Smt. Mrinalini Dey & Ors vs United India Insurance Co. Ltd. & ...
2023 Latest Caselaw 6816 Cal

                       IN THE HIGH COURT AT CALUTTA
                          Civil Appellate Jurisdiction
 06.10.2023
SL No.6
Court No. 551
   Ali


                             FMA 360 of 2003

                       Smt. Mrinalini Dey & Ors.
                                  Vs.
                   United India Insurance Co. Ltd. & Anr.

                 Mr. Saidur Rahaman
                           ................ for the appellants-claimants.

                 Mr. Parimal Kumar Pahari
                               ...for the respondent Insurance Co.

The instant appeal has been preferred

against the judgment dated 20th October, 2001

passed by learned Judge, Motor Accident Claims

Tribunal, Murshidabad at Berhampore, in MV Case

no. 205 of 1994.

The brief fact of the case is that the present

appellants being the claimants preferred an

application before the learned tribunal for getting

compensation under Section 140 as well as read

with Section 166 of the M.V. Act, 1988 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 and the learned tribunal after

hearing has dismissed the claim case.

Being aggrieved by and dissatisfied with the order

of dismissal the present appeal has been preferred.

The learned advocate for the appellants

submits that two vehicles were involved in the

alleged accident one is the Ambassadar Car

another is a Truck. The Truck dashed the

Ambassadar Car while the Ambassadar Car and

the truck both, were riding the vehicles in a rash

and negligent manner. The Truck was fled away

could not be traced out. The deceased was within

the Ambassadar Car so the insurer and the owner

of the Ambassadar Car was made party in this

proceeding. The learned tribunal after considering

the materials on record erroneously disbelieve the

case of the petitioner on the ground that the

Ambassadar Car was not at all involved in the

alleged accident. He further argued that by virtue

of the decision of Hon'ble Supreme Court in T.O.

Anthoney Vs. Karvarnan & Ors. any one of the

tort feasors may be made party to the proceeding

and may be directed to pay the compensation. In

this case as the Truck was fled away thus the

Ambassadar Car who was carrying the deceased at

the time of accident and driving recklessly may be

liable to pay the compensation.

Learned advocate appearing on behalf of the

insurance company submits that the learned

tribunal has committed no error. The PW-2 was

placed before the learned tribunal as eye witness.

The FIR disclose about the persons present inside,

and travel through the Ambassadar Car. The PW-

2 was not there or traveled along with the

deceased; thus the evidence of PW-2 cannot be

believed. Moreover, the evidence of the PW-2 is

totally different to that of the claim case and the

police case. Thus, the learned tribunal has no

other opportunity but to dismiss the claim

application on the basis of the false evidence of

PW-2. He further argued that the deceased was

within the Ambassadar Car and the deceased died

in a road traffic accident so the application under

Section 140 of M.V. Act may be maintainable but

the claimant has miserably failed to prove the rash

and negligent driving of the driver of the offending

vehicle which is a sine-qua-non to prove the case

under Section 166 of the M.V. Act.

Heard the learned advocate perused the

materials on record. The peculiar facts and

circumstances of this case need be looked into

very cautiously. By filing claim application, the

claimants has stated that the deceased was

proceeding through the Ambassadar Car on

21.06.1994 through NH-34 at the time a Lorry

without any prior alarm coming from the opposite

side with high speed dashed on the left side of the

Ambassadar Car and fled away by such deceased

sustained severe injuries and thereafter

succumbed to his injuries. The PW-1 i.e. the wife

of the deceased was not travelled with the

deceased in the Ambassadar Car and she could

not state about the manner of the accident. She

only stated that her husband was died in the

Motor vehicle accident. After the said accident her

husband was brought to the Berhampore New

General Hospital in injured conditions and

succumbed to his injuries.

