1 IN THE HIGH COURT AT CALCUTTA Civil Appellate Jurisdiction Appellate Side Present: The Hon’ble Justice Biswaroop Chowdhury F.M.A. 629 of 2011 With IA NO: CAN 2 of 2026 Azuddin SK. @ Aijoddi SK. VERSUS The New India Assurance Co. Ltd. & Anr. For the appellant: For the respondent/insurance company: Mr. Niranjan Maity, Adv. Mrs. Indrani Ghosh, Adv. Mr. Rajesh Singh, Adv. Last Heard on: July 13, 2026 Judgment on: July 24, 2026 Biswaroop Chowdhury, J: The appellant before this Court was a claimant in a case under Section 166 of the Motor Vehicles Act 1988 and is aggrieved by the Judgment and Award dated 21-05-2010 passed by Learned Additional District Judge 9th Fast Track Court Alipore in MAC-No-26/09. 2 The case of the claimant/appellant before the Learned Trial Judge may be summed up thus; On 8-12-2004 while the victim Aziuddin Sk. @ Aiyaddi Sk. was going towards Budge-Budge Charial side from Nodakhali side travelling by a vehicle No. WB5-3451 of Route No. 76a (Bus) as one of the passengers, near Karatkal the driver of offending vehicle No. WB5-3451 was proceeding with his vehicle rashly and negligently and as a result the said bus turned turtle by the road side ditch and in consequence whereof the said Aizuddin Sk. Sustained severe injuries on his person causing permanent disablement. Pursuant to filing of this case notice was issued upon the opposite parties. Opposite party vehicle owner did not contest the case. However opposite party Insurance Company contested the case by filing written statement. ISSUES were framed and evidence was adduced. Learned Trial Judge upon considering the evidence adduced and upon hearing the Learned Advocates was pleased to dismiss the claim case by observing as follows:- ‘To get the desired relief petitioner has to prove that he sustained injuries in the road traffic accident which took place on 08-12-04 at about 4.15 p.m. From the Ext. 2(Charge Sheet of Budge-Budge P.S. Case No. 181 dated 08.12.2004. I find that one road traffic accident took place on 08-12-04 at about 4.15 p.m. and 11 persons namely Sanat Chandra, Gobinda Bhuniya, Sk. Azirul, Almara Bibi, SK. Jaidul, Sofikul Islam, Echinur Bibi, Smt. Arpita Das, Smt. Gita Batabyal Surajit Gayen and Prafulla Pal were injured and one person 3 namely SK. Arshad Ali was died. In the Ext-1 it has been mentioned that 10/12 persons were injured. On careful perusal of those two documents. I find that name of petitioner is not mentioned as injured person. Those two documents do not corroborate the case of the petitioner. In view of the aforesaid discussion I have no hesitation to say that petitioner failed to prove that he got injured in the Road Traffic Accident which took place on 8.12.04 at about 4.15 p.m. by offending vehicle.’ The appellant/claimant being aggrieved by the Judgment and Award passed by the Learned Trial Judge has come up with the instant appeal. Heard Learned Advocate for the appellant/claimant and Learned Advocate for the respondent/Insurance Company. Perused the evidence adduced and materials on record. Learned Advocate for the appellant submits that in written statement there is no denial of rash and negligent driving thus the Learned Trial Judge erred in rejecting the claim case of the appellant. Learned Advocate further submits that one of the passenger of vehicle lodged FIR and the claimants name appear in the charge sheet as witness which ought to have been considered by Learned Trial Judge. Learned Advocate also submits that no question was put to eye witness with regard to occurrence which is also a ground to allow the claim case. 4 Learned Advocate for the respondent/Insurance Company submits that the claim case is not maintainable and the remedy of the claimant is before the Tribunal under Employees State Insurance Law as the claimant is registered under ESI Act. Learned Advocate further submits that the Doctor who issued the certificate did not treat the patient but issued the certificate after 5 years without any fresh test. Learned Advocate also submits that in the injury report collected by Police Authority appellant’s name does not appear, thus the Learned Trial Judge rightly rejected the claim case. Learned Advocate for the Insurance Company relies upon the following Judicial decisions:- National Insurance Co. Ltd. VS Hamida Khatoon and ors. Reported in MANU/SC/0762/2009. Bharagath Engineering VS R. Ranganayaki. Reported in MANU/SC/1217/2002. Dhrapadabai