National Insurance Co. Ltd vs Mahmood Alam Razvi
2023 Latest Caselaw 41 Cal

                       IN THE HIGH COURT AT CALUTTA
                          Civil Appellate Jurisdiction
 03.01.2023
  SL No.2
Court No. 654
       Ali


                            F.M.A.1969 of 2014
                IA No: CAN/2/2018 (Old No.:CAN/8634/2018)

                        National Insurance Co. Ltd.
                                   Vs.
                            Mahmood Alam Razvi
                 Mr. Rajesh Singh
                         ......for the appellant-Insurance Company.

                 Mr. Laltu Mohan Ghosh
                            ......for the respondent-claimant.

This appeal is directed against the judgment

and award dated 30th November 2013 passed by

learned Judge, Bench-VIII, City Civil Court, Calcutta

in M.A.C Case no. 704 of 2009 granting

compensation of Rs.1,78,541/- together with

interest under Section 166 of the Motor Vehicles

Act,1988.

The brief fact of the case is that on 17

September 2009 in between 21:35 hours and 21:45

hours while the victim was travelling by a car

bearing registration no. WB-02G/0367 along the

Garden Reach Road in the direction of East to West

and when the said car reached the western slope of

Buskel bridge it dashed against a truck bearing

registration no.WB-03A/6447 as a result of which

both the petitioner and the driver of the said car

sustained serious injuries on their person and they

were removed to S.S.K.M hospital wherefrom they

were discharged after necessary medical treatment.

Subsequent thereto on 18 September 2009 the

petitioner had to be admitted to Kothari Medical

Centre where he remained as an in-patient till 19

October 2009. The injured sustained fracture

injuries on his right tibia and had broken tooth and

incurred expenses for medical treatment. On

account of such injuries and subsequent treatment

the claimant injured filed application for

compensation under Section 166 of the Motor

Vehicles Act, 1988.

Upon consideration of materials on record

and the evidence produced before it, the learned

tribunal granted compensation of Rs.1,78,541/-

along with interest under Section 166 of the Motor

Vehicles Act, 1988.

Being aggrieved by and dissatisfied with the

impugned judgment and award of the learned

tribunal the insurance company has preferred the

present appeal.

Mr Rajesh Singh, learned advocate for

appellant insurance company submits that the

driver of the offending vehicle on the relevant date of

accident was not holding proper and effective license

to drive transport goods vehicle and therefore the

insurance company should not be held responsible

to pay compensation amount. He further submits

that assessment of compensation by the learned

tribunal is erroneous in view of the fact that the

victim other than medical expenses is not entitled to

any other compensation. In light of his aforesaid

submissions he prays for setting aside of the

impugned judgment and award.

In reply, Mr Latu Mohan Ghosh, learned

advocate for respondent no.1-claimant submits that

as per the settled proposition of law the insurance

company is to satisfy the award in the

circumstances of the case and thereafter recover

from the insured. He further submits that the

learned tribunal considering the extent of injuries

and the disablement of the victim assessed the

compensation which does not call for interference.

In view of his above submissions he prays that the

appeal be dismissed.

Having heard the learned advocates of both

the sides it is found that the insurance company has

challenged the award of the tribunal on two-fold

grounds firstly that it is not liable to pay

compensation as on the relevant date of accident the

driver of the offending vehicle did not hold any

proper and effective driving licence to drive the

vehicle and secondly excepting medical expenses the

injured is not entitled to get any other

compensation.

With regard to the first issue, it is found

from the impugned judgment that the learned

tribunal from the available materials on record came

to this finding that the driver of the offending vehicle

did not have effective and valid license to drive the

offending vehicle. In the ordering portion of the

judgment of the learned tribunal has directed the

insurance company to satisfy the award and also

given liberty to realize the amount from the opposite

party no. 1-owner and/or driver of the offending

truck in accordance with law. Such findings of the

tribunal do not call for any interference in view of

the decision of Hon'ble Supreme Court passed in

National Insurance Co. Ltd. versus Swaran

Singh and others reported in (2004) 3 SCC 297,

which has also been followed in another decision of

Hon'ble Supreme Court passed in Amrit Paul

Singh versus TATA AIG General Insurance Com.

Ltd & Ors. reported in 2018 SAR (Civil) 768

upholding the principle of pay and recovery. Thus

the direction of the learned tribunal to pay and

recover from the insured or the driver is affirmed.

So far as the second issue regarding assessment of

quantum of compensation is concerned, it is found

that the learned tribunal after considering the two

disability certificates namely Exhibit 20 and 21 one

showing disablement of 38% and another showing

disablement of 50% respectively, held that

authenticity and correctness of both the

disablement certificate is doubtful. However, it

considered the factual matrix of the case and

assessed loss of earning capacity at 38%, which in

my opinion does not call for inference.

The other findings relating to assessment of

compensation had not been challenged in this

appeal.

Accordingly in view of the above the

assessment of compensation amount by the learned

tribunal does not call for interference.

It is informed that the insurance company

has deposited the entire awarded sum along with

interest amounting to Rs.2,21,865/- before the

Registry of this court vide OD Challan no. 937 dated

18.7.2014 as well as statutory deposit of Rs.

25,000/- vide OD challan no.382 dated 15.5.2014.

Accordingly, learned Registrar General, High Court,

Calcutta is directed to disburse the aforesaid

deposits along with accrued interest to the injured-

claimant upon satisfaction of his identity.

Respondent no.1-claimant is directed to

deposit deficit court fees, if not already paid.

With the aforesaid observation the appeal

stands disposed of.

All connected applications if any stands

disposed of.

Interim order if any stands vacated.

Let a copy of this order along with the lower

court records be sent to the learned tribunal.

Urgent photostat certified copy if applied for

be given to the parties upon compliance of all legal

formalities.

(Bivas Pattanayak, J.)