One person, namely, Sukhendra Nath Dey

who is the full brother of the deceased deposed

before the learned tribunal as PW-2 who stated

that at the relevant point of time he was travelling

in that vehicle alongwith the deceased. It is his

deposition that the Taxi was moving in excessive

speed and while the Taxi was trying to overtake a

matador van over the road in high speed at the

time a lorry was suddenly appeared from the

opposite direction and in order to avoid accident,

the driver of the Ambassadar Car turned his

vehicle towards the extremely right side of the

road as a result the vehicle overturned and fell into

a ditch.

After such accident one FIR was lodged by

one Promatha Halder who stated the name of the

persons travelled inside the said vehicle along with

the deceased. FIR stated about the manner of the

accident that at the time of overtake a lorry the

Ambassadar Car go to the right, side at the time

suddenly one Truck which was coming from the

opposite side dashed the left side of the

Ambassadar Car.

After perusing the manner of accident as

stated by the PW-2 and the FIR, they are appears

to be different. The PW-2 proved to be not present

in the Ambassadar Car by virtue of the FIR.

It further appears that there are not much

difference about the manner of accident as stated

in the claim applicant and in the FIR. The case of

fell down inside the ditch is missing as stated by

the PW-2. It is true from the fact of the FIR that

the Ambassadar Car at the relevant point of time

was trying to overtake a lorry which was

proceeding towards the same direction; at that

time one Truck i.e. offending Truck which was

coming from the opposite side came in just in front

of the Ambassadar Car. If the said fact is

visualized, there must have a head on collision

between the Ambassadar Car and the offending

lorry but it is a case of FIR as well as the claim

application that the left side of the Ambassadar

Car was dashed. The left side of the Ambassadar

Car can only be dashed if the Ambassadar Car

proceeded extreme right side of the High Way. At

this juncture, it appears to me that the

Ambassadar Car must have such a great speed

that he tried to avoid the head on collision and

proceeded towards the extreme right side of the

road. Though it is true that the evidence of PW-2

may not be believed to the extent that he was not

present at the time of accident but the factum of

accident and manner thereof cannot be

disbelieved. It is also cannot be disbelieved that

the Ambassadar Car was involved for the

commission of such accident. In my view, both the

Ambassadar Car as well as the Truck was jointly

responsible for the accident. Thus, the application

under Section 166 of the M.V. Act is maintainable

and the claimants are entitled to get the just and

proper compensation of this case.

It appears that the claimant has not proved

the income of the deceased by submitting cogent

or convincing evidence. The deceased died in the

year 1994. So, in my view, the income of the

deceased can be calculated Rs. 1,500/- per month.

In considering the just and proper

compensation of this case:-it appears to me that the

monthly income was deceased was calculated to be

Rs. 1,500/- so the yearly income comes to Rs.

18,000/- 1/3rd is deducted towards his personal

expenses so after deduction the yearly dependency

comes to Rs. 12,000/-. The deceased was within the

age group of 35-40 years so the claimants are

entitled to get the future prospects which would be

added to be 40% of the income which calculated to

be Rs. 4,800/- so after adding the future prospects

the yearly dependency comes to Rs. 16,800/- the

applicable multiplier in this case is 16. After

multiplying the multiplier the award comes to

Rs.2,68,800/-. The claimants are also entitled to get

the general damages of Rs. 70,000/- according to

the direction of Hon'ble Apex Court passed in

Pranay Sethi. After adding all the heads the award

the award comes to Rs. 3,38,800/-.

The insurance company is directed to pay

the compensation amounting to Rs. 3,38,800/-

along with interest @ 6% per annum from the date

of filing of the claim case that is from 19.12.1994

within ten weeks from the date of passing of this

order with the office of the learned Registrar

General, High Court, Calcutta. On such deposit the

office of the learned Registrar General, High Court,

Calcutta shall disburse the amount in favour of the

claimants vide three equal account payee cheques.

The claimants are at liberty to receive the same

according to the prevalent Rules subject to the

ascertainment of payment of requisite Court Fees.

The instant FMA 360 of 2003 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.)