Calcutta High Court (Appellete Side)
The Oriental Insurance Co. Ltd vs Diana George (Chakraborty) & Ors on 17 May, 2019
Author: Hiranmay Bhattacharyya
Bench: Harish Tandon, Hiranmay Bhattacharyya
IN THE HIGH COURT AT CALCUTTA
CIVIL APPELLATE JURISDICTION
BEFORE:
The Hon'ble Justice Harish Tandon
And
The Hon'ble Justice Hiranmay Bhattacharyya
F.M.A. 467 of 2018
The Oriental Insurance Co. Ltd.
-vs-
Diana George (Chakraborty) & Ors.
With
F.M.A.T 726 Of 2017
Diana George (Chakraborty) and Anr.
-vs-
M/s. Bhaijan Tours and Travels and another
For the Appellant
In FMA 467 of 2018 : Mr. Rajesh Singh,
For the Respondents
In FMA 467 of 2018 and
For the appellants in
FMAT 726 of 2017 : Mr. Amit kumar Pan,
Mrs. D. Chattopoadhyay,
Mr. R.N.Basu,
Mr. J.N.Pal,
Mrs. T. Santra,
Mr. A.K.Hazra.
Heard on : 08.3.2019,
Judgment on : 17.5.2019
Hiranmay Bhattacharyya, J.:
The instant appeal arises out of a judgement dated June 30, 2016 passed by the Learned Additional District Judge, 9th Court at Alipore-cum-Motor Accident Claim Tribunal in MACC No. 6 of 2010. The claimants have filed an application under Section 166 of the Motor Vehicles Act, 1988 claiming compensation of Rs. 81,20,000/- towards loss of dependency on account of death of one Avishek Chakraborty alias Abhishek Chokravarty.
In the claim petition, the claimants have alleged that on January 27, 2010 while Abhishek Chakraborty (hereinafter referred to as the 'victim') was riding his motor cycle and was moving through the road below the railway bridge in front of Airoli Sector-5, T- Junction Navi Mumbai, under Police Station Rabella, a private bus (hereinafter referred to as an 'offending vehicle') colluded with the motor cycle. The accident was caused due to rash and negligent driving by the driver of the offending vehicle. As a result of such accident, the victim suffered severe injury on his person. He was taken to hospital where he succumbed to his injury on the same day at about 12:00 Hrs. It was further stated in the claim petition that the victim was engaged as a senior relationship manager with Vantage Insurance Broker Private Ltd. The monthly salary of the said victim was Rs. 50,514/-. At the time of accident, the victim was aged about 29 years. The claim petition was filed by the wife, minor daughter, mother and father of the victim.
The owner of the vehicle was impleaded as the Opposite Party No.1. In spite of service of notice, the owner of the offending vehicle chose not to contest the said proceedings and as such the proceeding went ex parte against him.
The Insurance Company contested the said motor accident claim case by filing a written statement denying the allegations contained in the claim petition. In the said written statement, it was contended by the Insurance Company that the learned court below lacked territorial jurisdiction to entertain and try the claim petition as the place of accident, office of the insurer of the offending vehicle, residence of the victim, his wife and daughter and also the working place of the deceased are in Mumbai.
It was further contended in the said written statement that the driver of the offending vehicle had no valid and effective driving licence to drive such type of vehicle. The accident occurred due to composite negligence. The amount of claim is excessive, exorbitant and baseless. The Insurance Company also obtained leave under Section 170 of the Motor Vehicles Act, to avail larger defence on merits. During the pendency of the claim petition, the mother of the victim died and her name was expunged from the claim case. The learned judge of the court below allowed the claim case by directing the Insurance Company to pay Rs. 81,20,000/- together with interest at the rate of 5% per annum from the date of filing of claim case till such payment is made to the claimants. Mr. Rajesh Singh learned Advocate appearing on behalf of the appellant Insurance Company, assailed the impugned judgement on the following grounds:
1. The claimants have failed to prove that the accident was caused by rash and negligent act of the driver of the offending vehicle.
