Calcutta High Court (Appellete Side)
M/S. Bajaj Allianz General ... vs Sujita Mondal & Ors on 3 February, 2023
24
03.02.2023
Ct. No.237
pg.
IN THE HIGH COURT AT CALCUTTA
CIVIL APPELLATE JURICTION
APPELLATE SIDE
FMA 2330 of 2013
M/s. Bajaj Allianz General Insurance Company Limited
Vs.
Sujita Mondal & Ors.
Mr. Amitava Mitra
Ms. Antara Choudhury
... For the appellant/Insurance Co.
Mr. Jayanta Kumar Mandal
Ms. Sima Ghosh
... For the respondents/claimants
This appeal is directed against the judgment and
award dated 3rd March, 2011 passed by the learned Judge,
Motor Accident Claims Tribunal, Additional District Judge,
4th Court, Suri, Birbhum, in connection with MAC Case
No.105 of 2008 under Section 163A of the Motor vehicles
Act, 1988 whereby the learned Tribunal awarded
compensation to the tune of Rs.4,41,500/- along with
simple interest @ 7.5% per annum from 06.01.2009 till the
deposit of the awarded amount.
The claim petition was filed on account of death of
one Subhas Mondal in a motor accident occurred on 31st
October, 2007 at about 11.00 p.m. by the involvement of
one Motor Cycle, bearing registration no.WB-54-D/9296.
At the time of the accidental death, Subhas Mondal was 29
years of age having income of Rs.3,000/- per month from
his business. That is why claim petition was filed by the
claimants with a prayer for compensation to the tune of
Rs.4,50,000/-.
The Insurance Company contested the case by
filing written statement denying all material allegations in
the claim petition contending, inter alia, that the alleged
motor cycle was not involved in the accident and the
claimants are not entitled to any compensation.
To prove the case, the claimants examined as
many as three witnesses, namely, Sujata Mandal, the wife
of the deceased, as PW-1, who corroborated the entire
contents of the claim petition. One Omed Ali Khan, who
was the driver of the ambulance, was examined as PW-2.
He testified that on the alleged date of accident, they were
returning from Rampurhat at about 11.00 p.m., he
witnessed the accident near Tilpara Gosain Mandir while
the motor cycle dashed a pedestrian near the said Tilpara
Gosain Temple. One Abdul Kannan @ Mayna was
examined as PW-3 who claimed himself to be an
eyewitness to the incident. He also testified that he along
with Omed Ali Khan and Ramesh Ghosh were returning
from Rampurhat side with vehicle no.WB-53/3477 and
they saw the accident near Tilpara Gosain Mandir by the
involvement of a motor cycle which dashed a pedestrian
near Tilpara Gosain Temple. In course of their evidence, a
good number of documents were admitted in evidence,
including certified copy of First Information Report, charge
sheet, seizure list, post-mortem report, insurance policy
etc.
On behalf of the Insurance Company, one witness,
namely, Dinabandhu Banerjee, Upper Division Clear of
Motor Vehicles Section-I, was examined as OPW-1. He
produced the driving licence of the motor cycle and
submitted that it was valid upto 28th November, 2025, but
according to register (Exhibit-A), the licence was issued on
23rd November, 2008 and due to clerical mistake, it was
written as 23rd November, 2005. From the Exhibit-A
issued by the Licensing Authority, Birbhum, it is found
that the licence was issued in the name of the driver of the
vehicle on 23rd November, 2008.
In course of argument, Mr. Amitave Mitra, learned
advocate, appearing on behalf of the appellant/Insurance
Company has emphasised on two grounds of this appeal.
One is that the driver of the motor cycle had no valid
licence at the time of alleged accident, so the Insurance
Company is not liable to pay any compensation. It is
further submitted by Mr. Mitra that in course of evidence
on behalf of the claimants' side, a fake driving licence was
filed. He referred to Exhibit-A which was issued by the
Licensing Authority, Birbhum Motor Vehicles Department
wherefrom it is seen that at the relevant point of time the
driver had no valid licence which was issued only on 23rd
November, 2008.
Mr. Mitra has further drawn my attention to the
cross-examination of PW-2 and PW-3 (eyewitnesses) and
submitted that there are material contradiction between
the two witnesses regarding happening of the accident.
Mr. Jayanta Kumar Mandal, learned advocate,
appearing on behalf of the respondents/claimants has
submitted that he has nothing to submit regarding driving
licence as the Insurance Company has the liberty to
recover the amount of compensation from the owner in
case of any violation of policy. Mr. Mandal has further
submitted that this is a case under Section 163A of the
Motor Vehicles Act, 1988, so proof of negligent driving
through eyewitnesses is absolutely immaterial.
I have carefully gone through the evidence of OPW-
1 together with Exhibit-A and I find that the driver of the
motor cycle obtained driving licence only on 23rd
November, 2008 from the Licensing Authority, Birbhum
Motor Vehicles office. Therefore, in absence of any contrary
evidence, I find no other option but to hold that the driving
licence submitted on behalf of the claimants in respect of
the driver of the offending vehicle may be fake one. From
that point of view, the Insurance Company will pay the
awarded amount and is at liberty to recover the same from
the owner of the motor cycle.
So far as the contradiction among the eyewitnesses
is concerned, I find that the accident usually takes place
in a quick succession and in that case evidence of persons
around the accident place cannot be expected to be parrot
like. Moreover, this is a case under Section 163A of the
Motor Vehicles Act, 1988 and accidental death of Subhas
Mondal by the involvement of one Motor Cycle, bearing
registration no.WB-54-D/9296, has well established by the
evidence of witnesses examined on behalf of the claimants
as well as documents, viz., FIR, seizure list, charge sheet
and post-mortem report.
In the aforesaid view of the matter, I do not find
any merit in this appeal and for that reason I am inclined
to interfere with the judgment passed by the learned
Tribunal.
It is submitted by the learned advocates appearing
on behalf of the parties to this appeal that only principal
amount of Rs.4,41,500/- was deposited, though there is
an order of paying simple interest @ 7.5% per annum.
In these circumstances, the appellant/Bajaj Allianz
General Insurance Company Limited is directed to deposit
interest @ 7.5% per annum from 6th January, 2009 till
26th January, 2013 before the office of the learned
Registrar General of this Court, within six weeks from the
date of this order.
The respondents/claimants are at liberty to
withdraw the awarded compensation with all accrued
interest and the interest from 6th January, 2009 till 26th
January, 2013.
The appellant/Bajaj Allianz General Insurance
Company Limited is at liberty to recover the entire
awarded sum from the owner of the vehicle, bearing
registration no.WB-54-D/9296, 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 awarded amount with all accrued interest
and the interest from 6th January, 2009 till 26th January,
2013 to the respondents/claimants in equal share on
proper identification and proof.
With the above observations, the appeal, being
FMA 2330 of 2013, 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.)
