Calcutta High Court (Appellete Side)

Poli Das & Anr vs The Divisional Manager on 10 February, 2023

    26
10.02.2023
Ct. No.237
    pg.
                       IN THE HIGH COURT AT CALCUTTA
                          CIVIL APPELLATE JURICTION
                                APPELLATE SIDE

                                FMA 630 of 2011

                                  Poli Das & Anr.
                                        Vs.
                             The Divisional Manager,
                        National Insurance Co. Ltd. & Anr.


                    Mr. Saidur Rahaman
                          ... For the appellants/claimants

                    Mr. Parimal Kumar Pahari
                          ... For the respondent no.1/Insurance Co.

This appeal is directed against the judgment and

order dated on 31st July, 2010 passed by the learned

Judge, Motor Accident Claims Tribunal, 2nd Court, Malda,

in connection with MAC Case No.44 of 2009 whereby the

learned Judge of the Tribunal refused to grant any

compensation.

The claim petition under Section 163A of the Motor

Vehicles Act, 1988 was filed by the parents of the deceased

Nisha Das, a five-year-old girl, who died in a motor

accident by the involvement of a pick-up van, bearing

registration no.WB-61/1990. On 21st April, 2007 at about

11 hours when she was playing on the road in front of

their house at Nemua village near State Highway under

Police Station and District Malda. At the relevant point of

time, one pick-up van, bearing registration no.WB-

61/1990, coming with high speed and in rash and

negligent manner knocked down the said Nisha Das and

fled away. She was immediately admitted to Malda Sadar

Hospital but she succumbed to his injuries on the same

day. After the accident, Malda Police Station Case No.47 of

2007 dated 24th April, 2007 under Sections 279/304A of

the Indian Penal Code was started and after investigation,

police submitted final report as there was no number of

the vehicle in the First Information Report. But at the time

of acceptance of final report by the learned Magistrate, on

behalf of the claimants objection was filed and case was

ordered to be re-investigated. After re-investigation, police

submitted charge sheet against the driver of the pick-up

van, bearing registration no.WB-61/1990.

Owner of the vehicle did not contest the claim

petition but the National Insurance Company Limited

contested the case by filing written statement denying all

material averments in the claim petition contending, inter

alia, that the claimants are not entitled to any

compensation, as prayed for.

To prove the case, claimants examined as many as

three witnesses, namely, Poli Das, mother of the deceased

child, as PW-1, one Mithun Das, brother of the deceased,

was examined as PW-2 and one Khakan Das as PW-3. Poli

Das, mother of the deceased, has corroborated the entire

contents of the claim petition and in course of her

evidence, certified copy of the First Information Report,

charge sheet, seizure list, post-mortem report, insurance

policy and certificate of registration of the vehicle were

admitted in evidence as Exhibit 1 to 6. In cross-

examination, she denied the suggestions thrown at her.

PW-2 testified in his evidence that one Khakan Das

(PW-3) was present at the place of occurrence and noted

the vehicle number. On the alleged date of incident, his

sister met an accident at Malda road in front of their

house and accident caused by a pick-up van and after the

accident, the said pick up van fled away. He only took a

glimpse of the said vehicle which was white coulur pick-up

van. He testified that Khakan Das, who was present at the

place of occurrence, noted vehicle number as WB-

61/1990. He lodged the FIR before the police on 24th April,

2008 and final report was submitted in that case by the

police. Then he filed objection against the final report and

re-investigation order was passed and charge sheet was

submitted. He further testified that at the time of lodging

FIR, he would know the number of the vehicle.

From the FIR, it is seen that he did not mention

any number of the vehicle. From the FIR it is found that

though he did not mention the number of the pick-up van

but he mentioned the colour of the pick-up van and it is

also seen from the evidence of PW-2 that at the time of

lodging FIR, he was aware of the number which was

disclosed by PW-3 Khakan Das. It may be a mistake on the

part of PW-2 about mentioning the vehicle number but he

deposed that he had seen the colour and nature of the

vehicle and accordingly, he mentioned in the FIR that the

accident caused by one white colour pick-up van.

