Calcutta High Court (Appellete Side)

Smt. Srimati Halder & Ors vs The Oriental Insurance Company ... on 17 January, 2023

    11
17.01.2023
Ct. No.237
    pg.
                         IN THE HIGH COURT AT CALCUTTA
                            CIVIL APPELLATE JURICTION
                                  APPELLATE SIDE

                                 FMA 1316 of 2009

                              Smt. Srimati Halder & Ors.
                                          Vs.
                      The Oriental Insurance Company Ltd. & Ors.



                       Mr. Krishanu Banik
                             ... For the appellants/claimants

                       Mr. Parimal Kumar Pahari
                             ... For the respondent no.1/Oriental

Insurance Company Ltd.

Ms. Gopa Das Mukherjee ... For the respondent no.2/New India Assurance Company Ltd.

This appeal is directed against the judgment and

award dated 25th September, 2008 passed by the learned

Judge, Motor Accident Claims Tribunal, Additional District

Judge, Fast Track, 4th Court, Malda, in connection with

MAC Case No.24 of 2005 granting award of Rs.2,25,470/-

out of total assessed amount of Rs.4,50,941/- in view of

contributory negligence on the part of the deceased.

The claim petition was filed under Section 166 of

the Motor vehicles Act, 1988 on account of death of one

Girindra Nath Halder in a motor accident occurred on 29th

February, 2004 at about 4.30 p.m. by the involvement of a

Bus, bearing registration no.WB-61/1411. While the

deceased along with two others were riding in a motor

cycle, bearing registration no.WB-66-B/1838, from

Buniadpur to Kushmandi through left side of the road, the

offending bus, bearing registration no.WB-61/1411,

coming from Siliguri side with high speed dashed and ran

over Girindra Nath Halder at Kalika More Bridge. The

accident took place due to rash and negligent driving of

the bus. At the relevant point of time, Girindra Nath

Halder was a man of 40 years having income of

Rs.51,150/- per annum. That is why the claim petition

was filed with a prayer for compensation to the tune of

Rs.5,20,000/-.

Owner of the offending vehicle did not contest the

claim petition but the Oriental Insurance Company

Limited, insurer of the bus bearing registration no.WB-

61/1411, and the New India Assurance Company Limited,

insurer of the motor cycle bearing registration no.WB-66-

B/1838, contested the case by filing written statements

denying all material averments of the claim petition

contending, inter alia, that the deceased was responsible

for the accident and the Insurance Companies are not

liable to pay any compensation.

To prove the case, the claimants examined as

many as three witnesses, namely, Srimati Halder, wife of

the deceased, as PW-1. She corroborated all statements

made in the claim petition, including the amount of

compensation.

One Vivekananda Mondal, an employee of Income

Tax Department, was examined as PW-2 who testified in

this case and proved the income of the deceased by filing

Saral Form (Ext.-5). His cross-examination was declined.

One Samir Kumar Mandal claiming himself to be

an eyewitness to the incident examined as PW-3. He

testified that on 29th February, 2004, he was also

accompanying the deceased Girindra Nath Halder in a

motor cycle and Girindra Nath Halder was driving the

motor cycle. They were going for some construction work,

but near Kalika Bridge, one bus, bearing registration

no.WB-61/1411, coming with high speed and in rash and

negligent manner, dashed the motor cycle. As a result,

Girindra Nath Halder died on spot and PW-3 sustained

injury and lost sense. He specifically testified that the

accident caused due to rash, negligent and wrongful

driving on the part of the driver of the bus. During cross-

examination on behalf of the Oriental Insurance Company

Limited, nothing was suggested even denying rash driving

on the part of the driver of the bus.

In course of their evidence, First Information

Report, charge sheet, seizure list, post-mortem report,

insurance policy, copy of Saral Form etc. were filed on

behalf of the appellants/claimants.

Learned Judge of the Tribunal after assessing all

the evidence on record, returned his finding that at the

relevant point of time the deceased was driving the motor

cycle along with two pillion riders. So, there was sheer

negligence on the part of the deceased who was driving the

motor cycle with two pillion riders. That is why the learned

Tribunal deducted 50% of the assessed amount in terms of

contributory negligence on the part of the deceased.

So far as the accidental death of Girindra Nath

Halder is concerned, I have gone through the unchallenged

testimony of PW-3 together with the FIR, charge sheet and

seizure list, I find hardly any scope to disbelieve the

accidental death of Girindra Nath Halder by the

involvement of bus, bearing registration no.WB-61/1411.

