Tapati Halder & Ors vs The National Insurance Company ...
2023 Latest Caselaw 5839 Cal

01.09.2023
 Ct. 654
 D/L 10
   ab

                         IN THE HIGH COURT AT CALCUTTA
                           CIVIL APPELLATE JURIDICTION
                               APPELLATE SIDE

                              FMAT 769 of 2017

                             Tapati Halder & Ors.
                                     -Vs-
               The National Insurance Company Limited & Ors.


             Mr. Amit Ranjan Roy
                                     ... for the appellants-claimants
             Mr. Rajesh Singh
                      ... for the respondent no.1-insurance company

This appeal is preferred against the judgment and

award dated 7th October, 2015 passed by the learned

Judge, Motor Accident Claims Tribunal, 3rd Court

Berhampore, Murshidabad in MAC Case No. 239 of

2011 granting compensation of Rs. 1,29,500/- together

with interest from the date of filing of the claim

application in favour of the claimant no. 1 under

Section 163A of the Motor Vehicles Act, 1988.

With the consent of the parties, preparation of

informal paper books and calling for of lower court

records are dispensed with.

The brief fact of the case is that on 17th March,

2010 at about 12.30 hours while the victim was going

on foot from Prasadpur towards Lalbagh, at that time

the offending vehicle bearing registration No. WB-

57/2676 dashed the victim near B.D.O. Office more at

Hat Lalbagh causing fatal injuries all over his body.

Immediately the victim was taken to Lalbagh S. D.

Hospital where from he was referred to Berhampore

New General Hospital where he succumbed to his

injuries and died on the same day. On account of

sudden demise of the victim, the claimants being the

widow, son, daughters and mother of the deceased filed

application for compensation of Rs. 2,00,000/- under

Section 163A of the Motor Vehicles Act, 1988.

During the pendency of the claim application,

Khama Dasi Halder, mother of the deceased expired

and her name was expunged from the claim application.

The claimants in order to establish their case

examined two witnesses and produced documents,

which have been marked as Exhibits 1 to 7

respectively.

The respondent no. 1-insurance company did not

adduce any evidence.

The respondent nos. 2 and 3, owners of the

offending vehicle did not contest the claim application

in spite of service of notice and the case was disposed of

ex parte against them. By order dated 23rd August,

2023, service of notice of appeal upon the respondent

nos. 2 and 3, owners of the offending vehicle has been

dispensed with.

Upon considering the materials on record and the

evidence adduced on behalf of the claimants, the

learned Tribunal granted compensation of Rs.

1,29,500/- together with interest in favour of the

claimant no. 1 under Section 163A of the Motor

Vehicles Act, 1988, with a direction upon the owners of

the offending vehicle (opposite party nos. 1 and 2) to

make payment of the compensation amount.

Being aggrieved by and dissatisfied with the

impugned judgment and award, the claimants have

preferred the present appeal.

Mr. Amit Ranjan Roy, learned advocate for the

appellants-claimants submits that the learned Tribunal

came to a finding that the driver of the offending vehicle

on the relevant date was not holding any valid and

effective driving licence and on such basis, it held that

the liability to compensate lies upon the owners of the

offending vehicle. It is settled position of law that in the

circumstances as above, the principles of pay and

recovery is to be applied. In the light of his aforesaid

submissions, he prays for modification of the impugned

judgment and award of the learned Tribunal.

Mr. Rajesh Singh, learned advocate for the

respondent no. 1- insurance company opposes such

submissions advanced on behalf of the appellants-

claimants.

Having heard the learned advocates for the

respective parties, the only issue that has fallen for

consideration whether in the facts and circumstances of

the case the principles of pay and recovery can be

applied.

It is found from the impugned judgment and

award that the learned Tribunal considering that the

driving licence of the driver was not produced during

the proceedings directed the owners of the offending

vehicle to make payment of compensation amount. In

the circumstances noticed it is settled position that the

insurance company is to pay the compensation amount

and thereafter recover it from the owner of the offending

vehicle. In view of the above, the impugned judgment

and award of the learned Tribunal needs to be modified.

Accordingly, the insurance company is directed to

pay the compensation amount of Rs. 1,29,500/-

together with interest @ 6% per annum from the date of

filing of the claim application (30.06.2011) till payment

in favour of the claimant no. 1. Liberty is granted to the

insurance company to recover the amount of

compensation to be paid from the owners of the

offending vehicle in accordance with law.

The respondent no.1-insurance company is

directed to deposit the aforesaid amount of

compensation and the interest indicated hereinabove by

way of a cheque before the learned Registrar General,

High Court, Calcutta within a period of six weeks from

date.

Upon deposit of the aforesaid amount of

compensation and the interest indicated hereinabove,

the learned Registrar General, High Court, Calcutta

shall release the aforesaid amount in favour of the

appellant no. 1-claimant no. 1, upon satisfaction of her

identity.

With the aforesaid observations, the appeal

stands disposed of. The impugned judgment and award

of the learned Tribunal stands modified to the above

extent. No order as to costs.

All the connected applications, if any, stand

disposed of.

Interim order, if any, stands vacated.

Urgent photostat copy of this order, if applied for,

be given to the parties upon compliance of necessary

legal formalities.

( Bivas Pattanayak, J.)