Bajaj Allianz Gen. Insurance Co. ... vs Mejhren Rebhan @ Tirkey & Ors
2023 Latest Caselaw 868 Cal

    8-9
CT. No. 654
02.02.2023
  adeb




                               FMA 962 of 2019
                               IA NO. 3/2020
                                   With
                               COT 2 of 2020

                          Bajaj Allianz Gen. Insurance Co. Ltd.

                                        Versus

                           Mejhren Rebhan @ Tirkey & Ors.


                         Mr. Rajesh Singh
                                              ....for the appellant

                     Mr. Subhankar Mondal
                                              ...for the respondents

This appeal is directed against judgment and award

dated 19th June, 2018 passed by learned Additional

District Judge cum Judge, Motor Accident Claims

Tribunal, 5th Court, Barasat, 24 Parganas (North) in

M.A.C Case No. 63 of 2014 granting compensation of Rs.

31,85,214/- together with interest .

The brief fact of case is that on 13th January, 2014

at about 22.00 hrs. while the victim was proceeding in a

bi-cycle and when he reached near workshop gate,

Kanchrapara at that time the offending vehicle bearing

registration no. WB-24-TC-0129 (Motorcycle) which was

proceeding in high speed and in rash and negligent

manner dashed the bi-cycle of the victim, as a result of

which the victim sustained severe injuries on person.

The victim was immediately taken to Kalyani J.N.M

Hospital where he was declared dead by the attending

doctor. On account of sudden demise of victim, the

claimants being the widow, son and daughter of the

deceased filed application under Section 166 of the Motor

Vehicles Act, 1988 claiming compensation of Rs.

30,39,835/- together with interest.

The claimants in order to prove their case examined

three witnesses and produced documents which has been

marked as Exhibits 1 to 15/1 respectively.

The appellant-Insurance Company also adduced

evidence of two witnesses and produced documents

which has been marked Exhibits A & B respectively.

Upon considering the materials on record and the

evidence produced on behalf of the respective parties, the

learned tribunal granted compensation in favour of the

claimants to the tune of Rs. Rs. 31,85,214/- together

with interest. The learned Tribunal also granted liberty to

the Insurance Company to recover the entire decreetal

amount from the owner of the vehicle namely Sushila

Bedbanshi in accordance with law.

Being aggrieved by and dissatisfied with the

impugned judgment and award the Insurance Company

has preferred the present appeal.

The respondents-claimants also filed a cross-

objection being COT 2 of 2020 for enhancement of the

compensation amount.

Mr. Rajesh Singh, learned advocate for the

appellant-Insurance Company submits that since the

learned tribunal have come to the finding that the driver

of the offending vehicle on the relevant date was not

holding valid and effective driving licence hence the

Insurance Company cannot be saddled with the liability

to pay compensation amount. He further submits that the

learned tribunal cannot direct the Insurance Company to

pay and recover in the event it finds that there is breach

of condition of policy of insurance as per Section 149 (2)

of the Motor Vehicles Act. In the view of his aforesaid

submissions, he prays for setting aside for impugned

judgment and award.

Mr. Subhankar Mandal, learned advocate for

respondents-claimants submits that as per settled

position of law laid down by the Hon'ble Supreme Court

the learned Tribunal has rightly passed the order

applying the principles of pay and recovery which should

be affirmed in the interest of justice.

He further submits that since at the time of

accident the victim was 54 years of age and was in

permanent employment an additional amount equaling to

15% of the annual income of the deceased should be

granted towards future prospect instead of 10%. In view

of his aforesaid submissions, he prays for enhancement

of the compensation amount.

Despite service of notice, none appears on behalf of

the respondent no. 4 owner of the offending vehicle.

Both the appeal and the cross-objection are taken

up together for consideration.

Having heard the learned advocates for respective

parties, it is found that the appellant-Insurance Company

has precisely challenged the judgment and award of the

learned Tribunal on the ground that since the driver was

not having valid and effective driving licence to drive such

vehicle on the relevant date, hence, the learned tribunal

ought not to have applied the principle of pay of recovery.

