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2012 DIGILAW 569 (CAL)

New India Assurance Co. Ltd. v. Kirti Lakhotia

2012-06-29

ASHIM KUMAR BANERJEE, SHUKLA KABIR SINHA

body2012
JUDGMENT Ashim Kumar Banerjee, J. 1. One Suresh Chandra Lakhotia residing at 1/A, Love Lock Place, Calcutta was returning from North Bengal in a Maruti van bearing No. WB 74-4409 on 29.5.2000 along with one of his friends. The vehicle dashed a truck that was standing on the road having registration No. WB 23-2354. The truck was insured with New India Assurance Co. Ltd. whereas Maruti van was also insured with New India Assurance Co. Ltd. However, such insurance was taken for the period 14.7.2000 to 13.7.2001. As noted above, the accident occurred much prior to the start date of the policy of insurance. The claimants claimed that the truck was parked on the road without any indicator. The backlight was not on. Hence, the said truck was responsible for the accident and the insurance company was liable to pay compensation. The insurance company denied the claim on the ground that the truck was standing hence, the insurance company was not liable. The accident was caused due to rash and negligent driving of Maruti van. The insurance company denied the fact that Maruti van was having valid insurance as on the date of accident. The police initiated a case against the two vehicles including the respective drivers. Siddharth Lakhotia, PW 1, was the son of the victim who deposed that his father had been receiving salary from L.C.C. Infotech Limited. He had other income aggregating to Rs. 21.87,721 (rupees twenty-one lakh eighty-seven thousand seven hundred and twenty-one). He also proved the income of the deceased. 2. Santan Barik, PW 2, is a Chartered Accountant. He was the auditor of the deceased. He also proved the income. 3. Rathin Chakladar, PW 3, is the Income Tax Officer who deposed to support the case of the petitioner as to the income of the deceased. He proved the income tax return and the assessment for the relevant year. 4. Sankar Barman, PW 4, was a vital witness. He was the driver of Maruti van involved in the accident. He deposed that he could not see the backlight of the truck. As there was no backlight, Maruti van dashed the truck. He tried to stop the vehicle by applying the brakes suddenly. However, the tyre slip caused the accident. He suffered grievous injury whereas the other two co-passengers suffered injury and were rushed to the nearby Health Centre. He deposed that he could not see the backlight of the truck. As there was no backlight, Maruti van dashed the truck. He tried to stop the vehicle by applying the brakes suddenly. However, the tyre slip caused the accident. He suffered grievous injury whereas the other two co-passengers suffered injury and were rushed to the nearby Health Centre. According to him, he was driving at the speed of 34 to 40 kmph. 5. Mahussin Shaik, DW 1, was the driver of the lorry. He deposed that he had been standing on the road unloading the sand. The lorry was standing at the side of the road having the lighting indicator, backlight and sidelight on. Good number of vehicles had passed keeping safe distance from the lorry. In the cross-examination by the petitioner no suggestion was given on his assertion that the vehicle had been kept parked on the side of the road and not in the middle of the road and indicators had been on. 6. Deba Prasad Malakar, DW 2, was the khalasi of the truck. He also supported the driver being DW 1. In cross-examination, no suggestion was put to him on that score. 7. The Tribunal considered each and every aspect and ultimately held both the vehicles having contributory negligence in the accident. According to the learned Judge, New India Assurance Co. Ltd. being the insurer of the truck was responsible for 75 per cent of the compensation whereas balance 25 per cent should be borne by Maruti van owner. The Tribunal awarded compensation of Rs. 1,30,00,000 subject to adjustment of the statutory compensation under section 140, if any paid. Hence, this appeal by the insurance company. 8. Mr. Kamal Krishna Das, the learned counsel appearing for the insurance company, contended that the evidence of the truck driver, as corroborated by khalasi, stood uncontroverted that would clearly absolve the truck from the liability to pay compensation. Hence, its insurer had no liability. On the issue of Maruti van, Mr. Das contended that from the records it would show that the owner of the vehicle categorically admitted that the insurance that the vehicle had prior to the accident, stood expired and it was renewed much after the accident. Fact remains, as on the date of the accident Maruti van was without any insurance. Hence, New India Assurance Co. Das contended that from the records it would show that the owner of the vehicle categorically admitted that the insurance that the vehicle had prior to the accident, stood expired and it was renewed much after the accident. Fact remains, as on the date of the accident Maruti van was without any insurance. Hence, New India Assurance Co. Ltd. would have no liability on account of Maruti van. The judgment and order impugned also absolved the liability of the appellant on account of Maruti van. As and by way of alternative submission, Mr. Das disputed the sharing ratio. According to him, Maruti van driver was already charge-sheeted in the case. He was also involved in another case pending before the Tribunal. His evidence should be taken with due care and caution. The learned Judge could not have relied upon his statement to make the insurance company liable to the extent of 75 per cent. 9. To support his contention Mr. Das relied upon the following decisions: (i) United India Insurance Co. Ltd. v. Patricia Jean Mahajan, 2002 ACJ 1441 (SC). (ii) Oriental Insurance Co. Ltd. v. Premlata Shukla, 2007 ACJ 1928 (SC). (iii) Bhakra Beas Management Board v. Kanta Aggarwal, 2008 ACJ 2372 (SC). (iv) Rani Gupta v. United India Insurance Co. Ltd., 2009 ACJ 1605 (SC). (v) New India Assurance Co. Ltd. v. Sinjini Gupta, 2011 ACJ 881 (Cal.). (vi) United India Insurance Co. Ltd. v. Shila Datta, 2011 ACJ 2729 (SC). 