Calcutta High Court (Appellete Side)
Smt. Tanuja Paul & Anr vs Oriental Insurance Company Ltd. & ... on 3 February, 2023
16
03.02.2023
Ct. No.237
pg.
IN THE HIGH COURT AT CALCUTTA
CIVIL APPELLATE JURICTION
APPELLATE SIDE
FMA 746 of 2012
Smt. Tanuja Paul & Anr.
Vs.
Oriental Insurance Company Ltd. & Anr.
Mr. Krishanu Banik
... For the appellants/claimants
Mr. Saswata Bhattacharyya
... For the respondent no.1/Insurance Co.
This appeal is directed against the judgment and
award dated 30th June, 2011 passed by the learned Judge,
Motor Accident Claims Tribunal, 1st Court, Howrah, in
connection with MAC Case No.297 of 2005 whereby the
learned Tribunal assessed compensation at
Rs.13,77,104/- but awarded compensation to the tune of
Rs.6,93,302/- to the claimants in terms of contributory
negligence.
The claim petition under Section 166 of the Motor
Vehicles Act, 1988 was filed on account of death of one
Sanjay Kumar Paul, a person of 54 years having monthly
income of Rs.3,000/-, in a motor accident occurred on 23rd
February, 2005 at about 15.45 hours on Durgapur
Expressway near Jougram village under Pamalpur Police
Station.
According to the claimants, on the alleged date of
accident and time, Sanjay Kumar Paul, since deceased,
was traveling by a Toyota Qualis car along the left side of
the Durgapur Expressway towards Burdwan, near
Jougram village, one Lorry, bearing registration no.WMK-
6885, proceeding with high speed and in rashly manner
coming from the opposite direction, suddenly dashed the
said Toyota Qualis car with a great force and as a result,
Sanjay Kumar Paul sustained severe fatal injuries on his
persons causing his death. The accident took place due to
negligent driving on the part of the driver of the lorry. That
is why the claim petition was filed with a prayer for
compensation to the tune of rs.15,00,000/-.
Respondent no.1/Oriental Insurance Company
Limited contested the case by filing written statement
denying all material averments in the claim petition
contending, inter alia, that there was no fault on the part
of the driver of the lorry.
To prove the case, claimants examined as many as
two witnesses, namely, Tanuja Paul, widow of the
deceased, as PW-1, who corroborated the entire contents
of the claim petition in her examination-in-chief. One
Debasis Ghosh, claimed himself to be the eyewitness to
the incident, was examined as PW-2. He testified that on
the alleged date of accident and time Sanjay Kumar Paul
was travelling by a Toyota Qualis car, bearing registration
no.WB-12-A/4040, along the left side of the Durgapur
Expressway towards Burdwan from Kolkata side. At that
time near Jougram village, one lorry, bearing registration
no.WMK-6885, proceeding towards Kolkata with high
speed and in rash and negligent manner, dashed the said
Toyota Qualis car with a great force. As a result, the
accident took place and Sanjay Kumar Paul sustained
fatal injuries and died.
In course of their evidence, certified copy of First
Information Report, seizure list, post-mortem report,
insurance policy and income tax return were filed and
admitted in evidence.
On behalf of the Insurance Company, three
witnesses were examined, namely, Asim Mal, an employee
of Motor Vehicles Department, as OPW-1. One Amal
Krishna Duary as OWP-2 who was an Income Tax
Inspector who proved the income tax return for
consecutive years and one Ranjan Kumar Ray Biswas as
OPW-3 who was also Income Tax Inspector to prove the
income tax return. In course of their evidence, driving
licence, income tax returns were filed and marked as
Exhibit-A, B series and C series.
Learned Tribunal after analyzing the evidence on
record awarded compensation to the tune of Rs.6,93,302/-
out of assessed amount of Rs.13,77,104/- due to
contributory negligence on the part of the driver of the
Tata Qualis car.
In this appeal, issue before this Court is whether
the learned Tribunal rightly deducted half of the
compensation amount assessed due to contributory
negligence on the part of the driver of the Toyota Qualis.
Mr. Krishanu Banik, learned advocate, appearing
on behalf of the appellants/claimants has raised the issue
of contributory negligence. He submitted that the facts and
circumstances of this case do not suggest any contributory
negligence on the part of Toyota Qualis car. In support of
his contention, he relied on the evidence of eyewitness
along with police papers and also relied on the principles
laid down in Usha Rajkhowa & Ors. v. Paramount
Industries & Ors. reported in 2009 ACJ 1314, United
India Insurance Company Limited v. Smt. Anumita
Paul reported in 2015 ACJ 117 as well as Rajendra
Singh & Ors. v. National Insurance Company Limited &
Ors. reported in 2020 ACJ 2211.
