Calcutta High Court (Appellete Side)

The National Insurance Co. Ltd vs Smt. Rina Rani Bera Mandal & Anr on 8 September, 2023

08.09.2023
 Ct. 654
D/L 199 & 200
    ab

                   IN THE HIGH COURT AT CALCUTTA
                     CIVIL APPELLATE JURIDICTION
                           APPELLATE SIDE

                             FMA 1285 of 2022
                                  With
                              CAN 1 of 2020
                              CAN 2 of 2020

                      The National Insurance Co. Ltd.
                                    -Vs-
                     Smt. Rina Rani Bera Mandal & Anr.

                                     With

                               COT 41 of 2021

                Smt. Rina Rani Bera Mandal @ Smt. Rina Rani
                                   Mandal
                                     -Vs-
                      National Insurance Co. Ltd & Anr.


          Mr. Sanjay Paul,
          Ms. Jaita Ghosh
                        ... for the appellant-Insurance Company

          Mr. Ashique Mondal,
          Mr. Snehasis Jana,
          Mr. Bibikananda Tripathy
                             ... for the respondent no. 1-claimant

This appeal is preferred against the judgment and

award dated 29th June, 2019 passed by the learned

Judge, Motor Accident Claims Tribunal, 1st Court,

Tamluk, Purba Medinipur in MAC Case No. 408 of 2014

granting compensation of Rs. 32,35,024/- together with

interest in favour of the claimant under Section 166 of

the Motor Vehicles Act, 1988.

The brief fact of the case is that on 19th January,

2014 at about 10.00 a.m. while the victim was going

from Chandipur to Reyapara by the offending vehicle

bearing registration No. WB-29A/5895 (Trekker)

through Chandipur-Nandigram pitch road and when

the said trekker reached near Nandapur it capsized on

the roadside, as a result of which the victim sustained

severe injuries all over his body. Immediately the victim

was shifted to CMRI Hospital, Kolkata where he

succumbed to his injuries and died on 30th January,

2014. On account of sudden demise of the victim, the

claimant being the widow filed application for

compensation of Rs. 50,00,000/- together with interest

under Section 166 of the Motor Vehicles Act, 1988.

The claimant in order to establish her case

examined four witnesses and produced documents,

which have been marked as Exhibits 1 to 14

respectively.

The appellant-insurance company did not adduce

any evidence.

By order dated 19th September, 2022, service of

notice of appeal upon the respondent no. 2, owner of

the offending vehicle has been dispensed with.

Upon considering the materials on record and the

evidence adduced on behalf of the claimant, the learned

Tribunal granted compensation of Rs. 32,35,024/-

together with interest in favour of the claimant under

Section 166 of the Motor Vehicles Act, 1988.

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 claimant has also preferred a

cross-objection being COT 41 of 2021.

Both the appeal and the cross objection are taken

up together for consideration and disposal.

Mr. Sanjay Paul, learned advocate for the

appellant-insurance company submits that the policy of

insurance (Exhibit-6) shows that the liability of the

insurance company has been limited to 9 (nine)

passengers. However, from the written complaint of the

informant and charge sheet submitted by the

investigating agency, it would be evident that about 18

(eighteen) persons were travelling in the said trekker on

the relevant date of accident. The aforesaid aspect

clearly violates the terms and conditions of the

insurance policy and for such reason, the insurance

company cannot be saddled with liability to pay

compensation. In the light of his aforesaid submissions,

he prays for setting aside the impugned judgment and

award of the learned Tribunal.

In reply to the contentions raised on behalf of the

appellant-insurance company, Mr. Ashique Mondal,

learned advocate for the respondent no. 1-claimant

submits that precisely there is no evidence on record to

suggest that on the relevant date of accident, the

offending vehicle was carrying more than nine persons

and therefore, the argument advanced on behalf of the

appellant-insurance company is without any basis. He

further submits that the claimant is entitled to an

amount equivalent to 50% of the annual income of the

victim towards future prospect since at the time of

accident the victim was 35 years of age and was a

school teacher (on probation). He further submits

though the claimant proved the medical expenses of the

victim by adducing the evidence of P.W. 4, Executive,

Medical Reports Department at CMRI, Kolkata, but, the

learned Tribunal failed to grant such medical expenses

incurred for treatment of the victim. In view of his

aforesaid submissions, he prays for enhancement of the

compensation on modification of the impugned

judgment and award of the learned Tribunal.

