Calcutta High Court (Appellete Side)
The New India Assurance Co. Ltd vs Shibnath Panda @ Shewnath & Ors on 10 December, 2013
Author: Tapan Kumar Dutt
Bench: Tapan Kumar Dutt
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Form No. J(2)
IN THE HIGH COURT AT CALCUTTA
(Civil Appellate Jurisdiction)
Present:
The Hon'ble Justice Tapan Kumar Dutt
And
The Hon'ble Justice R.K. Bag
FMA 939 of 2010
The New India Assurance Co. Ltd.
-Vs-
Shibnath Panda @ Shewnath & Ors.
For the Appellant : Mr. Kamal Krishna Das
For the Respondent no. 1 : Mr. Amit Ranjan Roy
For the Respondent no. 4 : Mr. Parimal Kumar Pahari
ar
Heard on : 10.12.2013
Judgment on : 10.12.2013
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Tapan Kumar Dutt, J.
This Court has heard the learned advocates for the respective parties.
The claimant/respondent no. 1 filed an application under Section 163A of the Motors Vehicles Act, 1988 claiming certain amount of compensation on account of injuries on his left hand and right hand and amputation on his right leg knee, which, according to the claimant/respondent no. 1, has caused permanent total disablement.
It appears that the claimant was driving a lorry being no. WB- 23A/3517 and he was running the said lorry at NH-6. There was a head-on collision with lorry no. WGR-0712 which was coming from the opposite direction. It appears that the said lorry no. WB-23A/3517 was insured by the appellant Insurance Company and the lorry no. WGR-0712 was insured by the respondent no. 4.
The two respective Insurance Companies were directed to pay the claims and the learned Tribunal by the impugned order awarded compensation amount of Rs. 5,34,800/- and directed that two Insurance Companies concerned shall pay the said amount in equal share by issuing appropriate account payee cheque of Rs. 2,67,400/- in the name of claimant/respondent no. 1.
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The appellant Insurance Company has preferred the instant appeal challenging the impugned judgment/award and learned advocate for the appellant Insurance Company has raised only one point in this appeal i.e, according to the said learned advocate, the entire compensation amount should be paid by the respondent no. 4 as the said driver of the said lorry no. WGR-0712 is solely responsible for the accident. In support of such contention, he cited four decisions reported at 2009 ACJ 1993 (New India Assurance Co. Ltd. Vs. Putul Nazir & Ors.), 2005(1) T.A.C 994 (Kant) (Appaji (since deceased) and Another Vs. M. Krishna & Anr.), 2006(1) T.A.C 969 (S.C) (Bijoy Kumar Dugar Vs. Bidyadhar Dutta & Ors.) and 2008 ACJ 1280 (HDFC Chubb General Insurance Co. Ltd. Vs. Shantidevi Rajbalsingh Thakur & Anr.). According to the said learned advocate, the appellant Insurance Company is not liable to make any payment of the compensation amount. The said learned advocate draws our attention to support of the above reports in support of his submissions.
Learned advocate appearing on behalf of the respondent no. 4, Insurance Company, submits that since the claimant/respondent no. 1 filed an application under Section 163A of the said Act of 1988, according to the said learned advocate, even if the driver of the lorry no. WB-23A/3517 was not at fault, the appellant Insurance Company should be saddled with 50% of the compensation amount.
It appears on perusal of the record of this case that P.W 2 happens to be an eyewitness. The said eyewitness stated very clearly in his 4 evidence-in-chief that the driver of the lorry no. WGR-0712 was coming from the opposite direction in a reckless manner with high speed and came on the wrong side and dashed the lorry no. WB-23A/3517. Such clear evidence of P.W 2 remained unshaken in the cross-examination. In cross-examination, the respondent no. 4 even did not suggest anything to the contrary which has been stated in the said evidence-in-chief. In such circumstances, it can be safely held that the entire fault was that of the said driver of the lorry no. WGR-0712 which came on the wrong side of the road and dashed the lorry no. WB-23A/3517.
P.W 1, who happens to be the claimant/respondent no. 1, also stated in evidence that the driver of the said lorry no. WGR-0712 was driving in a reckless manner and dashed the said lorry no. WB-23A/3517.
Since the respondent no. 4 did not even give a suggestion to the contrary to the statements, as noted above, made by the P.W 2 in his affidavit-in-chief, one can hold that the respondent no. 4 has admitted such statement of the P.W 2 to be true.
In such circumstances, this Court is of the view that the entire responsibility should be borne by the respondent no. 4 in paying the compensation amount to the claimant/respondent no. 1. It may be also noted here neither that the respondent no. 4 nor the respondent no. 2 bring the driver of the lorry no. WGR-0712 to the witness box to give evidence and brave cross-examination from the other side. The said driver of lorry no. WGR-0712 was a person who was very much present there at the time of the 5 accident and he could have made certain relevant statements by way of evidence but such evidence has not come on record.
In such circumstances, this Court is of the view that the entire responsibility of making payment of compensation is that of the respondent no. 4, Insurance Company.
It appears from the records and also submitted by the learned advocate for the appellant Insurance Company that the entire compensation amount payable by the appellant Insurance Company in terms of the impugned award has already been deposited by the appellant Insurance Company with the learned Registrar General of this Court.
The appeal is disposed of in the following manner:-
i) The impugned judgment/award is modified to the extent that the entire compensation amount as awarded by the learned Court below is payable by the respondent no. 4 to the claimant/respondent no. 1.
ii) Since it is not disputed that the respondent no. 4 has already deposited its share of the compensation amount in terms of the award, the respondent no. 4 shall deposit a further sum of Rs.
2,67,400/- before the learned Tribunal by issuing an appropriate account payee cheque in favour of the claimant/respondent no. 1. After such account payee cheque is deposited, the same shall be disbursed in favour of the claimant/respondent no. 1 in accordance with law and upon proper identification by the office of the learned Court below. The appellant shall be entitled to withdraw the amount deposited by it with the learned Registrar General of this Court in terms of the order 6 dated 12.03.2010 along with the statutory deposit already made. If the appellant makes an appropriate application in this regard before the learned Registrar General of this Court, then in that event the learned Registrar General of this Court shall see that the said amount deposited with the learned Registrar General, as aforesaid, be returned to the appellant along with accrued interest, if any, in accordance with law.
It may be noted here that the present appeal arose out of the judgment dated 23.12.2009 passed by the Motor Accident Claims Tribunal & in the Court of the learned Additional District Judge, 3rd Court, Howrah in M.A.C.C no. 397 of 2007.
The appeal stands disposed of.
The lower court records be sent down to the learned Court concerned immediately.
Urgent photostat certified copy of this order, if applied for, be given to the parties on usual undertaking.
(Tapan Kumar Dutt, J.) I agree, (R.K. Bag, J.) 7