Calcutta High Court (Appellete Side)
Shriram General Insurance Co. Ltd vs Basanti Roy And Others on 4 September, 2023
04.09.2023 IN THE HIGH COURT AT CALCUTTA
Ct. no.654 CIVIL APPELLATE JURISDICTION
Sl. Nos.11&12 APPELLATE SIDE
KB/SN ,,
F.M.A. 1050 of 2022
with
IA No. CAN 1 of 2017
(Old No. CAN 6612 of 2017)
with
IA No. CAN 2 of 2017
,
(Old No. CAN 6624 of 2017)
Shriram General Insurance Co. Ltd.
Vs.
Basanti Roy and others
with
COT 42 of 2020
with
IA No. CAN 1 of 2021
Amal Chandra Roy
Vs.
Shriram General Insurance & Another
Mr. Rajesh Singh
..for the appellant-insurance Co.
Mr. Subhankar Mondal
..for the respondents-claimants
This appeal is preferred against the judgment
and award dated 23rd December, 2016 passed by
learned Additional District Judge cum Judge, Motor
Accident Claims Tribunal, 5th Court, Burdwan in
M.A.C. Case No. 10 of 2014 granting compensation of
Rs.6,73,110/- together with interest in favour of the
claimants under Section 166 of the Motor Vehicles
Act, 1988.
The brief fact of the case is that on 13.11.2012
at about 9 A.M. while the victim was returning home
on his motor cycle from Simlagarh Kalibari through
G. T. Road and when he reached near Jougram More
suddenly the offending vehicle bearing registration
no. WB 42S 6957 (Chevrolet Beat) dashed the victim
from behind, as a result of the said accident the
victim sustained severe bleeding injuries.
Immediately he was shifted to Memari P.H.C.
wherefrom he was taken to Burdwan Medical College
and Hospital but as his condition deteriorated he was
referred to S.S.K.M. Hospital, Kolkata where he
succumbed to his injuries and died on 16.11.2012.
On account of sudden demise of the victim the
claimants, being the parents filed the application for
compensation of Rs.6,80,700/- under Section 166 of
the Motor Vehicles Act, 1988.
The claimants in order to establish their case
examined three witnesses and produced documents
which have been marked as Exhibits 1 to 6
respectively.
The appellant-insurance company also
adduced evidence of one witness and produced
documents which have been marked as Exhibits A &
B respectively.
Since the owner of the offending vehicle did not
contest the claim application, hence, service of notice
of appeal upon respondent no.3-owner of the
offending vehicle stands dispensed with.
During the pendency of this appeal mother of
the deceased Basanti Roy (respondent no.1) died and
her name has been expunged from the Memorandum
of Appeal by order dated 25.07.2022.
Upon considering the materials on record and
evidence adduced on behalf of the respective parties,
the learned Tribunal granted compensation of
Rs.6,73,110/- together with interest in favour of the
claimants under Section 166 of the Motor Vehicles
Act.
Being aggrieved by and dissatisfied with the
impugned judgment and award of the learned
Tribunal, the insurance company has preferred the
present appeal.
Challenging the impugned judgment and
award of the learned Tribunal, the claimants have
also preferred Cross Objection being no. COT 42 of
2020.
Both the appeal and the cross objection is
taken up together for consideration and disposal.
Mr. Rajesh Singh, learned advocate for the
appellant-insurance company submits that the
insurance company in the present appeal has
precisely challenged the involvement of the offending
vehicle. As per the claim case, the accident has taken
place on 13th November, 2012 and the FIR is
registered on 15th September, 2013, thereby resulting
in delay of more than 300 days. The inordinate delay
has not been explained during the proceeding before
the learned Tribunal. Since the date of accident till
the FIR came into existence, there is no reflection of
the alleged offending vehicle in any of the documents.
Although, the post-mortem report shows that the
victim sustained injuries in a road traffic accident
but the same does not disclose the involvement of the
alleged offending vehicle. The eyewitness to the
occurrence PW-2, Debjyoti Champati, deposed in his
cross-examination that he disclosed the registration
number of the vehicle to the relative of the victim.
The mother of victim has admitted that PW-2
informed her of the accident on 13th November 2012,
i.e., the date of the occurrence, however, in spite of
getting such information, the FIR has been lodged
after an inordinate delay of 300 days, disclosing
involvement of the alleged vehicle, which is very
much doubtful. In the light of his aforesaid
submissions, he prays for setting aside the judgment
and award of the learned Tribunal and dismissing
the claim application of the claimants.
With regard to the quantum of compensation,
he submits that the interest on the compensation
amount of 8% per annum should be scaled down
bearing in mind the prevailing rate of banking
interest.
