Sulakha Pandit & Ors vs National Insurance Company Ltd. & ...
2023 Latest Caselaw 6708 Cal

                  IN THE HIGH COURT AT CALCUTTA
                   CIVIL APPELLATE JURISDICTION
                             Appellate Side


     Present:

     The Hon'ble Justice Ajay Kumar Gupta




                            FMA 659 Of 2023

                          Sulakha Pandit & Ors.
                                   Versus
                National Insurance Company Ltd. & Anr.



     For the Appellants        : Mr. Supratim Dhar, Adv.
                                  Mr. Dhananjay Nayak, Adv.




     Heard on                  : 30.08.2023, 26.09.2023



     Judgment on               : 04.10.2023




Ajay Kumar Gupta, J:

1.     The appellants have assailed the judgment and awarded dated 8th

August, 2018 passed by the Ld. Judge, Motor Accident Claims Tribunal,
                                   2




Tamluk, Purba Medinipur, in M.A.C. Case No. 3 of 2016, thereby the

learned Tribunal allowed the claim application filed under Section 163A of

the Motor Vehicles Act, 1988 after rejecting the same against the

respondent no. 1/Insurance Company and ex parte against respondent

no. 2/owner of the offending vehicle.

2. The background of the filing this appeal is that on 14.10.2013 at

about 12 hours, when the victim was going in a pickup van bearing

Registration No. WB 29/7251 as a Khalashi, at that material point of time,

the vehicle dashed one unknown vehicle, which was standing near

Mankur Morh on Kolaghat to Howrah bound road due to rash and

negligent driving of the driver. The victim as well as other persons

sustained grievous bleeding injuries. Victim was removed to Bagnan

Hospital. Where the victim declared brought dead.

3. The respondent no. 1/Insurance Company contested the case by

filing written statement denying all the material facts and allegations

made by the appellants in the claim application and further Insurance

Company stated that the victim was a gratuitous passenger of the light

goods vehicle. Accordingly, the Insurance Company is not liable to pay any

compensation as claimed by the appellants. Whereas respondent no.

2/owner of the offending vehicle did not contest the case from the initial

stage and claim case was decided ex parte against the owner of the

vehicle.

4. The appellants examined Sulakha Pandit as P.W. 1 to substantiate

their claim and further produced several documents i.e. FIR, charge sheet,

seizure list, insurance policy, PM report, Voter Card marked as Exhibits 1

to 6/1. However, no evidence adduced from the side of Insurance

Company. After completion of argument, the learned Judge after scanning

and appreciation of evidence adduced by the party came to a final

conclusion that the victim, Pratap Pandit was a gratuitous passenger of

pickup van along with his son and others. They were going to Kolkata for

purchasing vegetables on the basis of facts admitted by the P.W. 1 in her

evidence and the owner of the pickup van has flouted the conditions of the

insurance policy by carrying passenger in a goods carriage vehicle. The

appellants have failed to prove that the victim was a helper of the pickup

van. No oral or documentary evidence brought before the learned Tribunal

to accept the contention of the appellants that the victim was a helper of

pickup van. The learned Tribunal has assessed the compensation amount

to the tune of Rs. 4,06,000/- along with interest @ 6% per annum from

the date of filing of the claim application till final payment against the

owner of the offending vehicle since the owner of the offending vehicle

violated the conditions of the Insurance Policy.

5. It is further observed that the Insurance Company is not liable to

pay any compensation for carrying the gratuitous passenger in a goods

vehicle and finally directed the owner of the offending vehicle/respondent

no. 2 to pay the awarded compensation to the claimants by way of three

account payee cheques in equal amount within two months from the date

of passing of judgment and award as aforesaid through the learned

Tribunal. Failing which the claimants will be at liberty to realise the said

sum of money in accordance with the provisions of the law.

6. Feeling aggrieved with the said findings of the learned Tribunal,

the appellants have filed this appeal only on one ground i.e. the Insurance

Company ought to have paid the compensation amount to the claimants

in the manner and mode as stipulated by the learned Tribunal in the said

judgment and awarded dated 8th August, 2018 with a liberty to recover the

said sum from the owner of the offending vehicle in view of catena of

judgments of the Hon'ble Supreme Court.

7. Learned advocate appearing on behalf of the appellants further

referred three judgments to support his contention that insurance

company shall pay and recover the compensation amount from the owner

of the vehicle since the insurance policy was valid on the date of accident

as follows:

i). Rani and Others v. National Insurance Co. Ltd. and Others report in

2018 ACJ 2430 (SC).

ii). Singh Ram v. Nirmala and Others reported in 2018 ACJ 1264 (SC).

iii). V. Renganathan and Another v. Branth Manager, United India

Insurance Co. Ltd. and another reported in 2023 ACJ 623 (SC).