2. The learned Tribunal while holding that the evidence of PW3 i.e. the eye-witness, did not inspire confidence of the Tribunal yet allowed the claim petition directing the Insurance Company to pay compensation.
3. The name of the PW3 i.e. eye-witness did not appear in the FIR.
4. Even assuming that the claimants could prove that the Insurance Company is liable to pay compensation, the amount of compensation granted is an exorbitant one as the victim was not in permanent service at the relevant point of time.
5. The award of additional compensation of 50% on future prospect was an erroneous one and the same is liable to be set aside.
Mr. Singh submitted that the claimants had an option either to proceed under Section 166 or under Section 163-A of the Motor Vehicles Act, 1988 and once the claimants approached the Tribunal under Section 166 of the said Act, they have taken upon themselves the burden of establishing the negligence of the driver or owner of the offending vehicle. He further submitted that proof of rashness and negligence on the part of the driver is a sine qua non for maintaining an application under Section 166 of the Motor Vehicles Act, 1988. He also submitted that, it is incumbent upon the claimants to prove negligence before the owner or the Insurance Company could be held liable for compensation. He also submitted that if the compensation is awarded without proof of negligence it would lead to strange result. By referring to the evidence of the PW3 i.e. the eye-witness, Mr. Singh argued that the evidence of the said witness is not trustworthy and mere involvement of the offending vehicle in the accident cannot make the Insurance Company liable to pay compensation unless it can be held on the basis of evidence on record that the accident was caused by rash and negligent act of the driver of the offending vehicle. By referring to the letter of the appointment of the victim dated May 25, 2009, Mr. Singh submitted that it is evident from the said appointment letter that the victim was on probation for 4 months from the date of joining and his employment shall be confirmed subject to his performance being found satisfactory. In the absence of any evidence to show that the service of the victim was confirmed after the probation period of 4 months, the Tribunal erred in law by holding that the victim was on permanent employment. Thus, addition of 50% towards the future prospect cannot be sustained in the eye of law.
Mr. Singh learned Advocate referred to the judgment reported at 2018(3) T.A.C. 12 (SC)- (Nishan Singh & ors. -vs.- Oriental Insurance Company Ltd. & Ors.) and placed reliance on paragraph 14 of the said judgement and submitted that in case the claimants fail to substantiate the rash and negligent driving by the driver of the subject vehicle, the claimants are not entitled to get compensation in terms of the provisions laid down under Section 166 of the Motor Vehicles Act, 1988. He further submits that though the claimants in such a case are not entitled to compensation under Section 166 of the said Act but the court can mould the relief to award compensation in terms of the provisions laid down under Section 140 of the said Act.
In Nissan Singha (supra) the accident occurred as a result of collision of the Maruti car on the rear part of the truck in question by the driver of the car in question and the driver of the car stated in his cross-examination that he was driving the car behind the truck at a distance of 10-15 ft. despite there being the breadth of the road 14 ft. Pucca, the driver of the car in question kept the vehicle only at a distance of about 10 to 15 ft. from the truck which is not in accordance with the traffic rules. The said witness further admitted in cross-examination that he knows that he should maintain proper distance from the goods vehicle. The learned Tribunal in the said reported case specifically held that from the evidences of PW1 and PW2 it does not appear that rash and negligent driving in the accident in question was on the part of the driver of the truck in question. On such facts that it was held that merely by registering FIR of the accident and submission of charge-sheet against driver of the truck in question, the driver of the truck in question can not be held guilty for the said accident when from the evidence of the claimants witnesses it was proved that the accident occurred as the driver of the car in question was not driving his car in accordance with the traffic rules. In the instant case it appears from the evidences adduced by the parties that the accident was caused due to rash and negligent driving by the driver of the offending vehicle and as such the judgement reported in Nissan Singh (supra) is not applicable in this case.