Having heard the learned advocates for the

respective parties, following issues have fallen for

consideration. Firstly, whether on the relevant date of

accident, the offending vehicle was carrying more than

nine passengers, thereby violating the terms and

conditions of the policy of insurance; secondly, whether

the claimant is entitled to an amount equivalent to 50%

of the annual income of the victim towards future

prospect and lastly, whether the claimant is entitled to

medical expenses incurred for treatment of the victim.

With regard to the first issue, it is found that the

insurance company in its additional written statement

has raised a specific plea that on the relevant date of

accident, the offending vehicle was carrying more than

nine passengers in violation of the terms and conditions

of the policy of insurance which was issued for liability

of nine passengers and for damage of third party

property of Rs. 6,000/-. The insurance company has

not led any evidence to bring such fact on record.

Further, there is no evidence in the cross-examination

of the eyewitness P.W.2, Narayan Bharati to suggest

that on the relevant date of accident, there were more

than nine persons travelling in the offending vehicle. To

be precise, no suggestion whatsoever has also been

given to the eyewitness P.W. 2, in this regard. Mr. Paul,

learned advocate for the appellant-insurance company

relying on the contents of the written complaint and

charge sheet tried to impress upon the Court that on

the relevant date, more than nine passengers were

travelling in the offending vehicle violating the terms

and conditions of the insurance policy. At the outset,

the written complaint and the charge sheet are not the

substantive evidence. Be that as it may, upon going the

contents of the written complaint, it is found that on the

relevant date 18 persons, including passengers and

bystanders were injured. It does not state that 18

passengers were travelling in the offending vehicle on

the relevant date. While noting the brief fact of the case,

the investigating agency in the charge sheet has stated

that 18 passengers were travelling in the offending

vehicle, which is not the actual reproduction of the fact

stated in the written complaint. In view of the above, the

arguments advanced on behalf of the insurance

company in this regard fall short of merit.

So far as the future prospect is concerned, it is

found that admittedly at the time of accident, the victim

was 35 years of age and was a school teacher in a

government school. Following the observations of the

Hon'ble Supreme Court made in National Insurance

Company Limited versus Pranay Sethi and others

reported in 2017 ACJ 2700, the claimant is entitled to

an amount equivalent to 50% of the annual income of

the victim towards future prospect.

So far as the medical expenses are concerned, it

is found that P.W. 4, Executive, Medical Reports

Department at CMRI, Kolkata deposed that from the

money receipt, it is explicit that the patient party paid

an amount of Rs. 2,97,000/- and he proved the final bill

marked Exhibit-14 (with objection). No contrary,

evidence has been adduced by the insurance company

challenging such final medical bill. Upon perusal of the

final medical bill (Exhibit-14), it is found that an

amount of Rs. 2,97,000/- has been paid towards

medical expenses of the victim. Accordingly, claimant is

also entitled to aforesaid medical expenses incurred

towards treatment of the victim.

The other factors have not been challenged in this

appeal.

Bearing in mind the above factors, calculation is

made hereunder:

Calculation of Compensation

Monthly income Rs.24,883/-

          Annual income                         Rs.2,98,596/-
          (Rs.24,883/- x 12)
          Add: 50% of the annual income         Rs.1,49,298/-
               towards future prospect
                                                Rs.4,47,894/-
          Less: 1/3rd towards personal          Rs.1,49,298/-
                and living expenses
                                                Rs.2,98,596/-
          Multiplier 16                         Rs.47,77,536/-
          (Rs.2,98,596/- x 16)
          Add: Medical Expenses                 Rs.2,97,000/-
          Add: General damages                  Rs.70,000/-
              Loss of estate: Rs.15,000/-
              Loss of consortium: Rs.40,000/-
              Funeral expenses: Rs.15,000/-
          Add: 10% escalation on                Rs.7,000/-
               general damages
          Total compensation                    Rs.51,51,536/-

Thus, the claimant is entitled to compensation of

Rs. 51,51,536/- together with interest @ 6% per annum

from the date of filing of claim application (08.08.2014)

till payment.

It is found that the appellant-insurance company

has deposited a sum of Rs. 47,86,977/- vide OD Challan

No. 2313 dated 3rd November, 2022 and an amount of

Rs.25,000/- towards statutory deposit vide OD Challan

No. 3070 dated 1st October, 2022. Both the aforesaid

deposits together with accrued interest be adjusted

against the entire compensation amount and interest

thereon.

Appellant-Insurance Company is directed to deposit

the balance amount of compensation of Rs. 19,16,512/-

together with interest before the learned Registrar

General, High Court, Calcutta by way of a cheque within a