Calcutta High Court (Appellete Side)
( National Insurance Co. Ltd vs Smt. Juthika Singha & Ors. ) on 14 May, 2010
Author: Bhaskar Bhattacharya
Bench: Bhaskar Bhattacharya
ah (114) 14.05.2010 F. M. A. No. 2542 of 2007
( FMAT 2114 of 2007 )
( National Insurance Co. Ltd. -vs- Smt. Juthika Singha & Ors. )
and
C. O. T. No. 28 of 2010
( Smt. Juthika Singha & Ors. -vs- National Ins. Co. Ltd. & Ors.
)
Mr. Parimal Kr. Pahari
... for the appellant in FMA 2542/2007
& the respondent in COT 28 of 2010.
Mr. Krishanu Banik ... for the respondents in FMA 2542/2007 & cross-objectors in COT 28 of 2010.
Since the Memorandum of Cross-Objection is not available on record, a copy of the said cross-objection filed by Mr. Banik before us be treated as original, so long the original is not found out.
Both the appeal and the cross-objection, one preferred by the Insurance Company and the other preferred by the claimants against the selfsame award dated 27th March, 2007 passed by the learned Additional District & Sessions Judge, Fast Tract Court, 1st Court, Raiganj, Uttar Dinajpur, in M.A.C. Case No. 87 of 2005 are taken up together.
The proceeding was one under Section 166 of the Motor Vehicles Act for the death of the victim who was, undisputedly, a home guard and his income was below Rs.40,000/- per annum being Rs.39,804/- according to the salary-slip exhibited in the proceeding.
The case of the claimants was that the victim was travelling by a Maruti van and one tractor was 2 proceeding ahead of the said Maruti van in the same direction and when the said tractor tried to cross the road from left side to the right side, the said Maruti coming from behind dashed the said tractor resulting in the death of the victim.
According to the claim-application, both the drivers of the tractor and the Maruti van were equally negligent and consequently, both the owners and the insurer were made parties to the proceeding. The National Insurance Company Limited, however, is the insurer of both the Maruti van and the tractor.
The claim-application was opposed by the National Insurance Company Limited as the owners of the vehicle did not contest the proceeding. According to the Insurance Company, the driver of the Maruti van being the owner and the victim being an occupier of the said Maruti van, no claim is maintainable inasmuch as the occupier of a car cannot claim for compensation for the negligence of his own driver by taking aid of a third party insurance coverage.
The learned Tribunal below, however, on the basis of evidence on record came to the conclusion that the drivers of both the vehicles were equally responsible and in such circumstances, awarded a sum of Rs. 4,20,000/- in favour of the claimant by applying the Second Schedule of the Motor Vehicles Act with the application 3 of multiplier of 15 on the basis of income of the deceased. Although the assessed amount was Rs. 4,57,295/-, as the claimants restricted their claim to Rs.4,20,000/-, the learned Tribunal below reduced the amount to such amount. The Insurance Company was directed to pay the said amount within two months from the date of award with further condition that in default, the amount should carry interest at the rate of 8% per annum from the date of passing of award till realisation. Being dissatisfied, the Insurance Company has come up with the present appeal.
Mr. Pahari, the learned Advocate appearing on behalf of the Insurance Company strenuously contended before us that the learned Tribunal itself having found that the drivers of both the vehicles were equally negligent and the victim being an occupier of the Maruti van, the claim- application cannot succeed against the owner of the Maruti van but should be allowed against the owner of the tractor and in that event, as the insurer of the said tractor, his client is liable to pay half of the entire liability as both the drivers were equally liable. He, therefore, prayed for reducing the amount to 50% of the same. After hearing the learned Counsel for the parties and after going through the materials on record, we are, however, unable to accept the aforesaid contention of Mr. 4 Pahari in the facts of the present case for the following reason:
Since the victim was, undisputedly, earning less than Rs.40,000/- per annum, although the application was described as one under Section 166 of the Act, the same could be converted to one under Section 163A of the Act and in that event, so far the tractor is concerned, the position of the victim would be that of a third party and the entire claim can be realized from the owner of the tractor or the insurer, as the case may be, and in such circumstances, the question of negligence become insignificant.
In this connection, Mr. Pahari, the learned Advocate appearing on behalf of the Insurance Company, relied upon a decision of a Division Bench of Karnataka High Court in the case of Oriental Insurance Company Limited
-vs- Sarda G. & Ors., reported in 2010 ACJ 977, where, in a situation like the present one, the amendment for conversion of the application under Section 166 of the Act to one under Section 163A was held to be impermissible.
