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2019 DIGILAW 152 (CAL)

National Insurance Company Limited v. Archana Jha

2019-01-30

HARISH TANDON, SUBHASIS DASGUPTA

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JUDGMENT : 1. This appeal arises from the judgment and award dated 14th June, 2013 passed by the Additional District Judge, Re designated Court, Paschim Medinipur in MACC Case No. 647 of 2011; whereby and whereunder an application under Section 166 of the Motor Vehicles Act was disposed of awarding compensation to the tune of Rs.20,47,900/- along with interest at the rate of 6% per annum from the date of filing of the said application till the payment thereof. 2. The facts as evident from the record are that on 12th December, 2009 at about 10-30 p.m. the deceased, namely Navin Kumar along with Ananta Prakash were returning from their place of service to Rupnarayanpur Guest House situated by the side of National Highway–6 after taking dinner at Prince-Dhaba met with an accident; as a resultant effect Navin Kumar died on the spot and the other person, namely Ananta Prakash, suffers grievous injuries and was admitted in a Hospital for treatment. 3. It is a specific case of the claimants/respondents that the offending vehicle bearing number WGB-2618 dashed them from behind. As it was coming in a high speed, therefore, the negligence can be attributed to the act of the driver. Since the offending vehicle was covered under the Insurance Policy of the appellant, the claim petition was filed under Section 166 of the said act for Rs.25,00,000/-. It is further stated that the deceased was under permanent employment of Bengal Energy Limited and was getting gross monthly salary of Rs.17,215/-. It is categorically stated therein that the said deceased was 36 years of age on the date of his untimely death and had a bright future in such avocation. 4. It would be evident from the record that not only the Insurance Company, but the driver and owner of the offending vehicle were also impleaded as party and summons were duly sent to them. The owner and the driver did not contest the said proceeding. It is only the Insurance Company, i.e. the appellant, who contested the said proceeding by filing written statement. 5. The substratum of defence so unfurled reveals that a plea of non-involvement of the offending vehicle was initially taken as a defence to the said claimants. The owner and the driver did not contest the said proceeding. It is only the Insurance Company, i.e. the appellant, who contested the said proceeding by filing written statement. 5. The substratum of defence so unfurled reveals that a plea of non-involvement of the offending vehicle was initially taken as a defence to the said claimants. However, a leave was also sought in the written statement that in the event any facts is surfaced in course of the proceeding, he may be permitted to file additional written statement. Apropos such leave the Insurance Company/appellant filed the additional written statement taking a plea that the owner of the offending vehicle violated the policy conditions by plying the offending vehicle without any valid permit. 6. It is pertinent to record that the plea of delayed first information report was never incorporated as defence within the four corners of the written statement or the additional written statement filed by the Insurance Company/appellant. 7. On the conspectus of the respective stands taken in the pleadings filed before the Tribunal, the parties went on trial and the claimant no. 1 cited herself as first witness in support of the claim petition. She categorically asserted that her husband met with an accident committed by the said offending vehicle at about 10-30 p.m. on 12th December, 2009 and he was getting monthly salary of Rs.17,215/-. Apart from various documents tendered by her in evidence the certified copy of the first information report was also tendered by her, which was marked Exhibit-1 without objection. 8. Mr. Singh is very much vocal in his submission that it would be evident from Exhibit-1 that the first information report was lodged after a gap of 22 days from the date of accident, which leads to an inference that there was no involvement of the offending vehicle. 