10. Per contra, Mr. Santosh Kumar Das, the learned counsel appearing for the claimants-respondents, contended that the claimants were able to prove the accident. They were able to prove the income of the victim that would satisfy the requirement of law to make a claim application maintainable. According to Mr. Das, since the truck was parked in the middle of the road without any indicator it should be solely responsible for the accident and its insurer was not entitled to avoid the responsibility. He contended that the appellant being the insurer of both the vehicles was obliged to pay the entire compensation. 11. Mr. S.K. Das also contended that the insurance company was not entitled to maintain their objection through this appeal without leave being obtained under section 170 of the Motor Vehicles Act, 1988. He contended that the appellant being the insurer of both the vehicles was obliged to pay the entire compensation. 11. Mr. S.K. Das also contended that the insurance company was not entitled to maintain their objection through this appeal without leave being obtained under section 170 of the Motor Vehicles Act, 1988. He also contended that the decision in the case of Shila Datta, 2011 ACJ 2729 (SC), would have no application in the present case as the insurance company was already a party in the proceeding. He also submitted that the insurer made an application for bringing additional evidence that was not pressed. Hence, the submission with regard to the insurance of Maruti van was not sustainable. 12. Mr. Das relied upon the following decisions to support his contentions: (i) United India Insurance Co. Ltd. v. Sipra Brahma, 1997 (II) CHCN 585. (ii) Shankarayya v. United India Insurance Co. Ltd., 1998 ACJ 513 (SC). (iii) National Insurance Co. Ltd. v. Swapan Kumar Dakua, 2000 WBLR (Calcutta) 289. (iv) Sadhana Lodh v. National Insurance Co. Ltd., 2003 ACJ 505 (SC). (v) National Insurance Co. Ltd. v. Nicolletta Rohtagi, 2002 ACJ 1950 (SC). (vi) New India Assurance Co. Ltd. v. Tara Sundari Phauzdar, 2004 ACJ 61 (Cal.). (vii) Andhra Pradesh State Road Trans. Corpn. v. K. Hemalatha, 2008 ACJ 2170 (SC). (viii) Samundra Devi v. Narendra Kaur, 2008 ACJ 2616 (SC). (ix) T.O. Anthony v. Karvarnan, 2008 ACJ 1165 (SC). (x) Oriental Insurance Co. Ltd. v. Madhu Vohra, 2010 (4) TAC 402. 13. We have considered the rival contentions as well as the precedents cited at the Bar. The decision in the case of Shila Dana, 2011 ACJ 2729 (SC), distinguished the earlier decisions of the Apex Court and held that when an insurance company was a respondent and contested the claim it would have right available in law to prefer an appeal on all issues. The said decision tried to distinguish the phraseology 'noticee' and 'party respondent'. 14. The Full Bench decision in the case of Tara Sundari Phauzdar, 2004 ACJ 61 (Calcutta), should be read along with the Apex Court decision in the case of Shila Datta, 2011 ACJ 2729 (SC), to decide on the question of the right of the insurance company to contest the claim. 14. The Full Bench decision in the case of Tara Sundari Phauzdar, 2004 ACJ 61 (Calcutta), should be read along with the Apex Court decision in the case of Shila Datta, 2011 ACJ 2729 (SC), to decide on the question of the right of the insurance company to contest the claim. All the earlier decisions of the Supreme Court stood clarified by Shila Datta (supra) including the one in Nicolletta Rohtagi, 2002 ACJ 1950 (SC). We thus do not specifically refer to those decisions as Shila Datta (supra) would make the issue more clear. 15. In the present case, the insurance company throughout contested the claim as a party respondent. Hence, they were entitled to take all grounds available to them in law. On that score, we do not find any scope to restrict the insurance company in the appeal. Coming back to the factual matrix, we find that vehicle was, admittedly, standing on the road. Even if we give full credence to what Sankar had said in his deposition, we are of the view that a vehicle coming with a speed of 34 to 40 kmph could not have dashed a lorry having a repercussion causing all the boarders of the car receiving injury including one who succumbed to the injury. Any prudent man having little idea of motor driving would agree that a car coming with the speed of 34 to 40 kmph would avoid an accident with a standing lorry on the road. Pertinent to note, it was not a case that Maruti van was pushed by another vehicle causing it to dash against the truck. It was simply an accident between two vehicles, one standing on the road and the other moving. Even a layman would say that the moving car would