Research › Search › Judgment

Calcutta High Court · body

2008 DIGILAW 1044 (CAL)

State Bank of India v. Arabinda Ghosh

2008-12-05

BHASKAR BHATTACHARYA, RUDRENDRA NATH BANERJEE

body2008
JUDGMENT: BHATTACHARYA, J. (1). These two appeals under the Motor Vehicles Act were heard analogously as by these two appeals, a common award dated 17th January, 2007 passed by the Motor Accident Claims Tribunal, Fast Track Court No. 2, District-North 24-Parganas, in M.A.C. Case No. 9 of 2004, has been challenged by both the claimants and the owner of the vehicle. (2). The appellants in F.M.A. No. 1398 of 2007 filed an application before the Motor Accident Claims Tribunal under Section 110A of the Motor Vehicles Act, 1939 thereby claiming compensation for the death of one Smt. Rina Ghosh, the wife of the appellant No.1, and the mother of the appellant No. 2, on the allegation that due to rash and negligent driving on the part of the driver of the offending motorcar owned by the State Bank of India, the victim met with an accident resulting in her death. The victim was a professor of the Sarojini Naidu College for Women and had monthly income of Rs. 8007- a month at the time of accident which occurred on 3rd January, 1980. The said proceedings gave rise to M.A.C. Case No. 355 of 1980 which had been subsequently renumbered as M.A.C. Case No. 9 of 2004 since disposed of by the Tribunal below by the award impugned. (3). In the said claim-application, the claimants initially made the State Bank of India, the owner of the offending vehicle, as the sole respondent. (4). The State Bank of India contested the said proceedings by filing written statement thereby alleging that there was no fault on the part of the driver of the vehicle but due to contributory negligence on the part of the victim the accident occurred. In the said written statement it was specifically alleged that the Oriental Insurance Company Ltd. was the insurer of the vehicle. (5). In view of such defence taken by State Bank of India in its written statement, the applicants added the Oriental Insurance Company as the respondent No. 2 in the proceedings. (6). The respondent No. 2 filed written statement as well as an additional written statement contending that the offending vehicle was not at all insured by said company. (7). (5). In view of such defence taken by State Bank of India in its written statement, the applicants added the Oriental Insurance Company as the respondent No. 2 in the proceedings. (6). The respondent No. 2 filed written statement as well as an additional written statement contending that the offending vehicle was not at all insured by said company. (7). At the time of hearing of the claim-application, the appellant No. 1 gave evidence in support of the claim but neither the State Bank of India nor the Insurance Company gave any evidence in support of their respective defences and the Insurance Company even did not participate at the time of final hearing. (8). The learned Tribunal below, after consideration of the materials on record, came to the conclusion that it was established from the evidence adduced by the claimants that due to negligent driving on the part of the driver of the vehicle owned by the State Bank of India the accident had taken place and consequently, the Tribunal assessed an amount of Rs. 1,74,000/- as compensation with interest at the rate of 12 percent per annum from the date of filing the claim-application till the date of realisation of the amount. The Tribunal below, however, held that as by Order No. 84 dated 17th February, 2003 the name of the Insurance Company had been expunged from the proceedings, it could not pass any direction upon the Insurance Company to pay the said amount. The Tribunal, accordingly, directed the State Bank of India, the respondent No.1, to pay the awarded amount to the applicants. (9). Being dissatisfied, both the claimants and the State Bank of India have preferred these two separate appeals. (10). In the appeal preferred by the State Bank of India, the only point taken by the appellant is that the Tribunal below erred in law in holding that the Insurance Company was not liable to pay any amount of compensation as its name had been expunged by Order No. 84. It is pointed out that subsequently by Order No. 124 dated 11th August, 2006, on the application of the Insurance Company itself, the previous Order No. 84 was recalled and Insurance Company was permitted to contest proceedings. It is pointed out that subsequently by Order No. 124 dated 11th August, 2006, on the application of the Insurance Company itself, the previous Order No. 84 was recalled and Insurance Company was permitted to contest proceedings. It further appears from Order No. 127 dated 16th September, 2006 that the Insurance Company prayed for recall of the Order No. 124 but such application was dismissed and the previous