and ors. VS Technocraft Taolings. Reported in MANU/SC/0351/2015 With regard to the submission of Learned Advocate for the Insurance Company that the claim case is not maintainable at the outset it has to be noted that the decision relied upon by Learned Advocate for the Insurance 5 Company relates to Employment Injury but the instant case does not deal with employment injury thus the claim case is maintainable. In the instant case the prayer of the claimant was dismissed not on the ground that the claimant failed to prove involvement of vehicle no. WB5 3451 in accident but the claimant failed to prove that he suffered injury and disablement due to the accident. Now the point for consideration is whether the claimant was able to prove that he suffered injury due to accident. Before proceeding to decide on the issue it is to be remembered that in Motor accident claim case claimant is not required to prove the case beyond reasonable doubt but the said case has to be decided on the touch stone of preponderance of probability. In the instant case the claimant has examined himself as witness P.W. 1 and have specifically stated how the accident took place. In cross-examination he stated that he was going to his elder sister’s house in the offending vehicle. Thus in the cross-examination nothing has come which will go to show that he was not travelling in the bus. The evidence of P.W. 1 is corroborated by P.W. 2 who stated that the claimant was in the bus and had suffered injury. In cross-examination also he stated that the offending bus was going ahead of him at a distance of about 20/25 cubits away from him. He also stated that he was interrogated by Police at the place of occurrence on the 6 same day. Thus upon reading evidence of P.W. 1 and P.W. 2 it is clear that accident took place and the claimant was inside the offending bus. Now the question comes as to whether the claimant suffered injury due to the accident. Upon perusal of the materials on record it appears that there is an OPD ticket which mentions the name of the claimant, date of admission being 08/12/2004 which tallies with the date of accident. The admission was also at Budge-Budge hospital and the accident took place at Budge-Budge. The certificate dated 24/01/2005 issued by Manicktala E.S.I. hospital will go to show that the claimant was admitted to Maniktalla E.S.I. hospital from 10/12/2004 till 24/01/2005 and in the certificate, issued by ESI hospital Maniktalla issued on 07/1/2010 it states that claimant met with a road traffic accident and was referred by Budge-Budge-ESI hospital on 10/12/2004. Thus this certificate further strengthens the case of the claimant. Upon perusing the evidence of both P.W. 1 and P.W. 2 and upon considering the medical certificates and the name of the claimant as witness in the charge-sheet if taken as a whole will give the idea that the claimant/appellant suffered injury due to road traffic accident, which is a sufficient proof required in Motor Vehicle claim case. Thus the Learned Trial Judge erred is dismissing the case of appellant/claimant. 7 However with regard to compensation this Court is of the view that as the medical officer who issued disability certificate to claimant did not treat him it would not be safe to rely on the said certificate. Hence compensation should be granted on account of pain and sufferings caused due to injury and stay in hospital and loss of job. Thus in the view of this court compensation of Rs. 3 lakh is just and reasonable. Hence this Appeal FMA-629 of 2011 stands allowed. Judgment and Award dated 21-05-2010 passed by Learned Additional District Judge 9th Fast Track Court Alipore in MAC Case No-26/09 is set aside. Appellant claimant is entitled to compensation of Rs. 3 lakh from respondent no-1/Insurance Company. Respondent no-1 New India Assurance Company Limited shall deposit before Registrar General High Court Calcutta Rs. 3 lakh along with interest @6% p.a. from date of filing claim case till today. Such deposit shall be made within 8 weeks from the date of communication of this Order. The appellant/claimant will be entitled to withdraw the compensation upon compliance of necessary formalities. Deficit court fees if any be paid within 2 weeks. Urgent photostat certified copy of this order, if applied for, should be made available to the parties upon compliance with the requisite formalities. (Biswaroop Chowdhury, J.)