Iffco Tokio General Insurance ... vs Dipa Sarkar & Ors
2023 Latest Caselaw 1130 Cal

    28
10.02.2023
Ct. No.237
    pg.
                       IN THE HIGH COURT AT CALCUTTA
                          CIVIL APPELLATE JURICTION
                                APPELLATE SIDE

                                 FMA 831 of 2012

                 Iffco Tokio General Insurance Company Limited
                                        Vs.
                                Dipa Sarkar & Ors.


                    Mr. Rajesh Singh
                         ... For the appellant/Insurance Co.

                    Mr. Amit Ranjan Roy
                         ... For the respondents/claimants

This appeal is directed against the judgment and

award dated 30th January, 2012 passed by the learned

Judge, Motor Accident Claims Tribunal, Additional District

Judge, 3rd Court, Howrah, in connection with MAC Case

No.17 of 2005 whereby the learned Judge awarded

compensation to the tune of Rs.2,89,500/-.

The claim petition under Section 166 of the Motor

Vehicles Act, 1988 was filed on account of death of one

Gora Chand Sarkar in a motor accident occurred on 7th

September, 2004 at about 21.50 hours by the involvement

of one motor cycle, bearing registration no.WB-01-P/2505,

due to rash and negligent driving. At the time of accident,

said Gora Chand Sarkar was aged about 62 years and

having income of Rs.2,18,294/- per annum from his

pension after retirement from civil defence.

Both the owner of the vehicle and the Insurance

Company contested the case by filing their respective

written statements denying all material averments in the

claim petition It is contended on behalf of the Insurance

Company in the written statement that no policy of

insurance was issued against the cover note, bearing

no.31337029, as the cover note was cancelled because of

non-payment of premium and, therefore, Insurance

Company is not liable to pay any compensation.

To prove the case, the claimants examined as

many as two witnesses, namely, Dipa Sarkar, widow of the

deceased, as PW-1 and one Satyajit Banerjee was

examined as PW-2 who witnessed the accident occurred

on 7th September, 2004 at about 21.50 hours by the

involvement of one motor cycle, bearing registration

no.WB-01-P/2505, due to rash and negligent driving. In

course of their evidence, a good number of documents

were admitted in evidence, including certified copy of the

First Information Report, charge sheet, seizure list, post-

mortem report, insurance policy, income tax return, voter

identity card etc.

Learned Judge of the Tribunal after analyzing the

evidence together with documents on record and came to

his finding that the claimants are entitled to compensation

in spite of plea of cancellation of cover note not

substantiated by any cogent evidence. Learned Judge

awarded Rs.2,89,500/- as compensation.

Mr. Rajesh Singh, learned advocate, appearing on

behalf of the appellant/Insurance Company has tried to

make this Court understand that the cover note relied on

by the learned Judge of the Tribunal was cancelled by the

Insurance Company due to non-payment of premium and

this only ground has been taken in this appeal. Mr. Singh

has submitted that at the time of issuance of cover note,

premium was paid by a cheque which was bounced

subsequently and that is why the insurance policy was not

issued and, accordingly, the Insurance Company is not

liable to pay any compensation.

Mr. Amit Ranjan Roy, learned advocate, appearing

on behalf of the respondents/claimants has submitted

that the plea taken by the Insurance Company in the

written statement has not been substantiated by any

evidence whatsoever during trial.

None of the learned advocates appearing on behalf

of the parties to this appeal has argued on the point of

accidental death of one Gora Chand Sarkar by the

involvement of a motor cycle, bearing registration no.WB-

01-P/2505, due to rash and negligent driving. However,

after careful perusal of the entire evidence on record

together with the certified copy of the FIR and charge

sheet, I do not find any reason to re-enter into that

particular issue. However, the ground of appeal taken by

the appellant/Insurance Company, in my opinion, has no

merit as the plea of cancellation of policy has not been

substantiated by any evidence/single scrap of paper

during trial. On the other hand, from the cover note itself

it is seen that there was insurance coverage in respect of

motor cycle at the time of accident.

In that view of the matter, I do not find any reason

to interfere with the judgment passed by the learned

Tribunal.

In the aforesaid view of the matter, this appeal is

liable to be dismissed and is accordingly dismissed.

However, the appellant/Iffco Tokio General

Insurance Company Limited is at liberty to recover the

amount subject to proof of the fact of no insurance policy

before the appropriate forum.

It is reported that the appellant/Insurance

Company has already deposited the entire awarded

amount along with interest before the office of the learned

Registrar General of this Court.

It is also reported that the respondents/claimants

have already withdrawn 50% of the total compensation

amount i.e., Rs.1,44,750/-.

Therefore, the respondents/claimants are entitled

to the balance compensation amount of Rs.1,44,750/-

along with interest and accrued interest.

The learned Registrar General is requested to

disburse the amount along with all interest to the

respondents/claimants in equal share on proper

identification and proof.

All pending applications, if there be any, stand

disposed of.

Records of the learned Tribunal along with a copy

of this order be transmitted back immediately.

Urgent photostat certified copy of this order, if

applied for, be given to the parties, upon compliance of

necessary formalities.

(Bibhas Ranjan De, J.)