Calcutta High Court (Appellete Side)
New India Assurance Company Limited vs Sima Singh & Others on 10 January, 2023
IN THE HIGH COURT, AT CALCUTTA
CIVIL APPELLATE JURISDICTION
APPELLATE SIDE
PRESENT:
THE HON'BLE JUSTICE BIVAS PATTANAYAK.
FMA 347 OF 2022
With
COT 50 of 2021
New India Assurance Company Limited
......................Appellant
Versus
Sima Singh & Others
..............Respondents
For the Appellant: Mr Parimal Kumar Pahari, Advocate.
For the Respondent no.1 & 2: Mr Jayanta Kumar Mandal, Advocate.
Mr Sayantan Rakhit, Advocate
Heard on: 09.11.2022.
Judgment on: 10.01.2023
Bivas Pattanayak, J :-
1. This appeal is preferred against the judgment and award dated 12 th
August 2021 passed by learned Additional District Judge, RD Court,
Paschim Medinipore in M.A.C Case no. 230 of 2018 granting compensation
of Rs. 32,64,384/- favour of the claimants under Section 166 of the Motor
Vehicles Act, 1988.
2. The brief fact of the case is that on 25 August 2017 at about 1 AM while
the victim was driving the truck bearing no. WB-76A/4321 to his destination
at that time another vehicle bearing no. WB-37A/6723 (truck) coming from
the opposite side with excessively high speed in a rash and negligent manner
dashed the truck driven by the victim near village Deypara on Dherua-
Midnapore pitch road as a result of which the victim sustained severe
injuries all over his body and he was taken to Midnapore Medical College &
Hospital wherefrom he was referred to S.S.K.M Hospital, Kolkata but as
there were no vacant beds he was admitted to Medica Super-Speciality
Hospital and was discharged on 28.8.2017. Thereafter he was admitted to
Calcutta Medical College & Hospital but ultimately he succumbed to his
injuries and died on 30.8.2017. On account of sudden demise of the
deceased-victim, the claimants being his parents and dependents filed
application for compensation of Rs.10,00,000/-under Section 166 of the
Motor Vehicles Act, 1988.
3. The appellant-insurance company contested the claim application before
the learned tribunal. However respondent no.3-owner of the offending vehicle
though filed written statement but did not contest the claim application
before the learned tribunal and the claim application was disposed of exparte
against him. Accordingly, service of notice of appeal upon the said
respondent is dispensed with.
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4. The claimants in order to prove their case examined two witnesses
including claimant no.2, father of the deceased-victim and proved number of
documents which have been marked as Exhibit 1 to 10 respectively. The
contesting opposite party no.2-insurance company (respondent no.1 herein)
also adduced evidence of Motor Vehicle Inspector on its behalf.
5. Upon considering the materials on record and the evidence produced on
behalf of the parties the learned tribunal allowed the claim application
granting compensation of Rs. 32,64,384/- in favour of the claimants under
Section 166 of the Motor Vehicles Act, 1988.
6. Being aggrieved by and dissatisfied with the impugned judgment and
award of the learned tribunal the insurance company has preferred the
present appeal.
7. In the present appeal the respondent nos. 1 & 2 (claimants) have filed a
cross-objection being COT 50 of 2021 for enhancement of compensation
amount.
8. Both the appeal as well as the cross-objection is taken up together for
disposal.
9. Mr Parimal Kumar Pahari, learned advocate for appellant-insurance
company submitted that the deceased-victim being the driver of another
truck bearing no. WB-76A/4321 was guilty of contributory negligence and as
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such the claimants cannot claim compensation to the extent of the
negligence of the deceased-victim.
