Calcutta High Court (Appellete Side)
Hena Bibi & Ors vs National Insurance Co. Ltd. & Ors on 24 September, 2024
IN THE HIGH COURT AT CALCUTTA
(Civil Appellate Jurisdiction)
APPELLATE SIDE
Present:
The Hon'ble Justice Shampa Dutt (Paul)
FMA No. 799 of 2010
Hena Bibi & Ors.
Vs
National Insurance Co. Ltd. & Ors.
For the Appellants : Mr. Saidur Rahaman.
For the Respondent No.1/ : Mr. Parimal Kumar Pahari.
Insurance Company
For the Respondent No. 2 & 3/ : None.
Owner
Hearing concluded on : 14.08.2024
Judgment on : 24.09.2024
2
Shampa Dutt (Paul), J.:
1. The present appeal has been preferred by the claimants against the
judgment and order dated 16.09.2008 passed by Judge, Motor
Accident Claims Tribunal, 2nd Court, Murshidabad at Berhampore, in
M.V. Case No. 294 of 2004, under Section 163A of the Motor
Vehicles Act.
2. THE FACTS :-
"............Ruddin Sk S/o Nasir Sk. boarded truck No.
WB -65/1328 (Mini Truck) with his fruits for his
business purpose and started from Sajur More to
Omarpur on 18.06.2003. That truck was running
rashly and negligently with high speed violating the
rules and regulations of the law and the truck fell
down in Nayanjuli at about 9-30a.m. and the said
Ruddin Sk received fatal injury and he was at first
admitted to Jangipur S.D. Hospital from there he was
transferred to Berhampore N.G. Hospital where he died
at about 12.45 p.m. on 18.06.03. His earning was Rs.
4000/- per month from his Fruit Business. The
deceased‟s family suffered financially. The deceased
Ruddin Sk was aged about 40 years and he was a
resident of Dhulian, P.S. Samserganj, Dist.
Murshidabad. The petitioner No.1 Rabina Bewa is the
wife of late Nasir Sk. father of deceased and petitioner
No. 2 Rojina Bibi D/o Ruddin Sk and petitioner No.11
Hena Bibi, W/o Ruddin Sk and others are minor issues
etc. The accident took place on 18.06.03 at 9.30 a.m.
on NH 34 after crossing Gadaipur bridge under PS -
Raghunathganj, District -Murshidabad. The police Case
No. 91/03 (connection with Berhampore PS UD Case
No. 349/03 of 18.06.03) u/s 279/304A IPC was
started. So, the petitioners have filed this case praying
for compensation of Rs. 2 Lakhs............."
3. O. P. No. 2/the Insurance Company submits that the deceased was
not a citizen of India and the petitioners are not citizens of India, as
no ration card and voter I-Card have been filed by the petitioners in
proof of their identity and also the relationship between the parties
and the deceased. So, the case is not maintainable even though the
FIR and the charge sheet show that the deceased was a passenger
and he was travelling as a passenger in the said vehicle and that no
case of carrying fruits have been made out in the claim petition and
he was travelling as a gratuitous passenger along with other
persons/victims.
4. The claimants examined three witnesses and proved documents
marked Exhibit 1 to 5.
5. Being aggrieved, the Claimants preferred this appeal on the
ground :-
That the learned Tribunal did not grant „just
compensation‟ in spite of the materials on record.
6. Considering the materials on record, the tribunal held as follows:-
".......... M.V. Case No. 294 of 2004
Dated: 16.09.2008
...... Ext. 1, the post mortem report says the name
of the deceased as Ruddin Sk S/o Naser Sk. But Ext. 4
(FIR) and Ext.5 (Charge Sheet) show the name of the
deceased as Azizul Sk and so there is clear
contradiction in between Ext.1 and Exts.4 and 5. No
documents have been filed to show that the petitioners
had any relationship with the deceased. No voter I-
Card and Ration Card have been filed to prove the
same without any explanation and that also goes
against the petitioners‟ case very much. In this case
income has also not been proved.
PW-2 says that three passengers were in the
truck and the truck capsized and they were injured
seriously. He also says that they were not known to
him (vide line Nos. 6 of his examination in chief). He
says regarding Ruddin Sk. But Exts. 4 and 5 say
otherwise. He says that he had a tea stall but that has
not been proved and he has no document to prove it. He
has also not filed his voter I-Card to show his identity.
It is suggested to him that he is a tutored witness but it
is denied by him. He is not a charge sheet witness. On
perusal of his evidence I find that he can not be relied
upon.
PW3 Sagir Sk. says that Ruddin Sk and Azizul Sk
were admitted in hospital and Ruddin Sk is dead and
he died in hospital. But Ext. 4 copy of FIR does not
show that Ruddin Sk died in the accident and Ext. 4
does not contain the name of Ruddin Sk at all. Ext.5
certified copy of charge sheet also does not contain the
name of Ruddin Sk and it does not show that Ruddin
Sk died in the accident. So, Exts. 4 and 5 go very much
against the petitioners‟ case.