have primary responsibility for the accident. We fail to understand, how the Tribunal could assess it at the ratio of 75:25 making the truck primarily responsible. As observed hereinbefore, the driver of the truck categorically deposed that the backlights had been on. The khalasi supported him. No suggestion was given to either of them on that score. They could not be shaken in cross-examination. In fact, no vital question was put to them as would appear from the deposition. As observed hereinbefore, the driver of the truck categorically deposed that the backlights had been on. The khalasi supported him. No suggestion was given to either of them on that score. They could not be shaken in cross-examination. In fact, no vital question was put to them as would appear from the deposition. Even if we accept that truck was in the middle of the road without any indication we are of the view that Maruti van could avoid the accident had it been running with the speed of 34 to 40 kmph. There was no eyewitness apart from Sankar whose deposition was doubtful. His involvement in the accident is an admitted position. 16. Mr. Kamal Krishna Das relied upon Sinjini Gupta, 2011 ACJ 881 (Cal.), where a stationary truck was hit by an unknown truck. The Division Bench set aside the award considering the facts of the said case. Maruti van while overtaking the stationary truck had a head-on collision with an unknown truck. The facts in this case have no resemblance. In our view, it is a case of contributory negligence. Considering the benefit of doubt as to the involvement of the stationary truck we accordingly hold both the vehicles responsible for the accident and make the respective vehicles liable to pay compensation. The insurer of the truck cannot absolve its liability in view of a valid policy of insurance duly proved before the Tribunal. Hence, on that score the contention of the insurance company being not tenable, is rejected. At the same time the definite assertion of the primary liability of the truck and strenuous contention of Mr. Santosh Kumar Das on that score would not find favour in absence of any evidence to corroborate such contention. On that score we are unable to accept his contention. 17. Taking a sum total of the situation, we hold Maruti van primarily responsible for the accident. We, however, give benefit of doubt in favour of the claimant as to the involvement of the truck and make the said truck secondarily responsible for the same. In our considered view, the apportionment of liability should be to the extent of 25:75 and not 75:25 as erroneously held by the Tribunal. 18. On the question of income, we find that the income tax return was proved by the Income Tax Officer as well as the auditor of the deceased. In our considered view, the apportionment of liability should be to the extent of 25:75 and not 75:25 as erroneously held by the Tribunal. 18. On the question of income, we find that the income tax return was proved by the Income Tax Officer as well as the auditor of the deceased. The Tribunal considered each and every aspect and calculated compensation. On that score, we do not find any scope of interference. We, however, feel that the application of correct multiplier was not there. The Tribunal mechanically relied on the Second Schedule to the said Act of 1988 and applied the multiplier of 13. It is well settled principle of law, more the income, less would be the multiplier. The deceased was in the higher income group, using multiplier of 13 was probably not correct. In this regard we may refer to the decision in the case of United India Insurance Co. Ltd. v. Patricia Jean Mahajan, 2002 ACJ 1441 (SC). In para 17 of the said decision the Supreme Court considered the victim's income being in the higher income group. The Apex Court observed that some deviation in using the multiplier would be permissible in such circumstance. In our considered view, the application of multiplier of 10 would be appropriate to calculate and award just compensation. The Tribunal assessed the income of the deceased at Rs. 10,00,000 using multiplier of 10. The compensation would thus be Rs. 1,00,00,000 and not Rs. 1,30,00,000 as erroneously assessed by the Tribunal. 19. The appeal thus succeeds in part. 20. The insurance company would be obliged to pay Rs. 25,00,000 to the claimants. Balance Rs. 75,00,000 must be paid by the owner of Maruti van. The awarded sum would carry interest at the rate of 7 per cent per annum on and from 21.4.2001 till 26.11.2008 being the date when the bank guarantee was furnished by the insurance company. The insurance company is directed to pay the awarded sum as well as the interest to the claimants to be sent through account payee cheque at their recorded address by registered post with acknowledgment due within four weeks from the date of communication of this order. 21. The insurance company would be at liberty to withdraw the guarantee after making payment to the claimant. 22. The appeal is disposed of accordingly without any order as to costs. 23. 21. The insurance company would be at liberty to withdraw the guarantee after making payment to the claimant. 22. The appeal is disposed of accordingly without any order as to costs. 23. Lower court records be sent down at once, if arrived at. Urgent xerox certified copy of this order, if applied for, be given to the parties, on priority basis. I agree.