Before parting with, Mr. Banik has submitted that
he has nothing to argue on the point of assessment of the
compensation by the learned Tribunal but the appellants/
claimants are entitled to future prospect of 10% and
general damages of Rs.70,000/- and interest on the
amount already received as well as enhanced amount, if
any.
Mr. Saswata Bhattacharyya, learned advocate,
appearing on behalf of the respondent no.1/Insurance
Company has supported the judgment passed by the
learned Tribunal and tried to make this Court understand
that in terms of the evidence on record, it is clear that
there was contributory negligence on the part of the Toyota
Qualis car who should have taken more care at the time of
driving the car through an Expressway. Mr. Bhattacharyya
further submits that at the time of accident, the driver of
the lorry had no valid licence and in support of his
contention, he referred to the evidence of OPW-1 who was
an employee of Motor Vehicles Department and he proved
the licence of the driver of the lorry as Exhibit-A.
After careful scrutiny of the entire evidence and
documents on record, I find no reason to disbelieve the
happenings of an accident between two vehicles on the
alleged date of accident and time and in the accident
Sanjay Kumar Paul died as well as the driver of the Toyota
Qualis died on the spot. On this aspect, no argument has
been advanced by either of the parties to this appeal.
Now, the question is that whether there was
negligence on the part of the Toyota Qualis. Only evidence
of witness (PW-2) reflects that prior to the accident, Toyota
Qualis car was driving slowly through left side of the
Durgapur Expressway and at that time one lorry, bearing
registration no.WMK-6885, was coming with high speed
from the opposite direction, dashed against the said
Toyota Qualis car and as a result, Sanjay Kumar Paul died
on spot. In cross-examination of PW-2 also corroborated
the factum of accident. In reply to a question put to him by
the learned Tribunal, he replied that it was a head on
collision.
From the record, I find that after the accident,
Pamalpur Police Station Case No.13 of 2005 dated 23rd
February, 2005 under Sections 279/338/304A/427 of the
Indian Penal Code was started and ended with charge
sheet against the driver of the lorry.
It is not disputed that it was an accident between
two vehicles, one is Toyota Qualis car and the other is
lorry. In these circumstances, it would be relevant to
recapitulate the principles laid down by the Hon'ble Apex
Court in Usha Rajkhowa (supra) wherein the Hon'ble Apex
Court dealt with an accident between a truck and a Maruti
car and in that case only eyewitness (PW-3) stated that he
could not say clearly as to which of the vehicle was at
fault, though he denied the suggestion thrown at him
during cross-examination that the accident took place
because of fault of Maruti car. Hon'ble Apex Court
considering that particular evidence of PW-3 expressed the
following views:-
"Under such circumstances, applying the
doctrine of res ipsa loquitur, it is clear that it was
because of the negligence on the part of the truck
that the accident took place. After all, the hit given
by the truck was so powerful that two persons in
the car died on the spot, while the third escaped
with serious injuries. When we see the award of
the Tribunal, as also the appellate judgment, they
are astonishingly silent on these aspects. We are,
therefore, convinced that there was no question of
any contributory negligence on the part of the
driver of Maruti car and it was solely because of
the negligence on the part of the truck that the
accident took place."
That view was also taken into account by the
Hon'ble Division Bench of this Court in Anumita Paul
(supra).
In Rajendra Singh (supra), the Hon'ble Apex Court
dealt with a case of accident between two vehicles, i.e.,
horse cart and bus. In that case, the Hon'ble Apex Court
took a back about application of contributory negligence
while the deceased was a passenger of the horse cart
which met an accident with the bus and accordingly the
Hon'ble Apex Court refused to deduct 50% of the
compensation towards contributory negligence.
In our case, the accident took place by the
involvement of two vehicles, one is lorry and the other is
Toyota Qualis car. It is also seen from the record that in
the accident both the drivers and the occupant of the car,
Sanjay Kumar Paul, since deceased, died. From the
evidence of PW-2, it is found that he saw the Toyota Qualis
plying through left side of the Durgapur Expressway
towards Burdwan from the Kolkata side and that that time
the offending lorry coming with high speed dashed against
the Toyota Qualis car. As a result, the accident took place
and Sanjay Kumar Paul died. Keeping an eye to the
principle laid down by the Hon'ble Apex Court in Usha
Rajkhowa (supra), I am of the view that the accident took
place because of the negligence on the part of the lorry as
hit given by the lorry was so powerful that two persons
(Sanjay Kumar Paul and the driver of Toyota Qualis) died.