PW-3 Khakan Das categorically stated that one

white colour pick-up van, bearing registration no.WB-

61/1990, coming with high speed, dashed the said Nisha

Das, a five-year-old girl, who was on the road in front of

their house.

From the record, it appears that after the

investigation, police submitted final report on the FIR filed

on 24th April, 2007 but during re-investigation, police

examined the witnesses and collected the number of the

vehicle and submitted charge sheet against the driver of

the said pick-up van, bearing registration no.WB-61/1990.

Here in this case, on behalf of the respondent

no.1/Insurance Company, no effort was taken to examine

the owner or driver of the vehicle to prove the fact of no

involvement of the pick-up van, bearing registration

no.WB-61/1990, in the accident.

Learned Judge of the Tribunal only focussed on the

evidence of PW-2 and PW-3. Learned Judge has drawn

adverse inference from the evidence of PW-2 and PW-3 on

the ground that had the PW-3 ever seen the number of the

pick-up van, he would have surely informed PW-2, brother

of the deceased who lodged FIR before the police after

three days of accident.

Mr. Saidur Rahaman, learned advocate, appearing

on behalf of the appellants/claimants refers to the

evidence on record and submits that during investigation

by the police, pick-up van was identified and charge sheet

was submitted against the driver of the vehicle.

In opposition to that, Mr. Parimal Kumar Pahari,

learned advocate, on behalf of the respondent no.1/

Insurance Company has submitted that the learned

Tribunal rightly came to the conclusion about the serious

contradiction among the witnesses, particularly, PW-2 and

PW-3. Therefore, involvement of the vehicle in the accident

cannot be presumed conclusively.

After careful perusal of the evidence of PW-2 and

PW-3 together with charge sheet, I find that at the time of

lodging FIR, PW-2 noted down the colour and nature of the

vehicle but missed to note the number of the vehicle. It

may be a mistake on the part of PW-2. But, PW-3 in his

evidence specifically stated that he saw the accident

caused by a white colour pick-up van, bearing registration

no.WB-61/1990. On the FIR lodged by PW-2 on 24th April,

2007, police took up the investigation but could not

identify the vehicle and submitted final report. But during

re-investigation, police examined the witnesses and came

to know the number of the vehicle and filed charge sheet

against the driver of the offending vehicle.

In the aforesaid view of the matter, I am sorry to

subscribe to the view of the learned Judge of the Tribunal

regarding non-involvement of the pick-up van, bearing

registration no.WB-61/1990, in the accident alleged in

this case.

This is an application under Section 163A of the

Motor Vehicles Act. It is not disputed that the said pick-up

van, bearing registration no.WB-61/1990, was insured

with the National Insurance Company Limited at the

relevant point of time and in that view of the matter, I am

of the humble view that the appellants/claimants are

entitled to compensation under Section 163A of the Motor

Vehicles Act.

Accordingly, I determine the compensation in

terms of the settled principle of the Hon'ble Apex Court in

the case of Kurvan Ansari & Anr. v. Shyam Kishore

Murmu & Anr. reported in 2002 ACJ 166 as follows:-

Notional Income (per annum) Rs. 25,000/-

-------------------

Rs.3,75,000/-

Add: Funeral Expenses & Loss of Estate Rs. 4,500/-

(Rs.2,000/- + Rs.2,500/-) -------------------

                      Total Compensation            Rs.3,79,500/-


       For      the   reasons,    it   is     seen      that     the

appellants/claimants       are    entitled     to      the      total

compensation to the tune of Rs.3,79,500/- along with

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

claim petition, i.e., on 21st February, 2009, till the deposit

of the amount.

Accordingly, the respondent no.1/National

Insurance Company Limited is directed to deposit the

compensation amount of Rs.3,79,500/- along with interest

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

petition i.e., on 21st February, 2009, till the actual deposit

of the amount before the office of the learned Registrar

General of this Court, within six weeks from the date of

this order.