Mr. Singh next referred to the judgement reported at 2014 (1) T.A.C. 724 (SC)- (Lachoo Ram & Ors.-vs.- Himachal Road Transport Corporation) and submitted that when there is no eye-witness to the accident, simply the involvement of a vehicle in an accident cannot make the Insurance Company liable to pay compensation unless it can be held on the basis of materials on record that the accident was caused by rash and negligent act of the driver of the offending vehicle.
Facts of the said reported case of Lacchu Ram(supra) is that the bus i.e. offending vehicle was standing at the red light and on being asked, soon after starting from the traffic signal it stopped within 100 to 150 yards. Since the said bus stopped within such a short distance it could not be said to have started with a high speed. The road at the place of the accident was admittedly very narrow and the motorcyclist in an effort to over take the bus had gone on its right side. It was not the case of any witnesses that the bus driver took any sudden turn while proceeding forward from the traffic signal or that he swerved the bus to the right side. Thus, it was held that it is not possible to accept the contention of the claimants that the accident was caused on account of rash and negligent driving of the driver of the offending vehicle.
However, in the instant case it appears from the evidence on record that the accident occurred due to rash and negligent driving by the driver of the offending vehicle and as such the reported case of Lacchu Ram (supra) is not applicable in the instant case.
Mr. Singh has further referred to the judgements reported at:
2013 (2) T.A.C. 369 (SC)- (Reshma Kumari & Ors.-vs. Madan Mohan & Anr.), 2007 (3) T.A.C. 11 SC- (Oriental Insurance Company Ltd. -vs. Premlata Shukla & Ors.), (2007) 5 SCC 428 (oriental Insurance Company Ltd. -vs.- Meena Variyal), and AIR 1977 SC 1248 (Minu B. Mehta & Anr.- Vs.- Balkrishna Ramchandra Nayan & Anr.) and submitted that a victim of accident or his dependants have an option either to proceed under Section 166 or 163-A of the said Act. Once they approach the Tribunal under Section 166, they necessarily take upon themselves the burden of establishing the negligence of the driver or owner of the vehicle concerned. It was further submitted that proof of rashness and negligence on the part of the driver being sine qua non for maintaining an application under Section 166 of the said Act, the Insurance Company could not be held to be liable for payment of compensation in a motor accident claim case unless it is proved that the accident occurred due to rash and negligent driving by the driver of the offending vehicle. It was further submitted that if the compensation is awarded without proof of negligence it would lead to strange result.
There is no quarrel with such proposition of law laid down by the Hon'ble Apex Court. Though the initial onus lies upon the claimant to prove the rash and negligent driving by the driver of the offending vehicle in an application under Section 166 of the Motor Vehicles Act 1988, but the onus shifts when the claimant by leading evidence discharges his initial onus. In the instant case the claimant has discharged his onus and proved that the death occurred due to rash and negligent driving by the driver of the offending vehicle and the Insurance Company failed to prove the fact that the driver or the owner of the offending vehicle was in no way responsible for the said accident.
Mr. Singh appearing on behalf of the appellant relied on a judgement reported at (2018)2SCC 482 (Anil and other -vs.- New India Assurance Company Ltd and Ors.) and submitted that the delayed FIR may lead to an inference of non-involvement of the offending vehicle.
Though in the said reported case of Anil (supra) there was a delay of more than one month of lodging the complaint before the police but the High Court was pleased to allow the appeal at the instance of the Insurance Company thereby reversing the order of the tribunal awarding compensation in favour of the claimants on the ground that the post mortem was not conducted and also that the driver in his evidence at one stage stated that the deceased was brought dead while at another place stated he was referred to the government hospital for further treatment. Furthermore there were no hospital records to indicate the nature of the injuries resulting to death due to an accident of the nature alleged. It was ultimately held in the said reported case that a false case was set up to support a claim for compensation. On such fact it was held that the fact that a complaint was lodged after nearly 1 month is a significant fact in the case. The fact of the said reported case is clearly distinguishable from the facts of the instant case as in the instant case it was proved by evidence that death occurred due to rash and negligent driving the driver of the offending vehicle. As such no inference can be drawn as to non- involvement of the offending vehicle due to the delay in lodging of FIR.
