Calcutta High Court (Appellete Side)
Smt. Neoti Debnath & Anr vs Oriental Insurance Co. Ltd. & Anr on 19 September, 2024
IN THE HIGH COURT AT CALCUTTA
(Civil Appellate Jurisdiction)
APPELLATE SIDE
Present:
The Hon'ble Justice Shampa Dutt (Paul)
FMAT 992 of 2005
With
CAN 1 of 2024
With
CAN 2 of 2024
Smt. Neoti Debnath & Anr.
Vs.
Oriental Insurance Co. Ltd. & Anr.
For the Appellant : Mr. Krishanu Banik.
For the Respondent No.1/ : Mr. Rajesh Singh,
Insurance Company Mrs. Sucharita Paul.
For the Respondent No.2/ : None.
Owner
Hearing concluded on : 19.09.2024
Judgment on : 19.09.2024
2
Shampa Dutt (Paul), J.:
Re: IA No.: CAN 1 of 2024
1. IA No.: CAN 1 of 2024 is filed praying for amendment of the name of
the appellant no.1 as also for amendment of the address of the
appellant nos.1 and 2. On hearing both side IA No.: CAN 1 of 2024
stand allowed, the same being formal in nature.
2. Let the name of the appellant no.1 and address of the appellant nos. 1
and 2 be amended.
3. Necessary note may be made immediately in the cause title.
4. IA No.: CAN 1 of 2024 stands disposed of.
Re : IA No.: CAN 2 of 2024
5. IA No. CAN 2 of 2024 is filed praying for condonation of delay in
preferring the appeal.
6. Considering the grounds as made out and in the interest of justice,
delay is condoned.
7. IA No.: CAN 2 of 2024 stands disposed of.
8. The present appeal has been preferred by the Claimants/Appellants
against the Judgement and Award dated 30th day of September, 2004
passed by the learned Judge, Motor Accident Claims Tribunal,
Durgapur, Burdwan (hereinafter called as the Learned Tribunal Judge)
in M.A.C Case No.62 of 2002, under Section 163A of the M.V Act.
9. Facts :-
"...........On 16.09.1999 at about 6 p.m. the victim along
with Sanjib was proceeding by a by-cycle along
kanccha portion of the link Road near Rabindra-Pally
and at material time the lorry bearing No.WGH-9016
was proceeding at a terrific high sped recklessly
endangering human life and safety of the others and
dashed against the victim Sanjit Mukhopadhyay @
Sanjib Mukherjee and Ripan Debnath as a result they
sustained injuries and caused their death. The driver of
the vehicle was driving the said lorry rashly and
negligently which caused such accident. Police started a
criminal case against the driver of the said vehicle under
Section 279/304A of I.P.C. It is stated in the petition
that Ripan Debnath was aged about 18 years at the
time of the accident and death. It is also stated in the
petition that he used to earn Rs.3,000/- per month. He
was taken to Bidhannagar Hospital for examination.
The owner of the said vehicle is Sanjoy Yadav of
Durgapur Akbar Road, Burdwan and the Insurance of
the said offending vehicle is with Oriental Insurance
Company Limited, Uma Bhaban, Asansol, Cover Note A-
3-AL-054146 dated 30.10.98 issued by Durgapur
Divisional Office.
The petitioners claim compensation of
Rs.3,00,000/............"
10. The Opposite Party/Oriental Insurance Company filed W.S and
Additional W.S denying the claim of the petitioners. It is stated therein
that the claimants have no cause of action to file this claim petition
against the Oriental Insurance Company Limited. The claim petition is
vague and defective and it has not been filed according to the provision
of M.V. Rules, 1989. The accident took place on 16.09.1999 and the FIR
was lodged on 19.09.1999. The delay of lodging the FIR, raises doubt.
So, it is not maintainable in the eye of law. The claimants have not
produced the Birth Certificate, to prove the age of the victim. There is
no document to prove the monthly income of Rs.3,000/- of the
deceased. They denied that the lorry No.WGH-9016 was proceeding at a
high speed recklessly endangering human life and safety. The victims
were going by bi-cycle along with Kancha portion of the Link Road and
for their own laches the accident took place. So the O.P No.2 is not
liable to pay any compensation to the claimants. The driving licence of
the driver is not legal and valid. The Route Permit, certificate of
registration, Insurance Policy etc. are to be proved.
11. They have also filed additional W.S stating therein that the Insurance
Company applied for information regarding the D.L of the driver of the
offending lorry and on verification, a report was received from RTA
Godda. It is found that the D.L. No.12393/97/Prof. as mentioned in the
D.L. is fake. So, the Insurance Co. has no liability to pay compensation
for the said accident to the claimants.
