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Judgment
Biswaroop Chowdhury,J:
The appellant before this Court was an opposite party in a case under Section 166 of the Motor Vehicles Act 1988 and is aggrieved by the Judgment and Award dated 22nd February 2024 passed by Learned Additional District Judge 4th Court Asansol Paschim Bardhaman in MAC. Case No-32 of 2012/154/2010.
The case of the claimants before Learned Trial Court may be summed up thus:-
On 16-05-2010 at about 1.30 p.m. the victim Harish Chandra Chamar was proceeding towards Raniganj side from his residence by driving a scooter bearing registration no. WB 40B/7857 when he reached near Khas Kenda, one Maruti Van bearing No WB-38Q/2817 coming from the same side more and proceeding towards Raiganj side with high speed and negligent manner dashed the victim namely Harish Chandra Chamar from behind. The local people rescued the victim and rushed him to Asansol S.D. Hospital but the victim after some time left the mortal world.
The accident took place due to the negligence and reck less driving of the offending vehicle.
Pursuant to filing of the case notice was issued upon the opposite parties. Opposite Party Insurance Company contested the case by filing written statement.
ISSUES were framed and evidence was adduced. Learned Trial Judge upon considering the evidence adduced and upon hearing the Learned Advocates was pleased to dispose the claim case by observing and directing as follows:-
‘Hence ORDERED that the instant claim case U/S. 166 of MV. Act is hereby allowed on contest against the OP No. 2 and ex-parte against OP No-1 but without any cost.
OP No-1 and OP No. 2 are jointly and severally liable to pay the compensation of Rs. 31,50,704/- (Rupees thirty one lakhs and fifty thousand and seven hundred and four seven only) to the petitioners with interest at the rate of 6% per annum from the date of filing of the instant application till this day.
OP No-2 is directed to issue two separate account payee cheques of Rs. 10,36,901/- in favour of each of the petitioner no 2 and 3 and another account payee cheques of Rs. 10,76,901/- in favour of the petitioner no-1 together with interest @6% p.a. from the date of filing of the application till this day within 60 days. In default of such payment the awarded amount will carry 8% interest and the petitioners will be at liberty to recover the same from the O.P. No-2 in accordance with Law’.
The appellant being aggrieved by the Judgment and Award passed by the Learned Trial Court has come up with the instant appeal. The respondents/claimants being also aggrieved by the quantum of compensation awarded has filed cross-objection.
Heard Learned Advocate for the appellant/insurance company and Learned Advocate for the respondents/claimants. Perused the evidence adduced and materials on record.
Learned Advocate for the appellant submits that FIR was lodged after 3 days which makes the case of the claimant doubtful. Learned Advocate further submits that evidence of P.W. 2 will go to show that he is a tutored witness and the vehicle is implanted. Learned Advocate also submits that as per the statement of P.W. 1 wife of the victim the victim did not have driving license thus there is contributory negligence. It is submitted that the said vehicle is also involved in another case of accident which shows the collusion of vehicle owner. It is further submitted that compensation awarded is excessive.
Learned Advocate relies upon the following judicial decision.
Raiz VS National Insurance Company Limited and ors. Civil Appeal No-6739 of 2023. MANU/SC/1513/2023.
Learned Advocate for the claimants/respondents disputes the submission of Learned Advocate for the appellant and submits that the evidence of P.W. 2 will go to show involvement of WB-38Q/2817.
Learned Advocate further submits that the Learned Trial Judge erred in considering the future prospect at 40% instead of 50%. Learned Advocate also submits compensation awarded should be enhanced.
Learned Advocate relies upon the following judicial decisions:-
Prakash Chandra Biswas VS New India Assurance Co. Ltd. AIR-2010 Cal-19.
Saraswati Palariya VS The New India Assurance Company. (Supreme Court of India)
National Insurance Co. Ltd. VS Smt. Anita Muchi and Ors. FMA-1745 of 2014. (High Court at Calcutta)
With regard to the first submission of Learned Advocate for the appellant about delay in lodging FIR it is held in different Judicial decisions that in Indian Society family members of injured person rushes to hospital and not to Police station thus mere delay in lodging FIR is not fatal.
With regard to the evidence of P.W. 2 it appears that the said witness stated specifically how the accident took place. Although the said witness faced cross-examination but nothing could be shaken that he did not witness the accident. The mere fact that P.W. 2 is not cited as charge sheet witness does not make his evidence unreliable.
With regard to the submission of the Learned Advocate for the appellant that the victim was driving scooter without helmet and he had no driving license, this Court is of the view that although driving scooter without driving license or without helmet is punishable offence but the fact that the victim is dead and unable to defend himself by facing cross-examination such allegations cannot not be sustained. Moreover in the case of Saraswati Palariya VS New India Assurance Company Ltd. and ors. (supra) the Hon’ble Supreme Court observed that driving without a valid driving license may expose the claimants to other liabilities but no interference of contributory negligence can be arrived on that basis. Thus the plea of contributory negligence cannot be sustained. The decision of Hon’ble Supreme Court in the case of Ravi VS National Insurance Co. (supra) is not applicable as in the said case victim was not dead and could defend the case which is not so in the instant case. With regard to the plea of collusion between vehicle owner and the claimants the appellant insurance company did not examine the vehicle owner thus this plea cannot be sustained.
Thus the Learned Trial Judge did not commit any error in coming to the findings of rash and negligent driving by driver of vehicle no. WB-38Q/2817.
However with regard to quantum of compensation this Court is of the view that with regard to future prospect 50% should be applied, considering the deposition of P.W. 3 Debasis Mukherjee. From the said cross-examination nothing has come that victim was not permanent employee thus 50% future prospect should be taken into consideration.
However as Courts and Tribunals are empowered to grant just compensation under Section 166 of the Motor Vehicles Act 1988 instead of going into arithmetical calculation it would be reasonable to enhance the compensation to Rs. 33 Lakhs. Thus the claimants/respondents are entitled to Rs. 33 lakhs from the appellant National Insurance Company Limited.
Hence this Appeal FMA-695 of 2024 with COT 26/2025 stands disposed. Judgment and Award dated 22nd February 2024 passed by Learned Additional District Judge-4th Court Asansol Paschim Bardhaman on MAC Case No-32 of 2012/154 of 2010, stands modified to the extent that the claimants respondents are entitled to compensation of Rs. 33 lakh from Appellant National Insurance Company Limited. Appellant National Insurance Company Limited shall deposit Rs. 33 lakh along with interest @6% p.a. from date of filing claim case till today. In the event compensation awarded by Learned Trial Judge is deposited, balance amount be deposited.
The claimants/respondents will be entitled to withdraw compensation upon compliance of necessary formalities.
Deficit Court fees be paid within 4 weeks.
Urgent photostat certified copy of this order, if applied for, should be made available to the parties upon compliance with the requisite formalities.