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2012 DIGILAW 531 (CAL)

New India Assurance Company Ltd. v. Jaya Santra

2012-06-20

ASHIM KUMAR BANERJEE, DIPAK SAHA RAY

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JUDGMENT ASHIM KUMAR BANERJEE, J. 1. Short question involved in this appeal is, as to whether the victim, while travelling with containers for collecting fish from the wholesale fish market, Could be considered as a gratuitous passenger disentitling him to get any compensation due to motor accident, from the Insurance Company. 2. The facts would depict, Smt. Anna Bauldas, Chitta Bauldas and Tuku Bauldas filed application for compensation claiming that the victim being their husband and father respectively died in an accident involving motor vehicle being no. WB 23A/ 6236. The victim was travelling by the subject vehicle that was meant for carrying goods. The victim was going to the wholesale fish market for purchasing fish. He was carrying containers meant for carrying fish after purchase from the fish market. The vehicle met with an accident on Barrackpur- Kalyani Express Highway on May 27, 2006. Due to the accident the victim succumbed to the injury along with two other similarly circumstanced persons. The other victims were also going to the fish market by the same vehicle along with containers for collecting fish. 3. The Tribunal held, the claimants could not prove through any documentary evidence that the deceased had hired the vehicle and had been proceeding in the said vehicle as "owner of the goods", hence, the claimants would not be entitled to any compensation from the Insurance Company. The Tribunal assessed the compensation and asked the owner of the vehicle to pay the same. Hence this appeal by the appellants. 4. In this case the Respondents were the next to kin of one of the victims of the said accident referred to above. In this case, the Tribunal allowed the claim and asked the Insurance Company to pay and recover from the owner. Hence, this appeal by the Insurance Company. 5. In this case the next to kin of the third victim were successful before the Division Bench when the Division Bench dismissed the appeal of the Insurance Company taking the identical plea and affirmed the award of the Tribunal making the Insurance Company liable. All the above three cases did have the resemblance as follows: i) Three victims died in the same accident. ii) They were fish sellers going by the same vehicle having their respective containers with them while approaching the fish market. iii) Their next to kin respectively applied for compensation. All the above three cases did have the resemblance as follows: i) Three victims died in the same accident. ii) They were fish sellers going by the same vehicle having their respective containers with them while approaching the fish market. iii) Their next to kin respectively applied for compensation. iv) The Insurance Company, in all the three cases, denied compensation on the ground that the vehicle was not meant for carrying passenger and they were gratuitous passengers, hence, were not entitled to the benefit of Section 147 of the Motor Vehicles Act, 1988, as amended. 6. Mr. Kamal Krishna Das, Learned Counsel appearing in both these appeals strenuously contended that the Division Bench decision in the case of The New India Assurance Co. Ltd. VS- Shibani Mondal (F.M.A. No.352 of 2010 dated July 23, 2010) did not correctly interpret the Apex Court decision in the case of National Insurance Company Limited Vs Kaushalaya Debi and Ors. reported in 2008 Volume-III Transport and Accidents Cases Page-12. 7. Mr. Das tried to distinguish the decision in the case of Kaushalaya Debi (Supra) wherein the Apex Court observed, that the victim while going to the market to purchase vegetable, died in the accident, would not be entitled to the benefit of the amendment of Section 147. Under the said provision, passenger, while carrying his goods by the truck, would become entitled to compensation in case of an accident. According to Mr. Das, the logic so espoused in the said decision was, the person intending to bring his goods would not be entitled to the benefit of Section 147 when he was "empty handed". Since in all the above cases the respective victims were proceeding towards fish market they were not with their "goods" to get the benefit of the amendment. Empty container could not be termed as "goods" within the meaning of Section 147 as erroneously interpreted by the Division Bench. 8. Mr. Das, in effect, wanted us to differ with the other Division Bench and refer the issue to a larger Bench for settling the principle of law. Mr. Krishanu Banik, learned advocate appearing for the claimants contended that the Insurance Company accepted the decision in the case of Sibani Mondal (Supra). They paid the compensation to the claimants in the said case, hence, they were not entitled to question the said decision that too, in other appeals. 9. Mr. Mr. Krishanu Banik, learned advocate appearing for the claimants contended that the Insurance Company accepted the decision in the case of Sibani Mondal (Supra). They paid the compensation to the claimants in the said case, hence, they were not entitled to question the said decision that too, in other appeals. 9. Mr. Banik contended that the Tribunal, while awarding compensation disbelieved the assertion on income of the victim and erroneously calculated the same at the rate of rupees two thousand per month. He also claimed that the Tribunal should have awarded interest on the awarded amount in terms of Section 171. 