Mr. Amit Kumar Pan, learned Advocate appearing on behalf of the claimant/ respondents supported the judgement passed by the Tribunal. He submitted that the claimants have successfully proved by adducing evidence that the death of the victim was caused due to rash and negligent driving by the driver of the offending vehicle. The evidence of the representative of the employer being PW 2 goes to show that the service of the victim was confirmed upon expiry of the period of probation and the pay slips for the subsequent months after the completion of probation period was also produced in evidence. The learned Tribunal was thus justified in awarding the additional compensation of 50% on salary towards future prospect.
Mr. Pan learned Advocate appearing on behalf of the claimants/ respondent refers to the judgement reported at AIR 2009(SC) 2819 (Bimala Devi and Ors. -vs.- Himachal Road Transport Corporation and Ors.) and submits that strict proof of an accident caused by a particular vehicle in a particular manner may not be possible to be done by the claimants. The claimants are merely to establish their case on the touchstone of preponderance of probability. The standard of proof beyond all reasonable doubt could not have been applied in a motor accident claim case.
He further refers to an unreported judgement of the Hon'ble Supreme Court of India in the case of (Vimla Devi and ors. -vs.- National Insurance Company Ltd. And ors.) In civil appeal No. 11042 of 2018. In paragraph 16 of the said judgement it has been held that the said Act is a beneficial piece of legislation enacted to give solace to the victims of the Motor Accident who suffer bodily injury or die untimely. The Act is designed in a manner, which relieves the victims from ensuring strict compliance provided in law, which are otherwise applicable to the suits and other proceedings while prosecuting the claim petition filed under the Act for claiming compensation for the loss sustained by them in the accident.
In the said judgement the reasons for which the claim petition ought to be allowed for awarding reasonable compensation in accordance with law was narrated specifically in paragraphs 26 to 33 of the said judgement. It will be profitable to quote the said paragraphs of the aforesaid judgement which runs thus:
26. First the appellants had adduced sufficient evidence to prove the accident and the rash and negligent driving of the driver of the offending vehicle, which resulted in death of Rajendra Prasad
27. Second, the appellants filed material documents to prove the factum of the accident and the persons involved therein.
28. Third, the documents clearly established the identity of the truck involved in the accident, the identity of the driver driving the truck, the identity of the owner of the Truck, the name of the insurer of the offending truck, the period of coverage of insurance of the Truck, the details of the lodging of FIR in the concerned police station in relation to the accident.
29. in our view, what more documents could be filed than the documents filed by the appellants to prove the factum of the accident and the persons involved therein.
30. Fourth, so far as the driver and owner of the Truck were concerned, both remained ex parte since inception and, therefore, neither contested the appellants' claim petition nor entered into the witness box to rebut the allegations of the appellants made in the claim petition and the evidence. Ad adverse inference against both could be drawn.
31. Fifth, so far as the Insurance Company is concerned, they also did not examine any witness to rebut the appellants' evidence. The Insurance Company could have adduced evidence by examining the driver of the offending Truck as their witness but it was done.
32. Sixth, on the other hand, the appellants examined three witnesses and thereby discharged their initial burden to prove the case.
33. Seventh, if the court did not exhibit the documents despite the appellants referring them at the time of recording evidence then in such event, the appellants cannot be denied of their right to claim the compensation on such ground. In our opinion , it was nothing but a procedural lapse, which could not be made basis to reject the claim petition. It was more so when the appellants adduced oral and documentary evidence to prove their case and the respondents did nothing to counter them.
