The Oriental Insurance Company ... vs Kalpana Ojha & Anr
2023 Latest Caselaw 35 Cal

03.01.2023
sayandeep
Sl. No. 03
Ct. No. 654
                               FMA 3982 of 2014
                                     With
              IA NO: CAN 1 of 2014, (Old No. CAN 10634 of 2014),
                  CAN 2 of 2017(Old No: CAN 11140 of 2017)

                           The Oriental Insurance Company Ltd.

                                          -Versus-

                                    Kalpana Ojha & Anr.

                      Mr. Parimal Kr. Pahari
                                    .....for the appellant-Insurance Co.

                      Mr. Jayanta Kumar Mandal
                                    .....for the respondents-claimants

Mr. Afroz Alam .....for the respondent no. 4

This appeal is directed against the Judgment and

award dated 15th July, 2014 passed by learned Judge,

Motor Accident Claim Tribunal, Fast Track, 1st Court,

Contai in MAC case No. 18/2009(119/2007) granting

compensation in favour of the claimants to the tune of

Rs. 3,64,500 along with interest under Section 166 of

the Motor Vehicles Act, 1988.

The brief fact of the case is that on 12th July,

2005 the victim was travelling in a pick-up van bearing

registration No. WB31-2509 from Naihati and when the

vehicle reached near Keshurkunda on Kanthi Mecheda

Pitch road at 9:30 AM another vehicle bearing

registration No. WBG-4916 (Omni bus) coming from

opposite direction collided head on with the pick-up van

in which the victim was travelling. As a result of such

forceful impact, the victim sustained serious injuries

and was taken to Darua Hospital (Contai Sub-Divisional

hospital) by the local people. However, the victim

succumbed to his injuries and died. On account of

sudden demise of victim the claimants being the widow

and son of the deceased filed application under Section

166 of the Motor Vehicle Act claiming compensation of

Rs. 4,50,000/- along with interest.

In order to establish its case, the claimants

adduced the evidence of three witnesses including

widow of the deceased and proved number of

documents which has been marked as Exhibits 1 to 4

respectively.

The appellant-Oriental Insurance Company

Limited also adduced the evidence of one Angshuman

Sinha, Clerk, Motor Vehicles Department and also

proved documents which has been marked as Exhibit A

and B respectively.

The respondent No. 4-National Insurance

Company Limited, the insurer of pick up van bearing

registration No. WB31-2509 did not adduce any

evidence.

Upon consideration of materials on record and

the evidence adduced by the claimants and appellant-

Oriental insurance Company Limited, the learned

Tribunal granted compensation in favour of the

claimants to the tune of Rs. 3,54,500/- along with

interest and directed Oriental insurance Company

Limited to satisfy the award.

Being aggrieved by and dissatisfied with the

impugned judgment and award the Oriental Insurance

Company Limited has preferred the present appeal.

Mr Parimal Kumar Pahari, learned advocate for

the appellant-Oriental Insurance Company Limited

submits that the averments in the claim application,

written complaint and the charge-sheet clearly shows

involvement of both the vehicles namely the pick up van

bearing registration No. WB31-2509 and the Omni Bus

bearing registration No. WBG-4916 and both the drivers

were equally negligent in the said accident. He further

submits that bearing in mind the aforesaid materials,

the learned Tribunal ought to have ordered for

apportionment of compensation amount between the

owner and/or insurer of both the vehicles as the driver

of both the vehicles were guilty of composite negligence,

however, it erroneously directed only the Oriental

Insurance Company Limited to satisfy the award.

He further submits that from the evidence of

Angshuman Sinha (OPW1) and the document namely

the details of driving licence of the driver of the bus

bearing no. WBG-4916 (Exhibit-A), the licence of the

said driver was valid till 30.12.2004 and was renewed

only on 18.01.2008. Thus on the relevant date of

accident on 12.07.2005, the driver of the offending

vehicle did not have valid and effective driving licence to

drive the vehicle. In light of his aforesaid submissions,

he prayed for setting aside of the impugned Judgment

and award.

In reply to the aforesaid contentions raised on

behalf of the appellant-Oriental Insurance Company

Limited, Mr Jayanta Kumar Mondal, learned advocate

for the respondent nos. 1 and 2 (claimants) submits

that the appellant-Oriental Insurance Company Limited

has not made out any specific case of composite

negligence of both the vehicles nor any evidence has

been led in support of composite negligence of both the

vehicles. So far as the issue that the driver did not have

valid driving licence on the relevant date is concerned,

he submits that as per settled position of law where

there is evidence of driver not holding proper, effective

and valid driving licence to drive such vehicle the

principle of pay and recovery can be resorted to since

the claimants should not be deprived from receiving the

benefit of the award.