In reply to the contentions raised by the
insurance company, Mr. Subhankar Mondal, learned
advocate for the respondents-claimants submits that
the documents in the form of FIR, Charge-sheet and
Seizure list clearly indicate the involvement of the
offending vehicle. The aforesaid documents of the
investigating agency have not been challenged by the
insurance company. Referring to the decision of this
Court passed in New India Assurance Company
Limited versus Mita Samanta reported in 2010 (3)
CHN (Cal) 411, he submits that the insurance
company which raises specific plea of non-
involvement of the offending vehicle is duty-bound to
proof the same by adducing the evidence of the
owner and the driver of the offending vehicle. Since
the owner and driver of the offending vehicle has not
been examined by the insurance company, the claim
of the claimants of involvement of the offending
vehicle is to be accepted. Further, he submits that as
the police authorities refused to accept the complaint
relating to accident, the father of the victim was
constrained to file application under Section 156(3)
of the Code of Criminal Procedure for sending the
same to the local police station for investigation and,
thus, the delay is due to non-registering of FIR by the
police authorities, for which the claimants cannot be
held liable for such delay. Moreover the law is well
settled that delay in lodging of the FIR per se would
not make the claim case doubtful. To buttress his
contentions, he relies on the decisions of this Court
in Bajaj Allianz General Insurance Company
Limited versus Anjali Mondal and Anr. (F.M.A.T
201 of 2018) and in The National Insurance Co.
Ltd. versus Amita Nayek & Ors. (F.M.A. 353 of
2019). Further PW2, eyewitness to the occurrence,
has categorically stated of involvement of the vehicle
which has remained unchallenged in cross-
examination. Thus, the claimants have succeeded in
establishing the involvement of the offending vehicle.
So far as the quantum is concerned, he submits that
the claimants are entitled to future prospect of 40%
of the annual income of the victim and general
damages of Rs.30,000/- and the multiplier should be
18 instead of 17 adopted by the learned Tribunal.
Having heard the learned advocates for the
respective parties, following issues have for
consideration:
Firstly, whether the offending vehicle was
involved in the accident.
Secondly, whether the claimants are entitled to
an amount equivalent to 40% of annual income of
the deceased towards future prospect.
Thirdly, whether the claimants are entitled to
general damages of Rs. 30,000/- under the
conventional heads.
Lastly, whether the interest on compensation
of 8% per annum should be scaled down.
With regard to the first issue relating to
challenge to the involvement of the vehicle, it is
found that the insurance company has raised the
plea of non-involvement of the offending vehicle.
The claimants in order to establish their case
of involvement of offending vehicle has examined one
Debjyoti Champati (PW-2) who claimed himself to the
eyewitness to the occurrence and also filed
documents, namely, formal FIR (Exhibit-1), Charge-
sheet (Exhibit 1/1) and seizure list (Exhibit 1/3).
Admittedly, from the above documents, it is found
that the accident has taken place on 13th November,
2012 and the FIR has been registered on 15th
September, 2013. Thus, there is delay of more than
300 days in lodging the FIR. The involvement of the
offending vehicle has precisely been challenged on
the ground of delay in lodging FIR.
Mr. Singh, learned advocate for the appellant-
insurance company strenuously argued referring to
the evidence of PW2, eye-witness to the incident, that
in spite of the vehicle number been disclosed to the
relative of the victim, the FIR has been lodged after
300 days of the occurrence which raises a doubt in
the involvement of the vehicle.
PW-2, in his affidavit-in-chief has stated the
involvement of the vehicle and that he saw the
accident on the relevant date of occurrence. The
witness in his cross-examination deposed that he
disclosed the vehicle number to the relative of the
victim. PW-1, Basanti Roy, mother of the victim, has
admitted in the cross-examination that the
information of the accident was given to her by PW-2
on the date of occurrence, i.e. 13th November, 2012.
Thus, from the aforesaid materials, it is quite clear
that the family members of the victim were aware of
the accident and the involvement of the offending
vehicle on the date of accident. Now it is to be
examined whether such delay in lodging FIR per se
makes the case of the claimant doubtful.
During the course of hearing, Mr. Mondal,
learned advocate for the respondents-claimants
submitted that since the police authorities refused to
accept the FIR, there was delay of 300 days.
However, there are no such materials in support of
such contentions. Be that as it may, there is no case
of concoction or fabrication or engineering could be
shown in the FIR excepting it being delayed.