9. As indicated hereinabove there was no specific plea taken by the appellant in its pleading nor any evidence was adduced in support of the contention that the lodging of first information report belatedly is fatal, but a presumption is sought to be drawn that the moment the first information report is lodged after a considerable period of time, it raises a presumption of non-involvement of the vehicle. The best persons to prove the above point are the driver and owner of the offending vehicle, who were never cited as witnesses, nor any attempt appears to have been taken by the Insurance Company to summon them to adduce evidence. Furthermore, the aforesaid persons were arraigned as part in the said proceeding and despite the service of summons upon them they chose not to contest the same. 10. The aforesaid facts may be useful for the purpose of foisting the liability upon the owner and driver, but certainly does not exonerate the Insurance Company from its primary liability to pay just compensation under Section 168 of the said Act. 11. Though feebly it has been submitted by Mr. Singh that the evidence of the eye witness is contradictory and false on the basis of the statement made in the cross-examination that there was no street light at the place of accident. Mr. Singh submits that if the evidence of the eye witness is taken in the cross-examination and appears to be mutually destructive, the Tribunal ought to have held that the claimants have failed to prove the involvement of the offending vehicle. 12. We are unable to persuade ourselves to accept the proposition sought to be made by the appellant for the simple reason that the Court cannot discard the evidentiary value of the evidence adduced by the eye witness in a stray or single sentence culled out or segregated from the rest. 13. The second witness in his cross-examination categorically stated that the accident was caused in his presence and he also divulged the identity of the offending vehicle. Though he stated that there was no municipal light situated on the main road, but in the examination-in-chief he categorically stated that he saw Navin Kumar and Ananta Prakash returning to the guest house after having dinner from the local Dhaba and suddenly a truck bearing no. WGB-2618 dashed them from behind. It is further stated by him that he immediately called his colleagues and rushed at the place of accident and the injured persons were brought to the Kharagpur S. D. Hospital. 14. Since the victim died on the spot, naturally the steps, which were required to be taken under the law, were followed, which is also corroborated in the evidence of the said second witness. 14. Since the victim died on the spot, naturally the steps, which were required to be taken under the law, were followed, which is also corroborated in the evidence of the said second witness. There is no suggestion in the cross-examination whether the light was sufficient to identify any vehicle plying on the said National Highway nor any question was put to the said witness over the distance from the place where he was stationed and the place of occurrence. 15. Merely because the second witness stated that there was no municipal light on the main road, it does not wipe out the other evidence of the said witness, which clearly corroborates the statements made in the claim petition. 16. So far as the plea of delayed FIR is concerned, out attention is drawn to Exhibit-1. The said Exhibit reveals that the FIR was lodged by the Assistant Manager, Personnel of the said Company, where the deceased was employed, not only stating the facts in support of the claim petition, but also contending a statement that because of the treatment of the other employee, who suffered grievous injury by the same accident, the FIR could not be lodged promptly. 17. A plea of delayed FIR time and again come before this Court and it has been expressly held that if there is sufficient explanation given in the FIR for its belated lodgment, it cannot act as a deterrent of the claim petition. 18. The reference can be safely made to a judgment of the Apex Court in case of Ravi vs. Badrinarayan & Ors. reported in 2011 AIR SCW 1530; wherein an identical question was raised and the Apex Court held that the delay in lodging FIR cannot be fatal and no adverse inference can be drawn against the claimants. It is a common behaviour in the Indian Society that in the moment of an accident the people rush to help the injured persons and all cares and precautions are taken to extend the medical support in stead of reminding themselves of their other responsibility of lodging a first information report with the concerned police station. Apart from the same, if the accident causes death of a person on the spot, the police immediately intervene and informations are also lodged by the police personnel for future course of action. Apart from the same, if the accident causes death of a person on the spot, the police immediately intervene and informations are also lodged by the police personnel for future course of action. The question of raising adverse inference may arise in case of enormous delay in lodging the FIR, but if the period is not that much and the explanations appear to be plausible and sufficient, the claim petition cannot be defeated solely on the ground of delayed first information report. It is held in the said Report: “20. It is well settled that delay in lodging 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. In case of delay, the courts are required to examine the evidence with a closer scrutiny an in doing so; the contents of the FIR should also be scrutinized more carefully. If 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.” 