He further submitted that the owner and insurance company of the vehicle
which was driven by the deceased-victim on the relevant date of accident has
not been made a party in the claim application and as such the application
for compensation is bad for defect of parties. He further points out that the
learned tribunal while negating the plea of the insurance company of defect
of parties wrongly applied the proposition laid down in the decision of
Hon'ble Supreme Court in Khenyei versus New India Assurance Company
limited reported in 2015 (2) TAC 677 (SC) wherein it was observed that the
plaintiff is entitled to sue both or anyone of joint tort-feasors in a case of
composite negligence and further failed take into account that the case
before it was not of composite negligence but was of contributory negligence
and therefore the owner and insurer of the other vehicle is a necessary party
as in a case of contributory negligence the question of apportionment of
compensation amount between the two vehicles comes into play. Further
charge-sheet has also been submitted against the driver of the alleged
offending vehicle under Sections 279/427 IPC adding Section 304A of IPC as
well as the deceased-victim who was on the relevant date of accident was
driving the other vehicle which clearly suggests of contributory negligence on
the part of the deceased-victim. Moreover though the evidence of purported
eyewitness (PW2) that on the relevant date of accident he saw the accident
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from the vehicle bearing registration no. WB-37A-8393 (truck) yet he is not
listed as witness in the charge-sheet. Further PW2 has admitted in cross-
examination that he did not make any statement before the investigating
agency or he took the victim to the hospital which improbabilises his
presence near the place of occurrence on the relevant date of accident and
thus his evidence is to be taken with a pinch of salt.
Furthermore it is submitted that the insurance company through its
additional written statement has categorically taken the defence that the
offending vehicle bearing no. WB-37A/6723 on the alleged date of occurrence
did not have valid permit and such fact has been established by the evidence
of Motor Vehicle Inspector, Technical, (OPW1). Thus since the offending
vehicle is found to have been plied without necessary valid permit, which is a
fundamental statutory infraction, the insurance company cannot be saddled
with liability to compensate. However, in such a situation, as per the settled
proposition laid down by the Hon'ble Supreme Court the insurer may be
directed to satisfy the award, although it has no liability, and thereafter
liberty be given to recover the same from the insured-owner and/or driver in
accordance with law. In support of his contention he relied on the decision of
Hon'ble Supreme Court passed in National Insurance company versus
Challa Bharathamma reported in 2005 (1) T.A.C 4 (SC); Kamala
Mangalal Vayani and others versus United India Insurance Co. Ltd and
others reported in 2010 ACJ 1441; Amrit Paul Singh & Anr versus TATA
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AIG General Insurance Company Ltd. & Ors reported in 2018 SAR (Civil)
768.
He further submitted that in the claim application the claimants themselves
disclosed the income of the deceased-victim to be Rs. 15,000/- per month
but the learned tribunal instead of taking into account such disclosed
income erroneous considered income tax returns for the assessment year
2015-16 showing the yearly income of the deceased victim to be Rs.
2,69,276/-from transport business which has not at all been proved by any
cogent documentary evidence and thus such finding of the learned tribunal
is erroneous and is liable to be set aside.
In view of the above he submitted that the appeal be allowed setting aside
the impugned judgment and award.
10. In reply to the aforesaid contentions raised on behalf of the appellant-
insurance company, Mr Jayanta Kumar Mandal, learned advocate for
respondents-claimants submitted that the insurance company in its written
statement as well as additional written statement did not take the plea of
contributory negligence on the part of the deceased-victim in the said
accident. Further no evidence has been led by the insurance company to
establish the fact of contributory negligence of the deceased-victim. On the
other hand the respondents-claimants adduced the evidence of one
eyewitness namely Sk Allauddin (PW2),who deposed that he saw the accident
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on the relevant date while seated inside the truck bearing registration no.
WB-37A-8393 and he has categorically deposed that the accident took place
due to rash and negligent driving of the driver of the offending vehicle
bearing registration no. WB-37A/6723. Further even if the eye-witness PW2
is not listed as a witness in the chargesheet it does not impair his aforesaid
truthful and unrebutted evidence in court. Save and except that the
chargesheet has been submitted against the deceased-victim there is no
cogent evidence to suggest that the deceased-victim contributed to the
accident. The insurance company which craved leave under Section 170 of
the Act to contest the proceedings by availing defences of owner of the
offending vehicle failed to examine either driver of the offending vehicle or
any other independent eyewitness to prove the allegation of contributory
negligence on the part of the deceased-victim and thus no case of
contributory negligence has been established by the insurance company. In
support of his contention he relied on the decision of Hon'ble Supreme Court
passed in Minu Rout & Anr versus Satya Pradyumna Mohapatra & Ors
reported in AIR 2014 SC (Civil) 116.