Mr. Pan next refers to the judgement of this court reported at 2019 1 TAC 33 (Cal.) (Bajaj Alliance General Insurance Company Ltd. -vs.- Anjali Mondal and Anr.) and submits that delay in lodging FIR cannot be a ground to dismiss the claimants case. In support of his submission he relies upon paragraph 29 of the said judgement which runs thus:
"29. That apart, no discussion on the point of delayed FIR would be complete without a reference to the decision in (2011) 4 SCC 693: 2011(1) TAC 867, (Ravi v. Badrinarayan), it was held there as follows:
17. It is well settled that delay in lodging the FIR cannot be a ground to doubt the claimant's case. Knowing the Indian conditions as they are, we cannot expect a common man to first rush to the police station immediately after an accident. Human nature and family responsibilities occupy the mind of kith and kin to such an extent that they give more importance to get the victim treated rather than to rush to the police station. Under such circumstances, they are not expected to act mechanically with promptitude in lodging the FIR with the police. Delay in lodging the FIR thus, cannot be the ground to deny justice to the victim.
18. In cases of delay, the courts are required to examine the evidence with a closer scrutiny and in doing so the contents of the FIR should also be scrutinised more carefully. If the court finds that there is no indication of fabrication or it has not been concocted or engineered to implicate innocent persons then, even if there is a delay in lodging the FIR, the claim case cannot be dismissed merely on that ground. The purpose of lodging the FIR in such type of cases is primarily to intimate the police to initiate investigation of criminal offences.
19. Lodging of FIR certainly proves the factum of accident so that the victim is able to lodge a case for compensation but delay in doing so cannot be the main ground for rejecting the claim petition. In other words, although lodging of FIR is vital in deciding motor accident claim cases, delay in lodging the same should not be treated as fatal for such proceedings, if claimant has been able to demonstrate satisfactory and cogent reasons for it. There could be a variety of reasons in genuine cases for delayed lodgement of FIR. Unless kith and kin of the victim are able to regain a certain level of tranquillity of mind and are composed to lodge it, even if, there is delay, the same deserves to be condoned. In such circumstances, the authenticity of the FIR assumes much more significance than delay in lodging thereof supported by cogent reasons.
20. In the case in hand, the Claims Tribunal as well as the High Court, committed grave error in not appreciating the mental agony through which Suresh was passing, whose son was severely injured. In the light of the aforesaid discussion, we are of the considered opinion that MACT as well as the High Court committed error in coming to the conclusion that lodging the FIR belatedly would result in dismissal of the claim petition."
The duty of the Insurance Company after taking leave of the Tribunal under Section 170 of the Act was laid down in paragraph 25 of Bajaj Alliance General Insurance Company Ltd. (supra) which runs thus:
"25. considering the decision in Vidyadhar (supra) and the previous decision AIR 1968 SC 141, (Gopal Krishnaji Ketkar-vs.- Md. Haji Latif), a coordinate bench of this court in its decision Manu/WB/0172/2009, (The New India Assurance Co. Ltd vs Mita Samanta & Ors.) in circumstances (where the involvement of the offending truck in an accident was disputed) almost similar as the present one, held as follows:
16. The aforesaid principle applies with greater force when a party even does not dispute the statement made in the pleading of the other side and decides to remain ex parte. We are quite conscious that in the proceedings for compensation under the Motor Vehicles Act, when the offending vehicle is insured, the owner of the vehicle may not be interested to appear at the witness box in spite of the fact that he is a party to the proceedings. For that reason, the legislature has incorporated the provision contained in Section 170 of the Act permitting the Insurance Company to contest the proceedings on all points. Once such leave is granted, it is the duty of the Insurance Company to summon the owner of the vehicle to appear as a witness for disputing the allegation of the claimants. If the Insurance Company after taking leave of the Tribunal under Section 170 of the Act, decides not to lead any evidence by summoning the relevant witnesses including the party whose liability it has undertaken, its position in law will be just like the party who is afraid of appearing in the witness box to face the cross-examination of the claimants. It is preposterous to suggest that the Court will hold against the claimants notwithstanding the fact that in spite of the allegation of rashness or negligence against the driver, the driver or the owner of the vehicle is deliberately avoiding the Court and the claimants are unable to cross-examine the owner against whom the compensation is claimed or the errant driver whose identity has been disclosed in a civil proceeding.
