Calcutta High Court (Appellete Side)
Bajaj Allianz General Insurance ... vs Talamoy Baskey And Another on 29 July, 2019
Author: Sanjib Banerjee
Bench: Sanjib Banerjee
1
Serial. No.19.
July 29, 2019.
SG
FMA 853 of 2019
(FMAT 229 of 2017)
with
CAN 3162 of 2017
with
CAN 3159 of 2017
with
COT 81 of 2017
Bajaj Allianz General Insurance Company Limited
-versus-
Talamoy Baskey and another
Mr Rajesh Singh
Ms Sucharita Paul
... for the appellant.
Mr Subir Banerjee
Mr Jayanta Banerjee
Mr Sandip Bandyopadhyay
...for the respondents.
The insurance company has challenged an award of August 16, 2016 pertaining to a road accident of May 5, 2012.
The claimants before the tribunal have filed a cross-objection. Both the matters are taken up analogously. The victim was an eight-year-old boy.
According to the insurance company, the victim was travelling in a pick-up van. The insurance company says that the pick-up van was meant only to ferry goods and articles and could not have had any passengers on it. The insurance company says that the victim may also have been a gratuitous passenger. The further 2 ground urged is that the accident took place somewhere in Bihar where the pick-up van's permit did not authorise it to travel.
The cross-objection by the claimants is on the basis of the Supreme Court judgment reported at (2013) 9 SCC 65 (Reshma Kumari v Madan Mohan). According to such judgment, in cases of victims upto the age of 15 years, a multiplier of 20 would apply in all cases, irrespective of whether the claim had been lodged under Section 163A or under Section 166 of the Motor Vehicles Act, 1988.
As to the insurance company's appeal, the evidence before the tribunal was that the victim was a by-stander who was hit by the pick-up vehicle and not that the victim was on the pick-up vehicle when the accident took place. The tribunal has referred to eyewitness accounts in such regard. The further ground urged by the insurance company is that its investigator had produced a compact disc after conducting an inquiry but such evidence was not taken on record.
Neither of the grounds urged by the insurance company is of any merit. If the evidence before the tribunal was that the victim was not in the pick-up van and the insurance company could not demonstrate otherwise, the ground urged would be of no avail. As to the compact disc not being looked into, it is elementary that when such material is sought to be relied upon, it is incumbent on the person seeking to rely on such evidence to produce appropriate certificates. Since such certificates were not and could not be produced by the insurance company, there was no question of the evidence being looked into.
3As far as the cross-objection is concerned, the insurance company has hardly any room to wriggle out, since the dictum in Reshma Kumari is quite clear.
Accordingly, the award passed by the tribunal is modified by applying the multiplier of 20. Upon so doing, the total amount awarded comes to Rs.2,04,500/-. The claimants will also be entitled to interest on such sum at the rate of 8 per cent per annum from the date of the filing of the claim till payment.
The insurance company says that a sum of Rs.1,64,998/- has been deposited in this court. The Registrar-General should make over the entire amount, including any accretion to the principal sum, to the claimants upon proper identification within a month from date. The balance amount should be made good by the insurance company within three months from date.
The insurance company should issue cheques directly in the names of the claimants upon the respective sums due to the claimants being indicated by Advocate on their behalf.
FMA 853 of 2019 and COT 81 of 2017 along with CAN 3162 of 2017 and CAN 3159 of 2017 are disposed of, but without any order as to costs.
( Sanjib Banerjee, J. ) ( Suvra Ghosh, J. ) 4