Mr. Parimal Kumar Pahari, learned advocate,

appearing on behalf of the Oriental Insurance Company

Limited has tried to make this Court understand that

there was contributory negligence on the part of the driver

of the motor cycle as it was a case of head on collision. In

support of his contention, he relied on a case of Manoka

Mondal & Ors. v. Oriental Insurance Co. Ltd. reported in

2015 (3) TAC 612 (Cal) wherein the Hon'ble Division

Bench of this Court disallowed the prayer for

compensation on the ground that motor cyclist had

violated the provisions contained in Section 128 of the

statute. It was further observed the Hon'ble Division

Bench that we should not ignore the provisions in the

statute, otherwise it would amount to approving an illegal

act committed by the motor cyclist.

In opposition to that, Mr. Krishanu Banik, learned

advocate, appearing on behalf of the appellants/claimants,

submitted that the case in our hand has no application of

contributory negligence. He has referred to the evidence of

PW-3, eyewitness to this case. In support of his argument,

Mr. Banik relied on a case of Mohammed Siddique & Anr.

v. National Insurance Company Limited. & Ors.

reported in 1 (2020) ACC 345 (SC) wherein the Hon'ble

Apex Court handed down the following ratio in paragraph

13:-

"13. But the above reason, in our view, is flawed. The fact that the deceased was riding on a motor cycle along with the driver and another, may not, by itself, without anything more, make him guilty of contributory negligence. At the most it would make him guilty of being a party to the violation of the law. Section 128 of the Motor Vehicles Act, 1988, imposes a restriction on the driver of a two wheeled motor cycle, not to carry more than one person on the motor cycle. Section 194C inserted by the Amendment Act 32 of 2019, prescribes a penalty for violation of safety measures for motor cycle drivers and pillion riders. Therefore, the fact that a person was a pillion rider on a motor cycle along with the driver and one more person on the pillion, may be a violation of the law. But such violation by itself, without anything more, cannot lead to a finding of contributory negligence, unless it is established that his very act of riding along with two others, contributed either to the accident or to the impact of the accident upon the victim. ..."

In the aforesaid view of the matter, I find hardly

any scope to agree with the learned Tribunal regarding

contributory negligence on the part of the driver of the

motor cycle/deceased. Even if the deceased Girindra Nath

Halder was driving his motor cycle along with two other

pillion riders but that does not mean that he has made

any contributory negligence to the accident in absence of

any specific evidence to that effect. It is needless to

mention that the Insurance Company did not adduce any

evidence in this regard.

In this case PW-3 has specifically deposed that the

accident took place due to rash and negligent driving of

the bus. PW-3, being a pillion rider, his evidence remained

unchallenged through out the cross-examination. That

apart, FIR and charge sheet also corroborated the factum

of accident due to rash and negligent driving of the bus.

In these circumstances, I do not find any reason to

discuss further on this issue. Before parting with, it would

be profitable to refer the case of Usha Rajkhowa & Ors. v.

Paramount Industries & Ors. reported in 2009 ACJ

1314, relied on behalf of Mr. Banik, learned advocate for

the appellants/claimants. In Usha Rajkhowa (supra), the

Hon'ble Apex Court dealt with the case of two vehicles, one

is truck and another is Maruti car. In that case the

Hon'ble Apex Court took the assistance of evidence of

eyewitness who testified that accident took place due to

rash and negligent driving of the truck and also took

assistance of principle of "res ipsa loquitur".

Relying on the ratio of Usha Rajkhowa (supra), I

am of the humble opinion that in our case compensation

amount cannot be reduced on the plea of contributory

negligence.

In the aforesaid view of the matter, I determine the

compensation in terms of settled principle laid down by

the Hon'ble Apex Court as follows:-

Annual Income (Rs.51,150/- - Rs.215) Rs. 50,935/-

Add: Future prospect (@ 25%) Rs. 12,733/-

-------------------

Rs. 63,668/-

Less: 1/3rd Deduction (personal expenses) Rs. 21,222/-

-------------------

Rs. 42,446/-

Multiplier by 13 (as per age of the deceased) x 13 Rs.5,51,798/-

  Add: General Damages                                 Rs. 70,000/-

                                    Total              Rs.6,21,798/-

  Less - Awarded by ld. Tribunal                       Rs.2,25,470/-

                 ENHANCEMENT                           Rs.3,96,328/-


        For     the    reasons,    it    is    seen        that     the

appellants/claimants        are    entitled       to      the      total

compensation to the tune of Rs.6,21,798/-. It is reported

that the appellants/claimants have already received

Rs.2,25,470/- as awarded by the learned Tribunal.

Therefore, the appellants/claimants are entitled to

the balance amount of Rs.3,96,328/- along with interest @

6% per annum from the date of filing of the claim petition,

i.e., on 7th February, 2005 till the deposit of the amount.

Accordingly, the respondent no.1/Oriental

Insurance Company Limited is directed to deposit the

enhanced amount of Rs.3,96,328/- along with interest @

6% per annum from the date of filing of the claim petition,

i.e. on 7th February, 2005 till the actual deposit of the