We have gone through the said decision. It appears from paragraph 8 of the said judgment that the victim had annual income of more than Rs.40,000/-, but the amendment was sought for reducing the income to Rs. 39,000/- for the purpose of getting benefit under Section 5 163A of the Act and in such circumstances, the learned Division Bench rightly held that special benefit given under Section 163A of the Act cannot be given to a victim who had income of more than Rs.40,000/- per annum. In the case before us, however, undisputedly, the victim was a home guard and it has been established from his salary certificate that his income was Rs.39,804/- and thus, he was entitled to the benefit of Section 163A of the Act.
Although Mr. Pahari also relied upon a decision of the Supreme Court in the case of Deepal G. Bhai Singh - vs- United Insurance Company Limited, reported in 2004(3) S.C. 602, we find that the said decision rather supports the case of the claimants and in the said decision, it has been specifically held that the heirs and the legal representatives of a victim whose income was less than Rs.40,000/- per annum have both the remedies available and they can pick anyone of them. Therefore, in this case, although the petition was filed under Section 166 of the Act and even the negligence of both the drivers have been established, having regard to the fact that the victim had income of less than Rs.40,000/- per annum, the claimants were entitled to claim the benefit under Section 166 of the Act without proving negligence to any of the drivers.
We, therefore, do not find any substance in the aforesaid objection raised by Mr. Pahari. We, in such 6 circumstances, hold that the application under Section 166 of the Act should be treated to be one under Section 163A of the Act and by application of the Second Schedule of the Motor Vehicles Act, with the aid of multiplier of 15 the learned Tribunal below did not commit any illegality.
We, therefore, find no merit in the appeal preferred by the Insurance Company and the same is dismissed. So far the cross-objection filed by the claimants is concerned, we find that the grievance of Mr. Banik, the learned Advocate appearing on behalf of the cross- objectors, is that the Tribunal below should have also taken into consideration the future prospect of the victim as the victim was in a stable service. The moment we hold that the proceeding should be treated as one under Section 163A of the Act, there is no scope of taking into consideration the future prospect. We should be strictly guided by the provisions of the Second Schedule of the Motor Vehicles Act and as the victim was aged in the group of 40 - 45 years, the assessment should be on the basis of multiplier of 15.
In view of a decision of the Supreme Court in the case of Nagappa -vs- Gurudayal Singh & Ors., reported in AIR 2003 S.C. 674, there was no justification of reducing the assessed amount of Rs. 4,57,295/- to Rs. 4,20,000/- simply because the claimants restricted their 7 claim to the said amount when, according to the Second Schedule of the Act, the just amount should be Rs.4,57,295/-.
We, therefore, allow the cross-objection filed by the claimants and enhance the amount to Rs. 4,57,295/- with interest at the rate of 8% per annum from the date of filing of the application (28th June, 2005) till actual deposit of the amount by the Insurance Company. It appears from record that on an application for stay filed by the appellant-Insurance Company, this Court directed the appellant to deposit the entire awarded sum, namely, Rs. 4,20,000/- before the learned Registrar General of this Court and out of that amount, the claimants were permitted to withdraw a sum of Rs.1,00,000/-. The claimants have withdrawn that sum of Rs.1,00,000/- on 25th September, 2008 and the balance amount has been kept in the fixed deposit by virtue of the order of this Court.
In such circumstances, running of interest on the aforesaid sum of Rs. 1,00,000/- will stop running from the date of withdrawal of the amount by the claimants. On the balance amount awarded by us the interest will continue from the date of filing of the application till actual deposit of the amount by the Insurance Company to the Tribunal below and such amount should be deposited within a month from today. After deposit of such amount before the Tribunal, the Insurance 8 Company will be free to withdraw the balance amount lying with the learned Registrar General of this Court with interest that has accrued in the said account. The learned Registrar General is directed to release the said amount within seven days from the date of production of the receipt showing deposit of the amount before the Tribunal.
The cross-objection are, thus, disposed of with the aforesaid observation.
Xerox certified copies of this order, if applied for, be given to the parties within a week from the date of making of such application upon compliance of all requisite formalities.
( Bhaskar Bhattacharya, J. ) ah ( Prasenjit Mandal, J. )