Calcutta High Court (Appellete Side)
The New India Assurance Company ... vs Malati Marik & Ors on 16 May, 2023
07 & 08
16.05.2023
Ct. No.237
pg.
IN THE HIGH COURT AT CALCUTTA
CIVIL APPELLATE JURISDICTION
APPELLATE SIDE
FMAT 1490 of 2013
with
IA No. CAN 1 of 2014 (CAN 4937 of 2014)
with
CAN 2 of 2014 (CAN 494 of 2014)
with
CAN 3 of 2014 (CAN 495 of 2014)
The New India Assurance Company Limited
Vs.
Malati Marik & Ors.
with
COT 75 of 2014
Malati Marik & Ors.
Vs.
The New India Assurance Company Limited & Anr.
Mr. Rajesh Singh
... For the appellant/Insurance Co. in FMAT
1490 of 2013 & respondent no.1/
Insurance Co. in COT 75 of 2014
Mr. Krishanu Banik
... For the respondents/claimants in
FMAT 1490 of 2013 & Cross Appellants/
Claimants in COT 75 of 2014
In re: CAN 3 of 2014 (CAN 495 of 2014)
This application has been filed by the appellant/
New India Assurance Company Limited for condonation of
delay in filing the Motor Accident Claim Appeal after 135
days.
Mr. Rajesh Singh, learned advocate, on behalf of
the applicant/appellant/Insurance Company submits that
delay of 135 days in preferring the appeal may be
condoned for the reasons assigned in the application itself.
Heard learned advocates appearing on behalf of the
parties.
The reason assigned in the application for delay of
135 days being satisfactory, I am inclined to condone the
delay of 135 days in filing the appeal. Thus, the prayer for
condonation of delay is allowed.
The application, being CAN 3 of 2014 (CAN 495 of
2014) stands disposed of.
The Department is directed to register the appeal, if
the same is otherwise in form.
Since the claimants/cross-objectors have entered
appearance through learned counsel, service on the
claimants stands dispensed with.
In re: CAN 2 of 2014 (CAN 494 of 2014)
This application was filed to adduce additional
evidence with regard to the fake driving licence of the
driver of the vehicle involved in this case.
Heard both sides.
The prayer is allowed.
The documents filed on behalf of the appellant/
New India Assurance Company Limited be taken on
record.
The application, being CAN 2 of 2014 (CAN 494 of
2014) stands disposed of.
In re: FMAT 1490 of 2014 with COT 75 of 2014
This appeal is directed against the judgment and
award dated 30th April, 2013 passed by the learned Judge,
XIth Bench, City Civil Court, Calcutta, in connection with
MAC Case No.626 of 2008 under Section 166 of the Motor
Vehicles Act, 1988 whereby the learned Judge awarded
compensation to the tune of Rs.3,91,500/- along with
interest @ 6% per annum from the date of filing of the
application till recovery.
Being aggrieved by and dissatisfied with the said
judgment, New India Assurance Company Limited
preferred this appeal on the ground that the driving
licence of the driver of the lorry, bearing registration
no.WB-03/2197, was fake and, therefore, the Insurance
Company is not liable to pay any compensation.
On the other hand, on behalf of the claimants, one
cross appeal, being COT 75 of 2014, was filed for the
enhancement of the amount of compensation on account
of future prospect and general damages in terms of
principle laid down in National Insurance Co. Ltd. v.
Pranay Sethi & Ors. reported in (2017) 16 SCC 680 =
2017 ACJ 2700.
The claim under Section 166 of the Motor Vehicles
Act, 1988 was filed on account of death of one Bablu
Marik who was driving an Auto Rickshaw, bearing
registration no.WB-11/4054, on 11th March, 2008 at
about 23.05 hours towards Amta Road from Ranihati
Nabaghara More of NH-6. Near Ranihati, one Lorry,
bearing registration no.WB-03/2197, coming from
opposite direction in reckless manner, dashed the Auto
Rickshaw. In effect, the Bablu Marik sustained severe
injury and succumbed on the spot. The accident took
place due to rash and negligent driving of the lorry which
was duly insured with the New India Assurance Company
Limited. That is why the claim petition was filed by the
claimants with a prayer for compensation to the tune of
Rs.4,00,000/-.
New India Assurance Company Limited contested
the case by filing written objection denying all material
averments of the claim petition contending, inter alia, that
claimants are not entitled to any compensation, as prayed
for.
To prove the case, the claimants examined as
many as two witnesses, namely, widow of the deceased as
PW-1 who corroborated the entire averments of the claim
petition and in course of her evidence, certified copy of
First Information Report, seizure list, charge sheet,
insurance policy, post-mortem report, driving licence of
the deceased, voter identity card, school certificate, driving
licence of the driver of the lorry were admitted in evidence.
One Ujjal Baran Ghosh was examined as PW-2
who testified that he saw the accident which took place on
11th March, 2008 at about 23.05 hours over NH-6 at
Ranihati More. He further testified that the accident took
place due to rash and negligent driving of the lorry,
bearing registration no.WB-03/2197.
