Rup vs Smt. Anita Ghosh & Ors
2023 Latest Caselaw 3129 Cal

 34   02.05.20
 Ct      23                         FMA 666 of 2009
273
                          ICICI Lombard General Insurance Co. Ltd
rup
                                        Versus
                                Smt. Anita Ghosh & Ors.

                 Mr. Parimal Kumar Pahari,
                              ... For the appellant/Insurance Company

                 Mr. Sandip Ghosh,
                 Mr. Partha Sarkar             ... For the respondents

This appeal is directed against the judgment passed

by learned Judge, 5th Bench, Motor Accident Claims

Tribunal, Burdwan on 25th April, 2011 in connection with

Motor Accident Claim case No. 40 of 2008 (renumbered

as 164 of 2008).

The legal heirs of deceased Madan Mohan Ghosh

filed one claim petition under Section 166 of the Motor

Vehicle Act, claiming compensation to the tune of

Rs.10,00,000/- for death of said Modan Mohan Ghosh in

an accident happened on 12.01.2008 at about 16.00 hrs.

On the alleged day the victim and one Paramananda

Banerjee were returning home from Sardanga by driving

one two wheelers and reaching near NH-2, they stopped

their vehicle to respond nature's call. At that time one

Santro Car bearing no. WB 02X/9648 duly insured with

ICICI Lombard General Insurance Co. Ltd., coming with

high speed with rash and negligent manner dashed the

victim Madan Mohan Ghosh, who succumbed on the

spot. At the time of death said victim was a man of 53

years and was an employee of Ajhapur Agricultural Co-

operative Society Ltd. Mosagram Branch having income

of Rs.7623/- per month.

Appellant/Insurance Company contested the claim

petition by filing written objection denying all averments

of the claim petition contending, inter alia, that the victim

should have been cautious before responding to nature's

call along the expressway and that is why accident took

place due to contributory negligence on the part of the

victim.

Learned Tribunal took the application after framing

issues and disposed of the application relying on the

evidence and documents i.e. FIR, Charge-sheet, Seizure

list, Postmortem report, certificate of Insurance policy

and assessed compensation of Rs.6, 51,300/-.

Being aggrieved by and dissatisfied with the said

judgment Insurance Company preferred this instant

appeal on the ground of apportionment of compensation

between two vehicles involved in the accident and

assessment of monthly income of the victim was not

made on any evidence.

From the judgment impugned, it appears that on

behalf of the claimants four witness were examined and

all the documents were produced in course their evidence

and marked as exhibits 1 to 5.

Mr. Parimal Kumar Pahari, learned advocate

appearing on behalf of the appellant/Insurance Company

has contended about contributory negligence on the part

of the victim. But from the evidence discussed in the

impugned judgment, I do not find any such negligence on

the part of the victim at the time accident and not only

that at the time of accident victim and the pillion rider

were stopped to respond the nature's call. There is no

specific case on behalf of the Insurance Company that

the victim and the pillion rider was ever respond to

nature's call on the road itself. Therefore, the accident

due to rash and negligent driving of the Santro Car

bearing no. WB 02X/9648 duly insured with the

Insurance Company cannot be disputed.

So far as avocation and income of the victim is

concerned claimants examined two witness i.e. PW-3 and

PW-4 together with the pay register of the victim showing

salary for the month of December, 2007. From the

evidence, it appears that victim was an employee of

Ajhapur Agriculture Co-operative Society Ltd. and used

to get salary of Rs.6531/- per month.

Accordingly, learned Trial Judge has assessed the

compensation after deduction of ¼ towards personal

expenses as well as after applying multiplier 11, the

compensation amount was assessed at Rs.6,51,300/-

along with interest at the rate of 7% per annum from the

date of filing of the claim petition till the realisation.

On careful perusal of the entire judgment

impugned, I do not find any infirmity to interfere with

judgment passed by the learned Judge, 5 th Court Motor

Accident Claim Tribunal, Burdwan.

In the aforesaid view of the matter, judgement

passed by the learned Judge, 5th Bench, Motor Accident

Claim Tribunal, Burdwan stands affirmed.

It is reported by Mr. Pahari that entire awarded

amount of Rs.6,51,300/- had already been deposited

with the office of the Registrar General, High Court,

Calcutta on 9th May, 2012. But unfortunately no interest

at the rate of 7% per annum awarded by the Tribunal

was ever deposited along with awarded amount.

Insurance Company is directed to deposit the

interest at the rate of 7% per annum from the date

(16.05.2008) of filing of application before the officer of

the Registrar General, High Court, Calcutta within six

weeks from date.

Learned Registrar General is requested to disburse

all amount among the four claimants/respondents in

equal share on proper identification and proof.

With the aforesaid observation FMA 666 of 2009

stands disposed. Pending application, if there be any,

also stands disposed of.

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.)