Mr. Afroz Alam, learned advocate for respondent

No. 4-National Insurance Company Limited submits

that the Tribunal has rightly not passed any order

against the National Insurance Company Limited being

the insurer of the pick up van in the absence of specific

pleadings of composite negligence and he submits for

affirming the order of the learned Tribunal.

Inspite of due service of notice of appeal

respondent no.3-owner of the Omni bus and respondent

no.5-owner of the pick-up van did to appear.

Having heard learned advocates for the appellant-

Oriental Insurance Company Limited as well as the

respondents-claimants and respondent No. 4-National

Insurance Company Limited, it is found that the

appellant has thrown challenge to the award of the

learned Tribunal on two fold grounds, firstly, the drivers

of both the vehicles were guilty of composite negligence

which should lead to equal apportionment of the

compensation amount between the insurer or owner of

both the vehicles and secondly, the driver of the

offending vehicle on the relevant date was not holding

valid and effective driving licence to drive such vehicle

and therefore the insurer of the said vehicle cannot be

saddled with the liability to pay compensation.

With regard to the first issue of composite

negligence of both the vehicles, it is found that the

appellant-Oriental Insurance Company Limited filed

written statement and subsequent thereto with leave of

the Court also filed additional written statement. Upon

perusal of both the written statement as well as

additional written statement, it is found that there is no

specific plea of composite negligence of both the vehicles

taken by the appellant. Further it is relevant to note

that no cogent evidence has been led from the side of

appellant-Oriental Insurance Company Limited before

the learned Tribunal to establish the fact of composite

negligence. Mr. Pahari, learned advocate for the

Appellant-insurance Company indicated that FIR and

charge-sheet shows involvement and negligence of

driver of both the vehicles. It is a fact that FIR as well

as the charge-sheet shows involvement of both the

vehicles. Further upon completion of investigation

charge-sheet has been filed against the both the drivers

of respective vehicles. Be that as it may, neither the FIR

nor the chargesheet is substantive piece of evidence.

Thus in the absence of specific pleadings and cogent

evidence with regard to composite negligence from the

side of appellant-Orient Insurance Company Limited,

the aspect of composite negligence of both the vehicles

in the said accident so far as the facts and

circumstances of the case is concerned, has not been

proved by the appellant. Therefore, the question of

apportionment of the compensation amount does not

arise.

With regard to the second issue that the driver of

the offending vehicle on the relevant date of accident

was not holding valid and effective driving licence, it is

found from the evidence of OPW1 Angshuman Sinha,

L.D. Clerk, Motor Vehicle Department, Contai that the

driving licence of the driver of the offending vehicle

namely Ranjan Kumar Giri having licence No. 1456 was

valid till 30.04.2004 and the said driving licence was

renewed on 18.01.2008. The details of the driving

licence (Exhibit A) also support such contentions.

Since the accident having taken place on 12.07.2005, it

is manifest that on the relevant date of accident, the

driver of the offending vehicle was not holding effective

and valid driving licence to drive such vehicle. Bearing

in mind the decision of Hon'ble Supreme Court passed

in National Insurance Company Limited versus

Swaran Singh and others reported in (2004) 3 SCC

297 as well as Amrit Paul Singh and another versus

TATA AIG General Insurance Company Limited

reported in (2018) 7 SCC 558 as it is found that the

driver was not having valid and effective driving licence

to drive such vehicle on the relevant date of accident,

the principle of pay and recovery can be applied

directing the insurer of the offending vehicle to pay the

compensation amount to the claimants and thereafter

recover the same from the owner and the driver.

In the light of the above discussion, the appeal is

allowed in part.

The impugned judgment and award of the learned

Tribunal is modified to the extent that the appellant-

Oriental Insurance Company Limited shall satisfy the

award by making payment of the compensation amount

to the claimants along with interest as directed by the

learned tribunal and is given liberty to recover the same

from the owner and/or driver in accordance with law.

It is found that the appellant-Oriental Insurance

Company Limited has already deposited entire awarded

sum along with interest amounting to Rs. 5,04,693/-

vide OD challan No. 1998 dated 21.11.2014 and

statutory deposit of Rs. 25,000/- vide OD challan no.

1854 dated 31.10.2014. Learned Registrar General,

High Court, Calcutta is directed to disburse the

aforesaid deposits along with accrued interest to the

claimants in equal proportion upon satisfaction of their

identity.

With the aforesaid observations, the appeal

stands disposed of.

All connected applications, if any, stands

disposed of.

Interim orders, if any, shall stand vacated.

Let a copy of this order be sent to the learned

Tribunal along with the Lower Court records.

Urgent photostat certified copy of this order, if

applied for, is to be given to the parties upon

compliance with the necessary formalities.

(Bivas Pattanayak, J.)