Calcutta High Court (Appellete Side)
New India Assurance Co. Ltd vs Minati Sarkar & Anr on 3 July, 2023
IN THE HIGH COURT AT CALUTTA
Civil Appellate Jurisdiction
03.07.2023
SL No. 1
Court No. 551
Ali
FMA 695 of 2012
IA No.: CAN/3/2022
CAN/4/2023
New India Assurance Co. Ltd.
Vs.
Minati Sarkar & Anr.
Ms. Gopa Das Mukherjee
....for the appellant.
Mr. Krishanu Banik
Mr. Kazi M Rahaman
...for the respondents.
The instant appeal has been preferred by the
New India Assurance Company Ltd. against the
judgment and award dated 24.12.2010 by the
Commissioner Workmen's Compensation (1st Court),
West Bengal in Claim Case no. 409 of 2003.
The brief fact of the case is that the
predecessor of the claimant was driving Vehicle No.
WB-02/TD/5078 under the ownership of
respondent No. 2 on 03.12.2002 while he was
performing his duty as driver, dashed against by
3142 DN Teesta Torsa Express in level crossing Gate
No. 49/A at Khalitpur and died on the spot. It is the
case of the claimant that the deceased-husband of
the claimant was aged about 32 years and at the
time his monthly wages was Rs.4,000/-per month
as the owners did not pay any compensation, she
filed the case.
The learned Commissioner after hearing the
claimant and after taking the evidences of PWs-1
and 2 passed the judgment in favour of the claimant
allowing her compensation amounting to
Rs.3,68,340/- to be paid by the New India
Assurance Company Ltd. within one month from the
date of accident with the statutory simple interest @
12% per annum till realization.
The appeal was preferred by the Insurance
Company only on the ground that the learned
Commissioner has passed the impugned order
erroneously. It is the only ground that the awarded
compensation wherein the number of vehicle WB-
02/TD/5078 was mentioned but the PW-2 being the
owner of the car No WB-58C/2167 was never the
owner of the vehicle suffered the accident. It is the
further ground of the Assurance Company that
learned Commissioner has wrongly observed that
the deceased was a driver of the insured vehicle
being No. WB-58C/2167. Paper book was produced
alongwith the supplementary paper book and during
the course of argument the New India Assurance
Company Ltd also filed an application under Order
41 Rule 27 CPC alongiwth a policy copy of one
vehicle being Registration No. WB-58C/2167.
The learned advocate for the respondents
submitted that the ground taken by the Assurance
Company is baseless. The vehicle at the initial time
of purchaser was provided an initial registration No.
being WB-02/TD/5078. The insurance cover note
was also prepared on the basis of said preliminary
number. It is the argument of the learned advocate
for the respondents that on due time, the final
registration No. was given in respect of that Car
being No. WB-58C/2167. He further argued that
PW-2 has appeared before the learned
Commissioner and has stated that he was the owner
of the vehicle No. WB-58C/2167 and the deceased
was his driver. He further argued that this case was
initiated before the Commissioner under the
Workmen's Compensation Act wherein it has been
proved that the deceased was employed under the
owner who deposed before the learned
Commissioner as PW-2; and it has also not denied
the deceased was died during the course of his
employment. Thus the claimant being the widow of
the deceased is entitled to get the compensation.
Let me considered the disputed question of
this case whether the vehicle which was met the
accident is the vehicle which was later final
registered as vehicle No. WB-58C/2167. From the
police paper in the LCR as well as the
supplementary paper book it appears that the
seizure was effected on the next day of argument i.e.
on 04.12.2012. On the spot of accident, the police
have seized some broken piece of Maruti Van No.
WB-02/TD/5078. The second seizure was also
effected on the same day wherein the DL No of the
deceased including some parts of the vehicle Maruti
Van being No. WB-02/TD/5078 was stated. After
10 days of accident, the owner produced some
documents which was seized by the police on
12.12.2002 containing the documents of R.C Book
of Vehicle No.WB-58C/2167 and the insurance
covered note of vehicle No. WB-02/TD/5078. From
the covered note the Engine number was noted as
2338489 and the Chesis No. was noted as S.T.-IN-
545584. The appellant insurance company
challenges the said cover note and produced a Policy
Paper from the system of the office of the appellant
showing the Chesis No and Engine No of the said
vehicle being No. WB-58C/2167 is different.
Learned advocate for the respondents
submitted before this court that the policy paper
produced in support of an application under Order
41 Rule 27 CPC is not the policy which was tagged
with the cover note of the said vehicle suffered
accident. He also submitted that no reliance can be
placed upon the said policy paper which was filed by
the insurance company at this appellate stage.
Heard the learned advocate and perused the
papers. It appears that the cover note of the New
India Assurance Company Ltd which was placed
before the police on 12.12.2002 by the owner is
tampered with some blue ink. The name of the
owner was also tampered the Engine No and Chesis
No. were appeared to be different but it appears that
the Engine No and Chesis No which was initially
there matching with the Engine No. and Chesis No
with the Policy Paper which was submitted by the
Insurance Company before this appellate court. It
further appears that the learned tribunal has not
placed any reliance upon those documents and
passed the impugned judgement. I have also entirely
gone through police paper and also read out the
charge-sheet filed by the G.R.P.S. vide G.R.P.S. Case
No. 35/02 dated 04.12.02. Nowhere it was
mentioned that the vehicle which met the accident
was the initial Registration No. WB-02/TD-5078
and, thereafter, it was finally registered as WB-
58C/2167.
Basically, it appears that the claimant also
preferred the claim application on the basis of the
vehicle being Registration No. WB-02/TD-5078. The
entire story has been changed after the deposition of
PW-2 also it appears that the PW-2 has produced
some documents before the police after 10 days of
accident contending the New number of vehicle. It is
surprising that how the final Registration No. of a
vehicle was provided after the same being met an
accident.
Considering the entire circumstances, I
think it necessary to pass the appropriate order to
that effect that the impugned order passed by the
learned Commissioner without proper appreciating
the facts and circumstances of the case and without
consentrating upon the paper produced before him
is not at all justified in the eye of law and it is liable
to be set aside. However, it appears that the
claimant has never uttered anything about the new
number of the vehicle. Thus, in this case the award
passed by the Commissioner in favour of the
claimant is not unjustified but the Insurance
Company should not have the liability to pay the
same.
This is a claim case filed under the
Workmen's Compensation Act, the deceased was the
sole bread earner and the husband of the claimants
family, thus by virtue of the order of the Hon'ble
Apex Court in Baljit Kaur & Ors. that the Insurance
Company is directed to pay the compensation to the
claimant and Insurance Company is further at
liberty to recover the same from the respondent No.2
of this case.
It appears that the Insurance Company has
already deposited the entire awarded amount with
the learned Registrar General, High Court, Calcutta.
The claimant is hereby entitled to withdraw the sum
alongwith accrued interest thereon.
The instant FMA is disposed of.
All connected applications, if any, stand
disposed of.
Interim orders, if any, stand vacated.
Parties to act upon the server copy and
urgent certified copy of this order be provided on
usual terms and conditions.
(Subhendu Samanta, J.)