order dated 11th August, 2006 restoring the name of the Insurance Company as the defendant No. 2 in the proceedings was upheld. The Insurance Company did not challenge those two orders but in spite of those two orders restoring its name in the proceedings, did not contest the proceedings any further. (11). In such circumstances, we find substance in the contention of Mr. Chatterjee, the learned senior Advocate appearing on behalf of the appellant in F.M.A. No. 1397 of 2007, that the Tribunal below should have directed the Oriental Insurance Company to pay the assessed amount instead of passing a direction for payment of the assessed amount upon his client as the Insurance Company was a party to the proceedings and decided not to contest the claim. (12). Mr, Saha, the learned Advocate appearing on behalf of the Oriental Insurance Company, who has been made party in these appeals, however, supported the award impugned and contended that the State Bank of India has failed to prove that it was the owner of the offending vehicle and at the same time, according to him, the vehicle was never insured by his client. (13). In the appeal filed by the State Bank of India, it came up with an application for acceptance of additional evidence showing that the Oriental Insurance Company was the insurer of the vehicle in question at the relevant point of time and that it had even made payment of compensation to the State Bank of India for the damage caused to the car due to the selfsame accident dated 3rd January, 1980. (14). Except denial of such fact, no evidence on rebuttal was given by the Insurance Company showing that the assertion of the Bank was incorrect. The genuineness of the documents produced before this Court by way of additional evidence has not been disputed by the Insurance Company. (14). Except denial of such fact, no evidence on rebuttal was given by the Insurance Company showing that the assertion of the Bank was incorrect. The genuineness of the documents produced before this Court by way of additional evidence has not been disputed by the Insurance Company. In other words, in its affidavit, the Insurance Company did not venture to avow that the letters written on behalf of the Insurance Company to the appellant regarding payment of compensation for the damage caused to the offending car arising out of the accident dated January 3, 1980 were manufactured. (15). Even if we do not take into consideration the additional evidence adduced before this Court, it is apparent that Insurance Company, although was made party and filed written statement, did not adduce any evidence asserting that the vehicle was not covered by its insurance. For such absence of evidence on the part of the Insurance Company in spite of the fact that it was party to the proceedings and that the owner of the vehicle took specific plea in its written statement that the vehicle was insured with the Oriental Insurance Company, we can presume that the vehicle was very much insured by the Oriental Insurance Company. Moreover, the documents marked exhibits before this Court overwhelmingly prove that the vehicle was insured by the Oriental Insurance Company as would appear from the letters written on behalf of the Company to the State Bank of India. We have already pointed out that genuineness of such letters has not been disputed in the affidavit affirmed by the Insurance Company. (16). Mr. Saha, the learned Advocate appearing on behalf of the Insurance Company, as a last resort, tried to contend before us that at the relevant time of accident in the year 1980, the liability of the Insurance Company was limited only to Rs. 50,000/-and, therefore, even if we hold that the Insurance Company had the liability, we should direct his client to pay only a sum of Rs. 50,000/- and not the awarded amount in full. (17). At this stage, Mr. Banik, the learned Advocate appearing on behalf of the claimants, relies upon the decision of the Supreme Court in the case of National Insurance Company Ltd. v. Jugal Kishore and Ors. 50,000/- and not the awarded amount in full. (17). At this stage, Mr. Banik, the learned Advocate appearing on behalf of the claimants, relies upon the decision of the Supreme Court in the case of National Insurance Company Ltd. v. Jugal Kishore and Ors. reported in (1988)1 SCC 626 wherein the Apex Court specifically held that it is the duty of the party which is in possession of a document which would be helpful in doing justice in the cause to produce the same and such party should not be permitted to take shelter behind the abstract doctrine of burden of proof. According to the Supreme Court, such duty is greater in the case of instrumentality of the State, such as, the Insurance Company, who is under obligation to act fairly. The Supreme Court, therefore, concluded that in all such cases where the Insurance Company concerned wishes