The New India Assurance Co. Ltd vs Tapan Paul & Ors
2023 Latest Caselaw 6133 Cal

13.09. 2023
 item Nos.21
n.b.
ct. no. 551                  FMA 3387 of 2013

           The New India Assurance Co. Ltd.
     Vs.
                            Tapan Paul & Ors.


               Mr. Saibalendu Bhowmik,
                           .....for the appellant
               Mr. L. M. Ghosh,
                           .....for the respondents.

The instant appeal has been preferred against the

judgment and award dated June 20, 2013 passed by the

learned Judge, Motor Accident Claims Tribunal, 11 th

Court, Alipore in M.A. C. case No. 364 of 2007.

The brief fact of the case is that the present

respondent being the claimant preferred an application

before the learned Tribunal under Section 166 of the M.V.

Act for getting compensation on the ground that their

minor child 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 learned Tribunal has heard the matter in

presence of the Insurance Company. The owner does not

turn up. Thus, the order was passed ex parte against the

owner. The learned Tribunal has awarded a sum of

Rs.2,25,000/- along with 6% interest per annum from the

date of filing of the application.

Being aggrieved by and dissatisfied with the said

order, the present appeal has been preferred by the

Insurance Company.

The Insurance Company has only two grounds

before the appellate Court. Firstly, the learned advocate

for the Insurance Company submits that the offending

vehicle was a heavy vehicle. The driver of the offending

vehicle was not possessed the required driving license to

ply the vehicle. The police papers proved the fact before

the learned Tribunal. The learned Tribunal has observed

the same in the impugned judgment but order of pay and

recovery have not been made in this case.

Learned Advocate for the appellant submits that the

Insurance Company did not have the liability to pay the

compensation as the terms of the policy has been violated

by the owner. At this juncture, the owner may be directed

to pay the compensation.

Secondly, he argued that the deduction towards the

personal expenses i.e.1/3rd of the fixed income was not

made by the learned Tribunal. So, the award should have

to be passed after deducting the personal expenses of the

deceased.

Learned advocate for the claimant/respondent

submits that by virtue of the decision of the Hon'ble

Supreme Court, the Insurance Company may have

entitled to get an order of pay and recovery. The

respondent also argued that the minor child aged about

seven years was died in a road traffic accident. In this

case, the Hon'ble Supreme Court was very much clear

that the deduction of personal expense in case of minor

cannot be made.

In support of his contention, he cited decision of

Hon'ble Supreme Court passed in Manju Devi & Anr. Vs.

Musafir Paswan & Anr. reported in 2005(1)TAC

609(S.C). He also cited another decision passed in Meena

Devi Vs. Nanu Chand Mahto @ Nemchand Mahto & Ors.

reported in 2022 (4) TAC 271(SC).

Heard the learned advocates and perused the

observation of Hon'ble Supreme Court in case of death of

minor child in a road traffic accident in both the cases, it

appears that Hon'ble Supreme Court has considered that

the minor being the non-earning person a sum of

Rs.15,000/- PA must be taken to be his income and no

deduction has been made in these cases towards the

personal expenses.

Considering the observation of the Hon'ble Supreme

Court it appears to me that the learned Tribunal has

committed no error for not deducting the personal

expenses of the deceased in this case.

In considering the pleas of the Insurance Company,

it appears that the driver of the offending vehicle had no

valid license to drive the heavy vehicle at the time of

accident. Thus, the Insurance Company is not legally

liable to pay the compensation in this case. By virtue of

the decision of Hon'ble Supreme Court passed in Swaran

Singh as well as Baljit Kaur, it appears that the

Insurance Company may have an order of pay and

recovery. Thus, in this case, the Insurance Company is

directed to pay the compensation to the claimant and they

are at liberty to recover the same from the owner of the

offending vehicle, according to the principle laid down by

the Hon'ble Supreme Court passed in Baljit Kaur.

It appears to me that the award passed in favour of

the claimants to the tune of Rs.2,25,000/-, I find no

infirmity for such compensation. Thus, the Insurance

Company is directed to pay the compensation amounting

to Rs.2,25,000/- along with 6% per cent interest from the

date of filing of claim application i.e. from November 14,

2007 within eight weeks from the date of passing of this

order with the office of the of the Learned Registrar

General, High Court Calcutta.

On such payment the office of the learned Registrar

General, High Court, Calcutta shall disburse the same

vide two equal account pay cheques in the name of the

claimants/respondents. After such payment, the

Insurance Company is at liberty to recover the same from

the owner of the offending vehicle according to the

guidelines as laid down by the Hon'ble Supreme Court in

Baljit Kaur as well as Swaran Singh.

Accordingly, FMA 3387 of 2013 are 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.)