Calcutta High Court (Appellete Side)C & Cr vs Sahanaz Bibi & Ors on 25 January, 2022Author:Subhasis DasguptaBench:Subhasis Dasgupta25.01.2022\nItem No.\nCt. No.20\nCHC\n(disposed of)\n                                FMA 294 of 2021\n                  IA NO: CAN/1/2019 (Old No: CAN/10299/2019\n                                   (not in file)\n                                  CAN/2/2022\n                             (Via Video Conference)\n\n                     United India Insurance Company Limited\n                                          C & CR\n\n\n\n\n                                        Vs.\n                                Sahanaz Bibi & ors.\n\n                  Mrs. Sucharita Paul\n                        ...for the appellant/Insurance Company\n\n                  Mr. Krishanu Banik\n                                  ...for the respondents/claimantsIn Re: IA NO: CAN/2/2022\n\n                  Emergence of CAN application referred hereinabove\n\n                pertains to a prayer for recording of attainment of\n\n                majority of claimants/respondent nos.2 and 3.\n\n                  Mr. Krishanu Banik, learned advocate appearing\n\n                for the claimants/respondents submits that with the\n\n                passage of time, claimants/respondent nos.2 and 3\n\n                have already attainded their majority and as such,\n\n                the recording of attainment of majority should be\n\n                allowed in the present appeal.Upon producing two (02) separate photocopies of\n\n                Aadhaar Cards of respective claimants/respondents,\n\n                Mr. Banik has attempted to establish the attainment\n\n                of majority of such respondents.2Mrs. Sucharita Paul, learned advocate appearing\n\nfor the appellant/Insurance Company does not raise\n\nany objection against the recording of attainment of\n\nmajority of claimants/respondent nos.2 and 3.\n\n  Upon perusal of the relevant averments contained\n\nin the pleadings, it appears that the claimant nos.2\n\nand 3 have already attainded their majority. That\n\nbeing the position, the prayer is allowed.\n\n  CAN     application    is   disposed       of   directing\n\ndepartment to take steps for recording attainment of\n\nmajority, as regards claimants/respondent nos.2 and\n\n3 in the Memo of Appeal and ensure necessary\n\ncorrections required therefor.The application being IA NO: CAN/2/2022 is thus\n\ndisposed of.In Re: F.M.A.294 of 2021\n\n  Both the learned advocates for the parties to the\n\nappeal conjointly urge for expeditious disposal of this\n\nappeal.Learned advocate for both the parties are as such\n\nad idem on the point that the instant appeal may be\n\ndisposed of, if necessary even giving a go bye to the\n\ntechnicalities involved in the process.\n\n  It is submitted by the learned advocate for the\n\nappellant that the appeal may be disposed of on the3basis of materials furnished by both the parties to\n\nthis     case,    which      is    not     opposed           by   the\n\nrespondents/claimants.When learned advocates for both the parties are\n\nagreeable to the expeditious disposal of the instant\n\nappeal, the Court should not stand in the way.This   is   an   insurance     appeal       impugning        the\n\njudgement and award dated 25 th June, 2019, passed\n\nby     learned    Judge,    M.A.C        Tribunal,     3rd    Court,\n\nBankura, in M.A.C. Case No.53 of 2017/122 of 2016\n\non a claim underSection 166of the Motor Vehicles\n\nAct,    1988,     granting        award     to   the     tune      of\n\nRs.9,69,500/- to the claimants being dependants of\n\nthe deceased for a vehicular accident, occurred on\n\n12th day of August, 2016, by reason of involvement of\n\nvehicle bearing No.WB02-D/1175 in consequence of\n\nrash and negligent driving.Doubting the involvement of offending vehicle in\n\nthe accident now under reference, Mrs. Sucharita\n\nPaul,       learned        advocate        representing           the\n\nappellant/Insurance Company submits that learned\n\nTribunal has erroneously decided the compensation\n\nignoring the fact that there has been a delay of five\n\ndays in lodging the First Information Report, for the\n\naccident having occurred on 12 th August, 2016, and4such delay in lodging F.I.R. shrouded involvement of\n\nthe offending vehicle in the alleged accident.\n\n  Mrs. Paul, further submits that the offending\n\nvehicle neither possessed valid registration certificate,\n\nnor the fitness certificate of the offending vehicle on\n\nthe date of accident.Several documents marked exhibits were brought\n\nto the attention of the Court by Mrs. Paul. Ultimately,\n\nadverting to the exhibited documents, like seizure list,\n\ncharge-sheet,     copy    of   registration       certificate,\n\ncomputer generated       vehicle    particulars    and    the\n\nevidence adduced by O.P.W-1 Mrs. Paul submits that\n\nthe offending vehicle being Mahindfra Jeep had been\n\nused making contraventions/violations of the terms\n\nand conditions of the insurance police issued by the\n\nappellant/Insurance      Company      in   the    name     of\n\ninsured. The quantification of the award is thus\n\nabsolutely illegal requiring a revisit for granting just\n\ncompensation, if there be at all.Emphasis has been supplied by Mrs. Paul that the\n\naccident was held on 12th August, 2016, while the\n\nregistration certificate and the fitness certificate of the\n\nvehicle were found to be valid till 7 th February, 2015.\n\nTherefore, the validity period of the registration and\n\nfitness of the vehicle having expired much before the\n\ndate of accident, obviously there had been gross5violation of the terms and conditions of policy, for\n\nwhich the appellant/Insurance Company should not\n\nhave been made alone liable to pay any compensation\n\nresponding to the claim application. Referring the\n\nterms    and   conditions   of   the   policy   and   the\n\ninadequacies/wanting of valid registration and fitness\n\ncertificate of the offending vehicle, Mrs. Paul strongly\n\ncontends that compensation, if any, should have been\n\npaid by the owner himself of the offending vehicle, but\n\nnot by the Insurance Company, for the apparent\n\nviolation of the terms and conditions of the policy\n\nbeing ex facie shown in the instant claim case.