12. The claimants examined four witnesses and proved relevant
documents which were marked as Exhibit-1 series.
13. The opposite party/Insurance Company examined only one witness.
14. The Tribunal considering the materials on record finally held as
follows :-
"...........M.A.C Case No.62 of 2002
Dated: 30th day of September, 2004
.........As per Schedule „B‟ multiplier should be calculated
considering the age of the victim and the multiplier in between age
of 15 years to 20 years should be 16. So, the compensation should
as per account of the learned counsel for the Insurance Company
Rs.10,000/- x 16=Rs.1,60,000/-. As such the amount of
compensation should be Rs.1,60,000/-.
In the conclusion the petitioners have proved the claim case
and they are entitled to get compensation of Rs.1,60,000/-.........
Sd/-
Judge
Motor Accident Claims Tribunal, Durgapur......"
15. Being aggrieved the Appellants/Claimants has preferred the
present appeal on the ground:-
That the learned tribunal did not grant „just compensation‟ to
which the claimants are entitled as per law.
16. Considering, the materials including the evidence on record, the
following is evident:-
i) It is seen that the deceased was the son of the claimants.
ii) Offending vehicle is a Lorry bearing No.WGH-9016.
iii) The deceased was aged about 18 years and he died as a
result of the accident in the present case.
iv) The claimants have stated that the deceased was a supplier
of goods, thus self employed.
v) The deceased was a Bachelor.
vi) The witness on behalf of the Insurance Company as DW-1
has submitted that Exhibit-A is the document which shows
that the seized driving licence of the driver of the
offending vehicle is fake. Document shows that the
licence is not a valid licence and it was duly proved
before the tribunal.
vii) The offending vehicle was covered with a valid insurance of
the Respondent No. 1/Insurance Company at the time of
accident.
viii) The learned tribunal considering the materials on record
granted compensation of Rs.1,60,000/- in favour of the
claimants.
17. In the present case the appeal was preferred in the year 2005, from
the judgement and Award of the tribunal passed in the year 2002.
The report of the department dated 06.03.2005 shows that the
appeal was defective, being out of time.
18. The application for condonation of delay was filed by the appellant
only in the year 2024.
19. Learned counsel for the Insurance Company has relied upon the
following judgments:-
a) Kajal vs Jagdish Chand & Ors., AIR 2020 SC 776, wherein the
Supreme Court held:-
"..........Interest
31. The High Court enhanced the amount of compensation
by Rs 14,70,000 and awarded interest @ 7.5% p.a. but
directed that the interest of 7.5% shall be paid only from
the date of filing of the appeal. This is also incorrect. We
are constrained to observe that the High Court was not
right in awarding interest on the enhanced amount only
from the date of filing of the appeal. Section 171 of the Act
reads as follows:
"171. Award of interest where any claim is
allowed.--Where any Claims Tribunal allows a claim for
compensation made under this Act, such Tribunal may
direct that in addition to the amount of compensation
simple interest shall also be paid at such rate and from
such date not earlier than the date of making the claim as
it may specify in this behalf."
Normally interest should be granted from the date of filing
of the petition and if in appeal enhancement is made the
interest should again be from the date of filing of the
petition. It is only if the appeal is filed after an inordinate
delay by the claimants, or the decision of the case has
been delayed on account of negligence of the claimant, in
such exceptional cases the interest may be awarded from
a later date. However, while doing so, the Tribunals/High
Courts must give reasons why interest is not being paid
from the date of filing of the petition. Therefore, we direct
that the entire amount of compensation including the
amount enhanced by us shall carry an interest of 7.5%
p.a. from the date of filing of the claim petition till
payment/deposit of the amount........."
b) Kohinur Begum & Ors. vs. New India Assurance Co. Ltd. And
Ors., in FMAT No. 2846 of 2007, decided on 06.03.2008, the
Calcutta High Court held:-
"..........10. In our view, ordinarily, if a claim-application
succeeds and the Tribunal comes to the conclusion that
any amount of compensation is payable, it should also
grant interest on that amount from the date of making of
claim-application before the Tribunal unless the Tribunal
finds that for the delayed disposal of the claim-application,
the claimant himself was responsible and that the grant of
interest would be a hardship upon the owner or the
Insurance Company who were not responsible for the
grant of the delayed relief to the claimants. If knowing
fully well that the car involved with the accident was
really covered by the insurance and that there was no just
reason for contesting the claim on the basis of materials on
record, the Insurance Company unnecessarily contested
the litigation and ultimately, becomes unsuccessful
thereby causing delay in granting the just relief in favour
of the claimant, there is no reason why interest should not
be granted on the awarded sum. By the delayed disposal,
it is the owner of the vehicle or the Insurance Company,
the award-debtor, are really benefitted as they had been
enjoying and utilising the money ultimately to be handed
over to the claimant......"