Further from the chargesheet (Exhibit 1/a) it is quite evident that the driver
of the offending vehicle did not have to take any medical treatment whereas
on the other hand death has occasioned to the victim and therefore by
application of doctrine of res ipsa loquitor the accident clearly took place due
to negligence of the driver of the offending vehicle and in support of his
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contention he relied on the decision of Hon'ble Supreme Court passed in
Usha Rajkhowa and Others versus Paramount Industries and Others
reported in 2009 (2) T.A.C 11 (SC)
Relying on the decision of Hon'ble Supreme Court passed in Kusumlata and
Others versus Satbir and others reported in 2011 (2) T.A.C. 1 (SC) he
submitted that in cases relating to motor accident claims the claimants are
merely to establish their case on the touchstone of preponderance of
probabilities and therefore as the materials on record does not probabilise
contributory negligence of the victim hence the same is inconsequential in
the facts and circumstances of the case.
He further submitted that the insurance company has also failed to establish
that the offending vehicle on the date of accident was plied without valid
permit.
Furthermore it is submitted that as per the settled proposition of law where
the income tax return is available that should be taken into account for
determination of the income of the deceased-victim as income tax return is a
statutory document on which reliance can be placed for such determination
and in support of his contention he relied on the decision of Hon'ble
Supreme Court passed in Malarvizhi and Others versus United India
Insurance Company Limited and Another reported in 2020 (1) T.A.C 328
(SC); Sanjay Verma versus Haryana Roadways reported in 2014(1) T.A.C
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711 (SC) and Smt Sangita Arya & Ors versus Oriental Insurance
Company Ltd & Ors reported in 2020 SAR (Civ) 905. He further submitted
that the compensation as per Section 168 of the Motor Vehicles Act should
be 'just compensation' and even if the claimants disclose less income such
aspect would not be a hindrance for the claimants in getting 'just
compensation' in a proceeding under the Act and he relied on the decision of
Hon'ble Supreme Court passed in Rajesh & Ors versus Rajbir Singh &
Ors reported in (2014).
In light of the above, he submitted that the appeal is liable to be dismissed.
11. Having heard the learned advocates of both the sides, it appears that the
insurance company through the present appeal has assailed the impugned
judgment and award on three-fold grounds firstly the deceased-victim was
guilty of contributory negligence in the accident, secondly the offending
vehicle did not have valid route permit to ply on the relevant date of accident
and lastly that the learned tribunal erred in determining the annual income
of the deceased-victim by considering income tax return for assessment year
2015-16 in the absence of necessary documents of business.
11.1. With regard to the aspect of contributory negligence, at the outset on
going through the written statement and the additional written statement
filed by the appellant-insurance company it is pertinent to note that the
insurance company in its defence did not take any specific plea of
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contributory negligence of the deceased-victim in the accident. From the
written statement as well as trend of cross-examination it appears that the
insurance company in the proceedings before the learned tribunal took all
available defences however it failed to adduce evidence of the driver of the
offending vehicle or any independent eyewitness to establish contributory
negligence of the deceased-victim. Thus the insurance company has also not
led any cogent evidence to establish the fact of contributory negligence. PW2,
Sk Allauddin deposed that he saw the accident on the relevant date while
seated inside the truck bearing registration no. WB-37A-8393 and that the
accident took place due to rash and negligent driving of the driver of the
offending vehicle bearing registration no. WB-37A/6723. The aforesaid
evidence of PW2 has not been rebutted in cross-examination. Hence the
presence of the witness near the scene of occurrence and his probability to
witness the accident is very much acceptable. The appellant-insurance
company has challenged the evidence of PW2 on the ground that he has
neither been examined by the police nor been listed as a witness in the
chargesheet. PW2 in cross-examination had admitted that he did not make
any statement before the police or to any other authority. Be that as it may,
such fact does not lead to necessary implication that PW2 did not witness
the accident. Further even if the name of PW2 has not been listed in the
chargesheet his evidence cannot be ignored solely on such ground in the
absence of attending circumstances. Moreover, there is no hard and fast rule
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enshrined in procedure that only the listed witnesses in the chargesheet are
to be examined in proceedings under the Motor Vehicles Act. Mr Pahari,
learned advocate for appellant insurance company drew the attention of the
court that the chargesheet has also been filed under Sections 279/427 IPC
adding Section 304A of IPC against the deceased-victim, who on the relevant
date of accident was driving the other vehicle, which clearly suggests of
contributory negligence on the part of the deceased-victim. Upon going
through the chargesheet it appears that it has also been submitted against
the deceased-driver under the aforesaid provisions of law. Be that as it may,
charge-sheeet is a report filed on conclusion of investigation and not a
substantive piece of evidence. Further is relevant to note that the driver of
the offending vehicle who has also been chargesheeted on being approached
by the investigating agency for getting the injury report informed them that
he did not take any medical treatment. Thus such aspect manifests that the
driver of the offending vehicle did not sustain any such notable grievous
injuries prompting for medical assistance. On the other hand it is found that
the deceased-victim sustained injuries in the said accident and died. The
Hon'ble Supreme Court while dealing with a similar situation in Usha
Rajkhowa's Case (supra) observed as follows.