The evidence of PW3 and that of other P.W.s are
contradictory. The evidence of PW-3 does not help the
petitioners at all. Exts.1 to 6 do not help the petitioners
at all. In this case petitioners have not been able to file
any papers and documents to show the relationship in
between them and also to show their relationship with
deceased.
On perusal of the record and considering the
Rulings of both sides and on the basis of oral and
documentary evidence, I find that the petitioners have
not been able to prove their case at all. They are not
entitled to get any compensation as prayed for.
So, the case falls on contest. C.F. paid is correct.
Hence it is,
Ordered
that the M.V. Case No. 294/04 is dismissed on
contest against the O.P. 2 National Insurance Co. Ltd.
and exparte against the rest but without costs.
Dictated & corrected by me.
Sd/-
Judge,
Motor Accident Claims
Tribunal, 2nd Court,
Murshidabad......."
7. From the materials and evidence on record, the following is
evident :-
(i) The tribunal held that Exhibit 5 (charge sheet) does not name the
deceased. The said finding is clearly erroneous, as the deceased in
this case 'Ruddin Sk' was among the others travelling in the
offending vehicle and sustained injuries of which he also expired.
The FIR has been registered by the son of one of the other victims
Azizul Sk. The fact as stated in the Charge Sheet is as follows :-
".........On investigation, seized the truck and its
papers examined witnesses and recorded U/S 161
Cr.P.C., arrested driver acdd. forwarded him to court,
M.V.I. examined the truck. Other persons also
sustained injury who were also got admission at
Jangipur S.D. Hospital. One Ruddin Sk transferred
to Berhampore N.G. Hospital from Jangipur S.D.
Hospital where he also expired. This relates to
Berhampore P.S. U.D. case No. 349/03 dated
28.06.03. A.S.I. Sourendra Nath Biswas attended
and held inquest over the dead body and sent for
P.M. examination, collected P.M. report, injury report.
Thus I investigated the case on all over the point.
Prima facie Charge U/s 279/337/338/304A
I.P.C. have been well established against accd. Md.
Sagir Sk......."
8. Exhibit 1 is the post mortem report of deceased Ruddin Sk. and relates
to the accident in the present case (RTA).
9. The address of Ruddin Sk. in the P.M. report (Ext-1) is Lalpur, P.O.
Dhulian, P.O. Samserganj, Murshidabad. The address of the
claimants is also the same.
10. The claimants have filed their Aadhar Cards to show the address
shared with the deceased.
11. The victim was admittedly travelling in a mini truck and was thus a
'Gratuitous Passenger'.
12. The present claim is under Section 163A M.V. Act.
13. The exhibited documents support the case of the claimants that the
deceased Ruddin Sk was also a passenger in the offending vehicle and
died as a result of the accident in this case.
14. (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."
15. In the present appeal, the claim was decided by the tribunal on 16th
September, 2008, thus prior to 22nd May, 2018 and no compensation
was granted by the Learned Tribunal as the case was dismissed.
16. Now, considering the evidence on record and 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.
17. Admittedly, the Claimants/Appellants have not received any amount of
compensation in terms of order of the Learned Tribunal as the case was
dismissed. Accordingly, the Claimants/Appellants are now entitled to
the total amount of compensation of Rs. 5,00,000/- together with
interest at the rate of 6% per annum from the date of filing of the
claim application till deposit.
18. Respondent No. 1/Insurance Company, is thus directed to deposit the
total amount along with the interest as indicated above, by way of
cheque before the learned Registrar General, High Court, Calcutta within
a period of six weeks from date.
19. 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 in equal proportion, after payment
of the amount for loss of consortium to the Appellant/Wife, upon
satisfaction of their identity and payment of ad-valorem Court fees, if not
already paid.
20. The Respondent No.1 /Insurance Company has now prayed for leave
to recover the compensation from the Owner/Respondent No. 2 & 3 of
the offending vehicle (being a Mini-Truck) bearing no. WB -65/1328
(insured with the Respondent No.1) on the ground that the deceased was
a gratuitous passenger in the said vehicle. (Balu Krishna Chavan vs.
The Reliance General Insurance Company Ltd. & Ors., in SLP (C)
No. 33638 of 2017, on 3rd November, 2022, Para 8 to 14)
21. It is proved from the charge sheet (Exbt. 5) that the deceased was
travelling as a gratuitous passenger in one of the offending vehicles
being a Mini-Truck, bearing No. WB-65/1328, insured with the
Respondent No.1/Insurance Company 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. WB -65/1328, the
Respondent no. 2 & 3 herein.
22. The appeal being FMA 779 of 2010 is allowed. The impugned
judgment and award of the learned Tribunal is set aside.
23. All connected applications, if any, stand disposed of.
24. There will be no order as to costs.
25. Interim order, if any, stands vacated.
26. Copy of this judgment be sent to the Learned Tribunal, along with the
trial court records, if received.
27. Urgent certified website copy of this judgment, if applied for, be supplied
expeditiously after complying with all, necessary legal formalities.
(Shampa Dutt (Paul), J.)