20. The present claim is under Section 163A of the Motor Vehicles Act.
21. (a) In Urmila Halder Vs. New India Assurance Co. Ltd. & Ors., in
F.M.A. 446 of 2010, decided on 9th August, 2018, the Calcutta High
Court held:-
"9. Sub-section (1) of Section 163-A of the 1988 Act
ordains that notwithstanding anything contained
therein or in any other law for the time being in force,
upon proof of death in an accident involving the use of
a motor vehicle, compensation is payable either by the
owner of such vehicle or the authorized insurer thereof
as indicated in the Second Schedule to the legal heirs
of the victim. The Second Schedule appended to the
1988 Act, referring to Section 163-A thereof, provides
the structured formula for determining compensation.
11. As it stands now, the Second Schedule after its
amendment by the said notification prescribes lump-
sum compensation in the following manner:
1. Fatal accidents - Rs. 5,00,000.00 is payable as
compensation in case of death;
2. Accidents resulting in permanent disability - Rs.
5,00,000.00 x percentage of disability as per Schedule
I of the Employee's Compensation Act, 1923 (8 of
1923), provided that the minimum compensation in
case of permanent disability of any kind shall not be
less than Rs. 50,000.00;
3. Accidents resulting in minor injury - A fixed
compensation of Rs. 25,000.00.
14. With that in view, we invited such learned
advocates to address us on the following issue:
Whether, after the amendment brought about by the
said notification, the new schedule would be applicable
to pending claim applications under Section 163-A
before the motor accident claim tribunals as well as the
appeals arising out of awards delivered there under
prior to May 22, 2018?
118. Therefore, the conclusion seems to be
inescapable that while deciding pending claim
applications/appeals post May 22, 2018, the new
schedule ought to be applied by the tribunals/this
Court for determining compensation payable to
the legal heirs of an accident victim or to the
victim himself regardless of whether the new
schedule is beneficial to them or not. The issue
framed in paragraph 12 is, accordingly,
answered.
126. Turning to the facts in the appeal, we find that
had this appeal been decided prior to May 22, 2018,
the appellant would have been entitled to whatever
sum were determined as payable in terms of the old
schedule. Admittedly, Rs.5,00,000.00 was not payable
to the appellant by the respondent no.1 any time prior
to May 22, 2018 and, therefore, she was not entitled to
such sum as on date she exercised her "right of action".
Therefore, in each case where the claim is pending
before the tribunal or if this Court has been
approached in appeal as on May 22, 2018, we feel it to
be the duty of the tribunal/Court to determine the
amount of compensation payable to the claimant in
terms of the structured formula and award interest at
such rate it considers proper thereon from the date of
filing of the claim application till May 21, 2018. To
avoid any charge of arbitrariness, it would be safe to
award interest at the prevailing bank rate of interest
on term deposits on the date the award is made.
Thereafter, that is from May 22, 2018, interest on
Rs.5,00,000.00 may be directed to be paid till
realization as per the prevailing bank rate of interest
on term deposits.
127. To determine what the appellant could have
lawfully claimed as compensation based on the old
schedule, we need to look into the evidence. The
version of the appellant that the victim was earning
Rs.2,000.00 per month could not be dislodged by the
respondent no. 1 in cross-examination. The victim
being self-employed in the unorganized sector, the
tribunal put an onerous burden on the appellant to
produce documentary evidence to prove her monthly
income. Having regard to the decision in Syed Sadiq v.
United India Insurance Co. Ltd.: (2014) 2 SCC 735, we
hold that it was not necessary for the appellant to
prove the income of the victim by producing
documentary evidence. The loss of dependency, thus,
has to be worked out reckoning Rs.24,000.00 as the
notional yearly income of the victim. Capitalizing it on a
multiplier of 17, the resultant amount would be
Rs.4,08,000.00. Deducting 1/3rd in consideration of
the expenses which the victim would have incurred
towards maintaining herself had she been alive, and
adding Rs.4.500.00 on account of loss of estate and
funeral expenses, we arrive at the sum of
Rs.2,76,500.00.
128. In the final analysis, we hold that the appellant
shall be entitled to Rs.5,00,000.00 on account of
compensation under Section 163-A of the 1988 Act
read with the new schedule. However, since she has
received Rs. 1,14,500.00 that was awarded by the
tribunal, the respondent no.1 shall pay Rs.3,85,500.00
more to the appellant within 2 (two) months from date
of service of a copy of this judgment and order on it.