" Under such circumstances, applying the doctrine
of res ipsa loquitor, it is clear that it was because of
the negligence on the part of the truck that the
accident took place. After all the hit given by the
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truck was so powerful that two persons in the car
died on the spot, while the third escaped with
serious injuries. When we see the award of the
tribunal, as also the appellate judgment, they are
astonishingly silent on these aspects. We are,
therefore, convinced that there was no question of
any contributory negligence on the part of the driver
of the Maruti car and it was solely because of the
negligence on the part of the truck that the accident
took."
Bearing in mind the aforesaid observation of the Hon'ble Court and applying
the doctrine of res ipsa loquitor to the facts of the present case as it is found
that the driver of the offending vehicle did not sustain any injuries whereas
on the flip side the victim who was driving the other vehicle sustained
injuries and died, the probabilities suggests that the accident has taken
place due to negligence on the part of driver of the offending vehicle. I find
substance in the submissions advanced by Mr Mandal, learned advocate for
respondents-claimants relying on Kusumlata's case (supra) that in the case
relating to motor accident claims the claimants are merely to establish their
case on the touchstone of preponderance of probabilities. Contributory
negligence only means the failure by a person to use reasonable care for
safety of either himself or his property, so that he become blameworthy in
part as an author of his own wrong. In the absence of any evidence to show
any wrongful act or omission on the part of the deceased-victim which have
contributed either to the accident or to the nature of injuries sustained, the
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victim cannot be held guilty of contributory negligence.[(See Mohammed
Siddique & Another versus National Insurance Company Limited & Ors
reported in I (2020) ACC 345 (SC)]. Further from the scene of accident one
can suggest or presume the manner in which the accident was caused but in
the absence of any direct or corroborative evidence, no conclusion can be
drawn as to whether there was negligence on the part of the deceased-driver.
[(See Jiju Kuruvila and others versus Kunjujamma Mohan and Others
alongwith other batch of civil appeals reported in (2013) 9 SCC 166]. I
also find substance in the submissions of learned advocate for respondents-
claimants relying on the decision pf Hon'ble Supreme Court in Mina Rout's
Case (supra) that in the absence of legal evidence the court cannot hold
contributory negligence.
