Calcutta High Court (Appellete Side)
Bajaj Allianz General Insurance ... vs Reena Devi And Ors on 14 December, 2017
Author: Dipankar Datta
Bench: Dipankar Datta
1
14.12.2017
kc(CL 110)
CAN 6327 of 2014
In
F.M.A.T. 697 of 2014
Bajaj Allianz General Insurance Company Limited
-versus-
Reena Devi and Ors.
With
C.O.T. 11 of 2017.
Mr. Rajesh Singh.......................For the applicant/
appellant/cross-respondents.
Mr. Krishanu Banik.............For the opposite parties/ respondents/cross objectors.
Re: CAN 6327 of 2014.
CAN 6327 of 2014 is an application under Section 5 of the Limitation Act, seeking condonation of 12 days delay in presentation of F.M.A.T. 697 of 2014.
We have heard Mr. Singh, learned advocate appearing for the applicant and Mr. Banik, learned advocate for the opposite parties and perused the averments made in the application. Cause shown is sufficient. The delay in presentation of F.M.A.T. 697 of 2014 is condoned. CAN 6327 of 2014 stands allowed.
Register the appeal, if it is otherwise in form.
Re: F.M.A.T. 697 of 2014 and C.O.T. 11 of 2017.
An application under Section 163A of the Motor Vehicles Act (hereafter the Act), registered as M.A.C. Case No. 70 of 2011 was decided by the Motor Accident 2 Claims Tribunal, Uttar Dinajpur (hereafter the tribunal) by judgment and award dated 28th February, 2014. Such judgment and award is under challenge before us at the instance of the insurer, opposite party no. 2 before the tribunal, in the appeal (F.M.A.T. 697 of 2014) as well as at the instance of the claimants before it, in the cross objection (C.O.T. 11 of 2017).
A 7 (seven) year old child of the claimants died in a motor accident. Proceeding strictly in terms of the Second Schedule of the Act, the tribunal assessed compensation in a sum of Rs.1,50,000/-. In addition, Rs.4,500/- was awarded on account of funeral expenses and loss of estate.
The award of the tribunal is assailed by the insurer on the ground that the offending vehicle was being driven by a person who did not have the licence to drive it.
According to Mr. Singh, learned advocate for the insurer, the person concerned driving he vehicle involved in the accident had a licence to drive a non- transport light motor vehicle; however, he was found to drive a transport light motor vehicle and this was in breach of the terms and conditions of the insurance policy. It is, accordingly, submitted by him that instead of the insurer, the owner of the offending vehicle ought to have been made liable to pay compensation.
The contention of Mr. Singh does not impress us having regard to the recent decision of the Supreme Court in Civil Appeal No. 5826 of 2011 (Mukund Dewangan -vs- Oriental Insurance Company Limited).
3This being the only point raised by Mr. Singh, there is no merit in the appeal. The same stands dismissed.
In view of dismissal of the appeal, the connected applications, if any, stand dismissed.
Adverting attention to the cross objection, we find that the cross objectors (claimants before the tribunal) have prayed for enhanced compensation.
Mr. Banik has cited decisions of the Supreme Court in Reshma Kumari and Ors. -vs- Madan Mohan and Anr. (2013 ACJ 1253) and Krishna Gopal and Anr. -vs- Lala and Ors. [II (2013) ACC 878 (SC)], and a decision of the Rajasthan High Court in Manju Devi and Anr. -vs- Shankar Singh and Ors. [I (2015) ACC 648 (Raj. H.C.)] in support of his contention.
Having considered the cited decisions, we are of the view that the law laid down therein is not applicable in the present case. Reshma Kumari (supra) does not deal with a case where the deceased was below 15 years of age. In Krishna Gopal (supra), there was evidence before the court that the child victim was assisting his parents in "their agricultural occupation" and had he been alive, he would have contributed substantially to the family earning by working hard. No evidence was led by the claimants before the tribunal that the victim was in any way contributing to the family earning. On this ground, we hold the decision in Krishna Gopal (supra) to be distinguishable. In so far as Manju Devi (supra) is concerned, it does not appear whether the claim application was under Section 163 of the Act. In the absence thereof, we do not feel persuaded to be guided by such decision.
4We hold that the tribunal rightly reckoned Rs.15,000/- towards notional income, the victim being a non-earning person, in terms of the Second Schedule of the Act and assessed compensation reasonably.
In view of above, the cross objection stands dismissed.
Since the insurer has secured the amount awarded by the tribunal, the claimants are granted liberty to approach the Registrar General for disbursal of the aforesaid amount together with interest in their favour in accordance with law. If an approach is made, the Registrar General shall disburse such amount, as soon as possible.
There shall be no order as to costs.
Urgent photostat certified copy of this order, if applied for, be supplied expeditiously, after complying with all formalities.
(DIPANKAR DATTA, J.) (SHIVAKANT PRASAD, J.) 5