United India Insurance Co. Ltd vs Priyaranjan Singha & Ors
2023 Latest Caselaw 6522 Cal

26.09.2023                IN THE HIGH COURT AT CALCUTTA
Ct. no.654                 CIVIL APPELLATE JURISDICTION
Item no.183                       (Appellate Side)
   sn
                                    FMA 741 of 2023
                                   (CAN 3 of 2023)

                           United India Insurance Co. Ltd.
                                       Vs.
                            Priyaranjan Singha & Ors.

              Ms. Sucharita Paul
                          ...for the appellant-insurance company

              Ms. Sima Ghosh
              Ms. Sabina Khatun
                              ..for the respondents-claimants

This appeal is preferred against the judgment

and award dated 22nd June, 2022 passed by the

learned Additional District Judge-cum-Judge, Motor

Accident Claims Tribunal, Fast Track, 1st Court,

Suri, Birbhum in MAC case no.162 of 2016 granting

compensation of Rs.39,46,336/- 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 6th

February, 2016 at 6-00 a.m. while the victim was

proceeding towards Suri Police Line riding on her

scooty for attending her duties through Suri-Bolpur

road and when she reached in front of Suri Police

Line gate the offending vehicle bearing registration

no. JH-01T/8967 dashed the victim from behind, as

a result of which the victim sustained grievous

injuries on her person. Immediately, the victim was

shifted to Suri Sadar Hospital where she expired on

the same day at 08-10 a.m. On account of sudden

demise of the victim, the claimants being the

husband and parents of the deceased filed

application for compensation of Rs. 40,00,000/-

together with interest under Section 166 of the Motor

Vehicles Act, 1988.

The claimants in order to establish their case

examined 3 witnesses and produced documents,

which have been marked as Exhibits 1 to 11

respectively.

The appellant-insurance Company did not

adduce any evidence.

By order dated 31st August, 2023, service of

notice of appeal upon the respondent nos. 5 & 6,

owners of the offending vehicle have been dispensed

with since they did not contest the claim application.

Upon considering the materials on record and

evidence adduced on behalf of the claimants, the

learned Tribunal granted compensation of

Rs.39,46,336/- together with interest in favour of the

claimants 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 appellant-insurance company has

preferred the present appeal.

Ms. Sucharita Paul, learned advocate for the

appellant-insurance company submits that there was

delay in lodging the FIR which indicates of non-

involvement of the offending vehicle. She further

submits that the offending vehicle did not have the

valid national route permit. Furthermore, on the

relevant date of accident, the victim was driving on

her scooty, however, during the course of

investigation, no paper of the scooty was seized

meaning thereby that the victim was not carrying the

valid documents to drive her scooty on a public road

and thereby the victim was guilty of contributory

negligence in the said accident. She further submits

that the final report of the Doctor regarding cause of

death has been kept pending for want of chemical

examination report. In the light of her aforesaid

submissions, she prays for setting aside of the

impugned judgment and award of the learned

Tribunal.

In reply to the aforesaid contentions raised on

behalf of the appellant-insurance company, Ms. Sima

Ghosh, learned advocate for the respondents-

claimants submits that there is nominal delay of

4(four) days in lodging the FIR. Further delay per se

does not make the claim application of the claimants

doubtful in the absence of contrary evidence.

Furthermore, she submits that no evidence has been

led to establish that on the relevant date the

offending vehicle did not have the valid route permit.

So far as the contributory negligence is concerned,

she submits that there are no such pleading or

evidence led by the insurance company to establish

such ground. In the aforesaid backdrop, she submits

that the award passed by the learned Tribunal

should be affirmed.

Having heard the learned advocates for the

respective parties, following issues have fallen for

consideration. Firstly, whether the offending vehicle

was involved in the accident. Secondly, whether the

offending vehicle had valid national route permit and

Lastly, whether the victim was guilty of contributory

negligence in the said accident.

With regard to the first issue of non-

involvement of the offending vehicle, it is found that

the involvement of the vehicle has been challenged

solely on the ground of delay in lodging the FIR. It is

true that the accident took place on 6th February,

2016 and the FIR has been lodged after four days, i.e

10th February, 2016. Be that as it may, there is no

such evidence of fabrication or concoction or

engineering of the FIR. Thus, delay per se in lodging

FIR does not lead to the fact of non-involvement of

the vehicle. It is relevant to note that during the

course of investigation, the offending vehicle has

been seized and upon completion of investigation

charge sheet has been submitted against the driver

of the offending vehicle. In view of the above, the

ground of non-involvement of the vehicle raised by

the insurance company fall short of merit.

With regard to the second issue as to whether

the offending vehicle had valid national route permit,

it is found from the written statement of the

insurance company that no such ground has been

pleaded of absence of valid national route permit of

the offending vehicle. That apart, no evidence has

been led from the side of the insurance company to

establish such fact. Thus, the ground that on the

relevant date the offending vehicle did not have valid

national route permit does not hold good.

With regard to the last issue of contributory

negligence of the victim, it is found that no such case

has been made out of contributory negligence of the

victim in the written statement filed by the insurance

company. The insurance company has also not led

any evidence to that effect. Ms. Paul, learned

advocate for the appellant-insurance company has

strenuously argued that since paper relating to the

scooty was not seized, hence, the victim was driving

the scooty without valid papers and thereby

contributed to the accident by her own negligence.

Be that as it may, only non-seizure of papers of

scooty does not lead to the fact that the victim was

guilty of contributory negligence in the absence of

cogent evidence of negligence of the victim. Therefore,

the ground of contributory negligence as raised by

the insurance company also fails.

Ms. Paul, learned advocate for insurance

company has indicated that the cause of death has

not been properly established since the final opinion

of the doctor was kept pending for receipt of chemical

examination report. It is true upon perusal of the

post mortem report (Exhibit-6) that final opinion has

been kept pending by the medical officer due to want

of chemical examination report. Be that as it may,

the primary opinion of cause of death of the victim as

made by the medical officer is due to the injuries,

which is ante mortem in nature. Thus, primarily, it is

seen that the victim died due to injuries noted in the

post mortem report. Therefore, the arguments

advanced on behalf of the appellant-insurance

company does not stand reason.

Accordingly, the appeal fails.

It is found that the insurance company has

deposited a sum of Rs.55,12,628/- vide O.D. challan

no.118 dated 17th April, 2023 in terms of the order

of this Court dated 5th April, 2023 and an amount of

Rs.25,000/- towards statutory deposit vide O.D.

Challan no.2366 dated 7th November, 2022. Both the

aforesaid deposits together with accrued interest be

released in favour of the claimants.

The learned Registrar General, High Court,

Calcutta, shall release the compensation amount

together with accrued interest in favour of the

respondent nos. 1, 2 & 3 in the proportion, as

directed by the learned Tribunal, upon satisfaction of

their identity.

The respondent nos. 1, 2 & 3 are directed to

deposit deficit court fees.

With the aforesaid observation, the appeal

stands disposed of. The impugned judgment and

award of the learned Tribunal is affirmed. No order

as to costs.

All the connected applications, if any, stand

disposed of.

Interim order, if any, stands vacated.

Urgent photostat copy of this order, if applied

for, be given to the parties upon compliance of

necessary legal formalities.

(Bivas Pattanayak, J.)