Calcutta High Court (Appellete Side)
Mukti Bagchi & Ors vs National Insurance Company ... on 1 March, 2023
01
01.03.2023
Ct. No.237
pg.
IN THE HIGH COURT AT CALCUTTA
CIVIL APPELLATE JURICTION
APPELLATE SIDE
IA No. CAN 1 of 2023
in
FMAT 748 of 2011
Mukti Bagchi & Ors.
Vs.
National Insurance Company Limited & Ors.
Mr. Amit Ranjan Roy
... For the applicants/appellants/claimants
Mr. Afroze Alam
... For the respondent no.1/Insurance Co.
In re: CAN 1 of 2023
This application has been filed for condonation of
delay in filing the Motor Accident Claim Appeal after 180
days.
Mr. Amit Ranjan Roy, learned advocate, appearing
on behalf of the applicants/appellants/claimants has
referred to the contents of the application and submits
that delay of 180 days has been explained in the
application itself.
Mr. Afroze Alam, learned advocate, appearing on
behalf of the respondent no.1/Insurance Company left the
matter to the discretion of the Court.
After considering the explanations assigned in the
application itself and also keeping an eye to the beneficial
legislation, I do not find any reason to stand in the way in
admitting the appeal. Thus, the prayer for condonation of
delay is allowed.
The application, being CAN 1 of 2023 stands
disposed of.
The Department is directed to register the appeal, if
the same is otherwise in form.
In re: FMAT 748 of 2011
Mr. Roy has submitted that notice upon the
owners/respondent nos.2 and 3 may be dispensed with, as
the owners did not appear before the learned Tribunal.
On such prayer, service of notice upon the
respondent nos.2 and 3 stands dispensed with, as they did
not contest before the learned Tribunal.
At this stage, learned advocate appearing on behalf
of the appellants/claimants has submitted that he has
prepared informal paper books and already supplied to the
learned advocate appearing on behalf of the respondent
no.1/Insurance Company. Accordingly, he prays for
disposal of the appeal.
On such prayer, the appeal is taken up for hearing.
This appeal is directed against the judgment and
award dated 27th September, 2010 passed by the learned
Judge, Motor Accident Claims Tribunal and District Judge,
Nadia, in connection with MAC Case No.535 of 2008
whereby the learned Tribunal assessed compensation at
Rs.14,23,964/- but awarded compensation to the tune of
Rs.7,11,982/- to the claimants in terms of contributory
negligence.
The claimants, being legal representatives of one
Biman Gopal Bagchi, since deceased, filed one claim
petition under Section 166 of the Motor Vehicles Act, 1988
on account of death of the said Biman Gopal Bagchi in a
road traffic accident occurred on 25th August, 2008 at
about 1.35 p.m. when the said Biman Gopal Bagchi along
with his daughter were proceeding from Chakdah side
towards Ranaghat side. At the relevant point of time, one
Lorry, bearing registration no.WBQ-8830, coming from
opposite direction, i.e., from the side of Ranaghat towards
Chakdah with high speed and in rash and negligent
manner, dashed against the motor cycle of the deceased.
As a result of which Biman Gopal Bagchi sustained severe
injuries and ultimately succumbed to his injuries. His
daughter also sustained severe bleeding injuries. The
accident took place only due to rash and negligent driving
of the lorry.
After the accident, Chakdah Police Station Case
No.321 of 2008 dated 25th August, 2008 under Sections
279/304A of the Indian Penal Code was started and after
investigation, charge sheet submitted against the driver of
that lorry. That is why the claim petition was filed with a
prayer for compensation to the tune of Rs.14,30,000/-.
Joint owners of the lorry did not contest the claim
petition but the respondent no.1/National Insurance
Company Limited contested the case by filing written
objection denying all material averments in the claim
petition contending, inter alia, that there was negligence
on the part of the lorry and the claimants are not entitled
to any compensation, as prayed for.
