Calcutta High Court (Appellete Side)
Sujit Mukherjee vs The New India Assurance Co. Ltd. & ... on 22 September, 2023
22.09. 2023
Item No.23
n.b.
Ct. no. 551 FMA 1947 of 2013
Sujit Mukherjee
Vs.
The New India Assurance Co. Ltd. & Anr.
Mr. Uday Sankar Chattopadhyay,
Ms. Trisha Rakshit,
Ms. Rajashree Tah,
Ms. Aishwarya Dutta,
.....For the Appellant.
Mr. Sanjoy Paul,
Ms. Jaita Ghosh,
....For the Respondent.
The instant appeal has been preferred against the
judgment dated May 30, 2013 passed by the learned
Judge, Motor Accident Claims Tribunal, 1st Court,
Burdwan, in M.A.C Case No.18/2013/72/2011/99/2005.
The brief fact the case is that the present appellant
was minor when he suffered an accident by a tractor due
to rash and negligent driving of the driver of the offending
vehicle being no.WB 41/4533.
One application was filed before the learned
Tribunal for getting compensation under Section 166 of
the M.V. Act. The owner appearaed before the Tribunal
and filed written statement but did not contest the later.
The matter was contested by the Insurance Company.
After hearing the parties, the learned Tribunal has
dismissed the claim case.
Bering aggrieved by and dissatisfied with the said
judgment, the present appeal has been preferred.
Learned advocate for the appellant submits that the
impugned award passed by the learned Tribunal is
erroneous. The learned Tribunal did not considered the
facts and circumstances of the case and came to an
erroneous finding. He further pointed out that one 11
years old child was suffered an accident; while he was
cycling, the tractor/trailor i.e. offending vehicle dashed
him and he was suffered severe injuries at his leg. On the
basis of accident, one F.I.R. was lodged on the same day.
The police case ended in a charge-sheet against the driver
of the offending vehicle. The evidences were adduced
before the learned Tribunal. It would be apparent from
the evidences that the child was 45 days in hospital for
his medical treatment. There was skin grafting and
operation in his leg. He had to visit the hospital for about
one year for repair of his wound. Learned Tribunal has
not considered the same. Learned Tribunal has dismissed
the case on the ground tht the trailor attached to the
tractor was not covered under the policy of the Insurance
Company.
He further argued that the learned Tribunal has not
concentrate upon the injury sustained by the appellant
and only dismissed the case on the ground that there is
no disability.
In support of his contention, learned advocate for
the appellant cited an unreported decision of the Hon'ble
Supreme Court passed in Dhondubai Vs. Hanmantappa
Bandappa Gandigude since deceased through his Lrs.
& Ors. He argued that the Hon'ble Supreme Court has
considered the issue and directed the Insurance Company
to pay the compensation.
Learned advocate for the Insurance Company
submits that the impugned award passed by the learned
Tribunal suffers no illegality. The trailor attached to the
tractor was not insured under the policy of the Insurance
Company, moreover, the terms of the Insurance Policy was
violated. The tractor was carrying sand, which is otherwise
for agricultural and forestry purpose. He further argued
that the terms of the policy was further violated, because
the driver of the offending vehicle had no valid driving
license at the time of accident. Thus, the Insurance
Company is not liable to pay the compensation and the
learned Tribunal has committed no error is passing the
impugned order.
Learned advocate for the Insurance Company
further argued that the evidences of doctor was precisely
clear that the child's physical condition is very much O.K.
So, at this juncture, it cannot be said that he is physically
disabled. However, learned advocate for the
respondent/Insurance Company submits that the
claimant may be entitled to get the damages towards non-
pecuniary head.
Heard the learned advocates and perused the
unreported judgment of Hon'ble Supreme Court, it
appears that the judgment passed by the Hon'ble
Supreme Court under the provisions enumerated in
Article 142 of the Constitution of India. Thus, the ratio of
the judgment cannot be followed by this Court.
However, in considering the entire facts and
circumstances of the case, it is true that the appellant was
suffered an accident when he was 11 years old and due to
such accident, he had to admit in the hospital for a period
45 days and there were several operations over the
appellant. It has also been proved that the appellant
visited the hospital for nearly one year to repair his
wound.. In this case, I find no justification to entertain
the finding of the learned Tribunal regarding the payment
of compensation but as the appellant has suffered injury,
he has also suffered a long standing pain, thus, he is
entitled to get some compensation towards the head of
pain and suffering(non-pecuniary damages)
In considering the entire circumstances and
considering the age of the victim, I think it is necessary
that Rs.50,000/- would be sufficient for the compensation
of the claimant under the head of non-pecuniary damages.
As there is violation in the terms of the Insurance
policy by the owner, so, the Insurance Company may not
be liable to pay the compensation. As per direction of the
Hon'ble Supreme Court in Swaran Singh, the Insurance
Company is directed to pay the compensation to the
claimant and in turn they are at liberty to recover the
same from the owner of the offending vehicle.
The Insurance Company is directed to pay the
compensation of Rs.50,000/- along with 6% interest per
annum from the date of filing of the claim application i.e.
from 26.8.2023 within eight weeks from the date of
passing of this order with the office of the learned
Registrar General, High Court, Calcutta. On such deposit,
the claimants are liberty to receive the same, according to
the prevalent rules.
Accordingly, FMA 1947 of 2013 is disposed.
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.)
