Jahanara Rani Bewa & Ors vs United India Insurance Co. Ltd. & ...
2023 Latest Caselaw 6353 Cal

                          IN THE HIGH COURT AT CALUTTA
                             Civil Appellate Jurisdiction
 21.09.2023
SL No.14
Court No. 551
   Ali


                           FMA 982 of 2011
                 IA No: CAN/1/2018 (Old No:CAN/6290/2018)

                       Jahanara Rani Bewa & Ors.
                                   Vs.
                    United India Insurance Co. Ltd. & Ors.

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

                  Mr. M.P. Chakraborty,
                  Ms. Ratnadipa Karmakar
                ...for the respondent No 1-United India insurance Co.

Mr. Sanjay Paul, Ms. Jaita Ghosh ...for the respondent No 2-Oriental insurance Co.

The instant appeal has been preferred

against the judgment and award dated 30th June,

2010 passed by learned Judge, Motor Accident

Claims Tribunal, 2nd Court, Berhampore,

Murshidabad in M.V. Case no. 301 of 2004 under

Section 163-A of the MV Act.

The brief fact of the case is that the present

appellant being the claimants filed an application

before the learned tribunal for getting compensation

under Section 163-A of the M.V. Act on the ground

that their predecessor died in a road traffic accident

due to rash and negligent driving of the drivers of

the two offending vehicles duly insured under the

policy of the insurance companies. The claim case

was contested by both the insurance companies and

after hearing both the parties the learned tribunal

has awarded a sum of Rs. 1,52,000/-in favour of the

claimants and directed the owner of the vehicle No.

WB 53/3997 to pay the compensation on the

ground that the terms of the policy of the United

India Insurance Co. Ltd. with the owner was violated

by the owner himself.

Being aggrieved by and dissatisfied with the

impugned award the present appeal has been

preferred.

The learned advocate for the appellants

submits that the award passed by the learned

tribunal is erroneous. The learned tribunal has

considered the income of the deceased to be Rs.

15,000/- per annum. The alleged accident happened

in the year 2002. The deceased was a sole bread

earner of their family. So, at this juncture, the

income of the deceased cannot be considered to be

Rs. 15,000/- per annum but it should be at least

Rs.3,000/- per month. He also submits that the

learned tribunal has awarded compensation by

fixing the general damages of Rs. 2,000/- which is

erroneous in a case under Section 163-A of the M.V.

Act the general damages would be Rs. 9,500/-. So,

he prayed for just and proper compensation.

Learned advocate appearing on behalf of the

opposite party No. 1-United India Insurance Co. Ltd.

submits that the two vehicles are involved in the

alleged accident but the driver of the United India

Insurance Co. Ltd. i.e. the vehicle No. WB-53/3997

was made liable to pay the compensation. The

observation of the learned tribunal regarding fixing

the liability upon the single insurance company is

not correct. Both the vehicles were involved in the

alleged accident so both the insurance companies

may be liable to pay the compensation. However, the

terms of the policy with the United India Insurance

Co. Ltd. and the owner of the truck has firmly

proved to be violated. So, at this juncture, the

United India Insurance Co. may not liable to pay the

compensation.

The learned advocate appearing on behalf of

the Oriental Insurance Co. Ltd. submits that the

truck bearing No. WB-33/7786 was not actually

responsible for the accident. The other truck i.e. the

truck bearing no WB-53/3997 is solely responsible

for the accident. The driver of the said truck (WB-

53/3997) was running the vehicle with rash and

negligent manner thus the learned tribunal has

correctly assessed the compensation and directed

the owner of the offending truck to pay the

compensation. The Oriental Insurance Co. Ltd. may

not be directed to pay the compensation as the

driver of the truck bearing No. WB-33/7786 was not

driven the vehicle rash and negligent manner.

Heard the learned advocate perused the

materials on record it appears to me that the alleged

accident was happened on 4th of August, 2002. Just

after the accident one Indrajit Sarkar lodged a

complaint with the Kanksa P.S. on 05.08.2002. On

the basis of such written complaint, the Kanksa

Police Station Case No. 116/02 was initiated. On

perusing the police record specially the FIR, it

appears that at the time of accident both the

vehicles were running rash and negligent manner

and there were a head on collision between two

trucks. This case is filed under Section 163-A of the

MV Act; only involvement of Motor Vehicle is

required to be proved. In this case, both the vehicles

were involved in the said accident. The negligency

on the part of the driver is not required proved in

this case. Thus, at this juncture, I think it necessary

that both the vehicles are jointly and equally liable

to pay the compensation.

It appears to me that the learned tribunal

has directed the owner of the vehicle to pay the

compensation. The issue of pay and recovery has

been sufficiently settled by the Hon'ble Supreme

Court in the case of Swaran Singh as well as Challa

Bharathamma. In case of violation of the terms of

the agreement of the policy the insurance company

is not actually liable to pay the compensation; but

for the purpose of payment to the claimants; the

insurance company may be directed to pay the

compensation and in turn they are at liberty records

the same from the owner of the vehicle according to

the guidelines laid down by the Hon'ble Supreme

Court in Swaran Singh.

Considering the same, I think it necessary

that the observation of the Honb'ble Apex court in

Swaran Singh is very much applicable in this case.

The insurance companies are equally directed to pay

the compensation and they are at liberty to recover

the same from the owner of the offending vehicle.

In considering the just and proper

compensation of this case it appears to me that the

deceased died in a road traffic accident in the year

2002 and he was the sole bread earner of the family

of the appellants; thus in this court the income of

the deceased should be calculated in terms of Rs.

2,500/- per month. At the time of accident the

deceased was 42 years old so according to the 2nd

schedule of Section 163-A of MV Act, the applicable

multiplier of this case would be 15. The claimants

are also entitled to get the general damages

amounting to Rs. 9,500/-.

Considering the entire aspects the just and

proper compensation is recasted as follows:-

Calculation of compensation

1. Income .............................................Rs.2,500/-

2. Annual Income be assessed as ...(Rs.2,500/- X 12)............. Rs.30,000/-

3. Less: 1/3rd towards personal & living expenses ....Rs.10,000/-

Rs.20,000/

4. Multiplier 15 (Rs.20,000/-X 15).......................................Rs.3,00,000/

5. Add: General Damages .......................Rs. 9,500/-

Balance compensation.......... Rs. 3,09,500/-

So the award comes to Rs. 3,09,500/-. The

insurance companies are directed to pay the

compensation alongwith interest @ 6% per annum

from the date of filing of the claim application i.e.

from 25th of August, 2004.

Both the insurance companies, namely,

United India Insurance Co. Ltd. and Oriental

Insurance Co. Ltd. are directed to pay the 50% of

the compensation each within eight weeks from the

date of passing of this order with the office of the

learned Registrar General, High Court, Calcutta. On

such payment the claimants are at liberty to recover

the same according to prevalent rules subject to

ascertainment of payment of requisite court fees.

The office of the learned Registrar General, High

Court, Calcutta is directed to pay the compensation

to the claimants vide four equal account payee

cheques. After such payment the insurance

companies are at liberty to recover the same from

the owner of the vehicles as mentioned above.

The instant FMA 982 of 2011 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.)