Calcutta High Court (Appellete Side)
Smt. Pushpa Das & Anr vs National Insurance Company Ltd. & ... on 6 February, 2023
32
06.02.2023
Ct. No.237
pg.
IN THE HIGH COURT AT CALCUTTA
CIVIL APPELLATE JURICTION
APPELLATE SIDE
FMA 2123 of 2013
with
IA No. CAN 1 of 2016 (CAN 2632 of 2016)
Smt. Pushpa Das & Anr.
Vs.
National Insurance Company Ltd. & Anr.
Mr. Krishanu Banik
... For the appellants/claimants
Mr. Rajesh Singh
... For the respondent no.1/Insurance Co.
This appeal is directed against the judgment and
award dated 28th February, 2013 passed by the learned
Judge, Motor Accident Claims Tribunal, Additional District
Judge, Special Court, Burdwan, in connection with MAC
Case No.45 of 2010/313 of 2009 whereby the learned
Tribunal dismissed the claim petition on the ground that
the Truck, bearing registration no.WB-41/8924, did not
contribute any rash and negligent act for causing the
alleged accident.
The claim petition was filed on account of death of
one Bachan Das in an accident occurred on 17th June,
2009 at about 1.00 p.m. by the involvement of one Truck,
bearing registration no.WB-41/8924, while the said
Bachan Das, being a Khalasi of the truck, was making
preparation to change the wheel of the truck which was
burst near Nala More at the time of going through NH-2
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towards Burdwan. At the relevant point of time, one
Trailer, bearing registration no.PB-10-BY/6235, coming
from Durgapur side with high speed, dashed against the
said truck from back side. As a result, the victim
sustained fatal injury and died.
The National Insurance Company Limited, insurer
of the truck, contested the case by filing written statement
denying all material allegations of the claim petition
contending, inter alia, that offending trailer was not made
party in this case and that is why the petitioners are not
entitled to any compensation from the Insurance Company
of the truck.
To prove the case, claimant no.1, Pushpa Das,
being mother of the deceased, examined herself as PW-1
who corroborated the entire facts of the claim petition. In
course of her 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 and voter identity card etc.
Learned Tribunal did not consider the claim
petition under Section 163A of the Motor Vehicles Act,
1988 as no fault on the part of the driver of the truck
could be determined and accordingly the learned Tribunal
hold that the liability cannot be fixed upon the owner and
insurer of the vehicle as the trailer, bearing registration
no.PB-10-BY/6235, was solely responsible for the
accident.
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I am sorry to subscribe to the view of the learned
Tribunal with regard to the determination of liability for
the accident at the time of dealing with the petition under
Section 163A of the Motor Vehicles Act, 1988.
It is a case under Section 163A of the Motor
Vehicles Act, 1988 where the learned Tribunal has to
assess the 'no fault liability' in terms of rash and negligent
driving. In this case, the truck, bearing registration
no.WB-41/8924, was stationary at the time of accident
and the deceased, being a Khalasi, along with the driver of
the truck was making preparation for change of wheel
which was burst at the time of moving towards Burdwan
through NH-2.
Mr. Krishanu Banik, learned advocate, appearing
on behalf of the appellants/claimants has relied on the
cases of Shivaji Dayanu Patil & Anr. v. Smt. Vatschala
Uttam More reported in AIR 1991 SC 1769 and Smt.
Rita Devi & Ors. v. New India Assurance Co. Ltd.
reported in AIR 2000 SC 1930.
In Shivaji Dayanu Patil (supra), the Hon'ble Apex
Court has elaborately discussed the word 'use' in the
context of motor vehicle and it was observed that "the
word 'use' has a wider connotation to cover the period
when the vehicle is not moving and is stationary and the
use of a vehicle does not cease on account of the vehicle
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having been rendered immobile on account of break-down
or mechanical defect or accident."
In opposition to that, Mr. Rajesh Singh, learned
advocate, appearing on behalf of the respondent no.1/
Insurance Company has submitted that this is not a case
of accident where only one vehicle was involved and in that
case stationary vehicle cannot be held liable under Section
163A of the Motor Vehicles Act, 1988. Mr. Singh has
further tried to make this Court understand that
stationary vehicle was not at all liable in any way and the
specific case of the claimants is that the accident took
place due to rash and negligent driving of the trailer,
bearing registration no.PB-10-BY/6235. From that point of
view, according to Mr. Singh, the stationary vehicle in this
case, i.e., truck, cannot be held liable for giving
compensation.
On careful perusal of the entire evidence and
documents thereon, I find that the accident took place by
the involvement of two vehicles, one was stationary and
the other was moving and it is also a trite law that the
appellants/claimants can opt for compensation from any
of the vehicles involved in the accident. The word 'use'
interpreted by the Hon'ble Apex Court in Shivaji Dayanu
Patil (supra) and Smt. Rita Devi (supra) can be applied in
our case as well.
In the aforesaid view of the matter, I find that the
appellants/claimants are entitled to compensation from
5
the insurer of the truck, bearing registration no.WB-
41/8924, in terms of age and notional income of
Rs.3,000/-, I determine the compensation as follows:-
Monthly Income Rs. 3,000/-
Annual Income (Rs.3,000/- x 12) Rs. 36,000/-
Less: 1/3rd Deduction (personal expenses) Rs. 12,000/-
-------------------
Rs. 24,000/-
Multiplier by 17 (as per Second Schedule) x 17
Rs.4,08,000/-
Add: General Damages (Rs.2,500/- for loss Rs. 4,500/-
of estate + Rs.2,000/- for funeral expenses) -------------------
Total Compensation Rs.4,12,500/-
-------------------
For the reasons, it is seen that the
appellants/claimants are entitled to the total
compensation to the tune of Rs.4,12,500/- along with
interest @ 6% per annum from the date of filing of the
claim petition, i.e., on 14th September, 2009, till the
deposit of the amount.
Accordingly, the respondent no.1/National
Insurance Company Limited is directed to deposit the
compensation amount of Rs.4,12,500/- along with interest
@ 6% per annum from the date of filing of the claim
petition i.e., on 14th September, 2009, 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 appellant/claimant no.1 is entitled to
withdraw the compensation amount with interest, subject
to payment of additional ad valorem court fees on the
amount of Rs.62,500/- (Rs.4,12,500/- - Rs.3,50,000/-)
before the learned Tribunal.
The learned Registrar General is requested to
disburse the amount with interest to the appellant/
claimant no.1, Smt. Pushpa Das, on proper identification
and proof.
With the above observations, the appeal, being
FMA 2123 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.)
