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2024 DIGILAW 188 (CAL)

National Insurance Co. Ltd. v. Nabanita Jana

2024-01-29

SUBHENDU SAMANTA

body2024
JUDGMENT : Subhendu Samanta, J. 1. The instant appeal has been preferred against the judgment and award dated December 12, 2013 passed by the learned Judge, Motor Accident Claims Tribunal, Purba Medinipur, in M.A.C. case No. 06 of 2011. 2. The brief fact of the case is that the present respondents nos. 1 to 4 have preferred an application before the learned Tribunal under Section 166 of the M. V. Act for getting compensation. The claim case was contested by the Insurance Company by filing written statement. 3. After hearing the parties, the learned Tribunal has awarded a sum of Rs.23,26,364/-in favour of the claimants.. 4. Being aggrieved by and dissatisfied with the impugned award, the Insurance Company has preferred the instant appeal. 5. Mr. Singh, learned advocate appearing on behalf of the Insurance Company submits that the impugned judgment passed by the learned Tribunal is erroneous. The fact of the case will show that the deceased was solely responsible for the accident. The driver of the truck deposed before the learned Tribunal as O.P.W. 2. From the statement of the O.P.W 2, it would be revealed that the driver of the offending vehicle i.e. truck was not at all responsible for the accident, rather the decease was travelling the motor cycle in a rash and negligent manner. The learned Tribunal has not considered the issue and allowed the claim case erroneously. 6. Learned advocate appearing on behalf of the claimant/respondent submits that the learned Tribunal has not committed any error in awarding the compensation in favour of the claimants. The learned Tribunal has considered the evidence of P.W. 1 and P.W. 2 as well as, the investigation of the police and report of the I.O in the charge sheet. The entire fact shows that truck of the offending vehicle is responsible for the accident. So, the instant appeal is liable to be dismissed. He further argued that the claimants are entitled to get the future prospect and general damages according to law laid down by the Hon’ble Supreme Court in Pranay shetti. 7. In reply learned advocate for the insurance Company submits that evidence of P.W. 2, i.e. so-called eyewitness cannot be believed at all as he was actually not at the place of accident. Mr. 7. In reply learned advocate for the insurance Company submits that evidence of P.W. 2, i.e. so-called eyewitness cannot be believed at all as he was actually not at the place of accident. Mr. Singh, learned advocate further argued that in the appeal of Insurance Company, the clamant cannot claim for enhance of compensation without filing any appeal or cross appeal against the impugned award. 8. Heard the learned advocates and perused the materials on record. Only point is involved in this appeal that whether the learned Tribunal is justified in assessing the liability of the accident upon the driver of the truck. The driver of the truck has deposed before this learned Tribunal as O.P.W. 2. During his examination he stated that ; “on November 23, 2010 at about 6.00/6.30 pm. One motorcycle dashed my truck. I was not responsible for the accident after seeing the motor cycle running towards me I tried to cover the left side of the road. At that time I noticed that the bike came towards the left side and the driver of the bike was driving the bike with the help of his left hand and right hand was in his pocket and he was trying to take out something from his pocket with the help of his right hand. The accident occurred due to fault of the bike” 9. P.W. 2 deposed as eyewitnesses as follows : “On 23.11.2010 at about 7.0 p.m. while I was proceeding to Jalchak side by riding my cycle I saw deceased Dipak Kr Jana was going to Pingle side by riding a motor cycle bearing no. WB-34V/8513 from Moyna side. He was proceeding smoothly keeping his left side of the road just after leaving me he was going about 100 mets. distance from me I saw one truck being no. WB-15/4678 which was coming from Pingle side with terrific high speed endangering to hum life and safely dashed the victim along with his motor cycle in a great force”. These are the two statements of the P.W. 2 and O.P.W. 2 before the learned Tribunal to assess the fact and manner of accident. 10. The learned Tribunal on the basis of such evidences, is of opinion that ; “the evidence of O.P.W. No.2 cannot be said to be independent. An accused always tried to prove his innocence by blaming others. 10. The learned Tribunal on the basis of such evidences, is of opinion that ; “the evidence of O.P.W. No.2 cannot be said to be independent. An accused always tried to prove his innocence by blaming others. In the instant case the evidence of O.P.W. 2 against whom charge-sheet was submitted for commission of offence under Section 279/304A I.P.C for the death of the deceased cannot be accepted at all. In the instant case, the petitioner produced one independent eye-witness wherefrom it appears that the alleged accident occurred due to rash and negligent driving on the part of the driver of the vehicle i.e. O.P.W. no.2. The evidence of P.W. No.2 coupled with ext. Nos. 1,2,3 series and 4 it can be safely held that the accident occurred due to rash and negligent driving on the part of the driver o the offending vehicle bearing Registration No. WB-15/4678.” 