The Hon'ble Supreme Court in its decision
passed in Ravi versus Badrinarayan reported in
(2011) 4 SCC 693 observed as follows:
"20. It is well settled that the delay in lodging
FIR cannot be a ground to doubt the claimant's
case. Knowing the Indian conditions as they are,
we cannot expect the common man to first rush
to the Police Station immediately after an
accident. Human nature and family
responsibilities occupy the mind of kith and kin
to such an extent that they give more importance
to get the victim treated rather than rush to the
Police Station. Under such circumstances, they
are not expected to act mechanically with
promptitude in lodging the FIR with the Police.
Delay in lodging the FIR thus, cannot be the
ground to deny justice to the victim. In cases of
delay, the Courts are required to examine the
evidence with a closer scrutiny and in doing so;
the contents of the FIR should also be
scrutinized more carefully. If Courts finds that
there is no indication of fabrication or it has not
been concocted or engineered to implicate
innocent persons then, even if there is a delay in
lodging the FIR the claim case cannot be
dismissed merely on that ground."
Bearing in mind the aforesaid observation of
the Hon'ble Supreme Court and as in the present
case at hand, there is no indication of fabrication or
concoction or engineering of the FIR hence the delay
in lodging the FIR per se cannot be a ground for
dismissal of the claim case. This Court in the
decisions passed in Anjali Mandal (supra) and in
Amita Nayek (supra) also relied on the aforesaid
observation of Hon'ble Supreme Court made in Ravi
(supra).
The appellant-insurance company filed
application for leave to avail all defences under the
provisions of Section 170 of the Motor Vehicles Act,
1988. When Section 170 of the Act permitted an
insurance company to contest proceedings on behalf
of the insured-owner of the vehicle, it was incumbent
upon the insurance company to summon the owner
or the driver of the vehicle to appear as witness for
disputing the allegation of involvement of the
offending vehicle. The owner of the offending vehicle
was the best person to prove noninvolvement of the
offending vehicle. Similarly, the driver could have
been a necessary witness to throw light as to whether
the offending vehicle was really involved in the said
accident or not. The appellant-insurance company
did not take any steps to adduce the evidence of the
owner or the driver of the offending vehicle to
establish its plea of non-involvement of the offending
vehicle. Failure to adopt such course the court is left
with no other alternative than to accept the
allegations of the claimants of involvement of the
offending vehicle.
This Court in the case of Mita Samanta (supra)
observed as follows:
"Therefore, the insurance company in spite of
taking leave under section 170 of the Act having
failed to summon the owner or the driver of the
vehicle to disprove the allegation of the
claimants of the involvement of the vehicle
concerned or the rash and negligent driving, the
court is left with no other alternative but to
accept the allegation of the claimants unless
there is either admission of the claimants or their
witness about non-involvement of the vehicle or
about contributory negligence of the victim in the
accident or there exists other evidence of
unimpeachable nature given by uninterested
witness showing falsity of the allegation of the
claimants. In this case, there is no such
admission or evidence of that nature. In this
case, driver has been charge-sheeted and thus,
there is no reason why the insurance company
in spite of taking leave under Section 170 of the
Act should not summon the said driver to give
evidence for disclosing the truth. We are unable
to presume collusion between the driver and the
claimants when the driver has been indicted in
the criminal proceedings. It will be a travesty of
justice in the facts of the present case to
disbelieve the eyewitness of the claimants when
the owner and the driver are neither appearing
nor are they even summoned by the insurance
company even after taking leave under Section
170 of the Act to face cross examination at the
instance of the claimants."
Keeping in mind the aforesaid observation of
this Hon'ble Court, I am of the view that as the
appellant-insurance company in spite of taking leave
under Section 170 of the Act has failed to adduce the
evidence of owner or the driver of the offending
vehicle to establish its defence of non-involvement of
the vehicle, it will be a travesty of justice to disbelieve
the eyewitness namely PW2 examined on behalf of
the claimants in this regard. Needless to mention
that the insurance company also did not produce the
evidence of the investigating agency to disprove the
claim of the claimants regarding the involvement of
the offending vehicle. The FIR (Exhibit 1), charge
sheet (Exhibit 1/1) and seizure list (Exhibit 1/3)
clearly shows involvement of the offending vehicle in
the said accident. In view of the above discussion the
argument advanced on behalf of the appellant-
insurance company of non-involvement of the
offending vehicle in the said accident does not hold
good.
The post mortem report (Exhibit-3) reveals
that on 13th November, 2012 at 4-02 p.m. the
deceased admitted in S.S.K.M. Hospital, Kolkata,
with history of road traffic accident and he expired
on 16th November, 2012. The contentions of the
claimants that the victim died out of road traffic
accident is supported by the fact enumerated in the
post mortem report. The post mortem has been
conducted in reference to the Bhawanipur Police
Station inquest no. 1808 dated 17th November, 2012.
