Calcutta High Court (Appellete Side)
Shampa @ Sampa Agarwala & Ors vs The Divisional Manager on 31 January, 2023
32
31.01.2023
Ct. No.237
pg.
IN THE HIGH COURT AT CALCUTTA
CIVIL APPELLATE JURICTION
APPELLATE SIDE
FMA 257 of 2015
with
IA No. CAN 2 of 2017 (CAN 1113 of 2017)
Shampa @ Sampa Agarwala & Ors.
Vs.
The Divisional Manager,
United India Insurance Co. Ltd. & Anr.
Mr. Saidur Rahaman
... For the appellants/claimants
Mr. Parimal Kumar Pahari
... For the respondent no.1/Insurance Co.
This appeal is directed against the judgment and
award dated on 29th August, 2013 passed by the learned
Judge, Motor Accident Claims Tribunal, Additional District
Judge, 2nd Fast Track Court, Malda, in connection with
MAC Case No.108 of 2011 under Section 166 of the Motor
Vehicles Act, 1988 whereby the learned Tribunal granted
compensation to the tune of Rs.5,12,060/-.
The claim petition was filed on account of death of
one Chandan Agarwala on 5th February, 2011 while he
was travelling by his motor cycle, bearing registration
no.WB-66D/6671, one Tata Sumo, bearing registration
no.WB-26C/2931, coming from Samsi towards Gazole
with excessive speed, dashed against the said motor cycle.
As a result, Chandan Agarwala sustained severe injury on
his person and he was taken to Gobindapara Hospital
2
wherefrom he was referred to the District Hospital, Malda
where doctor declared him dead. After the accident, Ratua
Police Station Case No.22 of 2011 dated 6th February,
2011 under Sections 279/304A of the Indian Penal Code
was registered against the driver of the vehicle, bearing
registration no.WB-26C/2931 (Tata Sumo). That is why
the claim petition was filed with a prayer for compensation
to the tune of rs.11,00,000/- with 12% interest from the
date of application till realization.
Owner of Tata Sumo did not contest the claim
petition but the insurer of the Tata Sumo, United India
Insurance Company Limited, contested the case by filing
written statement denying all material averments in the
claim petition contending, inter alia, that the claimants are
not entitled to any compensation as there was no fault on
the part of Tata Sumo.
To prove the case, claimants examined as many as
three witnesses, namely, widow of the deceased as PW-1,
one Sujay Sarma claimed himself to be the eyewitness was
examined as PW-2 and one Hemanta Pahan (Inspector of
Income Tax at Malda, ITO) proved the Income Tax Return
for the assessment year 2010-2011 of the deceased
Chandan Agarwala submitted by the deceased himself on
3rd September, 2010.
After considering the entire materials on record,
the learned Tribunal did not believe the evidence of PW-2,
who claimed himself to be the eyewitness to the accident,
3
in terms of the First Information Report. Accordingly, the
learned Tribunal held that it was a case of contributory
negligence and, therefore, after assessing the
compensation to the tune of Rs.10,05,120/- but awarded
compensation to the extent of 50% in terms of
contributory negligence.
No argument has been advanced with regard to the
income of the deceased at the time of death in terms of
evidence of PW-3 as well as the Income Tax Return for the
assessment year 2010-2011. Only argument advanced on
behalf of Mr. Saidur Rahaman, learned advocate,
appearing on behalf of the appellants/claimants that
according to the eyewitness (PW-2), the accident took place
when the Tata Sumo dashed the motor cycle of Chandan
Agarwala from behind. So, according to Mr. Rahaman, this
is not a case of contributory negligence.
Mr. Parimal Kumar Pahari, learned advocate,
appearing on behalf of the respondent no.1/Insurance
Company has drawn my attention to the First Information
Report lodged by one relative of the deceased who stated
that the Tata Sumo dashed the motor cycle coming from
the opposite direction, i.e., head on collision.
On careful perusal of the FIR, I am unable to agree
with Mr. Pahari that it was a head on collision. Actually,
according to FIR, the Tata Sumo was coming from the
opposite direction but it is not clear whether it dashed in
front of motor cycle or any side of the motor cycle as
4
admittedly from the FIR itself it is found that the FIR-
maker was not present on the spot.
In these circumstances, I find no other option but
to rely on the evidence of PW-2 who happens to be the
eyewitness to the accident. He testified that on 5th
February, 2011, due to road traffic accident, Chandan
Agarwala died. The said accident took place at 4.15 p.m.
and at the time he was going to his shop by cycle. At that
time Chandan Agarwala was coming by driving motor cycle
from the side of Samsi and was proceeding towards
Gazole, a Tata Sumo dashed him from backside coming
with high speed while overtaking the bike of Chandan
Agarwala. On careful perusal of the cross-examination of
PW-2, I do not find any material discrepancy except the
denial on the ground of relation by neighbour. That apart,
charge sheet has been submitted against the driver of the
Tata Sumo, bearing registration no.WB-26C/2931.
In the aforesaid view of the matter, I find no reason
to agree with the learned Tribunal on the issue of
contributory negligence. The appellants/claimants are
entitled to entire compensation as modified below:-
Annual Income Rs. 1,25,640/-
Add: Future prospect (@ 25%) Rs. 31,410/-
-------------------
Rs. 1,57,050/-
Less: 1/4th Deduction (personal expenses) Rs. 39,262/-
-------------------
Rs. 1,17,788/-
Rs.16,49,032/-
Add: General Damages Rs. 70,000/-
Total Compensation Rs.17,19,032/-
Less - Awarded by ld. Tribunal Rs. 5,12,060/-
ENHANCEMENT Rs.12,06,972/-
-------------------
For the reasons, it is seen that the
appellants/claimants are entitled to the total
compensation to the tune of Rs.17,19,032/-. It is reported
that the appellants/claimants have already received
Rs.5,12,060/-.
Therefore, the appellants/claimants are entitled to
the balance compensation amount of Rs.12,06,972/- along
with interest @ 6% per annum from the date of filing of the
claim petition, i.e., on 20th April, 2011, till the deposit of
the amount.
Accordingly, the respondent no.1/United India
Insurance Company Limited is directed to deposit the
enhanced compensation amount of Rs.12,06,972/- along
with interest @ 6% per annum from the date of filing of the
claim petition i.e., on 20th April, 2011, till the actual
deposit of the amount before the office of the learned
Registrar General of this Court, within six weeks from the
date of this order.
The appellants/claimants are entitled to withdraw
the balance award amount with interest, subject to
payment of additional ad valorem court fees on the
amount of Rs.6,19,032/- (Rs.17,19,032/- -
Rs.11,00,000/-) before the learned Tribunal.
The learned Registrar General is requested to
disburse the amount with interest to the appellants/
claimants in equal share on proper identification as the
minors have already attained majority in the meantime.
With the above observations, the appeal, being
FMA 257 of 2015, 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.)
