Calcutta High Court (Appellete Side)

Shakila Khatun & Anr vs Bajaj Allianz General Insurance on 4 October, 2023

04.10.2023 FMAT 82 OF 2019
sd With
26 CAN 1 of 2023
Ct 32. With
CAN 2 of 2023

Shakila Khatun & anr. vs. Bajaj Allianz General Insurance
Co. Ltd. & Anr.

Mr. P.K. Banerjee ..For the appellants.

Ms. Suchitra Pal ..For the Insurance Co.

Re - CAN 1 & 2 of 2023.

Learned advocate appearing on behalf of the

appellants submits that the appellants have filed two

applications, firstly, the application for substitution of the

legal heirs of the deceased Shakila Khatun, who died on

01.02.2023 during pendency of the appeal. He also annexed

the death certificate of the said deceased Shakila Khatun, one

of the appellant herein. Another application is for

condonation of delay of 11 days in preferring an appeal. He

also refers paragraph Nos. 2 to 5 of the said application for

showing the sufficient cause, which prevented in filing the

appeal within time as prescribed under section 173(1) of the

Motor Vehicles Act. He prays for condonation of delay as well

as substitution of the legal heirs in place of deceased Shakila

Khatun.

On the other hand, learned advocate appearing for

the Insurance Company raised objection to such prayers.

Heard both sides and on perusal of the application

for substitution as well as death certificate, it appears that
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the appellant/claimant no. 1 Shakila Khatun died on

01.02.2023 and in her place two sons and daughters, details

are available in an application, would be substituted as

claimants. Substitution application is hereby allowed. Legal

heirs of the deceased may be subtituted in the cause title of

the Memo of Appeal.

Accordingly, CAN 1 of 2023 is thus disposed of.

Concerned Department is directed to take appropriate steps

to endorse the name of the legal heirs in place of late Shakila

Khatun in the cause title of the Memo of Appeal.

Regarding delay of 11 days in filing appeal,

appellant has shown sufficient cause. Such cause is

satisfactory and accepted.

Accordingly, delay of 11 days in filing appeal stands

condoned.

CAN 2 of 2023 is thus disposed of.

The instant appeal is formally admitted and

registered.

Re - FMAT 82 of 2018

Both the learned advocates appearing on behalf of

the parties submit that this appeal may be disposed of

without calling for LCR and preparation of paper books.

As the simple issue is involved in the instant case,

the appeal is taken up for hearing.

The appellants have filed this appeal against the

judgment and award dated 20th September 2018 passed by
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Learned Judge, Motor Vehicles Accident Claims Tribunal,

Fast Track, 1st Court, Hooghly, thereby the learned Tribunal

awarded a compensation to the tune of Rs. 4, 77,200/-

against the respondent Insurance Company and ex parte

against the respondent no. 2/the owner of the offending

vehicle. The Tribunal also directed to pay the said amount

within three months from the date of judgment and order. In

default, the Insurance Company shall liable to pay an

interest @ 6% p.a. from the date of judgment and order till its

actual payment.

The brief facts leading to filing of this appeal is to

the effect that on 06.01.2014 at about 23.30 hours on the

Durgapur Express Way Burdwan near Tata Motors, village

Goye under Dadpur P.S., an accident was occurred when the

driver of another lorry bearing no. NL-01K/2112 dashed

against the deceased victim's lorry bearing no. NL-01K/0874

from behind. In the said accident victim suffered severe

injuries on his person. He was removed to Chinsurah

Imambara Sadar Hospital, wherein he succumbed to his

injuries.

It is submitted that though the claim case filed

under section 163(A) of the Motor Vehicles Act, there is no

need to prove of negligence or fault on the part of the driver of

the offending vehicle or victim. The award should be awarded

under the structural formula as set out in the Motor Vehicle

Act. However, at the time of awarding compensation, the

learned Tribunal erred in not allowing interest from the date

of filing claim application. It should be required to be allowed

interest on the compensation amount from the date of filing

of the claim application. It is further submitted that the

claimants had already received awarded compensation

amount from the Insurance Company.

On the other hand, Ms. Pal vehemently opposes the

prayer of the appellant and submits that the learned Tribunal

has rightly awarded compensation. It does not require to be

interfered in any manner.

Having heard the submissions of both sides and on

perusal of the record including the judgment and award

passed by the learned Tribunal, it appears that there is no

disputes regarding assessment of the income of the victim,

selection of multiplier and deduction of personal expenses of

the victim. Dispute is only in respect of the interest, which

has not been allowed to calculate from the date of filing of

the claim application till final realization. The submission is

genuine and accepted. Because, our Hon'ble High Court

passed a judgment in Rekha Dutta & Ors. vs. Ram Avatar

Lohia & Anr.1 wherein this Court held that:

"In our opinion, the very approach of the

Tribunal was based on the wrong notion that

interest is payable as a penal measure. In this

connection, it will not be out of place to refer to

2009 (3) TAC (Cal) 783

the following observations of the Supreme Court

about the object of grant of interest in the case

of Alok Shanker Pandey vs. Union of India and

Ors. reported in AIR 2007 SC 1198:

"It may be mentioned that there is

misconception about interest. Interest is

not a penalty or punishment at all, but

it is the normal accretion on capital. For

example if A had to pay B a certain amount,

say 10 years ago, but he offers that amount

to him today, then he has pocketed the

interest on the principal amount. Had A paid

that amount to B 10 years ago, B would

have invested that amount somewhere and

earned interest thereon, but instead of that A

has kept that amount with himself and

earned interest on it for this period. Hence

equity demands that A should not only pay

back the principal amount but also the

interest thereon to B."

(Emphasis supplied)

In view of the above facts, the Insurance company is

directed to pay the interest @ 6% p.a. on the awarded sum,

from the date of filing claim application i.e., 12th March 2014

till realization.

Therefore, the respondent no. 1-Insurance Company is

directed to directed to pay the interest @ 6% p.a. on the

aforesaid awarded sum from the date of filing claim application

i.e., 12th March 2014 till realization by way of cheque before the

office of learned Registrar General, High Court Calcutta within

a period of 4 weeks from date.

Learned Registrar General, High Court, Calcutta, upon

deposit of the enhanced interest amount as indicated above,

shall release the amount in favour of the appellants /claimants

upon proper identification and subject to verification of the

claimants in the manner and mode of payment as stipulated by

the Ld. Tribunal in its judgment and award dated 20th