10. While giving reply, Mr. Das contended that in case this Court would not find favour with his argument on the interpretation of law in both the appeals, this Court should grant appropriate relief to the Insurance Company to pay and recover in accordance with law and particularly following the guidelines as specified by the Apex Court in the case of Oriental Insurance Company Limited V.S. Nanjappan and Others reported in All India Reporter 2004 Supreme Court Page-1630. 11. In the case of Kaushalaya Devi (Supra), the victim was travelling in a truck. The truck met with an accident when he succumbed to the injury. The claimants claimed that he was going to the market for the purpose of collecting empty boxes and, as such, he could not be termed as "gratuitous passenger" hence, entitled to the benefit of Section 147, as amended. The Apex Court considered the earlier decisions on the subject and held as follows : - "In view of the findings arrived at by the High Court, it must be held that the owner alone was liable to pay compensation to the first respondent herein for causing death of her son by rash and negligent driving on the part of the driver of the truck. The high Court's judgment must be sustained on this ground. The deceased was not the owner of any goods which were being carried in the truck. Admitted position is that he had been travelling in the truck for the purpose of collecting the empty boxes. He was a vegetable dealer. He was travelling in the truck as owner of the goods viz. the vegetables. He was not travelling in the truck for a purpose other than the one for which he was entitled to travel in public carriage goods vehicle." 12. He was a vegetable dealer. He was travelling in the truck as owner of the goods viz. the vegetables. He was not travelling in the truck for a purpose other than the one for which he was entitled to travel in public carriage goods vehicle." 12. In the case of Sibani Mondal (Supra), the Insurance Company relied on the decision in the case of Kaushalaya Debi (Supra). The Division Bench distinguished the same by observing as follows: "We find in the above case, the victim was not carrying any empty container but was travelling for the purpose of collecting empty containers. Thus, at the time of accident, the victim was empty handed and was going as a mere passenger for collecting empty containers. In the case before us, the victim himself was carrying the container and the vehicle was hired for carrying container. Thus, the said decision cannot have any application to the facts or the present case. We are unable to accept the extreme contention of Mr. Das that a fish seller cannot get the benefit of insurance if he hired a vehicle for carrying his container by which he intended to bring fish and that fish must be carried in the vehicle". We do not find any logic contrary to what was observed by the Division Bench. Hence, we are ad idem with the other Division Bench in the case of Sibani Mandol (Supra) and do not find any reason to refer the issue to the Larger Bench for reconsideration. 13. In our view, the appeal of the Insurance Company must fail. In the appeal of the claimants in the case of Anna Bouldas, we have examined the award of the Tribunal. We find that the Tribunal duly accepted the assertion of the claimants that the victim was earning rupees three thousand per month. The Tribunal assessed the compensation on the basis of the monthly income at the rate of rupees two thousand after deduction of 1/3rd as personal expense. We do not find any scope of interference. We however, feel, the Tribunal should have awarded interest on the compensation so awarded. Hence, in both the above cases the compensation so awarded, would carry interest at the rate of seven per cent per annum on and from the date of making of the claim application till the date of payment/deposit whichever is earlier. 14. We however, feel, the Tribunal should have awarded interest on the compensation so awarded. Hence, in both the above cases the compensation so awarded, would carry interest at the rate of seven per cent per annum on and from the date of making of the claim application till the date of payment/deposit whichever is earlier. 14. In our view, the Tribunal was wrong in absolving the Insurance Company from its liability. The Insurance Company should pay and recover from the insured in accordance with law and in accordance with the guideline the Apex Court framed in the earlier precedents including the one in the case of Oriental Insurance Company Limited VS- Nanjappan and Others reported in All India Reporter 2004 Supreme Court Page-1630 and such payment and recovery must not cause any hindrance to the third party in receiving the compensation that would not depend upon any condition. 15. The Insurance Company in both the cases must pay the compensation so awarded along with interest to the claimants in the same proportion as decided by the Tribunal in the case of Jaya Santra and in the equal proportion in the case of Anna Bauldas. The cheques must reach to the claimants within four weeks from the date of communication of this order. 16. The Insurance Company would be at liberty to withdraw the sum, if any, deposited together with accrued interest, if any, after payment is made to the respective claimants as directed above. F.M.A. No. 1300 of 2010, F.M.A. No.548 of 2012 and C.O.T. 35 of 2011 are disposed of accordingly without any order as to costs. The lower court records be sent down at once. Urgent xerox certified copy of this order, if applied for, be given to the parties, on priority basis.