To prove the case, claimants examined as many as
four witnesses, namely, Mukti Bagchi, widow of the
deceased, as PW-1, one Subol Kumar Patra as PW-2, one
Bappa Ghosh as PW-3 and one Dr. Susmita Sen as PW-4.
PW-1 corroborated the entire averments of the
claim petition and she denied all suggestions thrown at
her in course of cross-examination. PW-2, a non-teaching
staff of Anulia High School, Ranaghat, deposed in this
case. He proved the salary and Acquittance Roll of Biman
Gopal Bagchi, since deceased. PW-3 claiming himself to be
an eyewitness to the alleged accident, testified that on 25th
August, 2008 he was travelling by a bus towards Ranaghat
but near Palagachha More on NH-34, he noticed a lorry,
bearing registration no.WBQ-8830, coming from the
opposite direction in a high speed and in rash and
negligent manner and ultimately lost its control and came
straight to the right side of the road and dashed against
the motor cycle. As a result, Biman Gopal Bagchi
sustained severe injury on his person and his daughter
also sustained injury. On way to hospital, Biman Gopal
Bagchi died. His motor cycle was also damaged. PW-4,
being a medical officer attached to JNM Hospital, Kalyani,
proved the post-mortem report and she specifically
testified that all the injuries she found may be caused by
heavy motor vehicle accident.
In course of their evidence, a good number of
documents were admitted in evidence, including copy of
First Information Report, charge sheet, post-mortem
report, insurance policy and Acquittance Roll of deceased
showing his employment as teacher of Anulia High School,
Ranaghat.
Learned District Judge, Nadia, being the Presiding
Officer of the Motor Accident Claims Tribunal, disposed of
the claim petition after evaluating the evidence on record.
Learned Tribunal awarded compensation to the tune of
Rs.7,11,982/- out of the assessed compensation of
Rs.14,23,964/- on the ground of contributory negligence.
Learned Judge deducted 50% of the award towards
contributory negligence on the part of the deceased
motorcyclist.
Being aggrieved by and dissatisfied with the said
judgment, the instant appeal has been filed by the
appellants/claimants on the ground that the learned
Tribunal deducted 50% towards contributory negligence
without evaluation of the evidence on record, particularly,
the evidence of PW-3 together with the charge sheet
admitted in evidence.
In course of argument, Mr. Roy, learned advocate,
appearing on behalf of the appellants/claimants also
harped on the same string of 50% deduction as well as
non-applying the principle laid down in the case of
National Insurance Co. Ltd. v. Pranay Sethi & Ors.
reported in (2017) 16 SCC 680 = 2017 ACJ 2700 with
regard to future prospect as well as general damages.
Mr. Afroze Alam, learned advocate, appearing on
behalf of the respondent no.1/National Insurance
Company Limited has tried to make this Court
understand, by referring to the cross-examination of PW-3,
that the witness though claimed to be an eyewitness to the
accident but he testified before the Tribunal on the request
on behalf of the claimants. That apart, Mr. Alam has
further contended that PW-3 was a student of the
deceased. Thereby, Mr. Alam has contended that the
evidence of PW-3 cannot be relied upon to contradict the
issue of contributory negligence adjudicated by the learned
Tribunal.
So far as the accident alleged in this case is
concerned, no specific argument has been advanced before
this Court. From the claim petition as well as documents
admitted in evidence with regard to the accident, I find
that accident took place in between the lorry and the
motor cycle of the deceased but question remains whether
it was a case of contributory negligence or not.
Mr. Roy in support of his contention in this regard
relied on a case of Usha Rajkhowa & Ors. v. M/s.
Paramount Industries & Ors. reported in 2009 AIR SCW
1576 wherein the Hon'ble Apex Court applied the doctrine
res ipsa loquitur even if in absence of any specific evidence.