17. Therefore, the Insurance Company in spite of taking leave under Section 170 of the Act having failed to summon the owner or the driver of the vehicle to disprove the allegation of the claimants of the involvement of the vehicle concerned or the rash and negligent driving, the Court is left with no other alternative but to accept the allegation of the claimants unless there is either admission of the claimants or their witness about non-involvement of the vehicle or about the contributory negligence of the victim in the accident or there exists other evidence of unimpeachable nature given by uninterested witness showing falsity of the allegation of the claimants. In this case, there is no such admission or evidence of that nature. In this case, the driver has been charge sheeted and thus, there is no reason why the Insurance Company in spite of taking leave under Section 170 of the Act should not summon the said driver to give evidence for disclosing the truth. We are unable to presume collusion between the driver and the claimants when the driver has been indicted in the criminal proceedings. It will be a travesty of justice in the facts of the present case to disbelieve the eyewitness of the claimants when the owner and the driver are neither appearing nor are they even summoned by the Insurance Company even after taking leave under Section 170 of the Act to face cross-examination at the instance of the claimants."
Thus, by applying the ratio of the judgment of Bajaj Alliance General Insurance Company Ltd.(supra) to the facts of the instant case it is evident that the Insurance Company after obtaining leave under Section 170 of the Act has failed to defend the claim petition in a manner that the law permitted it to defend. After obtaining leave under Section 170 of the Act it was incumbent on the Insurance Company to summon the owner of the offending vehicle to appear as a witness for disputing the allegation of the claimants.
Mr. Pan next referred to the judgement of the Apex Court reported at AIR 2018 SC 1900 (Mangla Ram vs. Oriental Insurance Company ltd. And Ors.) and submitted that the even when the evidence of the claimants eye-witness was discarded and the person accused in the criminal case concerning the accident was acquitted the court can allow the claim petition by considering the fact that upon investigation of the case an FIR was lodged which prima facie prove the negligence and the evidence of the claimants ought to be examined by the Tribunal on the touchstone of preponderance of probability. In the instant case, though the evidence of the eye witness was discarded by the Tribunal but the Police Constable posted at City Traffic Area Ravale, Navi Mumbai and was entrusted with the work of controlling traffic in Airoli Area on the fateful day informed about the accident to the Police Station and on such basis an FIR was registered. It was specifically stated by the said constable that the driver of the private bus bearing No. MH-04/4-4701 while driving the bus speedily hit the motor cycle of the deceased as a result of the accident the victim Abhishek Chakraborty was injured externally at various places of his body and suffered serious internal injury of his chest and as a result of which he died. It was further stated by the said constable that the wife of the victim was informed by the Police Personnel from the mobile which was there with the victim. Upon investigation of the case an FIR was also lodged which prima facie prove the negligence as has been held in Mangla Ram (Supra). The wife of the deceased adduced evidence as PW1 narrating in details about the accident and filed various documents including the FIR and other documents which will go to show that her husband died as a result of the accident which took place due to rash and negligent driving on the part of the driver of the offending vehicle. The Insurance Company failed to bring out any evidence to discredit the testimony of the said witness. Though the learned advocate for the appellant tried to make out a case of contributory negligence on account of involvement of two vehicles but we do not find any evidence to show that the victim had also contributed to the accident and was thus responsible for the same. In the written statement of the Insurance Company no case of contributory negligence was made out but there is a pleading with regard to composite negligence. It is not a case of composite negligence. Furthermore, the Insurance Company did not examine any witness to rebut the appellants evidence. The owner of the offending vehicle inspite of service of summons chose not to contest the claim petition. The owner did not enter into the witness box to rebut the allegation of the claimants. The Insurance Company could have adduced evidence by examining the driver of the offending vehicle as their witness, but it was not done. Thus by relying on the ratio of Vimla Devi (supra) it can be held that the claimants thus, discharged their initial burden to prove