\n\n  Per contra, Mr. Krishanu Banik, learned advocate\n\nappearing on behalf of the respondents/claimants\n\nsubmits that learned Tribunal has rightly decided the\n\ncompensation, though at lower rate, but there had\n\nbeen no gross violations in making application of the\n\nsettled propositions of law for determination of the\n\naward.Mr. Banik thus supports the order of the Tribunal.\n\n  Mr. Krishanu Banik, however, being dissatisfied\n\nwith the quantum of compensation awarded by the\n\nTribunal has filed a cross objection being COT 1 of\n\n2022.The relevant COT application, the reference of\n\nwhich is furnished hereinabove, is found not listed6today. Filing of COT application is not at all disputed\n\nby Mrs. Paul, learned advocate appearing for the\n\nappellant/Insurance Company. As such, the COT\n\napplication being COT 1 of 2022 is taken as on day's\n\nlist.Department to forthwith tag the relevant COT\n\napplication with the instant case record.\n\n   Mr. Banik, however, does not press the cross\n\nobjection    for   the       reasons     best   known   to   the\n\nclaimants.As regards, the delay contended to have caused in\n\nlodging the F.I.R., Mr. Banik submits that the F.I.R.\n\nwas lodged only five days after the accident, and such\n\ndelay has been sufficiently explained in the written\n\ncomplaint submitted by the claimants, and therefore,\n\nbelated F.I.R. cannot be a good ground to disbelieve\n\nthe version of the claimants.Reference is drawn to a decision of this Court\n\nrendered     in    the       case   ofNational   Insurance\n\nCompany Limited vs. Smt Sushama Roy and\n\nothersand a further decision of Hon'ble Apex Court\n\nrendered in the case ofRavi vs. Badrinarayanand\n\nors. reported in (2011) 4 SCC 693 to establish that\n\ndelay in lodging the F.I.R. cannot be treated to be a\n\nfatal in refusing just compensation on a claim case\n\nunder the provisions of theMotor Vehicles Act.7It is well settled that the delay in lodging F.I.R.\n\ncannot be a good ground to doubt the claimants'\n\ncase. It is neither desirable, nor expected that a\n\ncommon man will move from pillar to post in lodging\n\nF.I.R. immediately after receiving an information of\n\naccident resulting in serious casualty to injured. Kith\n\nand keen of an accident victim is bound to give more\n\nimportance for the urgent and immediate treatment of\n\nthe victim, rather than lodging First Information\n\nReport.On such score, delay of five days of lodging the\n\nF.I.R. cannot be a sufficient ground to deny justice to\n\nthe claimants. Charge-sheet having confirmed the\n\ninvolvement of the offending vehicle in the above\n\naccident, being the product of investigation, the\n\ninvolvement of the offending vehicle cannot be\n\ndoubted, as contended by Mrs. Paul.For the violations/contraventions of the terms and\n\nconditions of the insurance policy, due to inadequacy\n\nof the fitness certificate and the deficiency in the\n\ncertificate of registration, the dependants of the\n\ndeceased should not be subjected to starvation for\n\ntheir financial distress in a claim case underSection\n\n166of the M.V. Act.The points so raised, in the appeal by the\n\nappellant/Insurance Company may be a subject of8consideration        before   the     appropriate        forum     in\n\nconnection      with       appropriate     litigation,     if    any\n\nundertaken by the Insurance Company intending to\n\nrecover         the           amount            payable            to\n\nclaimants/respondents.             Therefore,   in   the        given\n\ncontext of this case, there cannot be any reverse\n\ndecision of law against the settled propositions of law\n\nalready     decided     by the       Apex Court      "Pay        and\n\nRecovery".The claimants are, therefore, found entitled to the\n\nawarded amount of Rs.9,69,500/- together with\n\ninterest assessed at the rate of 6% per annum on and\n\nfrom date of filing of the claim petition within a period\n\nof 45 days from the date of receipt of bank account\n\nparticulars of the claimants. Learned advocate for the\n\nclaimants will forward the bank accounts details of\n\nthe said claimants within a fortnight from the date to\n\nthe learned advocate for the appellant/Insurance\n\nCompany. The payment shall be made in the\n\nproportion as already decided by the court below.\n\n  It   is    submitted        by    the   appellant/Insurance\n\nCompany       that    they    have     deposited     a    sum      of\n\nRs.25,000/- (Rupees Twenty Five Thousand) being\n\nstatutory deposit to prefer the instant appeal, with\n\nthe learned Registrar General of this Court in aid of\n\nthis appeal by necessary challan.9Upon payment of the sum indicated hereinabove,\n\nbeing        made          into      the        accounts       of\n\nclaimants/respondents, the Insurance Company shall\n\nbe entitled to claim refund of the aforesaid sum of\n\nRs.25,000/- (Rupees Twenty Five Thousand) together\n\nwith any accrued interest, if any from the learned\n\nRegistrar General of this Court. Insurance Company\n\nis at its liberty to take steps in accordance with the\n\nlaw     to   recover       the    amount       payable   to   the\n\nrespondents/claimants             from   the    owner    of   the\n\noffending vehicle after adhering to the provisions of\n\nthe law.In view of the disposal of this appeal, connected\n\napplication, if any are also disposed of.\n\n   The cross-objection is also disposed of as not\n\npressed.There shall be no order as to costs.L.C.R. if any, may be returned back to the learned\n\ncourt below.Urgent photostat certified copy of this order, if\n\napplied for, be given to the parties, upon compliance\n\nof all formalities, on priority basis.(Subhasis Dasgupta, J.)