The New India Assurance Co. Ltd vs Raju Dutta & Ors
2023 Latest Caselaw 2089 Cal

29.03.2023
Ct. No.237
SL Nos. 19
& 20

Rup
                               FMA 1555 of 2008
                          The New India Assurance Co. Ltd.
                                       Vs
                               Raju Dutta & Ors.

                                      With

                                 COT 53 of 2012

                               Raju Dutta & Anr.
                                      Vs.
                     The New India Assurance Co. Ltd & Ors.




             Mr. Parimal Kr. Pahari.
                            ... For the appellant in FMA 1555 of 2008 &
                              respondents in COT 53 of 2012

Mr. Jayanta Banerjee, Mr. Sandip Bandhyapadhyay Mrs. Ruxmini Basu Roy.

... For claimants/respondents in FMA 1555 of 2008 & appellants in COT 53 of 2012.

This appeal is directed against the judgment and

award passed by the learned Additional Distirct Judge

Motor Accidental Claims Tribunal, 1 st Court, Krishnagar,

Nadia in connection with Motor Accident Claim Case No.

338 of 2005 under Section 163A of the Motor Vehicle Act,

1988, whereby learned Judge awarded compensation to the

tune of Rs. 2,50,000/-

It is not disputed that claim petitioner under Section

163 A of the Motor Vehicle Act, was filed by the claimants

on account of death of one Manju Dutta in a motor

accident on 06.05.2005 while travelling by an ambassador

car bearing no. WB-52/8076 through NH-34 near Itla

Brick field due to rash driving. In that accident said Manju

Dutta died. It is also not disputed that the said

ambassador car was duly insured with the New India

Assurance Company Limited.

Mr. Jayanta Banerjee, learned advocate appearing on

behalf of the claimants/respondents and appellants of the

Cross-Objection has submitted that learned Judge

assessed the monthly income at the rate of Rs. 1800/- per

month ignoring the evidence on record and even without

considering the notional income.

Considering the evidence as well as submission

advanced on behalf of the claimants, I find that notional

income of the deceased should be of Rs.3000/- per month

at the time of accidental death. Accordingly I modify the

award in respect of quantum of income as follows:

Monthly Income = Rs.3000/-

Annual Income (Rs.3000x12) = Rs.36,000/-

Deduction 1/3 on account of Personal expenses of the deceased (since the number of 3 dependants on the income of the deceased) =Rs. -12,000/-

Rs. 24,000/-

Multiplier 17 (Rs.24000/-x 17) = Rs.4,08,000/-

      Add General Damages                             Rs. 4500/-
      (Loss of Estate       Rs. 2500/-
      Loss of Funeral       Rs. 2000/-)

      Total Compensation of                     Rs.412,500/-



      Therefore,      the   claimants     are        entitled   total

compensation to the tune of Rs.4,12,500/- along with the

6% interest per annum from the date of filing

(28.06.2005) of the claim petition till the date of deposit of

the amount.

It is submitted on behalf of the Insurance Company

that total awarded amount of Rs.2,50,000/- has already

been deposited with the office of the learned Registrar

General, High Court, Calcutta.

Appellant/Insurance Company is directed to pay

rest amount of Rs.1,62,500/- along with 6% interest per

annum from the date of filing (28.06.2005) of claim

application till the date of deposit of this amount with the

office of the learned Registrar General.

Appellant/Insurance Company is also directed to

pay interest at the rate of 6% per annum on the amount

of Rs.2,50,000/- from the date of filing of the claim

application till the date of deposit of the amount.

Appellant/Insurance Company is directed to

deposit the amount mentioned above within six weeks

from date.

Mr. Parimal Kumar Pahari, learned advocate

appearing on behalf of the Insurance Company has

submitted that deceased was travelling by a private motor

car bearing no. WB-52/8076, according to insurance

policy there was no coverage with the passenger of the

private car. Mr. Pahari has further submitted that it was

an Act policy and there was no coverage for the

passengers of the vehicle save and except third party.

Mr. Pahari has submitted that passenger is not third

party within the meaning of the Act policy. In support of

this contention he referred a judgment in the case of

National Insurance Company Limited vs.

Balakrishnan and Anr. reported in (2013) 1 SCC 731,

wherein Hon'ble Apex Court clearly observed relying on

circular issued by the IRDA that Act policy cannot have

coverage third party risk on an occupant in a car unlike

comprehensive policy.

Considering the nature of policy observed by the

Apex Court in Balakrishnan and Anr (Supra), I find no

other option to give a liberty to the Insurance Company to

pay the awarded amount and to recover the same from

the owner of the ambassador car bearing no. WB-

52/8076 directly through execution proceeding in view of

the principle laid down in Oriental Insurance Co. Ltd.

Vs. Nanjappan & Ors. reported in 2004 ACJ 721 and

also in a case of Shamanna & Ors. V. The Divisional

Manager, The Oriental Insurance Co.& Ors. reported

in AIR 2018 SC 3726.

Learned Registrar General, High Court, Calcutta is

requested to disburse the amount to the claimants in

equal share with proper identification and proof as

respondent no.2, Barnali Dutta has attained the age of

majority in the meantime.

With the aforesaid observation, the FMA 1555 of

2008 along with COT 53 of 2012 stand disposed of.

Let a copy of this order along with Tribunal records

shall be transmitted back to the learned Tribunal

immediately.

Urgent certified copy of this order, if applied for, be

given to the appearing parties as expeditiously as possible

upon compliance with the all necessary formalities.

(Bibhas Ranjan De, J.)