The Hon'ble Apex Court relied on the only answer to the
suggestion thrown at the eyewitness (PW-3) who denied
the suggestion that the accident took place because of
fault of Maruti Car.
In our case, PW-3 also claimed himself to be an
eyewitness to the accident and at that time he was
travelling by a bus and he testified that at the time of
accident, the lorry was coming from the opposite side with
high speed and in rash and negligent manner. He testified
that the lorry lost its control due to high speed and
ultimately came to the right side of the road and dashed
the motor cycle of the deceased. But I do not find any
substance in cross-examination of that particular witness
to shake his credibility. In this case PW-3 also denied the
suggestion of contributory negligence. That apart,
Chakdah Police Station initiated the case after the
accident and after investigation submitted charge sheet
against the driver of the lorry.
Admittedly, this is an incident between a lorry and
a motor cycle. So, we can also apply the doctrine of res
ipsa loquitur to come to an opinion that the accident took
place due to rash and negligent driving on the part of the
lorry.
In the aforesaid facts and circumstances, I find
hardly any merit in the submission advanced by Mr. Alam
on behalf of the respondent no.1/Insurance Company.
There is no dispute regarding profession, income
and age of the deceased. It is also not disputed that the
learned Tribunal could not consider the principle laid
down in Pranay Sethi (supra).
In that view of the matter, I need to modify the
award as follows:-
Monthly Income Rs. 22,101/-
Annual Income (Rs.22,101/- x 12) Rs. 2,65,212/-
Less: 1/3rd Deduction (personal expenses) Rs. 88,404/-
-------------------
Rs. 1,76,808/-
Add: Future prospect (@ 15%) Rs. 26,521/-
-------------------
Rs. 2,03,329/-
Multiplier by 9 [as per age (Second Schedule)] x 9
Rs.18,29,961/-
Add: General Damages Rs. 70,000/-
Total Compensation Rs.18,99,961/-
Less - Awarded by ld. Tribunal already recd. Rs. 7,11,982/-
ENHANCEMENT Rs.11,87,979/-
-------------------
For the reasons, it is seen that the
appellants/claimants are entitled to the total
compensation to the tune of Rs.18,99,961/-. It is
submitted by the learned advocate for the appellants/
claimants that they have already received the awarded
amount of Rs.7,11,982/- from the learned Tribunal but no
interest was received on that amount.
Therefore, the appellants/claimants are entitled to
the balance compensation amount of Rs.11,87,979/- along
with interest @ 6% per annum from the date of filing of the
claim petition, i.e., on 24th September, 2008, till the
deposit of the amount. The appellants/claimants are also
entitled to interest @ 6% per annum on the amount of
Rs.7,11,982/- from the date of filing of the claim petition,
i.e., on 24th September, 2008 till the date of deposit of the
cheque by the Insurance Company before the learned
Tribunal.
Accordingly, the respondent no.1/National
Insurance Company Limited is directed to deposit the
enhanced compensation amount of Rs.11,87,979/- along
with interest @ 6% per annum from the date of filing of the
claim petition i.e., on 24th September, 2008, 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 respondent no.1/National Insurance Company
Limited is also directed to deposit interest @ 6% per
annum on the amount of Rs.7,11,982/-, which was
deposited by the Insurance Company and already
withdrawn by the claimants, from the date of filing of the
claim petition, i.e., on 24th September, 2008 till the date of
deposit of the cheque by the Insurance Company before
the learned Tribunal, before the office of the learned
Registrar General of this Court, within six weeks from
date.
The appellants/claimants are entitled to withdraw
the balance compensation amount with interest, subject to
payment of additional ad valorem court fees on the
amount of Rs.4,69,961/- (Rs.18,99,961/- -
Rs.14,30,000/-) 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 and
proof.
With the above observations, the appeal, being
FMAT 748 of 2011, is disposed of.
All pending applications, if there be any, stand
disposed of.
A copy of this order be forwarded to the learned
Tribunal 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.)
