Research › Search › Judgment

Calcutta High Court · body

2004 DIGILAW 565 (CAL)

LAKSHMI SOREN v. NEW INDIA ASSURANCE CO. LTD.

2004-08-25

MAHARAJ SINHA, PRABIR KUMAR SAMANTA

body2004
P. K. SAMANTA, MAHARAJ SINHA, JJ. ( 1 ) THE claimant-appellant has come up before this court against the judgment passed by the Judge, Special Court-cum-Motor accidents Claims Tribunal, Burdwan, in the Motor Accident Claim Case No. 42 of 2001 (117 of 1998 ). By the aforesaid judgment the claim petition under section 166 of the Motor Vehicles Act, 1988 was dismissed. ( 2 ) THE facts giving rise to the above claim petition are that at the material point of time the claimant-appellant was on duty as a driver of the truck No. WB 41-7581. While he was driving the same by the side of the road on 19. 12. 1996 near Hatimore under Rajgung within the district of Jalpaiguri, it collided with the vehicle No. HR 38-B 6221. As a result of the said accident the claimant-appellant sustained severe injuries on his both legs. Claimant-appellant ultimately died on 19. 4. 1998, at Burdwan medical College and Hospital. The above claim case was filed against the owner of the vehicle in which claimant-appellant was employed as driver. The insurer of the said vehicle contested the case while the owner of the same though appeared, but ultimately did not contest the proceedings. ( 3 ) FROM the evidence of the parties it appears that for the injuries suffered by the claimant-appellant, he was treated at burdwan Medical College and Hospital from 27. 12. 1996 to 29. 4. 1997. He was ultimately discharged from the hospital on 29. 4. 1997. The claimant-appellant ultimately died on 19. 4. 1998 after about one year from the date of his discharge. The death certificate has disclosed the cause of death as cardiorespiratory failure in a case of cardiomyopathy. The learned Claims tribunal accordingly dismissed the claim petition as it was of the opinion that such death of the victim was not consequent to the injuries suffered by him. ( 4 ) BEFORE the Claims Tribunal, doctor who treated the victim at Burdwan Medical college and Hospital was examined as PW 3. The said doctor in his deposition has not stated categorically that such death was caused because of the cardiorespiratory failure due to congestive cardiac failure and was not because of the aforesaid injuries suffered by the victim. ( 4 ) BEFORE the Claims Tribunal, doctor who treated the victim at Burdwan Medical college and Hospital was examined as PW 3. The said doctor in his deposition has not stated categorically that such death was caused because of the cardiorespiratory failure due to congestive cardiac failure and was not because of the aforesaid injuries suffered by the victim. Regard being had to the fact that the victim died within a close proximity of the time from the date of his discharge from the hospital while he was not completely cured, we are of the view that such death may be attributed to the cause of the severe injuries suffered by the claimant-appellant in the said accident. ( 5 ) IN this case Mr. Parimal Kumar Pahari, learned advocate appearing on behalf of the respondent insurer has contended that the claim petition as above is not maintainable as the claimant-appellant was employed as driver of the insured vehicle and under the proviso to section 147 (1) of the said Act, an insurance policy necessarily does not cover the liability in respect of the death arising out of and in the course of employment of the employee of a person insured by the policy. The insurance policy in respect of the vehicle in question is on record wherefrom it appears that the liability of the driver and other employees in connection with the operation of the vehicle in question was covered upon payment of extra premium of Rs. 30. A Division bench of this court in an unreported decision in F. M. A. No. 2296 of 2000, in similar circumstances, where a driver being an employee, under the owner of the vehicle, was covered by the insurance agreement itself, has held that claim petition by the driver is maintainable against the owner of the vehicle. Such decision has been rendered upon consideration of the aforesard proviso to section 147 (1) and section 167 of the said Act. We are accordingly inclined to follow the same and we hold that the above claim petition in the facts and circumstances as above is maintainable against the owner of the vehicle in which claimant victim was employed as driver. In this view of the matter the judgment as passed by the Claims Tribunal cannot be sustained. The same is, therefore, set aside. ( 6 ) SINCE the accident had occurred on 29. 12. In this view of the matter the judgment as passed by the Claims Tribunal cannot be sustained. The same is, therefore, set aside. ( 6 ) SINCE the accident had occurred on 29. 12. 1996 and more than eight years have passed in the meantime, we are not inclined to send the matter back on remand for the determination of compensation payable to claimant victim by the Claims Tribunal. The fact remains that the claimant victim had died within a period of one year from the date of his discharge from the hospital while he was not completely cured as evident from the deposition of the parties and the injuries suffered by the victim made him almost crippled. There is also no material on record to establish that victim ever led a normal life after his discharge from the hospital. Because of the close proximity of time of death of the victim from the date of his discharge, we are inclined to hold that cause of death was the injuries suffered by the victim. We, accordingly, hold and determine that appellant herein is entitled to compensation for the death of his son due to the said accident as the appellant was substituted as the original claimant, his son having died during the pendency of his claim petition. ( 7 ) IT is evident from the materials on record that the accident occurred while the victim was driving the vehicle at a far-off place from his residence. Accordingly there was no eyewitness to the said accident. Consequently, there being no case for any rash and negligent driving by the other vehicle or any contributory negligence on the part of the claimant victim himself, we treat the petition as filed by the claimant appellant as one under section 140 of the said Act for the purpose of determination of compensation payable to the claimant-appellant. Since we have already held that the death was due to the injuries suffered by the victim in the said accident, we hold that the claimant-appellant will be entitled to a compensation for a sum of Rs. 50,000 under no fault liability. The respondent insurer is accordingly directed to pay the aforesaid amount along with the interest at the rate of 9 per cent from the date of filing of application till payment to the claimant-appellant. 50,000 under no fault liability. The respondent insurer is accordingly directed to pay the aforesaid amount along with the interest at the rate of 9 per cent from the date of filing of application till payment to the claimant-appellant. The said sum shall be deposited by insurance company respondent within a period of four weeks from date with the concerned Claims Tribunal. The above appeal is allowed accordingly. If urgent xerox certified copy of this order is applied for by the parties, the same should be given expeditiously. Appeal allowed.