Calcutta High Court (Appellete Side)
The Oriental Insurance Co. Ltd vs Sumitra Dey & Anr on 8 February, 2023
08.02.23
01 Ct. No.654
Sws.M
FMA 2441 of 2014
The Oriental Insurance Co. Ltd.
versus
Sumitra Dey & Anr.
Mr. Parimal Kumar Pahari
...for the Appellant
Mr. Jayanta Kumar Mandal
...for the respondents
Inadvertent typographical mistake has crept into
order dated 31st August 2023 mentioning the name of
respondent no. 1 as "Sumitra Roy" instead of "Sumitra
Dey". The name of respondent no. 1 in the aforesaid
order be read as "Sumitra Dey" instead of "Sumitra
Roy".
The order dated 31st January, 2023 is modified
to the above extent.
Other portions of the order shall remain
unaltered.
This appeal is preferred against the judgment
and award dated 29th May, 2014 passed by the
Learned Additional District Judge cum Judge, Motor
Accident Claims Tribunal, Fast Track, 1st Court,
Barrakpore, 24-Parganas (North) in M.A.C. Case No.
775 of 2009 granting compensation in favour of
claimant to the tune of Rs.9,77,025/- together with
interest under Section 166 of the Motor Vehicles Act.
The brief fact of the case is that on 30th
September, 2009 at about 11.45 a.m. while the victim
was proceeding as pedestrian on B.T. Road, at that
time the offending vehicle bearing registration no. WB
23B/3346 (Truck) in high speed and in rash and
negligent manner lost control and dashed the victim
as a result of which he sustained grievous injury on
his person. Immediately the victim was shifted to Dr.
B.N. Bose S.D. Hospital, Barrackpore, wherefrom he
was taken to Apollo Geneagles Hospital, Kolkata,
where he succumbed to his injuries. On account of
sudden demise of the victim, the claimants being his
widow and mother of the deceased filed an application
under Section 166 of the Motor Vehicles Act, 1988
claiming compensation of Rs.10,55,000/- together
with interest.
During the pendency of the claim application,
the mother of the deceased, namely, Shyama Sundari
Dey died on 12.11.2013.
The claimants in order to establish their case
examined three witnesses and produced documents
which have been marked as Exhibits 1 to 16
respectively.
The appellant-insurance company also adduced
the evidence of Cashier of Motor Vehicles Department,
Barrackpore and produced documents which have
been marked as Exhibits A and B respectively.
Upon considering the materials on record and
the evidence adduced on behalf of the parties, the
learned Tribunal granted compensation in favour of
widow of the deceased to the tune of Rs.9,77,025/-
together with interest under Section 166 of the Motor
Vehicles Act, 1988.
Being aggrieved by and dissatisfied with the
impugned judgment and award, the insurance
company has preferred the present appeal.
Mr. Parimal Kumar Pahari, learned advocate for
appellant-insurance company submits that from the
materials and the evidence adduced on behalf of the
insurance company it manifest that on the date of
accident the driver of the offending vehicle did not hold
valid and effective driving licence to drive such vehicle
and therefore the learned Tribunal ought to have
granted liberty to the insurance company to recover
the amount of compensation directed to be paid by it
to the claimants in view of the decision of the Hon'ble
Supreme Court passed in National Insurance
Company Limited versus Swaran Singh & Ors.
reported in (2004) 3 SCC 297. In the light of his
aforesaid submissions he prays for modification of the
impugned judgment and award.
Mr. Jayanta Kumar Mondal, learned advocate
for the respondent No. 1-claimant submits that in the
event of breach of policy of insurance it is settled
proposition of law that principles of pay and recovery
may be applied.
Inspite of due service of notice of appeal, none
appears on behalf of respondent no. 2, owner of the
offending vehicle.
Having heard learned advocate for respective
parties, it is found that the insurance company has
raised a solitary issue in the present appeal, that since
the driver of the offending vehicle was not holding
effective and valid driving licence on the relevant date
of accident to drive such vehicle, in breach of
condition of insurance policy, the principles of pay and
recovery be applied in the facts and circumstances of
the case.
