Sk. Fajlul Hak & Anr vs The Reliance General Insurance ...
2023 Latest Caselaw 6651 Cal

                          IN THE HIGH COURT AT CALUTTA
                             Civil Appellate Jurisdiction
 03.10.2023
SL No.11
Court No. 551
   Ali


                             F.M.A. 2882 of 2016
                IA No.:CAN/2/2019 (Old No.: CAN/11383/2019)
                            Sk. Fajlul Hak & Anr.
                                    Versus
                The Reliance General Insurance Co. Ltd. & Anr.

                     Mr. Uday Sankar Chattopadhyay,
                     Mr. Suman Sarkar,
                     Ms. Trisha Rakshit,
                     Ms. Rajashree Tah,
                     Ms. Aishwarya Datta
                                     ....for the appellants/claimants.

                     Ms. Gopa Das Mukherjee
                                  ...for the respondent Insurance Co.

The instant appeal is preferred against the

judgment dated 21st August, 2015 passed by

learned Judge, Motor Accident Claims Tribunal, 1st

Court, Burdwan, in MAC Case no. 18 of 2014.

The brief fact of the case is that the present

appellants being the parents have preferred an

application before the learned tribunal for getting

compensation under Section 163-A of the M.V. Act

on the ground that their son was died in a road

traffic accident due to rash and negligent driving of

the driver of the offending vehicle duly insured

under the policy of the insurance company.

The claim case was contested by the

insurance company and after hearing the parties the

learned tribunal has dismissed the claim case.

Being aggrieved by and dissatisfied with the

said order of dismissal the present appeal has been

preferred.

The learned advocate for the appellants

submits before this court that the impugned award

passed by the learned tribunal is erroneous. The

learned tribunal has failed to appreciate the facts

and circumstances of this case and came to an

erroneous finding. He also submits that the

learned tribunal has not gone through the

evidences on record specially adduced by the PW-1

and the police papers and came to an erroneous

finding. The learned tribunal also considered other

way to the application under Section 163-A of M.V.

Act on the basis of strict proof required in a

criminal proceeding. He argued that the deceased

died in a road traffic accident when he was

employed as a Khalashi of one Truck. Moreover,

the death of the deceased has successfully proved

due to involvement of the offending vehicle. So, at

this juncture the claimants being the fateful

parents are entitled to get the compensation as

prayed for. He further argued that the observation

of the learned tribunal that the claimants has

failed to prove that their son was a Khalashi of a

vehicle and the P.M. report does not disclosed the

father's name and the charge-sheet not disclose

the UD Case No. is a mere discrepancy which

cannot be considered in a proceeding under

Section 163-A of the M.V. Act. So, he prayed for

just and proper compensation.

Learned advocate for the respondent

insurance company submits that the learned

tribunal has committed no error. She submits that

in the instant case it would be revealed that there

are accident in between two heavy vehicles

wherein the deceased was claimed to be a Khalashi

of one of the vehicle. The learned tribunal has

specifically observed that the claimants has not

adduced any evidence regarding the fact that the

deceased was employed in the heavy vehicle as a

Khalashi. Learned tribunal has also observed that

the PW-1 i.e. the father of the deceased could not

state the name of the driver and the owner of the

offending vehicle wherein his son i.e. the deceased

was employed. So, the observation of the learned

tribunal is correct. She also argued that the police

papers i.e. the FIR, charge-sheet does not disclose

the fact that the deceased was a Khalashi of one of

the offending vehicle. So, he support the

observation of the learned tribunal and submits

that the impugned award passed by the learned

tribunal suffers no illegality.

Heard the learned advocate perused the

materials on record.

It is the case of accident wherein a stone

chips loaded truck which was proceeding towards

the Kolkata side suddenly dashed against a

stationary truck which was standing due to

puncture of tire. It is the case the Khalashi of the

truck which was running in a very high speed died

in such accident. It has been stated in the FIR that

both the driver and the Khalashi were injured and

both of them were removed to Srerampore Walsh

Hospital on 28.09.2013.

The father of the deceased i.e. the claimant

No. 1 submits that he was not present at the time

of accident but after receiving information he had

been to the Walsh Hospital Srerampore and found

the dead body of his son in the morgue of the said

hospital. It is true that the FIR does not disclose

the name of any injured person only stated the

registration number of the vehicle. It has been

stated in the FIR that the SI of concerned police

station has shifted the injured person to the

hospital. The PM. Report contained the UD Case

No. as Serampore P.S. Case No. 161 of 2013 dated

28.09.2013. The investigation of the police ended

in charge-sheet wherein the seizure has been

effected in respect of both the vehicles. The final

report of the police discloses the fact of accident

and it has also been mentioned in the final report

that injured Abdul Haque Mallick expired at

Serampore Walsh Hospital after such accident.

In considering the observation of the learned

tribunal it appears to me that the learned tribunal

is of a clear view that the claimant has not proved

the occupation of the deceased. So, he dismissed

the claim case on the ground that the deceased

could not prove to be a Khalashi of the said

vehicle.

This being an application under Section

163-A of M.V. Act, it is only required to prove by

the claimants that the deceased was died in a road

traffic accident due to involvement of the offending

vehicle. The occupation and income of the

deceased is immaterial in this case which is very

much required under Section 166 of the M.V. Act.

It is quite unjustified to deny the claim of the

petitioner on the ground that the claimants could

not prove the occupation of the deceased. In this

case, it has sufficiently been proved that the

deceased died due to road traffic accident. So,

considering the same, I am of the view that the

observation of the learned tribunal regarding the

dismissal of the instant claim case is not justified.

The charge sheet may not disclose the UD Case

No. but charge- sheet specifically disclosed the

name of the deceased in this case. The claim of the

petitioner cannot be denied only on the fault of the

investigating officer. Considering the same, I am of

the view that the claimants/appellants are entitled

to proper compensation in this case.

For the just and proper compensation of this

case it appears to me that the accident was

happened in the year 2013 so in this case the

monthly income of the deceased is fixed to be Rs.

3,000/- per month. The deceased was aged about

30 years at the time of accident, so according to

the 2nd schedule the applicable multiplier would be

17. So, the just and proper compensation is

assessed hereunder.

Monthly income Rs. 3,000/-, yearly income

comes to Rs. 36,000/-. 1/3rd is deducted towards

his personal expenses so the yearly dependency

comes to Rs. 24,000/-. The applicable multiplier is

17 so after adopting the multiplier the award comes

to Rs. 4,08,000/-. The claimants was a bachelor so

he is entitled to get the general damages of

Rs.4,500/- so after adding all the heads the award

comes to Rs. 4,12,500/-.

The insurance company is directed to pay

the compensation alongwith interest @ 6% per

annum from the date of filing of the claim

application i.e. from 25.02.2014 within ten weeks

from the date of passing of this order with the office

of learned Registrar General, High Court, Calcutta.

On such deposit the claimants are at liberty to

receive the same. The office of the learned Registrar

General, High Court, Calcutta is directed to disburse

the same in the name of the appellants vide two

separate equal account payee cheques subject to the

ascertainment of payment of requisite Court Fees, if

any.

The instant FMA 2882 of 2016 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.)