Haydar Ali Sekh & Anr vs Allar Mallick @ Sk. Hossain & Anr
2023 Latest Caselaw 911 Cal

    28
03.02.2023
Ct. No.237
    pg.
                        IN THE HIGH COURT AT CALCUTTA
                           CIVIL APPELLATE JURICTION
                                 APPELLATE SIDE

                               FMA 1703 of 2014

                              Haydar Ali Sekh & Anr.
                                        Vs.
                        Allar Mallick @ Sk. Hossain & Anr.



                    Mr. Uday Sankar Chattopadhyay
                    Ms. Rajashree Tah
                    Ms. Trisha Rakshit
                          ... For the appellants/claimants

                    Mr. Rajdeep Bhattacharya
                         ... For the respondent no.2/Insurance Co.

This appeal is directed against the judgment and

order dated 31st May, 2012 passed by the learned Judge,

Motor Accident Claims Tribunal, Special Judge-cum-

Additional District Judge, Burdwan, in connection with

MAC Case No.09 of 2010/32 of 2010 whereby the learned

Tribunal awarded compensation to the tune of

Rs.3,16,500/- with a direction upon the owner of the

offending vehicle to pay the compensation.

The claim petition under Section 163A of the Motor

vehicles Act, 1988 was filed on account of death of one Sk.

Kader Ali in a motor accident happened on 24th July, 2009

at about 1.30 p.m. by the involvement of one Truck,

bearing registration no.WB-39/1506. At the time of

accident, the said truck was going to Asansol from Kolkata

and when reached at Jogibaba Sthan at Andal Police

Station by NH-2, all on a sudden the front wheel of the

truck was burst out and the said truck capsized by the

side of the road. The driver sustained serious injury but

Sk. Kader Ali, being the khalasi of the said truck, died on

the spot. The deceased was a man of 25 years of age

having income of Rs.3,000/- per month. After the

accident, Andal Police Station Case No.145 of 2009 dated

26th July, 2009 under Sections 279/304A/427 of the

Indian Penal Code was started and ended with charge

sheet.

The Insurance Company contested the case by

filing written statement denying all material allegations in

the claim petition contending, inter alia, that the

Insurance Company is not liable to pay any compensation.

To prove the case, the claimants examined

Maharani Begam @ Maharani Begam Sekh, mother of the

deceased, as PW-1, who corroborated the entire averments

of the claim petition and she claimed Rs.3,25,000/- as

compensation. In course of her evidence, a good number of

documents were admitted in evidence, viz., certified copy

of First Information Report, charge sheet, seizure list,

post-mortem report, insurance policy, voter identity card

and one driving licence of Amir Ali Mondal, etc.

On behalf of the Insurance Company, one witness,

namely, Rabindra Kumar Mondal, Lower Division Clear

attached to the Additional Regional Transport authority,

Durgapur, was examined in this case as OPW-1. He stated

that the driving licence no.WB-40/016295 was issued by

the authority in favour of one Susanta Kumar Roy and the

validity of the same till 11th June, 2009 which was

admitted in evidence and marked as Exhibit-A. In his

cross-examination, he specifically stated as follows:-

"This Driving licence bearing no. WB-

40/016295 allegedly issued by the Licensing Authority, Durgapur, Dist. Burdwan, has not been registered in the Register Book R-68. This is a fake Driving Licence."

Mr. Uday Sankar Chattopadhyay, learned

advocate, appearing on behalf of the appellants/claimants

has submitted that the Insurance Company may be

directed to pay compensation and to recover it from the

owner of the vehicle.

Mr. Rajdeep Bhattacharya, learned advocate,

appearing on behalf of the respondent no.2/New India

Assurance Company Limited has referred to the evidence

of OPW-1 along with Exhibit-A and has submitted that the

driving licence filed in the name of Amir Ali Mondal was

fake, so the Insurance Company is not liable to pay any

compensation. Accordingly, he supported the judgment

passed by the learned Tribunal.

After carefully scrutiny of the evidence of OPW-1

together with Exhibit-A, I find that the driving licence no.

WB-40/016295 was issued not in the name of Amir Ali

Mondal but in the name of Susanta Kumar Roy. Therefore,

it can be presumed that at the relevant point of time Amir

Ali Mondal was driving the vehicle with a fake licence. It is

needless to mention that charge sheet has been filed in

this case after the accident, against Amir Ali Mondal. So, it

is a case of sheer violation of the insurance policy for

which the Insurance Company is not at all liable to pay

any compensation. In this regard, I am fully agreeable with

the learned tribunal but considering the principle laid

down by 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, it is now the duty of

the Insurance Company to pay the compensation and to

recover from the owner of the truck, bearing registration

no.WB-39/1506.

In these circumstances, the respondent no.2/New

India Assurance Company Limited is directed to deposit

the awarded compensation amount of Rs.3,16,500/- along

with interest as ordered by the learned Tribunal from the

date of filing of the claim petition i.e., on 29th January,

2010, 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.2/New India Assurance

Company Limited is at liberty to recover the entire

awarded sum with interest from the owner of the vehicle,

bearing registration no.WB-39/1506, 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 entire awarded amount with interest to

Maharani Begam @ Maharani Begam Sekh, being the

appellant/claimant no.2, on proper identification and

proof.

With the above observations, the appeal, being

FMA 1703 of 2014, 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.)