The appellant is further held entitled to interest as
follows:
(i) @ 9% per annum on Rs.2,76,500.00 from the date
of filing of the claim application, i.e., February 8, 2005
till May 21, 2018; and
(ii) @ 6% per annum on Rs. 5,00,000.00 from May 22,
2018 till such time payments of Rs. 3,85,500.00 and
interest as in (i) above are effected in favour of the
appellant."
(b) In appeal, the Supreme Court in The New India Assurance Co. Ltd.
Vs. Urmila Halder, Civil Appeal No. ____ of 2024 (@ Special Leave
Petition (Civil) No. 6260 of 2019), decided on 8th February, 2024,
upheld the above judgment and held:-
"4. The short point for consideration before this Court is
whether the amendment in Section 163-A of the Motor
Vehicles Act, 1988, which came into effect by a Gazette
Notification on 22nd May, 2018, would relate to an
accident which had occurred prior to the said date.
10. The order of the High Court is well discussed and
we agree with the view taken. We may, however, add
that a beneficial legislation would necessarily
entail the benefit to be passed on to the claimant
in the absence of any specific bar to the same. In
the present case, the liability of the appellant-
Insurance Company has not been interfered with. Only
the computational mode and the modality have been
further clarified, which rightly has been noted by the
High Court and accordingly, the claim has been
enhanced to ₹5,00,000/- (Rupees Five Lakhs). As 50%
of the compensation amount was stayed by this Court,
the same be paid to the respondent in terms of the
impugned judgment within eight weeks."
22. In the present appeal, the claim was decided by the tribunal on 30th
day of September, 2004, thus prior to 22nd May, 2018 and
compensation of a sum of Rs. 1,60,000/- was granted in terms of the
old schedule.
23. Now, in terms of the guidelines of the Courts, in the judgments,
Urmila Halder Vs. New India Assurance Co. Ltd. & Ors.(Supra) and
The New India Assurance Co. Ltd. Vs. Urmila Halder (Supra), the
Appellants/Claimants are entitled to compensation of a total sum of Rs.
5,00,000/- under Section 163A of the 1988 M.V. Act read with the
new schedule, the victim having died in the accident in this case.
24. Admittedly, the Appellants/Claimants have already received the
amount of compensation of Rs. 1,60,000/- in terms of order of the
Learned Tribunal. Accordingly, the Appellants/Claimants are now
entitled to the balance amount of compensation of Rs. 3,40,000/-
together with interest at the rate of 6% per annum from the date of
filing of the claim application till deposit.
25. Respondent No. 1/Insurance Company, thus is directed to deposit the
balance amount along with interest as indicated above, by way of cheque
before the learned Registrar General, High Court, Calcutta within a
period of six weeks from date. The Respondent No. 1/Insurance
Company shall also pay the interest upon the sum of Rs. 1,60,000/- at
the rate of 6% till deposit if not already paid, within the period as
specified above.
26. Upon deposit of the aforesaid amount along with interest, learned
Registrar General, High Court, Calcutta shall release the amount in
favour of the Appellants/Claimants (2) in equal proportion, upon
satisfaction of their identity and payment of ad-valorem Court fees, if not
already deposited.
27. The insurance company has proved that the driver of the offending
vehicle did not have a valid licence, thus there has been a violation
of the policy conditions.
28. The Respondent No. 1/Insurance Company/Oriental Insurance Co.
Ltd. has now prayed for leave to recover the compensation from the
Owner/Respondent no. 2 of the offending vehicle (being a Lorry) bearing
no. WGH-9016 (insured with the Respondent No. 1) on the ground that
the driver of the offending vehicle did not have a valid licence. (Balu
Krishna Chavan vs. The Reliance General Insurance Company Ltd.
& Ors., in SLP (C) No. 33638 of 2017, on 3rd November, 2022)
29. It is proved that the driver of the offending vehicle (bearing no. WGH-
9016, Lorry) did not have a valid licence at the time of accident, though
the vehicle had valid insurance with the Respondent No. 1/Insurance
Company/Oriental Insurance Co. Ltd. and thus there being a violation of
the condition of the rules in the policy, the Respondent No.
1/Insurance Company is entitled to recover the compensation paid,
by due process of law from the owner of vehicle no. WGH-9016, the
Respondent No. 2 herein.
30. The appeal being FMAT No. 992 of 2005 stands disposed of. The
impugned judgment and award of the learned Tribunal is modified
to the above extent.
31. No order as to costs.
32. All connected applications, if any, stand disposed of.
33. Interim order, if any, stands vacated.
34. Copy of this Judgment be sent to the Learned Tribunal, along with the
trial court records, if received.
35. Urgent photostat certified copy of this judgment, if applied for, be given
to the parties on usual undertaking.
(Shampa Dutt (Paul), J.)
