Calcutta High Court (Appellete Side)

National Insurance Company Ltd vs Smt. Biva Gharami & 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 925 of 2012


                National Insurance Company Ltd.

                                  Vs.

                     Smt. Biva Gharami & Ors.



For the Appellant             :     Mr. M. P. Chakraborty,
                                    Ms. Ratnadipa Karmakar.


For the Respondents/          :     Mr. J. K. Mondal.
Claimants



Hearing concluded on          :     24.09.2024


Judgment on                   :     24.09.2024
                                 2


Shampa Dutt (Paul) , J.

1. The present appeal has been preferred by the Insurance

Company/Appellant against the Judgment and Award dated 6th

May, 2010 passed by learned Additional District Judge, 12th

Court, Alipore, Motor Accident Claims Tribunal, Alipore, in

Motor Accident Claim Case No.31 of 2006, under Section 166

of the M.V Act.

2. The facts :-

"..........On 16.05.2005 at about 11-15 a.m. the victim was returning to his residence from Sri Krishna Oil Agency at Dighipara in the offending vehicle bearing No.WB-19-8526 which was being driven at a high speed and overturned near Falta Road BDO Office and consequently the victim suffered severe injuries and succumbed to death at the spot within few minutes of the occurrence of the accident.

With respect to the accident suffered by the victim, Falta P.S Case No.58, dated 16.05.2005 u/s 279/338/304A of I.P.C was started against the Driver of the offending vehicle viz. Anup Das.

The claimant impleaded the owner of the offending vehicle as O.P No.1 and the insure National Insurance Co. Ltd. as O.P. No.2..............."

3. The O.P No.1/Owner did not contest the case and the O.P

No.2/Insurance Company has contested the case by filing

written statement inter alia, denying all the material points of

the claim petition. It has been asserted therein that the Driver

had no valid licence and that at the material time the vehicle

was being used for the purpose beyond the purview of the

insurance policy issued. It is further asserted that the claim is

excessive and barred by limitation.

4. The Claimants examined two witnesses and proved relevant

documents which were marked as Exhibit-1 to 12.

5. On conclusion of hearing the learned Tribunal held as

follows:-

"............MACC No. 31/2006

Dated:-06.05.2010 .......The claimants did not produce any document to justify the income of the deceased apart from oral evidence. However, the documents on record show that the deceased had a monthly income which can be constructed to be Rs.3,000/- per month. Therefore, the total annual income of the deceased is Rs.3,000/- x 12=Rs.36,000/-. This amount is multiplied by multiplier 11 i.e. Rs.36,000/- x 11 = Rs.3,96,000/-. 1/3rd of Rs.3,96,000/- = is Rs.1,32,000/- which is to be substracted as this amount would have been spent by the deceased for his own maintenance. Now Rs.3,96,000/- - Rs.1,32,000/- = Rs.2,64,000/- is the amount of dependency. Apart from this amount, the claimants are also entitled to Rs.9500/- towards funeral expenses, loss of estate and loss of consortium. Therefore, the total compensation comes to Rs.2,73,500/-..................

Sd/-

Judge, MAC, Tribunal, 12th Court, Alipore....."

6. Being aggrieved, the present appeal has been preferred by

the Insurance Company on the ground:-

That the learned Tribunal should have held that the victim was a „gratuitous passenger‟ in the offending vehicle.

7. Considering the materials including the evidence on

record, the following is evident:-

i) It appears from the judgment under appeal that the

learned tribunal held in respect of the case of the

Insurance Company that the victim was a 'gratuitous

passenger' as follows :-

"...............In the instant case the opposite party no.2 issued the certificate of Insurance of Goods Carrying (three wheeler padal cycles)-public carriers(exbt.4) and from the form of certificate of registration (exbt.5) it appears that the vehicle has been an Auto School Van which falls within the meaning of Fiat/Ambassador/Maruti Car, Tata Goods Vehicles, Ashok Leyland goods vehicles, Trailer motor cycle with/without gear, motor cycle with side gear etc. from Clause 9 of the instructions incorporated in the certificate of Registration it appears that the offending vehicle can be used for the carriage of goods or for carriage of passengers for hire or reward provided there is a permit under the provision of section 66 of the M. V. act. Therefore, it can be said that the offending vehicle could carry goods as well as passengers, thereby binding O.P. No.2 with liability to pay compensation to the victim as a passenger.

