Calcutta High Court (Appellete Side)
The New India Assurance Co. Ltd vs Halima Seikh & Ors on 3 January, 2023
42
03.01.2023
Ct. No.237
pg.
IN THE HIGH COURT AT CALCUTTA
CIVIL APPELLATE JURICTION
APPELLATE SIDE
FMA 1292 of 2010
with
IA No. CAN 2 of 2014 (CAN 11759 of 2014)
The New India Assurance Co. Ltd.
Vs.
Halima Seikh & Ors.
Ms. Gopa Das Mukherjee
... For the appellant/Insurance Company
Mr. Uday Sankar Chattopadhyay
Ms. Trisha Rakshit
Mr. Debdipto Banerjee
Ms. Rajashree Tah
... For the respondents/claimants
This appeal is directed against the judgment and
award passed on 27th March, 2009 by the learned Judge,
Motor Accident Claims Tribunal, 3rd Court, Burdwan in
connection with MAC Case No.58 of 2007/191 of 2007
whereby the learned Judge awarded compensation to the
tune of Rs.2,49,500/-.
The claim petition arose out of an application filed
under Section 163A of the Motor vehicles Act, 1988 on
account of death of one Nurhuda Seikh on 27th February,
2006 at about 9.30 hours by the involvement of a Truck,
bearing registration no.WMH-777, in the goods shed. After
the accident, the victim was taken to Burdwan Medical
College and Hospital where he succumbed to his injuries
and Burdwan P.S. Case No.558 of 2006 dated 26th August,
2006 under Sections 279/304A of the Indian Penal Code
was lodged and after investigation, charge sheet was filed
against the driver of the offending Truck.
This appeal has been filed by the appellant/New
India Assurance Company Limited particularly on two
grounds. One is that victim died in a railway accident for
which GRPS UD Case No.34 of 2006 dated 27th February,
2006 was started and secondly the First Information
Report was lodged by the wife of the deceased after expiry
of six months, i.e., on 26th August, 2006.
There is no dispute regarding assessment of
compensation by the parties to this appeal.
Ms. Gopa Das Mukherjee, learned advocate
appearing on behalf of the appellant/Insurance Company
has referred to the charge sheet and tried to establish that
after the accident, GRPS UD Case No.34 of 2006 was
started and thereby it shall be presumed that it was a
railway accident.
After careful perusal of the entire evidence,
particularly, the evidence of PW-2 and other documents,
including the charge sheet and report of unnatural death
case, I find that the accident took place at the goods shed
area used for loading and unloading the materials and
that area is surely within the jurisdiction of railway
property but it cannot be said that the accident happened
in the goods shed area by the involvement of a Truck is a
railway accident. That is why a specific case under Section
279/304A of the Indian Penal Code was started under
Burdwan P.S. Case No.558 of 2006 dated 26th August,
2006 after receiving a complaint from the wife of the
deceased. Therefore, I do not find any merit in the
submission of the learned advocate appearing on behalf of
the appellant/Insurance Company with regard to the issue
of railway accident.
Next I propose to come to the issue of delay in
lodging FIR by the wife of the deceased. From the evidence
of eyewitness (PW-2), it is found that the accident took
place at the goods shed of Burdwan railway station and he
witnessed the accident happened on 27th February, 2006
but he could not identify the number of the vehicle. From
the FIR, sufficient explanations are found to have been
given for delay in lodging complaint before the police. That
apart, it is found from the case record that initially GRPS
UD Case was started and subsequently on receipt of the
written complaint, specific case under Section 279/304A
of the Indian Penal Code was started by Burdwan Police
Station. Considering the social status of the deceased, I
find no reason to disbelieve the case on the ground of
delay in lodging FIR.
Mr. Uday Sankar Chattopadhyay, learned advocate
appearing on behalf of the respondents/claimants has
relied on a case of Ravi v. Badrinarayan & Ors. reported
in (2011) 4 SCC 693 where the Hon'ble Apex Court
observed as follows:-
"17. It is well settled that delay in lodging the FIR
cannot be a ground to doubt the claimant's case.
Knowing the Indian conditions as they are, we
cannot expect a common man to first rush to the
police station immediately after an accident.
Human nature and family responsibilities occupy
the mind of kith and kin to such an extent that
they give more importance to get the victim treated
rather than to rush to the police station. Under
such circumstances, they are not expected to act
mechanically with promptitude in lodging the FIR
with the police. Delay in lodging the FIR thus,
cannot be the ground to deny justice to the victim."
In the aforesaid view of the matter, I am unable to
accept the argument advanced on behalf of the
appellant/Insurance Company with regard to delay in
lodging FIR.
With the aforesaid observation, I do not find any
reason to interfere with the judgment assailed in this
appeal. The appeal, being FMA 1292 of 2010, stands
dismissed.
The respondents/claimants are at liberty to
withdraw the awarded amount with accrued interest.
The learned Registrar General is requested to
disburse the amount with accrued interest to the
respondents/claimants in the manner as prescribed in the
order of the learned Tribunal on proper identification.
All pending applications, if there be any, also 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.)