the case. Thus on the materials available on record the learned Court below, was justified in holding that the victim met with an accident and the said accident took place due to rash and negligent driving on the part of the driver for the offending vehicle resulting in death of the said victim as it is no longer res integra that the Motor Accident Claim Tribunal has to examine a claim petition on the touchstone of preponderance of probability. The victim was 29 years old at the time of the accident. He was a senior relationship manager having a bright prospect and at the time of accident his monthly salary was Rs. 69,176/-. The appointment letter and the salary slips were produced in evidence and were marked as exhibits. The learned Tribunal took into consideration the income of the deceased to be Rs. 40,298/- per month after allowing compulsory deduction from the gross salary. Since the victim was less than 30years of age at the time of accident and he had a steady income and bright prospect, and the learned Court below rightly added 50% towards future prospect and arrived at the annual income of Rs. 7,25,364/-. After applying 17 multiplier the loss of future income and loss of dependency turned out to be 1,23,31,188/-. After allowing a deduction of 1/3rd in consideration of the expenses which the victim would have incurred towards maintaining himself had he been alive, the learned Court below held that the actual loss of income is Rs. 82,20,852/-. The Tribunal also awarded interest at the rate of 5% from the date of filing of the claim petition which also appears to be justified in the facts of the instant case. Since the father being the class II heir and also that there was no proof that the father was dependent upon his son, the learned Court below was perfectly justified by not awarding any compensation in favour of the father. As such there is no merit in the appeal preferred by the Insurance Company and the same is thus dismissed. The claimants have also preferred an appeal being FMAT No. 726 of 2017 challenging the self-same judgement and/or award. The said appeal was filed after a delay of about 275 days as pointed out by the Stamp Reporter in the report dated 10.7.2017. It was further pointed out in the said report that no application for condonation of delay has also been filed with the memorandum of appeal. The Cause Title of the said memorandum of appeal was erroneously set forth in as much as the name of the minor appellant has also not being indicated separately under separate serial number. The vakalatnama also was not executed on behalf of the minor appellant. Thus, the said appeal is dismissed being time barred.
Both the appeals being F.M.A. 467 of 2018 and F.M.A.T 726 Of 2017 are dismissed. The judgment and/or award dated June 30, 2016 passed by the learned Judge Claims Tribunal 9th Court, Alipore, in MACC No. 6 of 2010 is hereby affirmed. The Division Bench of this court in an order dated October 31, 2017 has recorded that a sum of Rs. 1,09,95,708/- has been deposited by the Insurance company with the Registrar General of this court in compliance with an earlier order dated July 13,2017 vide challan No. 1095 dated July 28,2017. By the said order the Division Bench was further pleased to direct that out of the entire deposit made by the Insurance company, the claimants/ respondents nos. 1 and 2 shall be entitled to withdraw Rs. 30,00,000/- without prejudice to the rights and contention of the parties and on the specific undertaking given by Mr. Sinha Roy to the effect that should the appeal of the Insurance Company succeed and the award of the Tribunal set-aside, the respondent Nos. 1 and 2 of the said appeal shall return such amount to the Insurance Company. The Registrar General was further directed to invest the balance amount in short term auto-renewal Fixed Deposit account until further orders. Since the appeals have been dismissed and the judgement and award passed by the Tribunal has been affirmed in this judgement, liberty is granted to the claimants to apply for withdrawal of the amount which is lying in deposit in terms of the earlier orders passed by this court. The claimants shall disclose the details of the individual bank account in any Nationalised Bank to the Registrar General of this court, who shall disburse the said amount, if any, upon premature encashment of the Fixed Deposit immediately and shall ensure that the cheque issued in this regard shall be indicative of the fact that the same can only be encashed in the said respective bank account. In the event there is any shortfall either in the principal or in the interest component in terms of this judgement, the Insurance Company shall pay the same in the like manner within a month from date.
There shall be however no order as to costs.
Photostat certified copy of this order, if applied for, be supplied to the applicant expeditiously, subject to compliance of all the required formalities.
I agree.
(Harish Tandon, J.) (Hiranmay Bhattacharyya, J.)