In the light of above discussion the ground of contributory negligence of the
deceased-driver in the said accident falls short of merit. At the same time the
argument that the claim application is bad for defect of parties since owner
and insurer of the vehicle which was driven by the deceased-victim on the
relevant date of accident has not been made a party, does not stand to
reason
11.2. With regard to the second issue relating to question of valid route
permit of the offending vehicle, relying on the evidence of OPW1, it has been
strenuously argued on behalf of the appellant-insurance company that on
the date of accident the offending vehicle did not have valid route permit
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leading to statutory violation of terms and conditions of the insurance policy
and hence the insurance company cannot be saddled with the liability of
making compensation. At paragraph no.3 of the additional written statement
filed by the insurance company there is specific assertion that the insurance
company collected some material documents through its investigator
wherefrom it is found that the offending vehicle bearing no.WB-37A/6723
did not have valid permit. In order to establish the aforesaid fact that the
offending vehicle not having valid permit on the relevant date, the insurance
company examined one Mani Changdar, Motor Vehicle Inspector, Technical
at Asansol R.T.O office as OPW1. In his evidence before the court OPW1
deposed that the office maintains the records of permits issued to a
particular vehicle but the route permit of the offending vehicle could not be
produced before the court as specific serial number was not supplied to
them. Thus the evidence of OPW1 as to whether the offending vehicle on the
relevant date of accident had valid permit becomes inconsequential. The
insurance company subsequent thereto has not taken any endeavour to call
for further records from the office of the road transport by providing specific
serial number and other particulars of the concerned documents. The
averments in the additional written statement show that the investigator
collected documents and placed report however neither the investigator nor
the documents or reports were placed before the court by the insurance
company in support of its plea that on the relevant date of accident the
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offending vehicle did not have valid route permit. Thus the insurance
company also failed to establish the fact of absence of valid route permit of
the offending vehicle on the date of accident. Mr Pahari, learned advocate for
appellant insurance company, relying on several decisions of Hon'ble
Supreme Court passed in Challa Bharathamma's (supra); Kamala
Mangalal Vayani's case (supra) and Amrit Paul Singh's case (supra)
pressed for passing an order for pay and recovery as there was statutory
violation of terms and conditions of the insurance policy for the reason of
offending vehicle not having valid route permit on the relevant date of
accident. However, since the absence of valid route permit of the offending
vehicle on the relevant date of accident could not be established by cogent
evidence hence the proposition laid down in the aforesaid decisions of the
Hon'ble court does not apply in the present case.
11.3. With regard to third issue relating to determination of the income of
the deceased-victim, it is found from the impugned judgment that the
learned tribunal has considered the gross income of the deceased as per
income tax return for the assessment year 2015-16 (Exhibit 7/a) amounting
to Rs. 2,69,276/-.Such income of the deceased-victim has been challenged
on the ground that since the claimants have disclosed the income of the
victim in the claim application as Rs. 15,000/- per month the tribunal ought
to have determined the income on such assertion. At the outset I concur with
the submissions of Mr Mandal, learned advocate for respondents-claimants
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that the tribunal is to assess 'just compensation' relying on the decision of
Hon'ble Supreme Court in Rajesh's Case (supra). The Hon'ble Supreme
Court in its decision passed in Malarvizhi's Case (supra) held that the
income tax return is statutory document on which reliance may be placed to
determine the annual income of the deceased. Further the Hon'ble Supreme
Court in the decision of Sanjay Verma's Case (supra) as well as Smt
Sangita Arya's Case (supra) has also proceeded to rely on the income tax
return of the victim for assessing the income. Thus as per settled proposition
income tax return is to be taken into account for determining the income of
the deceased and therefore the argument advanced by the learned advocate
for appellant-insurance company in this regard does not hold good. The
gross income of the deceased-victim appearing in the income tax return for
the assessment year 2015-16 (Exhibit 7/a) is Rs. 2,69,276/-. It is placed on
record that net tax payable on the aforesaid gross income is zero. Thus the
annual income of the deceased-victim should be considered at Rs.
2,69,276/-. In the aforesaid backdrop the income of the deceased-victim
determined by the learned tribunal does not call for interference.
11.4. In view of the above discussion the grounds of appeal advanced as
above on behalf of the appellant-insurance company falls short of merit and
the appeal is, therefore, liable to be dismissed.
12. Now the cross objection being no. COT 50 of 2021 filed by the
respondents-claimants is taken up for consideration.
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12.1. Mr Jayanta Kumar Mandal, learned advocate for respondents-
claimants argued that as per the decision of Hon'ble Supreme Court in Sarla
Verma and Others versus Delhi Transport Corporation and Another
reported in (2009) 6 SCC 121 the multiplier should be 18 instead of 17. It is
found from the impugned judgment that the learned tribunal after referring
to several documents of the deceased-victim held that the age of the
deceased was more than 20 years but less than 25 years. Therefore, keeping
in the mind such age of the deceased-victim and following the observation of
Hon'ble Supreme Court in Sarla verma's Case (supra) the multiplier should
be 18 instead of 17.
