. He also argued that

the FIR as well as the statement of witnesses also

support the case of the New India Assurance Co.

Ltd. Thus, in this case, the New India Assurance Co.

Ltd is not liable to pay the compensation. Learned

tribunal has correctly assessed the entire facts and

circumstances of the case and directed the Oriental

Insurance Co. Ltd. to pay the compensation. There

is no infirmity for fixing the liability of the Oriental

Insurance Co. Ltd. to pay the compensation.

Heard the learned advocate perused the

materials on record it appears that on 28.04.2002

the accident was occurred on NH-34. The claim

application stated that the Tractor was proceeding

towards the Krishnanagar and at that time one

Lorry which was proceeding towards the same

direction and coming on excessive high speed lost

control and dashed the Tractor. The FIR also stated

regarding the rash and negligent driving of the

driver of the offending vehicle (Lorry). The PW-2 and

the PW-4 who was the eye witness in this case

stated the involvement of both the vehicles, PW-2,

one of the eye witness stated in his chief that the

Tractor was also coming in a high speed. PW-4 in

his chief also stated that both the vehicles are

responsible in the accident.

Considering the same, the fact is proved by

filing charge-sheet of the police after investigation of

the case. The charge-sheet disclosed the accused

person to be two in number i.e. the driver of both

the offending vehicles. So, prima facie, both the

vehicles are involved in the said accident.

Both the vehicles have contributed the

accident. Evidences suggest the Truck is more

responsible than the Tractor. Considering the issue,

I think it would be proper that the liability to pay the

compensation is upon both the vehicles to the ratio

of 60%:40%. 60% of the compensation would be

paid by the Oriental Insurance Co. Ltd and 40%

would be paid by the New India Assurance Co. Ltd.

In considering the just and proper

compensation of this case, it appears to me that the

learned tribunal has only assessed the

compensation of the injured claimant in a lump sum

basis. The medical paper specially the discharge

certificate of the injured claimant issued by the

Nilratan Sircar Medical College & Hospital dated

25.05.2007 disclosed the diagnosis to be the head

injury due to the road traffic accident by which he

was suffering left side Hemiplagia.

The Doctor i.e. the PW-6 who is one of the

member of the Board assessed the disability of the

claimant to be 75%. He deposed that the claimant

was suffering from the disease of Hemiplagia.

However, during the cross-examination he though

stated that it was not mentioned in the disability

certificate how the claimant was sustained such

deceased but from the document i.e. the medical

paper and discharge certificate of NRS Medical

College proved the connection of the

disease/disability of the claimant with the said road

traffic accident.

Considering the same, I think it necessary

that the learned tribunal should have calculated the

compensation in terms of structure formula,

according to the direction of the Hon'ble Supreme

Court passed in Sarla Verma . The claimant is also

entitled to the future prospects according to the

direction of the Hon'ble Supreme Court passed in

Pranay Sethi.

In considering the same, the just and

proper compensation of this case, the daily income

of the claimant cannot be less than 70, as he was a

daily labourer cum Cultivator, so the notional

income of the deceased per month would be at least

Rs.2,000/-. The yearly income comes to Rs.

24,000/-. The age of the claimant was 24 years at

the time of accident according to his Aadhar Card.

Thus, the applicable multiplier of this case would be

18 according to Sarla Verma, so after multiplying

the multiplier the award comes to Rs. 4,32,000/-.

The claimant was suffered Hemiplagia at the left

side of her body that is why the disability certificate

was issued to the extent of 75% I think the

functional disability of the claimant would be 75% in

assessing this compensation. So the 75% of this

Rs.4,32,000/-appears to Rs.3,24,000/-. According

to the judgment of Hon'ble Supreme Court passed in

Pranay Sethi. The claimant is also entitled to get

40% upon his establish income towards the future

prospects so after adding the future prospects of Rs.

1,23,600/- the award comes to Rs. 4,53,600/-. The

claimant is all along admitted to the Government

Hospital and treated there. However, considering the

pain and suffering and the future amenities to the

claimant another amount of Rs. 40,000/- is added

towards the head. After adding all the heads the

award comes to Rs. 4,93,600/-. The claimant is

entitled to get the compensation alongwith interest

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

application.

The insurance companies are directed to pay

the compensation as mentioned hereinabove

according to the ratio of 60% and 40% respectively.

Most specifically the 60% of compensation has to be

paid by the Oriental Insurance Co. Ltd. and 40%

compensation has to be paid by the New India

Assurance Co. Ltd. The insurance companies are

directed to pay the compensation within eight weeks

from the date of passing of this order through the

office of learned Registrar General, High Court,

Calcutta. On such deposit the claimant is at liberty

to receive the same from the office of the learned

Registrar, General, High Court, Calcutta, according

to prevalent rules subject to the ascertainment of

payment of requisite court fees.

On submission of Mr. Parimal Kumar

Pahari, learned advocate for Oriental Insurance Co.

regarding the ascertainment of the insurance policy

of the offending vehicle, it is directed that the

claimant shall collect the policy paper from the

police files i.e. C.D. of Dhubulia Police Station Case

No. 39/02 dated 28.04.2002 wherein the charge

sheet have been submitted being No. 78/02 dated

28.08.2002 under Sections 279/338/427 I.P.C. in

the office of the learned Chief Judicial Magistrate,

Krishnanagar, Nadia. The learned Chief Judicial

Magistrate, Krishnanagar, Nadia shall provide all

sorts of help to the representative of the claimant so

that the policy paper may be find out from the police

paper which may placed in the GRO Section of the

office of learned CJM. After such policy paper would

be produced to the office of the Oriental Insurance

Co. Ltd.. The insurance company shall disburse the

same according to the direction made above within

four weeks.

         The      instant   FMAT   1105   of   2015   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.)