Smt. Dhundi Gorain & Anr vs The Oriental Insurance Co. Ltd
2023 Latest Caselaw 6668 Cal

                       IN THE HIGH COURT AT CALUTTA
                          Civil Appellate Jurisdiction
 03.10.2023
SL No.12
Court No. 551
   Ali


                         F.M.A.T. 1382 of 2001

                      Smt. Dhundi Gorain & Anr.
                                Versus
                    The Oriental Insurance Co. Ltd.

                 Mr. Krishanu Banik
                                 ....for the appellants/claimants.

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

The original Chalan showing the deposit of

cost of Registered Post regarding the service of

respondent No. 1 is taken on record. The Special

Messenger Cost was also deposited with the

deportment but the LCR has not yet received.

Considering the long pendency of the matter, let the

matter be taken up for disposal.

Learned advocate for the insurance

company, Ms. Gopa Das Mukherjee is present.

Heard the learned advocate. It appears that

the instant appeal is preferred against the judgment

and order 25th Day of April, 1996 passed by the

learned Judge, Motor Accident Claims Tribunal,

Purulia, in MAC Case no. 28 of 1990.

The brief fact of the case is that the present

appellants being the claimants 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 predecessor 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. The learned tribunal after

hearing both the parties is of view that the deceased

was a gratuitous passenger of the offending vehicle

thus the insurance company may not liable to pay

the compensation and the respondent No. 1 (owner)

was directed to pay the compensation.

The just and proper compensation of this

case is awarded by the learned tribunal to the tune

of Rs. 1,70,000/- and the owner is directed to pay

the compensation. The owner has not paid any

farthing towards the compensation; thus the

claimant has preferred this appeal.

Learned advocate for the appellants submits

that the insurance company may be directed to pay

the compensation according to the direction of the

Hon'ble Apex Court passed in Oriental Insurance

Company Ltd. Vs. Nanjappa & Ors. reported in

(2004) ACJ 721 and National Insurance Company

Ltd. Vs. Baljit Kaur & Ors. reported in AIR 2004

(SC) 1340. He further argued that the income of the

deceased was wrongly calculated by the learned

tribunal. For the just and proper compensation, it

can be calculated by fixing the monthly income of

the deceased to be Rs. 18,000/-.

Learned advocate for the insurance company

submits that the learned tribunal has committed no

error. It has been specifically proved that the

deceased was a gratuitous passenger. The

gratuitous passengers are not covered by the policy

of the insurance company thus the insurance

company has no liability to pay the compensation.

He further argued that the learned tribunal has

awarded justified sum in favour of the claimant. So,

at this juncture there is no point to entertain the

instant appeal so he prayed for.

Heard the learned advocate, perused the

materials on record. It is true that the deceased was

a gratuitous passenger and the same has been

proved before the learned tribunal. The learned

tribunal is quite justified in holding that the

insurance company has not covered the policy of the

offending vehicle to the gratuitous passenger.

In considering the observation of the

learned Apex Court in Nanjappa as well as Baljit

Kaur it appears to me that the Hon'ble Apex Court

has set out a specific Rule to that effect when the

deceased was a gratuitous passenger, the insurance

company may be directed to pay the compensation

in turn they are at liberty to recover the same from

the owner of the offending vehicle. After perusing

such observation of the Hon'ble Apex Court in my

view the principle laid down by the Hon'ble Apex

Court in Nanjappa as well as Baljit Kaur has to be

followed in this case. Thus, I am of the view that the

observation of the learned tribunal regarding the

fixing the liability of the compensation upon the

owner of the offending vehicle is erroneous and the

impugned award passed by the learned tribunal is

herby modified to that effect.

The insurance company i.e. the Oriental

Insurance Co. Ltd. is directed to pay the

compensation amounting to Rs. 1,70,000/-

alongwith interest @ 6% per annum from the date of

filing of the claim case within ten weeks from the

date of passing of this order with the office of

learned Registrar General, High Court, Calcutta. On

such payment the office of the learned Registrar

General, High Court, Calcutta is directed to pay the

compensation amount in favour of the claimants

vide two separate equal account payee cheques

subject to the prevalent Rules.

          The     instant     FMAT        1382    of    2001    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.)