With regard to the aforesaid issue, it is found from

the impugned judgment that the learned tribunal has

observed that the motor-cycle was driven by a person not

having effective and valid driving licence which was

within the knowledge of the owner of the vehicle and

accordingly proceeded to direct the Insurance Company

to pay the compensation amount and recover the same

from the owner of the vehicle in accordance with law. Now

it is to be seen whether the learned tribunal was justified

in passing such direction. At this stage it would be

proficient to refer the decision of Hon'ble Supreme Court

passed in National Insurance Co. Ltd versus Swaran

Singh and Others reported in (2004) 3 SCC 297

wherein it held that 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), the tribunal can direct that the insurer is

liable to be re-imbursed 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. Thus, it goes without saying that the direction

for pay and recovery passed by the learned tribunal does

not call for interference in view of proposition laid down

by Hon'ble Supreme Court as above. Accordingly, the

direction given by the learned tribunal directing the

Insurance Company to make payment and thereafter

recover the compensation amount from the owner in

accordance with law is affirmed. Thus, the ground of

appeal taken by the Insurance Company does not hold

good.

In the cross objection the claimants have taken the

ground that the learned Tribunal granted future prospect

of 10% on annual income of deceased instead of 15%. It is

found from the impugned judgment that the deceased

was a permanent employee of Railway Department

(Eastern Railway), Government of India, Kanchrapara and

he was aged 54 years 11 months and 25 days. In view of

the decision of the Hon'ble, Supreme Court in National

Insurance Company Limited versus Pranay Sethi and

Others reported in 2017 ACJ 2700 the amount towards

future prospect should be 15% of the annual income of

the deceased instead of 10%.

The other factors and findings of the learned

Tribunal has not been challenged in the appeal. The

calculation of compensation is made hereunder.

Calculation of compensation

Annual Income (Rs.4,10,808/- less Rs.21,081/-)Rs.3,89,727/- Add: Future Prospects @ 15% of total Income..Rs.58,459/- Annual loss of Income.................................Rs.4,48,186/- Less: Deduction 1/3rd of the Annual Income towards personal and living expenses........... Rs.1,49,395/-

Rs.2,98,791/-

Adopting multiplier 11 ( Rs.2,98,791/- X 11).Rs.32,86,701/- Add: General Damages............................Rs.70,000/- Loss of estate....Rs.15,000/-

Loss of Consortium....Rs.40,000/-

Funeral Expenses.......Rs.15,000/-

Add: 10% Increase on general damages.....Rs.7,000/- Total Compensation.................................Rs.33,63,701/-

Thus, the claimants are entitled to compensation of

Rs. 33,63,701/- along with interest @ 6% per annum

from the date of filing of the claim application till deposit.

It found that the Insurance Company has deposited

statutory amount of Rs. 25,000/- vide OD Challan no.

3009 of 11.03.2019 and also deposited an amount of Rs.

41,79,143/- vide OD Challan no. 876 of 19.07.2019 in

terms of order dated 2.7.2019. Both the aforesaid

deposits along with accrued interest on deposited amount

shall be adjusted against the entire compensation

amount.

The learned tribunal calculated the compensation

amount of Rs.31,85,214/-.Accordingly, the Insurance

Company is directed to deposit the balance amount of Rs.

1,78,490/- together with interest @ 6% per annum from

the date of filing of the claim application till deposit by

way of cheque before the learned Registrar General, High

Court, Appellate Side, Calcutta within a period of six

weeks from date.

Respondents-claimants shall deposit ad valorem

Court fees on the compensation amount, if not already

paid.

Learned Registrar General upon deposit of the

balance amount as indicated above and the interest, shall

release the compensation amount in favour of the

claimants in the same proportion as indicated by the

learned tribunal, after making payment of Rs. 40,000/-

towards spousal consortium in favour of respondent no.

1, and payment of ad valorem Court fees, if not already

paid and upon the satisfaction of their identity.

With the aforesaid observation the appeal and the

cross-objection stands disposed of. The impugned

judgment and award of the learned tribunal is modified to

extent above. No order as to cost.

All connected applications, if any, stand disposed

of. Interim order, if any, stands vacated.

Urgent photostat certified copy of the order, if

applied for, be given to the parties, upon usual

undertakings.

(Bivas Pattanayak, J.)