Calcutta High Court (Appellete Side)
Oriental Insurance Company Ltd vs Bikash Kali Mondal & Anr on 29 July, 2013
Author: Anindita Roy Saraswati
Bench: Ashim Kumar Banerjee, Anindita Roy Saraswati
Form No. J.(2)
IN THE HIGH COURT AT CALCUTTA
Civil Appellate Jurisdiction
Appellate Side
Present :
The Hon'ble Mr. Justice Ashim Kumar Banerjee
And
The Hon'ble Ms. Justice Anindita Roy Saraswati
F.M.A. No.1048 of 2012
With
CAN No. 4316 of 2013
Oriental Insurance Company Ltd.
Vs.
Bikash Kali Mondal & Anr.
For the Appellant : Mr. Parimal Kumar Pahari
For the Respondent : Mr. Krishanu Banik
Heard on : July 10, 2013
Judgment on : July 29, 2013
ANINDITA ROY SARASWATI, J.:
This appeal has been preferred by the appellant Oriental Insurance Company Ltd. against the judgement and order dated 5th April, 2012 passed in M.A.C. case No. 250 of 2008, by the Motor Accident Claims Tribunal, Hooghly. The above claim case arose out of an application under Section 163A of Motor Vehicles Act, 1988.
The facts given rise to the aforesaid claim case are that on 10.02.2008 when the petitioner/claimant Bikash Kali Mondal was proceeding by driving the motor cycle bearing No. WB 16S/5123 (CBZ) towards Dadpur from Dhaniakhali the offending vehicle bearing No. WB 16-T/1459, coming from opposite direction with a high speed and driving in a very rash and negligent manner, collided with the motor cycle of the claimant. As a result, he was seriously injured and was transferred to Chinsurah Imambarah Sadar Hospital. Subsequently, he was transferred to Repose Clinic & Research Centre Pvt. Ltd. His left thigh was crushed. He incurred expenses more than 50,000/- for his treatment. Due to such accident he has become completely disabled person. He was a student of B.A. 1st year and he had bright future. Hence he has claimed for compensation by filing claim application. The claim Tribunal has passed an award for a sum of Rs.1,58,000/- in favour of the claimant against the O.P. No. 2/appellant i.e. the Insurer Company. The present appellant was directed to pay the said amount along with interest to the respondent /claimant. The aforesaid award has been challenged by the Appellant Insurance Co. with a prayer for setting aside of the said award on the ground, the claimant/respondent was solely responsible for the accident. The victim was the owner-cum-driver of the motor cycle for whose fault the accident took place.
Mr. Pahari, learned Advocate for the Appellant Insurance Company in his argument submitted that the claimant was not entitled to raise any claim for compensation as accident in question had occurred solely and exclusively on account of negligence of the claimant himself. He also referred a case of National Insurance Co. Ltd. Vs. Sinitha and Ors. reported in 2011 Volume-VIII Supreme Page-301 and another case of M/s. Tamil Nadu State Transport Corporation, Tanjore Vs. Natarajan and others reported in 2003 Volume-II Transport and Accidents Cases Page-241 (SC) in support of his contention.
Learned Advocate for the claimant/respondent on the contrary argued, the claimant initiated the claim under Section 163A of M. V. Act and in such a case there is no question to prove fault or negligence or wrongful Act on the part of the owner of the vehicle and the claimant is entitled to get legitimate amount on no fault theory from the Insurance Company or owner. He also referred case of Harendra Nath Halder and others Vs. New India Assurance Company Ltd. and another reported in 2005 Volume-I Transport and Accidentss Cases Page-238 and another case Rita Devi and others Vs. New India Assurance Co. Ltd. reported in 2000 Accidents Claims Journal Page- 801 and National Insurance Co. Ltd. Vs. Malathi C. Salian reported in 2004 Volume-I Transport and Accidents Cases Page-511 in support of his contention. On scrutiny of the materials on record it transpires that the motor accident claim Tribunal passed an award against the objector-appellant with an observation that the claim application had been filed under Section 163A of M.V. Act and the provision of such act would exclude determination of compensation on the principle of fault liability. So, the petitioner/claimant was not required to prove negligence. The petitioner was only obliged to prove, the accident occurred by the involvement of the offending vehicle.
On careful perusal of the decisions cited by the learned Advocate for the appellant it appears to me, both the decisions are not applicable in the present case. In the first case i.e. National Insurance Company Ltd. Vs. Sinitha & Ors. Hon'ble Apex Court was pleased to dismiss the special leave petition finding no merit as the Petitioner Insurance Company failed to establish by cogent evidence, the negligence of the claimant for the said accident. In another case i.e. between M/s. Tamil Nadu State Transport Corporation, Tanjore Vs. Natarajan and others. Hon'ble Apex Court observed, there was contributory negligence on the part of the claimant, since claimant himself was the driver of the appellant corporation and it was a case under Section 166 of M.V. Act not under 163A of M.V. Act, 1988.
On the contrary, it appears to me that the claimant/respondent was able to establish before the Tribunal by producing sufficient documentary and oral evidence, he sustained injury due to Motor Accident which took place by the involvement of the offending motor vehicle. The claimant was also able to prove, he was seriously injured by the said accident and also filed document to show that he became an orthopaedically challenged person by the said accident and his percentage of disability was calculated as 70% by the Medical Board. Learned Tribunal, after due consideration of the said certificate, rightly assessed the functional disability of the body of the claimant at 60%.
The Insurance Company objector on the contrary failed to establish by adducing cogent evidence that there was contributory negligence on the part of the claimant for the said accident.
However, it appears to me the claimant initiated the claim application under Section 163A of M. V. Act. A conjoint reading of the two sub-sections of Section 163A shows that a victim or his heirs are entitled to claim from the owner and Insurance Company a compensation for death or permanent disablement suffered due to accident arising out of the use of the motor vehicle, without having to prove wrongful Act or negligent or default of anyone. Thus, it is clear if the claimant established the fact that the death or disablement was caused due to an accident arising out of the use of the offending motor vehicle they will be entitled for payment of compensation. In the present case we already observed, the claimant was able to establish before the Tribunal, he became partially disabled by a motor accident which took place by the involvement of the offending vehicle.
The appellant failed to establish by producing any cogent evidence that the accident had occurred due to the negligence or contributory negligence of the claimant himself. In that circumstance, we have no hesitation to hold that the order of award passed by the Motor Accident Claim Tribunal was justified and we find nothing to interfere with the said order.
The Insurance Company/appellant is hereby directed to pay the awarded sum as well as the interest fixed by the Tribunal to the claimant through an account payee cheque to be sent at the recorded address by speed post. Such payment must reach the claimant within four weeks from the date of communication of this order The appeal is accordingly disposed of without any order as to costs.
The registry is directed to send down records at once. Urgent certified copy of this order, if applied for, be given to the learned Advocates for the appearing parties upon compliance of all necessary formalities.
Ashim Kumar Banerjee, J:
I agree.
(ANINDITA ROY SARASWATI,J.) [ASHIM KUMAR BANERJEE,J.] Later:
Mr. Pahari, learned Counsel, submits, the Insurance Company has already deposited the entire awarded sum with the Registrar General.
After payment of compensation being made to the claimants, Insurance Company would be a liberty to withdraw the amount lying with the Registrar General along with accrued interest.
(Banerjee,J) (Anindita Roy Saraswati,J)