19. We, therefore, do not find any substance in the submissions of the appellant. We could have safely proceeded to dismiss the appeal, as the grounds agitated before us do not inspire us to interfere with the impugned award, but the claimants have filed the cross-objection under Order XLI Rule 22 of the Code of Civil Procedure, which needs to be dealt with. 20. However, our attention is drawn by Mr. We could have safely proceeded to dismiss the appeal, as the grounds agitated before us do not inspire us to interfere with the impugned award, but the claimants have filed the cross-objection under Order XLI Rule 22 of the Code of Civil Procedure, which needs to be dealt with. 20. However, our attention is drawn by Mr. Singh appearing on behalf of the Insurance Company/appellant that the Tribunal having held that the owner and driver of the offending vehicle are responsible for compensation to the claimants, omitted to record in the ordering portion that the liberty is to be granted to the Insurance Company to recover the said amount from the owner and the driver of the offending vehicle. 21. It is no longer res-integra as of now that even it has been proved that the owner has violated the conditions of the policy on whatsoever ground, it does not ipso facto exonerate the Insurance Company of its principal liability to pay such compensation. However, the concept of “pay and recover” has been accepted and evolved through the judicial process, which can be seen from the judgment of the Apex Court in case of Amrit Paul Singh & Anr. vs. Tata AIG General Insurance Company Limited & Ors. reported in (2018) 7 SCC 558 ; wherein it is held: “24. In the case at hand, it is clearly demonstrable from the materials brought on record that the vehicle at the time of the accident did not have a permit. The appellants had taken the stand that the vehicle was not involved in the accident. That apart, they had not stated whether the vehicle had temporary permit or any other kind of permit. The exceptions that have been carved out under Section 66 of the Act, needless to emphasize, are to be pleaded and proved. The exceptions cannot be taken aid of in the course of an argument to seek absolution from liability. Use of a vehicle in a public place without a permit is a fundamental statutory infraction. We are disposed to think so in view of the series of exceptions carved out in Section 66. The said situations cannot be equated with absence of licence or a fake licence or a licence for different kind of vehicle, or, for that matter, violation of a condition of carrying more number of passengers. We are disposed to think so in view of the series of exceptions carved out in Section 66. The said situations cannot be equated with absence of licence or a fake licence or a licence for different kind of vehicle, or, for that matter, violation of a condition of carrying more number of passengers. Therefore, the principles laid down in Swaran Singh and Lakhmi Chand in that regard would not be applicable to the case at hand. That apart, the insurer had taken the plea that the vehicle in question had no permit. It does not require the wisdom of the “Tripitaka”, that the existence of a permit of any nature is a matter of documentary evidence. Nothing has been brought on record by the insured to prove that he had a permit of the vehicle. In such a situation, the onus cannot be cast on the insurer. Therefore, the Tribunal as well as the High Court ha directed that the insurer was required to pay the compensation amount to the claimants with interest with the stipulation that the insurer shall be entitled to recover the same from the owner an the driver. The said directions are in consonance with the principles stated in Swaran Singh and others cases pertaining to pay and recover principle.” 22. Evidently, the Tribunal even after holding that the Insurance Company is entitled to recover the amount of compensation awarded in favour of the claimants from the owner, yet did not incorporate such liberty in the ordering portion of the impugned award. 23. We find substance in the aforesaid contention. 24. The Cross-objection is basically founded on two scores; firstly, the Tribunal did not award any additional sum on future prospect and secondly the Tribunal awarded less amount under the conventional heads, which is contrary to the judgment of the Apex Court in case of National Insurance Company Limited vs. Pranay Sethi & Ors. reported in (2017) 16 SCC 680 . 