The learned Judge after evaluation of the evidence
together with the documents recorded her finding that the
accident occurred due to rash and negligent driving of the
lorry, bearing registration no.WB-03/2197, and assessed
the compensation on the notional income of Rs.3,000/-
per month.
Mr. Rajesh Singh, learned advocate, on behalf of
the appellant/New India Assurance Company Limited has
assailed the driving licence of the driver of the lorry,
bearing registration no.WB-03/2197, and tried to convince
this Court that the driving licence was fake. In support of
his contention, he relied on the document filed along with
the application under Order 41 Rule 27 of the Code of Civil
Procedure.
On careful perusal of the documents, it appears
that the driving licence, bearing no.WB-19-102977, stands
in the name of Susanta Mallick originally. But after careful
perusal of the seizure list and charge sheet, I find that the
driving licence was seized from the offending vehicle
against the same number of WB-19-102977. Therefore, it
can be easily presumed that the driver of the offending
vehicle was possessing a fake licence at the time of driving
the said vehicle.
From the entire evidence on record, I find hardly
any scope to discuss on the issue of accidental death of
Bablu Marik due to rash and negligent driving of the lorry,
bearing registration no.WB-03/2197. This appeal was
preferred assailing the fake driving licence possessed by
the driver at the relevant point of time. Therefore, the
Insurance Company is not liable to pay any compensation.
In view of the settled principle laid down by the
Hon'ble Apex Court in Shamanna & Ors. v. The
Divisional Manager, The Oriental Insurance Co. Ltd. &
Ors. reported in AIR 2018 SC 3726 and Oriental
Insurance Co. Ltd. v. Nanjappan & Ors. reported in AIR
2004 SC 1630 : (2004) 13 SCC 244, the Insurance
Company is liable to pay the compensation but to recover
the amount from the owner of the vehicle through filing an
execution case directly.
So far as the compensation is concerned, I find
that the learned Judge could not consider the future
prospect and general damages at the time of computing
compensation. The claimants are entitled to the future
prospect as well as general damages in terms of Pranay
Sethi (supra).
Therefore, I propose to re-assess the compensation
as follows:-
Monthly Income Rs. 3,000/-
Annual Income (Rs.3,000/- x 12) Rs. 36,000/-
Add: Future prospect 40% Rs. 14,400/-
-------------------
Rs. 50,400/-
Less: 1/4th Deduction (personal expenses) Rs. 12,600/-
-------------------
Rs. 37,800/-
Multiplier by 15 (as per age of the victim) X 15
Rs.5,67,000/-
Add: General Damages Rs. 70,000/-
------------------
Total Compensation Rs.6,37,000/-
Less: Awarded by ld. Tribunal Rs.3,91,500/-
-------------------
ENHANCEMENT Rs.2,45,500/-
-------------------
For the reasons, it is seen that the claimants/cross
appellants are entitled to the total compensation to the
tune of Rs.6,37,000/-.
It appears from the records that the appellant/New
India Assurance Company Limited has already deposited
Rs.3,91,500/- along with interest as awarded by the
learned Tribunal before the office of the learned Registrar
General of this Court.
Therefore, the claimants/cross appellants are
entitled to the amount of Rs.3,91,500/- along with interest
and accrued interest as awarded by the learned Court
below which was already deposited before the office of the
learned Registrar General of this Court.
The claimants/cross appellants are also entitled to
the enhanced compensation amount of Rs.2,45,500/-
along with interest @ 6% per annum from the date of filing
of the claim petition, i.e., on 7th August, 2008 till the
deposit of the amount.
Accordingly, the appellant/New India Assurance
Company Limited is directed to deposit the enhanced
compensation amount of Rs.2,45,500/- along with interest
@ 6% per annum from the date of filing of the claim
petition, i.e., on 7th August, 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 appellant/New India Assurance Company
Limited is at liberty to recover the entire awarded sum
along with interest from the owner of the vehicle, bearing
registration no.WB-03/2197 (lorry), through execution
proceeding in terms of the observations of the Hon'ble
Apex Court in Shamanna & Ors. v. The Divisional
Manager, The Oriental Insurance Co. Ltd. & Ors.
reported in AIR 2018 SC 3726 and Oriental Insurance
Co. Ltd. v. Nanjappan & Ors. reported in AIR 2004 SC
1630 : (2004) 13 SCC 244.
The claimants/cross-appellants are entitled to
withdraw the entire awarded amount with interest, subject
to payment of additional ad valorem court fees on the
amount of Rs.2,37,000/- (Rs.6,37,000/- - Rs.4,00,000/-)
before the learned Tribunal.
The learned Registrar General is requested to
disburse the entire amount with interest and accrued
interest to the claimants/cross-appellants in equal share
on proper identification and proof as the minors have
already attained majority by lapse of time.
With the aforesaid observations, the appeal, being
FMAT 1490 of 2013, and the cross-appeal, being COT 75
of 2014, stand disposed of.
All pending applications, if there be any, stand
disposed of.
In re: CAN 1 of 2014 (CAN 493 of 2014)
The stay granted in the appeal stands vacated.
The application, being CAN 1 of 2014 (CAN 493 of
2014), stands disposed of accordingly.
A copy of this order be forwarded to the learned
Court 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.)