The limit of liability as stated in the insurance policy (exhbt. 4) states that "limit of the amount of the Company‟s liability u/s 111(i) in respect of any one accident as per Motor Vehicle Act, 1988 "wherefrom it appears that the Insurance Company is liable to compensate „anyone accident"

which was wide connotation and the liability is not restricted in its scope to the type of vehicle carriage of goods or passenger and is inclusive of the third party property etc. The Insurance policy further enumerates that the person driving the vehicle should hold effective driving licence. The driver of the offending vehicle had been issued a driving licence by the competent authority to drive light motor vehicles like auto rickshaws, motor car, jeep, taxi, three wheeler delivery vans etc. Therefore, it can be correctly said that the driver of the offending vehicle had the licence to drive it............"

ii) Thus in the present case, the tribunal's finding that the

victim was not a 'gratuitous passenger' being in

accordance with law requires no interference.

iii) Though there is no cross appeal by the claimants for

enhancement of compensation in the present appeal

filed by the Insurance Company, this Court considering

the prevailing laws and relying upon the judgment in

Janabai WD/O Dinkarrao Ghorpade & Ors. Vs. M/S.

I.C.I.C.I. Lambord Insurance Company Ltd., Civil

Appeal No.______of 2022 (Arising out of SLP (Civil) No.

21077 of 2019), holds that the claimants in this case is

entitled under the law to enhanced compensation.

iv) The accident in this case occurred on 16.05.2005 as such

the learned tribunal rightly held that income of the

deceased be taken as Rs.3,000/- per month, in absence

of any proof in support of the actual monthly income of the

deceased.

v) Rash and negligent driving of the offending vehicle has

been duly proved to substantiate the case under Section

166 of the Motor Vehicle Act (FIR and Charge sheet). The

offending vehicle had a valid policy (Exhibit-4).

vi) From the death certificate (Exhibit-8) and the post mortem

report (Exhibit-9), it appears that the deceased was aged

about 55 years at the time of his death. As such

multiplier 11, is applicable. (Sarla Verma & Ors. Vs.

Delhi Transport Corporation and Anr. (2009) 6 SCC

121)

vii) Future prospects - it appears that the deceased was self

employed and, as such considering his age as 55 years,

10% of the income shall be added towards future

prospects. (National Insurance Co. Ltd. Vs. Pranay

Sethi & Ors., (2017) 16 SCC 680)

viii) The number of claimant in the present case being 3, 1/3rd

of the deceased's income is to be deducted towards his

personal expenses. (Sarla Verma & Ors. Vs. Delhi

Transport Corporation and Anr. (Supra))

ix) General damages of Rs. 70,000/- under the conventional

heads of Loss of estate: Rs.15,000, Loss of consortium:

Rs.40,000, Funeral expenses: Rs.15,000 to be added.

(National Insurance Company Ltd. Vs Pranay Sethi &

Ors.,(Supra)). General damages to be enhanced at the rate

of 10% every three years. So 10% every three year since

2017 on 70,000/- will be Rs. 84,000/-. (Being 20%)

8. Thus, the 'just compensation' in this case would be:-

        Monthly Income                             Rs. 3,000/-
        Annual Income                              Rs. 36,000/-
        (3,000 x 12)

Less : Less : 1/3rd towards personal and Rs. 12,000/-

living expenses Rs. 24,000/-

Add : Future prospects @ 10% of the Rs. 2,400/- annual income of the deceased Rs. 26,400/-

Multiplier x 11 (26,400 x 11) Rs. 2,90,400/- Add: General damages Loss of estate: Rs. 84,000/-

        Rs.15,000/-    Loss    of   consortium:
        Rs.40,000/-      Funeral      expenses:
        Rs.15,000/. (Rs. 70,000 + 20% = Rs.
        84,000)
        Total amount:-                             Rs. 3,74,400/-

9. Admittedly, the Appellant/Insurance Company has deposited

the amount of compensation of Rs. 2,73,500/- in terms of the

order of the learned Tribunal. The claimants are now entitled to

the total amount of compensation of Rs. 3,74,400/-

together with interest at the rate of 6% per annum from

the date of filing of the claim application till deposit, on

the total compensation amount.

10. Taking into consideration, the amount already deposited by the

Appellant/Insurance Company, the Insurance Company shall

deposit the balance amount of Rs. 1,00,900/- along with

interest on the total compensation amount, with the learned

Registrar General, High Court, Calcutta, within a period of six