11. Let me consider whether the observation of the learned Tribunal is correct or not. It is true that the entire claim case was challenged by the evidence of O.P.W. 2. The police is said to be the independent authority who after the investigation had submitted the charage-sheet against the accused person/O.P.W. 2. The O.P.W. 2 had several opportunity to disclose such facts but has stated first time before the learned Tribunal. Firstly, he can address the same fact to the owner of the offending vehicle, in turn he may file a written objection in this case; it was not done. Suddenly, the O/P/W. 2 being the accused may filed the Narazi petition(objection) against the charage-sheet submitted by the police, that was also not done. Thirdly, O.P.W. 2 during the trial of the criminal case may raise the same point during cross-examination of prosecution witness, there is no such evidence before the learned Tribunal; or finally, he may give the statement before the learned Magistrate during his examination under Section 313 of the Code of Criminal Procedure in the criminal case, but then is no such statement under Section 313 of the Cr. P.C. The O.P.W. 2 i.e. driver of the offending vehicle first time appear before the learned Tribunal on behalf of the Insurance Company to dispute the fact of the petitioner, he has not avail any of such opportunity as stated above. Thus, I find no infirmity with finding of learned Tribunal. 12. P.C. The O.P.W. 2 i.e. driver of the offending vehicle first time appear before the learned Tribunal on behalf of the Insurance Company to dispute the fact of the petitioner, he has not avail any of such opportunity as stated above. Thus, I find no infirmity with finding of learned Tribunal. 12. In considering the argument place by the learned advocate for the claimant that the claimants are entitled to get enhanced compensation by virtue of decision of Hon’ble Supreme Court in Pranay Shetti; I am of the view that the issue has been settled by this Court time and again by virtue of decision of the Division Bench of this Court passed in National Insurance Co. Ltd. Vs. Smt. Sulekha Das & Ors(FMA 2903 of 2015), where in the Hon’ble Division Bench has held that ; “46. We, however, part with the observation that unless the Supreme Court revisits the issue and reverses the ratio of the decisions in R. Swaminathan(supra) and Ranjana Prakash(supra) and lays down the law authoritatively for guidance of the High Courts thereby paving the way for award of enhances compensation in course of appeal proceedings without there being any cross-objection, in exceptional cases warranting such approach, Order XLI Rule 33 cannot come to the rescue of the respondents/claimants for enhanced compensation in an appeal by the owner or the insurer for reducing the compensation awarded.” 13. Considering the matter I am of the view that the claimants are not entitled to get any enhanced compensation in this case towards future prospects and general damages. 14. Accordingly, I find no justification to interfere with the impugned judgment passed by the learned Tribunal. Accordingly, the appeal being FMA 502 of 2014 is dismissed. 15. It appears that the learned Tribunal has awarded the interest 9% per annum upon the awarded sum. This Court is passing the award together with 6% interest per annum in all cases to maintain the uniformity of the decision in the instant case. The award shall have carry 6% interest per annum from the date of filing of the application. 16. The account of Insurance Company must have some residue for such disbursal of the amount in favour of the claimant. The office of the Learned Registrar General, High Court, Calcutta is directed to refund the same along with accrued interest to the Insurance Company on usual terms and conditions. 17. 16. The account of Insurance Company must have some residue for such disbursal of the amount in favour of the claimant. The office of the Learned Registrar General, High Court, Calcutta is directed to refund the same along with accrued interest to the Insurance Company on usual terms and conditions. 17. It appears that the Insurance Company has already deposited the entire awarded sum through the office of the learned Registrar General High Court, Calcutta. The office of the learned Registrar General, High Court, Calcutta is directed to disburse the same amount in the name of the claimants along with accrued interest thereon according to the direction made by the learned Tribunal with four weeks from date. 18. Connected applications, if any, are also disposed of. 19. All parties shall act on the server copy of this order duly downloaded from the official website of this Court.