8. Ld. counsel further contended that the learned Tribunal ought to

have been directed the Insurance Company to pay the compensation

amount as awarded by the learned Tribunal together with interest with a

provision of recovery the same from the owner of the offending vehicle but

the learned Tribunal has committed an error and directed the owner of the

offending vehicle to pay the awarded compensation. The owner of the

offending vehicle did not pay any compensation to the claimants till date.

He prays for direction upon the Insurance Company to pay the

compensation amount to the appellants/claimants together with interest

upon giving liberty to recover the same from the owner of the offending

vehicle which was involved in the said accident and as the Insurance

policy was valid on the date of accident. None appears on behalf of the

respondents.

9. Having heard the submission and on perusal of the record and

judgments as referred by the appellants, this Court finds there is no

dispute regarding the findings of the learned Tribunal regarding the victim

Pratap Pandit was a gratuitous passenger of an offending vehicle i.e.

pickup van on the date of accident. Accordingly, the condition of

Insurance Policy was flouted by the owner of the offending vehicle. It is

true that when the insurance policy was violated by the owner of the

offending vehicle, the Insurance Company is not liable to pay

compensation. However, the Hon'ble Supreme Court time and again on

similar facts and circumstances of the present case directed the Insurance

Policy to pay the compensation to the claimants at the first instance, when

it is found that the insurance policy was valid on the date of accident and

further given liberty to recover the amount from the owner of the offending

vehicle in accordance with law. The Hon'ble Supreme Court further

observed that there is no need to file a separate suit or fresh proceeding

for recovery of the compensation amount awarded by the ld. Tribunal from

the owner or driver of the offending vehicle.

10. The judgment referred by the appellant reported in Rani and

Others vs. Insurance Company Ltd. and Others1, the Hon'ble Supreme

Court observed that the appeals were partly allowed by directing the

respondent/insurance company to first pay the compensation amount to

the respective claimants as determined by the High Court and Ld.

2018 ACJ 2430 (SC)

Tribunal as the case may be, with liberty to recover same from the owner

of the offending vehicle i.e. respondent no. 2 since the offending vehicle

had no permit for being plied in the State of Karnataka as its permit was

restricted to the State of Maharashtra.

11. In another judgment reported in Singh Ram v. Nirmala and

Others2, wherein the Hon'ble Supreme Court held that the Insurance

Company is to pay the compensation amount to the claimants with a

liberty to recover from the owner of the offending vehicle. In the said case,

the owner-cum- driver produced a licence which was fake and another

licence which he sought to produce had already expired before the

accident and it was renewed more than two years after it had expired.

Accordingly, the owner of the offending vehicle violated the conditions of

the insurance policy.

12. Similarly, in the third case referred by the appellants of the

Hon'ble Supreme Court reported in V. Renganathan and Another v.

Branch Manager, United India Insurance Co. Ltd. and Another3,

wherein the Hon'ble Supreme Court held that the Insurance company is

liable to pay compensation to the claimants and further entitled to recover

2018 ACJ 1264 (SC)

2023 ACJ 623 (SC)

the said amount from the owner of the offending vehicle. In the said case,

the victim died while travelling on the mudguard of a tractor, when the

tractor met with an accident resulting the death of the victim. Here also

the owner of the tractor violated the conditions of the insurance policy.

Similarly in the instant case, the victim was travelling in an offending

vehicle as a gratuitous passenger at the time of accident. He was with his

son and other family members, who were going to Kolkata for purchasing

vegetables and the said fact was admitted by the P.W. 1. Accordingly, the

learned Tribunal has held that the victim was a gratuitous passenger and

the offending vehicle was a goods vehicle and the owner of the pickup van

has flouted the conditions of the policy by carrying passenger in a goods

carrier vehicle. In such facts and circumstances, the justice would be sub-

served if this Court directed the insurance company to pay the

compensation amount as awarded by the learned Tribunal in the manner

and mode as stipulated in the judgment and award dated 08.08.2018 to

the claimants with further liberty is given to recover the said amount from

the owner of the offending vehicle i.e. pickup van, bearing registration no.

WB 29/7251 in accordance with law by the insurance company.

13. In the light of the above discussions, the judgment and awarded

dated 08.08.2018 is modified to the above extent and other portions of the

judgment are remain unaltered.

14. Accordingly, FMA 659 of 2023 is disposed of with order as to

costs.

15. Let a copy of this Judgment along with Lower Court records, if

received, be sent back to the learned Tribunal forthwith for information.

16. All parties shall act on a server copy of the judgment and order

uploaded from the official website of High Court at Calcutta.

17. Urgent photostat copy of this Judgment and Order be given to the

parties upon compliance of all legal formalities.

(Ajay Kumar Gupta, J)

P. Adak (P.A.)