12.2. Mr Pahari, learned advocate for the appellant-insurance company
opposing enhancement of compensation indicated that as per settled position
of law only spouse is entitled to receive compensation under the conventional
head of loss of consortium but the learned tribunal erroneously granted such
compensation to the claimants who are the parents of the deceased-victim
hence it requires modification. From the impugned judgment it is found that
the learned tribunal has granted compensation of Rs. 40,000/-under loss of
consortium to the claimants herein who are the parents of the deceased-
victim. As per observation of Constitution Bench of Hon'ble Supreme Court
in National Insurance Company Limited versus Pranay Sethi and
Others reported in 2017 (4) T.A.C 673(S.C) the head under 'loss of
consortium' is confined only to the spouse and thus the claimants being the
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parents of the deceased-victim are not entitled to receive compensation
under such conventional head of loss of consortium. I find substance in the
submission of the learned advocate for appellant-insurance company and
thus to such extent the order of the learned tribunal requires to be modified.
12.3. Mr Mandal, learned advocate for respondents-claimants submitted
that the claimants are entitled to increase in the amount under the
conventional heads by 10% as three years have already elapsed. Following
the observation of Hon'ble Supreme Court in Pranay Sethi's case the
claimants are entitled to increase in the amount of conventional heads by
10% and thus I concur with the submissions advanced by learned advocate
for respondents-claimants in this score.
12.4.Mr Mandal, learned advocate for the respondents-claimants have
argued that the learned tribunal ought to have allowed interest on the
compensation amount from the date of filing application rather than allowing
the same as a default clause which requires to be modified. It is found from
the impugned judgment that the learned tribunal allowed interest as a
default clause. Be that as it may, the claimants are entitled to receive
interest on the compensation amount from the date of filing of the claim
application till deposit.
12.5. As far as the quantum of compensation is concerned the other findings
of the learned tribunal namely the deduction towards personal and living
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expenses of the deceased, and amount towards future prospect has not been
challenged in this appeal.
13. Now keeping in mind the above aspects, the compensation is calculated
hereunder.
Calculation of compensation
Annual Income..............................................Rs. 2,69,276/-
Add: Future Prospects @ 40% of total Income...Rs.1,07,710/-(approx)
Annual loss of Income....................................Rs.3,76,986/-
Less: Deduction 1/2 of the Annual Income
towards personal and living expenses.............. Rs.1,88,493/-
Rs.1,88,493/-
Adopting multiplier 18 ( Rs.1,88,493/- X 18)... Rs.33,92,874/-
Add: General Damages........................................Rs.30,000/-
Loss of estate....Rs.15,000/-
Funeral Expenses.......Rs.15,000/-
Add: 10% increase on conventional heads..............Rs.3,000/-
Total Compensation...........................Rs.34,25,874/-
14. Thus the respondents-claimants are entitled to compensation of
Rs.34,25,874/- along with interest @ 6% per annum from the date of filing of
the claim application till deposit.
15. The Appellant-New India assurance Company Limited is directed to
deposit the aforesaid amount of compensation of Rs.34,25,874/- along with
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interest @ 6% per annum from the date of filing of the claim application till
deposit by way of cheque with the learned Registrar General, High Court,
Calcutta within the period of four weeks from date.
16. Respondents-claimants are directed to deposit ad valorem court-fees on
the amount of compensation assessed, if not already paid.
17. The learned Registrar General upon deposit of the aforesaid
compensation amount shall release the said amount in favour of
respondents-claimants in equal proportion on satisfaction of their identity as
well as payment of advalorem court fees, if not already paid.
18. It appears that the appellant-insurance company has made statutory
deposit of Rs.25,000/- with the Registry of this Court vide OD challan no.
786 Dated 7.10.2021. Learned Registrar General, High Court, Calcutta is
directed to refund the aforesaid amount together with accrued interest to the
insurance company.
19. In view of the above discussion, the appeal thus stands dismissed.
20. With the aforesaid observations the cross-objection being COT 50 of
2021 stands disposed of. The impugned judgment and award of the learned
tribunal stands modified to the aforesaid extent. No order as to cost.
21. All connected applications, if any, stands disposed of.
22. Interim order, if any, stands vacated.
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23. Urgent photostat certified copy of this judgment, if applied for, be given
to the parties upon compliance of necessary legal formalities.
(Bivas Pattanayak,J.)
.
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