Tata Aig Gi Co. Ltd vs Haren Ch. Das & Ors
2023 Latest Caselaw 6722 Cal

04.10. 2023
 item No.2
n.b.
ct. no. 551                   FMA 1801 of 2014

      Tata AIG GI Co. Ltd.
                                  Vs.
                             Haren Ch. Das & Ors.

              Mr. Parimal Kumar Pahari,
                               ..... for the appellant.
              Mr. Subrata Bhattacharya,
                               ...... for the respondents.

The instant appeal has been preferred against the

judgment and award dated October 3, 2012 passed by the

learned Tribunal, Additional District Judges Court,

Durgapur, in M.A. C. case No. 36 of 2010 and 58 of 2009.

The brief fact of the case is that the present

appellant being the claimant preferred an application

before the learned Tribunal under Section 163A of the

Motor Vehicles Act for getting compensation from the

Insurance Company on the ground that their predecessor

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 Insurance

Company contested the matter before the learned

Tribunal.

After hearing the parties,the learned Tribunal has

awarded a sum of Rs,4,80,000/- in favour of the

claimants and the Insurance Company is directed to pay

the compensation.

Being aggrieved by and dissatisfied with the

impugned award, the present appeal has been preferred.

Learned advocate for the appellant submits that

there are only two grounds to challenge the impugned

order. First, it would be evident from the entire case that

the deceased was the employee of the OP no.2 i.e. the

owner of the offending vehicle; being an employee, the

deceased cannot come under the purview of a third party.

Thus, the claimants have their proper remedy before the

forum of Worksmens' Compensation Act but the

application 166 of the M.V. Act is not maintainable.

The second ground of challenge is that at the time

of assessing the compensation, the learned Tribunal has

made a deduction of 1/3rd toward the personal expenses of

the deceased, which is erroneous. According to the

provisions of Section 166 of the M.V. Act. The deceased

was bachelor, so, personal deduction would be ½ instead

of 1/3rd.

Learned advocate for the claimant submits that the

application was preferred before the learned Tribunal

under Section 166 of the M. V. Act, though the deceased

was an employee of the owner of the offending vehicle, but

instead of which Section 166 of the M.V. Act is

maintainable. He further argued that the provisions

under Section 167 of the M.V. Act enumerates that the

claimants may prefer an application before any one of the

forums.

Heard the learned advocates and perused the

materials on record, it appears that the claim application

was preferred under Section 166 of the M.V. Act and the

same was filed in the year 2009. Since then, the

claimants roaming before this Court. Considering the

same, it appears to me that the owner i.e the respondent

no.3 being the owner of the offending vehicle cannot deny

his liability to pay the compensation to the employees. It

has been specifically provided in the Workmens'

Compensation Act, the owner is liable to pay the employee

when the employee is under the terms and conditions of

his employment with the employee.

In this case, it is true that the contention of the

learned advocate for the appellant is justified. However, in

considering the provisions of Section 167 of the M.V. Act

and the facts and circumstances of the case, the principle

of pay and recovery may be adopted in this case. At this

juncture, the appellant/insurance company is directed to

pay just and proper compensation to the claimants and in

turn they recover of the same from the owner of the

offending vehicle according to the provisions laid down by

the Hon'ble Supreme Court in Swaran Singh.

In considering the quantum of compensationof

instant case, it appears that the income of the deceased

was correctly calculated by the learned Tribunal to be

Rs.4,000/- per month. 50% deducted that is personal

expense. Thus, the monthly dependence comes to

Rs.2,000/-. Yearly dependence comes to Rs.24,000/-. At

the time of accident, the victim was 20 years old, thus, the

applicable multiplier is 17. After applying multiplier, the

award comes to Rs.4,08,000/-. The claimants are also

entitled to get Rs.4,500/- towards the head of loss of

funeral expenses. After adding all the heading, the award

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

The insurance company is directed to pay the

compensation to the claimants along with 6% interest

from the date of filing of the claim application i.e. on

4.5.2009.

It appears from the record that the insurance

company had deposited the entire awarded amount to the

office of the learned Registrar General, High Court,

Calcutta amongst which the claimants have already

withdrawn Rs.2,42,250/-. The deposit made by the

insurance company must be carried some interests. The

office of the learned Registrar General, High Court,

Calcutta shall calculate the award passed by this Court

along with interest and shall disburse the same in favour

of the claimants less they have already received. After

such payment if it appears that something is due to the

claimants, then the insurance company is directed to pay

the same within a period of eight weeks and after some

payment if it appears that something is remaining in the

account of the insurance company, the same be allowed to

withdraw by the insurance company.

After such deposit is being made, the insurance

company is at liberty to recover the compensation as

ordered above from the owner of the offending vehicle

according to law laid down by the Hon'ble Supreme Court

in Swaran Singh.

Accordingly, FMA 1801 of 2014 is disposed of.

Connected applications, if any, are also disposed of.

All parties shall act on the server copy of this order

duly downloaded from the official website of this Court.

( Subhendu Samanta, J.)