25. The five Judges Bench of the Supreme Court in the aforesaid case not only considered the conflicting views operating in the field but also considered the point as to whether an additional sum can be granted to the claimants on future prospect. It is held therein that the stagnancy in the life is an exception, as every person aspires to achieve better in his life. It is held therein that the stagnancy in the life is an exception, as every person aspires to achieve better in his life. It is also human nature that every person always think of better prospect and follow such dream in his life not only to have a better quality of life but also to provide security of the family members as well as the dependents. The Apex Court held: “61. (iii) -While determining the income, an addition of 50% of actual salary to the income of the deceased towards future prospects, where the deceased had a permanent job and was below the age of 40 years, should be made. The addition should be 30%, if the age of the deceased was between 40 to 50 years. In case the deceased was between the age of 50 to 60 years, the addition should be 15%. Actual salary should be read as actual salary less tax.” 26. It is not in dispute that the victim was employed in a Company and in absence of any convincing material brought by the Insurance Company, it can be safely said that he was in permanent employment. Admittedly the victim was 36 years of age at the time of his death and, therefore, 50% of his actual established income should be awarded towards the future prospect. 27. Apart from the same, we find that the Tribunal awarded a consolidated sum of Rs.9,500/- under the conventional heads; i.e. loss of estate, loss of consortium and funeral expenses, which further appears to be in contradiction to the judgment of the Apex Court rendered in case of Pranay Sethi (supra). It is held therein: “61. (viii) – Reasonable figures n conventional heads, namely, loss of estate, loss of consortium and funeral expenses should be Rs.15,000/-, Rs. 40,000/-and Rs.15,000/-respectively. The aforesaid amounts should be enhanced at the rate of 10% in every three years.” 28. We thus find that the said consolidated sum of Rs.9,500/- under the conventional heads is not in commensurate with the actual reality, but also contrary to the observations of the Apex Court as quoted hereinabove. 29. To sum up the findings as indicated above, we do not find any grounds warranting interference with the impugned award, but we appreciate the submission of Mr. 29. To sum up the findings as indicated above, we do not find any grounds warranting interference with the impugned award, but we appreciate the submission of Mr. Singh in pointing out to us that the ordering portion of the impugned award must contain the liberty to recover the compensation from the owner of the offending vehicle. 30. We further find the grounds taken in the Cross-objection to be sustainable and, therefore, we allow the Cross-objection, being COT 21 of 2015, filed by the claimants/respondents. 31. The impugned award is modified to the extent that a liberty is granted to the Insurance Company to recover the amount of compensation determined in the impugned award as well as modified in this judgment from the owner without filing any separate suit against the owner. 32. This liberty shall be treated as certificate granted in favour of the Insurance Company, which is executable in nature and the Insurance Company can approach the Executing forum for recovering the said amount from the owner, as he did not contest the said proceeding in the Tribunal nor appeared and contested the instant appeal despite service having effected upon them. 33. Over and above the amount of compensation determined by the Insurance Company, the claimants shall be entitled to an additional sum of Rs.10,19,200/- towards the future prospect and a further sum of Rs.70,000/- under the conventional heads, i.e. loss of estate, loss of consortium and funeral expenses, which shall be inclusive of the quantum of compensation awarded by the Tribunal in the impugned award on such heads. 34. It is now informed to us by the Insurance Company that the entire amount of compensation as awarded by the Tribunal has already been deposited with the Registrar General of this Court. 35. The claimants are entitled to receive the said amount by making an application before the Registrar General within two weeks from date. 36. In the event, the application is made by the claimants, the Registrar General shall release the said amount along with accrued interest, if there be any, to each of the claimants in equal share after verifying their respective identity. 37. 36. In the event, the application is made by the claimants, the Registrar General shall release the said amount along with accrued interest, if there be any, to each of the claimants in equal share after verifying their respective identity. 37. The Registrar General shall also see that the cheque issued to each of the claimants is earmarked for encashment to an account held by them in their individual name in any bank, on the basis of the particulars so furnished by them relating to bank account the balance amount shall be directly transmitted to their respective bank accounts by the Insurance Company within a month from date, provided the particulars of bank accounts of each of the claimants are provided within two weeks from date. 38. With the above observations the appeal and the connected application are disposed.