Calcutta High Court (Appellete Side)
Smt. Sunita Ghosh & Anr vs The National Insurance Co. Ltd. & ... on 30 August, 2023
IN THE HIGH COURT AT CALUTTA
Civil Appellate Jurisdiction
30.08.2023
SL No.14
Court No. 551
Ali
F.M.A.T. 1072 of 2013
Smt. Sunita Ghosh & Anr.
Versus
The National Insurance Co. Ltd. & Anr.
Mr. Jayanta Banerjee,
Mr. Sandip Bandyopadhyay
...for the appellant-claimant.
Mr. Deb Narayan Roy
....for the insurance Co.
Affidavit of service upon the owner of the
offending vehicle is taken on record. It appears from
the report of Registered consignment that the
Registered consignment was refused by the owner;
the refusal of the Registered consignment alongwith
the A/D appears to be a good service.
The instant appeal is preferred against the
judgment and award dated 14th September, 2012
passed by the learned Judge, Motor Accident Claims
Tribunal, 2nd Court, Krishnagar, Nadia in MAC Case
No. 353 of 2010 under Section 166 of the M.V. Act.
The brief fact of the case is that the present
appellant being the parents preferred an application
under Section 166 of the M.V. Act before the learned
tribunal on the ground that their bachelor son was
died in a road traffic accident due to rash and
negligent driving of the driver of the offending
2
vehicle duly insured under the policy of the
insurance company-respondent.
The brief fact of the accident is that the son
of the present appellant was going to join his
assignment as a soldier to a military camp on
17.09.2009; on the way to his joining he boarded a
Maruti Van which was suffered accident by such the
deceased died in such road traffic accident.
The claim case was contested by the
insurance company.
The learned tribunal after hearing both the
parties and after considering the evidences on
record has awarded a sum of Rs. 15,00,896/- in
favour of the claimant and directed the owner of the
offending vehicle to pay the compensation.
Being aggrieved by and dissatisfied with the
impugned award the present appeal has been
preferred.
Learned advocate for the appellant
submitted before this court that a very innocuous
prayer was made by preferring the instant appeal.
He submitted by virtue of several decisions of
Hon'ble Supreme Court the ratio of law is well
settled to the effect that when there is a breach of
policy by the insurance company, the insurance
company may have not solely liable to pay the
compensation but as the vehicle was covered under
the policy of insurance company; thus, it is the
observation of the Hon'ble Supreme Court that the
insurance company may be directed to pay the
compensation and on the same way they are at
liberty to recover the said compensation from the
owner of the offending vehicle. In support of his
submission of learned advocate for the claimant has
cited a decision of Hon'ble Supreme Court of
Shamanna and Another Vs. Divisional Manager,
Oriental Insurance Company Limited and Others
reported in (2018) 9 SCC 650.
Learned advocate for the insurance company
submitted that the offending vehicle was well
covered under the policy of the insurance company
at the day of accident but the terms of the policy has
been specifically mentioned in the policy itself. He
has cited the policy certificate placed in the paper
book. He argued that policy was not covered for the
use of hire. The evidence of case goes to show that
the deceased was going to join the duty by hiring the
motor van. So, the conduct of the owner of the
vehicle is not covered under the policy as agreed
between the owner and the insurance company. He
submitted that the impugned award passed by the
learned tribunal suffered no perversity. Learned
advocate for the insurance company however agreed
to the principle "pay and recovery" enunciated by
the Hon'ble Supreme Court in several decisions.
Heard the learned advocate perused the
materials on record. On perusal of the decisions of
Shamanna (Supra) which was passed following the
Nanjappan (2004) 13 SCC 224 it appears to me
that the principle of pay and recovery has been well
settled and the Hon'ble Supreme Court has
specifically guided the tribunal to pass the order of
pay and recovery and the procedure of recovery has
been specifically enumerated in the decisions of
Hon'ble Supreme Court passed in Challa
Bharathamma.
Considering the entire materials and after
considering the submissions of the learned advocate
for the parties the award passed by the learned
tribunal need be modified to the effect that the
multiplier adopted by the tribunal is not correct it
should be 18 instead of 16 considering the age of
the victim to be within 20 years . The claimants are
also entitled to get the future prospects it would be
50% of the actual salary of the deceased. The
deceased was considered in permanent job so the
50% of his actual salary would be added towards
future prospects. It further appears by virtue of the
decision of the Hon'ble Supreme Court passed in
Pranay Sethi the fateful parents are entitled to get
the general damages to Rs. 30,000/-
On that score, the just and proper
compensation of this case is as follows:-
Calculation of compensation
1. Monthly Income ..................................Rs.15,426/-
2. 50% future prospect..............................Rs.7,713/-
Total Rs. 23,139/-
3. Deduction 50% as parents..................Rs.11,570/-
Total Rs.11,569/-
4. Annual Income..................................Rs.1,38,828/-
5. Multiplier apply 18
( Rs.1,38,828/-X 18).................................Rs.24,98,904/-
6. General damages..................................Rs.30,000/-
Total compensation.................Rs. 25,28,904/-
The insurance company is directed to pay
the compensation as mentioned above alongwith
interest @ 6% per annum from the date of filing of
the claim application within eight weeks from the
date of passing of this order with the office of the
learned Registrar General, High Court, Calcutta. On
such deposit the claimants are at liberty to recover
the same subject to ascertainment of payment of
requisite court fees. The office of the learned
Register General, High Court, Calcutta is directed to
disburse the same vide two equal account payee
cheques in the name of the claimants.
The insurance company is hereby at liberty
to recover the entire amount of compensation from
the owner of the offending vehicle according to the
procedure laid down by the Hon'ble Supreme court
in Challa Bharathamma.
The instant FMAT 1072 of 2013 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.)