to take a defence in a claim petition that its liability was not in excess of the statutory liability, it should file a copy of the insurance policy along with its defence. In the case before us, the Insurance Company took a deliberate mendacious defence that the vehicle was not insured with it which has been proved to be false from the additional evidence adduced by the State Bank of India from which it appears that the Insurance Company admitted the existence of insurance at the relevant point of time. In such a situation, in the absence of policy filed by the Insurance Company, we are left with no other alternative but to hold that the benefit of limited statutory liability cannot be given to the Insurance Company. If such plea was taken by the Insurance Company in the Tribunal below, the owner of the vehicle could produce the copy of the policy to show that it had no liability at all. After the lapse of twenty-nine years, we now cannot ask the owner of the vehicle to produce the said old policy particularly when it has been established from the additional evidence that the Insurance Company took a deliberate false plea that it was not the insurer. Even before us, after the production of the additional evidence by the Bank, the Insurance Company is maintaining its mendacious plea that it was not the insurer of the offending vehicle. (18). Even before us, after the production of the additional evidence by the Bank, the Insurance Company is maintaining its mendacious plea that it was not the insurer of the offending vehicle. (18). We, therefore, hold that the offending vehicle at the relevant point of time being insured by the Oriental Insurance Company and in the absence of the policy showing that its responsibility was merely limited to the then statutory liability of Rs. 50,000/-, we pass direction for payment of the entire amount by the Insurance Company. (19). In the appeal preferred by the claimants, although Mr. Banik, the learned Counsel appearing on behalf of the appellant, tried to impress upon us that the victim being a professor of a college and being aged only 45 years at the time of death, the compensation should have been more than the meagre sum of Rs. 1,78,000/- and odd, we are not impressed by such submission. It appears from the evidence that at that point of time, the income of the victim was Rs.800/-a month and on that basis, the calculation was made. In the year 1980, that amount was the salary of a college-teacher. Merely because, in course of long pendency of this litigation, the scale of the salary of the college- teachers has been upgraded to a large extent, the claimants cannot insist on calculating the compensation on the basis of the scale of salary now subsisting after about 29 years from the date of accident. If the proceedings were disposed of within two or three years from the date of accident, the claimants could not make this submission before the Tribunal. Since the Tribunal has awarded interest at the rate of 12 percent per annum, we are of the view that the appellant will not be financially prejudiced in anyway as in course of last 29 years, with the aid of interest at the rate of 12 percent per annum granted by the Tribunal, the amount has now become a substantial sum of money. We are quite alive to the situation that the rate of interest in the last eight years has considerably gone down, but in this appeal filed by the claimants, there is no scope of reduction of rate of interest awarded by the Tribunal and thus, the loss suffered by the claimants for not being able to avail of the benefit of the enhanced scale of pay of the college-teachers has been substantially compensated by getting the benefit of the interest at the rate of 12 percent per annum all through right from the date of filing of the application. The appeal preferred by the claimants is, therefore, disposed of in terms of the order passed in the appeal filed by the State Bank of India. (20). We, thus, dispose of both the appeals, first by allowing the appeal preferred by the State Bank of India with the direction that the awarded amount with interest should be paid by the Oriental Insurance Company within one month from today by depositing the same before the Tribunal below and consequently, by passing the same direction in the appeal filed by the claimants. (21). We are told that the State Bank of India already deposited half of the awarded amount as a condition of stay of execution of award and such amount is lying in a fixed deposit with a nationalised bank at the instance of the learned Registrar General of this Court. The learned Registrar General is directed to return the amount with interest as accrued in the account in favour of State Bank of India. The award impugned is, thus, modified to the extent indicated above. In the facts and circumstances there will be, however, no order as to costs.