The Oriental Insurance Co. Ltd vs Ananda Biswas & Anr
2023 Latest Caselaw 973 Cal

    46
06.02.2023
Ct. No.237
   sb.
                       IN THE HIGH COURT AT CALCUTTA
                          CIVIL APPELLATE JURICTION
                                APPELLATE SIDE

                                FMA 283 of 2010

                          The Oriental Insurance Co. Ltd.
                                        Vs.
                              Ananda Biswas & Anr.

                    Mr. Sanjay Paul
                          ... For the appellant/Insurance Co.

                    Mr. Saidur Rahaman
                          ... For the respondent/claimant

This appeal is directed against the judgment and

award dated 23rd May, 2008 passed by the learned Judge,

Motor Accident Claims Tribunal, Fast Track Court,

Malbazar, in connection with MAC Case No.252 of 2005

under Section 166 of the Motor Vehicles Act, whereby the

learned Tribunal awarded compensation to the tune of

Rs.80,000/-.

The claim petition was filed by one Ananda Biswas

climing Rs.1,00,000/- in respect of his permanent partial

disability on account of the accident by the involvement of

the truck bearing No.WGV-4749. On 24th April, 2005 at

about 19.00 hrs. the claimant met with an accident while

claimant was travelling with the aforesaid truck through

NH 31, near Mahakal Dham. The said truck capsized due

to rash and negligent driving. He sustained multiple

injuries on his hands, legs, head etc. and suffered

permanent partial disability.

After the accident, Metellia P. S. Case No.27 of

2005 dated 25th April, 2005 under Sections 279, 338 &

304A of the Indian Penal Code was started and ended with

charge-sheet. The said truck was duly insured with the

Oriental Insurance Company Limited.

The Insurance Company contested this case by

filing written statement, denying all averments in the claim

petition, contending inter alia that the claimant is not

entitled to any compensation, as he was gratuitous

passenger

To prove the case, the claimant examined himself

as PW-1, and Madan Roy, PW-2. PW-1, has corroborated

the entire contents of the claim petition. In course of his

evidence, a good number of documents, viz. copy of FIR,

charge-sheet, seizure list and policy were admitted in

evidence.

PW-2, claimed himself to be an eye-witness to the

accident. He specifically stated that he saw the accident.

PW-2, testified that on 24th April, 2005 at about 7 p.m. he

along with the claimant and other passengers were

travelling by the offending truck and the said truck met

with an accident at Mahakal Dham, Lataguri forest. The

said truck capsized due to rash and negligent driving.

After analysing the evidence and documents on

record, the learned Tribunal assessed compensation to the

tune of Rs.80,000/- in favour of the claimant.

Mr. Rahaman, the learned advocate appearing on

behalf of the claimant/respondent no.1 disputes the

compensation amount. On the other hand, Mr. Paul, the

learned advocate appearing on behalf of the

appellant/Insurance Company submits that the claimant

is not entitled to any compensation as he was gratuitous

passenger of the offending truck, bearing No.WGV-4749.

Alternatively he submits, that in case of direction upon the

Insurance Company to make payment, opportunity should

be given for recovery, in view of settled principle of law.

In the aforesaid view of the matter, I do not find

any reason to interfere with judgment passed by the

learned Tribunal. It is not disputed that the petitioner was

a gratuitous passenger of the truck bearing No.WGV 4749,

and the Insurance Company is not liable to pay any

compensation.

In view of the principle laid down in Oriental

Insurance Co. Ltd. v. Nanjappan & Ors. reported in 2004

ACJ 721, as also in a case of Shamanna & Ors. v. The

Divisional Manager, The Oriental Insurance Co. Ltd. &

Ors. reported in AIR 2018 SC 3726. I find no other

alternative but to direct the appellant Insurance Company

to pay the entire compensation to the

claimant/respondent no.1 and to recover it through

execution proceedings, in view of the principle laid down in

Nanjappan (supra) and Shamanna (supra).

It is reported that the entire awarded sum has

already been deposited by the Insurance Company before

the office of the learned Registrar General.

The respondent no.1/claimant is at liberty to

withdraw the entire amount with accrued interest from the

office of the learned Registrar General of this Court.

The learned Registrar General is requested to

disburse the entire amount along with all accrued interest

to the respondent no.1/claimant on proper identification.

With the above observation, the appeal, being FMA

283 of 2010, 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.)