With regard to the aforesaid issue, it is found
from the seizure list (Exhibit 3) that DL being no.WB-
053351 standing in the name of one Rambilas Yadav
(Driver of the offending vehicle) has been seized and
such licence is valid till 2.10.2009. The letter of
authority at page 49 of the paperbook shows that the
driver Rambilas Yadav holding DL no.WB-23-05331
was authorized by the owner to drive the offending
vehicle bearing registration no. WB-23B-3346 (Truck).
The insurance company examined one Subrata
Mukherjee, Cashier of Motor Vehicles Department,
Barrackpore, who produced answers in response to
summon in relation to said driving license (Exhibit B).
It is held by the learned tribunal while dealing with
issues no. 6 & 7 that as per Exhibit B such driving
license was not issued from the office of Motor
Vehicles Department, Barrackpore. It manifests from
the particulars of driving licence bearing No. WB-23-
053351 at page 50 of the paperbook, that the said
driving licence was issued in the name of one Avijit
Saha for driving Motor-cycle and Light Transport
Vehicle and its validity expired on 26.12.2008.
Considering the above, it is found that the driver of the
offending vehicle did not have effective and valid
driving licence on the relevant date of accident to drive
such vehicle. Now the question arises as to what
would be the effect of such breach. In Swaran
Singh's Case (supra) the Hon'ble Court observed
where on adjudication of the claim under the Act the
tribunal arrives at a conclusion that the insurer has
satisfactorily proved its defence in accordance with the
provisions of Section 149 (2) read with sub-section (7),
as interpreted by this Court above, the Tribunal can
direct that the insurer is liable to be reimbursed by the
insured for the compensation and other amounts
which it has been compelled to pay to the third party
under the award of the tribunal. In Amrit Paul Singh
versus TATA AIG General Insurance Company
Limited reported in (2018) 7 SCC 558, following the
observation in Swaran Singh's Case the Hon'ble Court
upheld the principle of pay and recovery in a case of
breach of condition of insurance policy. Bearing in
mind the aforesaid observations of the Hon'ble Court,
since it is found that the driver of the offending vehicle
was not holding effective driving license to drive such
vehicle on the relevant date of accident, hence
principles of pay and recovery is to be applied in the
facts and circumstances of the present case.
Accordingly, the appeal of the insurance
company stands allowed. The impugned judgment and
award of the learned Tribunal is modified to the extent
that the insurance company shall be at liberty to
recover the compensation amount which it has been
directed to pay, by the learned Tribunal, from the
owner and the driver of the offending vehicle.
It is found that the appellant-insurance
company has already deposited the statutory amount
of Rs.25,000/- vide OD Challan No. 998 dated
28.07.2014 and an amount of Rs.9,52,025/- vide OD
Challan No. 1519 dated 18.09.2014 with the Registry
of this Court. However, it is informed that the interest
on awarded sum has not been deposited.
Appellant-insurance company is directed to
deposit interest on the compensation amount of Rs.
9,77,025/- @ 6% per annum from the date of filling of
the claim application till deposit, by way of cheque
before the learned Registrar General, High Court
Calcutta within a period of six weeks from date.
The respondent no.1-claimant is directed to pay
ad valorem Court fees on the compensation assessed,
if not already paid.
Upon deposit of the aforesaid amount towards
interest, the learned Register General, High Court
Calcutta shall release the compensation amount and
the interest in favour of respondent no. 1-claimant
along with accrued interest, upon satisfaction of her
identity and payment of ad valorem Court fees, if not
already paid.
With the aforesaid observations the appeal
stands disposed of.
All connected applications, if any, stands
disposed of.
Interim order, if any, stands vacated.
Urgent Photostat certified copy if applied for be
given to the parties upon compliance of all necessary
legal formalities.
(Bivas Pattanayak, J)