Neither of the parties has taken any endeavor to
produce inquest report before the learned Tribunal.
Be that as it may, the charge sheet shows that an
unnatural death case was started in relation to road
traffic accidental death of the victim and the
investigating agency has taken into account the
inquest report. It is relevant to note that although the
insurance company made suggestion to the PW-2, of
implanting of the vehicle in connivance of eyewitness
and the police personnel, however, no witness has
been examined to establish such fact of implantation
of the vehicle.
Mr. Singh, learned advocate for the appellant-
insurance company referring to Section 134 of the
Motor Vehicles Act, has tried to impress upon the
Court that since the owner or the driver did not
inform of the accident, hence, the claim of the
claimants is doubtful. The Act does not lay down any
presumption of law that upon violation of the
provisions of Section 134 of the Motor Vehicles Act,
the same would raise adverse presumption making
the claim case doubtful.
Now the issue relating to quantum is taken up
for consideration.
With regard to entitlement of future prospect, it
is found that since the victim at the time of accident
was 23 years and was on fixed salary, hence the
respondent no. 2 is entitled to an amount equivalent
to 40% of the annual income of the deceased towards
future prospect.
So far as the multiplier is concerned, since at
the time of accident the victim was 23 years of age,
following the principles of Sarla Verma and Others
versus Delhi Transport Corporation and Another
reported in 2009 (6) SCC 121, the multiplier should
be 18.
With regard to the general damages is
concerned, it is found that the learned Tribunal has
granted Rs.4,500/- towards general damages.
However, bearing in mind, the decision of the Hon'ble
Supreme Court in National Insurance Company
Limited versus Pranay Sethi and Others reported
in (2017) 16 SCC 680, the respondent no. 2 is
entitled to Rs.15,000/- each under the heads of loss
of estate and funeral expenses.
Mr. Singh, learned advocate for the appellant-
insurance company has indicated that the interest
on the compensation amount requires to be scaled
down. It is found that the learned Tribunal has
granted interest @ 8% per annum on the
compensation amount. However, bearing in mind the
prevailing banking rate of interest the compensation
shall carry interest @ 6% per annum from the date of
filing of the claim application.
Other factors have not been challenged in this
appeal.
Bearing in mind the aforesaid factors,
calculation of compensation is made hereunder.
Calculation of Compensation
Monthly income Rs.6,555/-
Annual income Rs.78,660/-
(Rs.6,555/- x 12)
Add: 40% of the annual income Rs.31,464/-
towards future prospect
Rs.1,10,124/-
Less: 50% towards personal Rs.55,062/-
and living expenses
Multiplier 18 Rs.9,91,116/-
(Rs.55,062/- x 18)
Add: General damages Rs.30,000/-
Loss of estate: Rs.15,000/-
Funeral expenses:Rs.15,000/-
Total compensation Rs.10,21,116/-
The respondent no. 2-claimant is entitled to
compensation of Rs. 10,21,116/- together with
interest @ 6% per annum from the date of filing of
the claim application till payment.
Mr. Singh, learned advocate for the appellant-
insurance company files photocopy of the challan no.
being no. OD Challan No. 1382 dated 4th September,
2017 which is taken on record. It is found that the
insurance company has deposited a sum of
Rs.8,35,050/- vide OD Challan No. 1382 dated 4th
September, 2017. The insurance company has also
made statutory deposit of Rs.25,000/- vide OD
Challan No. 861 dated 4th July, 2017. Both the
aforesaid deposits together with accrued interest be
adjusted against the entire compensation amount
and interest thereon.
The appellant-insurance company is directed
to deposit the balance amount of compensation, if
any, by way of a cheque before the learned Registrar
General, High Court, Calcutta.
Respondents-claimants are directed to deposit
balance court fees on the compensation assessed, if
not already paid.
Learned Registrar General, High Court,
Calcutta shall release the amount of compensation
and the interest as indicated above in favour of the
respondent no.2-claimant upon satisfaction of his
identity and payment of balance court fees, if not
already paid.
Upon full satisfaction of the award, if any
amount is left over, the same shall be refunded to the
appellant- insurance company.
With the above observations, the appeal and
the cross-objection stand disposed of. The impugned
judgment and award of the learned Tribunal is
modified to the above extent. No order as to costs.
Let a copy of this order along with lower court
records be forwarded to learned Tribunal forthwith in
accordance with rules.
All connected applications, if any, are also
disposed of.
Interim order, if any, stands vacated.
Urgent certified photocopy of this order, if
applied for, be supplied to the parties expeditiously
upon compliance of all necessary legal formalities.
(Bivas Pattanayak, J.)