So the question of contributory negligence on the part of
the driver of the Toyota Qualis does not arise as it was
solely because of the negligence on the part of the lorry.
Besides, in Rajendra Singh (supra), the Hon'ble Apex
Court did not allow the contributory negligence on the part
of the deceased who was a passenger like our case.
In the aforesaid view of the facts and
circumstances, I am of the opinion that deduction towards
contributory negligence on the part of the Toyota Qualis
was not correct. The appellants/claimants are entitled to
entire compensation.
That apart, the appellants/claimants are also
entitled to future prospect of 10% and the general
damages of Rs.70,000/- pursuant to the principle laid
down by the Hon'ble Apex Court in National Insurance
Co. Ltd. v. Pranay Sethi & Ors. reported in (2017) 16
SCC 680 = 2017 ACJ 2700 and to add to that, the
appellants/claimants are also entitled to interest under
Section 171 of the Motor Vehicles act, 1988, on the
compensation amount. Accordingly, I modify the award as
follows:-
Annual Income Rs. 2,58,207/-
Add: Future prospect (@ 10%) Rs. 25,820/-
-------------------
Rs. 2,84,027/-
Less: 1/3rd Deduction (personal expenses) Rs. 94,675/-
-------------------
Rs. 1,89,352/-
Multiplier by 9 (as per age of the victim) x 9
Rs.17,04,168/-
Add: General Damages Rs. 70,000/-
Total Compensation Rs.17,74,168/-
Less - Awarded by ld. Tribunal already recd. Rs. 6,93,302/-
ENHANCEMENT Rs.10,80,866/-
-------------------
For the reasons, it is seen that the
appellants/claimants are entitled to the total
compensation to the tune of Rs.17,74,168/-. It is
submitted by the learned advocate for the appellants/
claimants that have already received the awarded amount
of Rs.6,93,302/- from the learned Tribunal but no interest
was received on that amount.
Therefore, the appellants/claimants are entitled to
the balance compensation amount of Rs.10,80,866/- along
with interest @ 6% per annum from the date of filing of the
claim petition, i.e., on 2nd May, 2005, till the deposit of the
amount. The appellants/claimants are also entitled to
interest @ 6% per annum on the amount of Rs.6,93,302/-
from the date of filing of the claim petition, i.e., on 2nd
May, 2005 till 26th August, 2011.
Accordingly, the respondent no.1/Oriental
Insurance Company Limited is directed to deposit the
enhanced compensation amount of Rs.10,80,866/- along
with interest @ 6% per annum from the date of filing of the
claim petition i.e., on 2nd May, 2005, 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.
The respondent no.1/Insurance Company is also
directed to deposit interest @ 6% per annum on the
amount of Rs.6,93,302/-, which was deposited by the
Insurance Company and already withdrawn by the
claimants from the date of filing of the claim petition, i.e.,
on 2nd May, 2005 till 26th August, 2011, before the office of
the learned Registrar General of this Court, within six
weeks from date.
The appellants/claimants are entitled to withdraw
the balance award amount with interest, subject to
payment of additional ad valorem court fees on the
amount of Rs.2,74,168/- (Rs.17,74,168/- -
Rs.15,00,000/-) before the learned Tribunal.
In view of the submission and evidence adduced by
OPW-1 together with Exhibit-A, it is found that at the
relevant point of time of accident, the driver of the lorry
had no valid licence. Therefore, the respondent
no.1/Oriental Insurance Company Limited is at liberty to
recover the entire awarded sum with interest from the
owner of the vehicle, bearing registration no.WMK-6885,
through execution proceeding in terms of the observations
of the Hon'ble Apex Court in Shamanna & Ors. v. The
Divisional Manager, The Oriental Insurance Co. Ltd. &
Ors. reported in AIR 2018 SC 3726 and Oriental
Insurance Co. Ltd. v. Nanjappan & Ors. reported in AIR
2004 SC 1630 : (2004) 13 SCC 244.
The learned Registrar General is requested to
disburse the amount with interest to the appellants/
claimants in equal share on proper identification and
proof.
With the above observations, the appeal, being
FMA 746 of 2012, is disposed of.
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.)
