Tahura Bibi & Ors vs Manager
2023 Latest Caselaw 6569 Cal

                           IN THE HIGH COURT AT CALUTTA
                              Civil Appellate Jurisdiction
 27.09.2023
SL No.29
Court No. 551
   Ali


                              F.M.A. 881 of 2013
                              IA No:CAN/1/2023
                             Tahura Bibi & Ors.
                                     Vs.
                Manager, Reliance General Insurance Co. Ltd. & Anr.

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

                    Mr. Gopa Das Mukherjee
                                 ....for the respondent-Insurance Co.

The instant appeal is preferred against the

judgment dated 27th day of March, 2012 passed by

learned Additional District Judge, Motor Accident

Claims Tribunal, Fast Track, 2nd Court, Malda, in

M.A.C. Case no. 258 of 2011 under Section 163-

A of the MV.Act.

The brief fact of the case is that the present

appellants being the claimants have preferred an

application under Section 163-A of the MV Act

before the learned tribunal for getting compensation

on the ground that the son of the claimant died in a

road traffic accident due to rash and negligent

driving of the driver of the offending vehicle.

The matter was contested by the insurance

company and after hearing the parties the learned

tribunal has awarded a sum of Rs. 4,12,500/- in

favour of the claimants and directed the owner of

the offending vehicle to pay the compensation.

The only single issue involved in this appeal;

the appellant argued that the learned tribunal was

erroneous in directing the owner of the offending

vehicle to pay the compensation. Learned tribunal

should have directed the award to be paid by the

insurance company instead of the owner. The owner

has paid nothing after passing of this award thus

the appeal has been preferred.

The learned advocate appearing on behalf of

the insurance company submits that the learned

tribunal has not committed any error. The driver of

the offending vehicle had no valid driving licence at

the time of accident. Thus, the owner of the

offending vehicle has violated the terms of the policy

on that score the insurance company may not be

liable to pay the compensation.

Heard the learned advocate perused the

materials on record it appears that the driving licnce

of the driver of the offending vehicle was seized in

connection with a police case registered on the basis

of the said accident. However, the driving licence of

the driver who is the accused of the police case

appears to be not valid at the day of accident. Thus,

the learned tribunal is of opinion that the insurance

company is not liable to pay the compensation as

the owner has intentionally violated the terms of the

policy.

In considering the observation of the

Hon'ble Apex Court passed in Swaran Singh as well

as Challa Bhrathamma. It is true that in a case of

violation of terms of the policy the insurance

company may not be liable to pay the compensation;

but at the same time, the Hon'ble Apex Court has

settled the law that in those cases the insurance

company may be liable to pay the compensation and

in turn they are at liberty to recover the same from

the owner. Considering the ratio of Swaran Singh as

well as Challa Bharathamma and I am of the view

that the principle laid down by the Hon'ble Apex

Court as mentioned hereinabove should be followed

of this case. On that score, the observation of the

learned tribunal is erroneous and it need be set

aside.

The quantum of compensation is not the

merit of this appeal so I am of the view that the

insurance company is liable to pay the

compensation as awarded by the learned tribunal.

Thus, the claim amount of Rs. 4,12,500/- is the

award of this case and the insurance company i.e.

the Reliance General Insurance Co. Ltd. is directed

to pay the compensation alongwith with interest @

6% per annum from the date of filing of the claim

case i.e. from 25.8.2010 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 at liberty to recover

the same according to the prevalent Rules subject to

ascertainment of payment of requisite court fees.

In Re.:-CAN/1/2023

This is an application filed on behalf of the

claimants/appellants contending, inter alia, that the

claimant appellant No. 2 has expired during the

pendency of the appeal. The present

claimants/appellants are the surviving legal heirs.

Thus, the name of the appellant No. 2 be deleted

from the memo of the cause title of the appeal.

Heard the learned advocate perused the

application being CAN 1 of 2023 also perused the

copy annexed with the application being CAN 1 of

2023.

Considering the same, the CAN 1 of 2023 is

disposed of with a direction that the department

shall expunge the appellant No. 2 from the memo of

the cause title of the memo of the appeal within a

fortnight. It appears that the claimant appellant No.

1 is the mother and the claimant appellant No. 3 is

the unmarried sister of the deceased.

In considering the facts and circumstances

of this case, the office of the learned Registrar

General, High Court Calcutta is directed to pay the

compensation alongwith interest in favour of the

claimant appellant No. 1.

Accordingly, the instant FMA 881 of 2013 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.)