IN THE HIGH COURT AT CALCUTTA CIVIL APPELLATE JURISDICTION APPELLATE SIDE Present: The Hon’ble Justice Biswaroop Chowdhury FMA 1110 of 2025 With IA NO: CAN 2 of 2025 National Insurance Company Limited Vs Johara Bibi Mallick & Ors. For the Appellant/Insurance Co: Ms. Gopa Das Mukherjee For the Claimants/Respondents: Mr. Amit Ranjan Roy. For the Respondent No.10 Mr. Rajesh Singh. Heard on: July, 30, 2026 Judgment on : July, 30, 2026 Biswaroop Chowdhury, J. Learned advocates for the parties are present. Heard learned advocates. The appellant before this Court was opposite part in a claim case under Section 166 of the Motor Vehicle Act, 1988 is aggrieved by the judgment and award dated 24th February, 2025 passed by the Learned Additional District Judge, 16th Court, Alipore, South 24-Parganas in M.A.C. Case No. 117 of 2017. The case of the claimants before the Learned Trial Court may be summed up thus: On 19.09.2017 at about 8.40 hours the drivers of the offending vehicle bearing Regd.no.WB-19E-9347 and WB-25F-3048 drove the same along Kolkata Basanti Road in a rash and negligent manner endangering the human life and safety to others and when it reached at the Bustop of 1/2 K.M. east from K.L.C.P.S. the victim got down from Bus no. WB-25F-3048 and all on a sudden the vehicle no. WB-19E-9347 came abruptly and dashed the victim in a dangerous manner. The said bus tried to over take the stationary bus in a dangerous manner. Due to this accident the victim received severe injuries on his persons and immediately removed to C.N.M. College and Hospital where he was declared dead. The accident was caused due to rash and negligent driving of the driver of both the vehicles. Due to premature death of the victim the applicants faced very much difficulties on financial side as the victim was the only earning member of the family. Pursuant to the institution of this case, notice was issued upon the opposite parties. The opposite party/vehicle owners did not appear and contest the case. However, the opposite party National Insurance 2 Company Limited being the insurer of vehicle no. WB-19E-9347 and WB-25F-3048 appeared and contested the case by filing written statement. Issues were framed and evidence was adduced. Learned Trial Judge upon considering the evidence and upon hearing the learned advocates for the parties, was pleased to allow the claim case by observing and directing as follows: “Hence, its is ORDERED that the instant claim petition u/s. 166 of the M.V. Act, 1988 is allowed on contest as against the O.P. No.2A/National Insurance Company Ltd. and exparte against the O.P. No.IA to IC/owners with an award for compensation to the tune of Rs. 33,02,600 along with interest @6% per annum from the date of filing the application i.e 03- 11-2017 till payment. The claimant /petitioners is hereby directed to deposit the deficit Court Fee according to the prescribed rate, within 20 days from the date of this order as per the amount of compensation prayed for. The payees are also granted the liberty to produce their PAN cards before the Insurance Company for TDS, if any, as per law. The O.P no.2A/ Insurance Company is directed to divide the aforesaid aggregate compensation amount equally among all the five legal representatives/claimants, being the parents, widow and children, and pay the same within two months from the date of this 3 award, along with proportional amount of interest computed at the aforementioned rate on each individual compensation amount. The claimant / petitioner no. 1, as the mother of the two minor Children namely, Amina Khatun and Aspara Khatun, would receive the compensation payable to the said two children and keep the amounts deposited in Fixed Deposit accounts opened in their individual names in a Nationalised bank till their attaining majority. Let a copy each of this award be supplied to the parties forthwith in terms of Sect. 168(2) of the M. V.Act. The claim petition is thus, disposed off accordingly.” The appellant/National Insurance Co. Ltd. being aggrieved by the judgment and award dated 24.02.2025 passed by the Learned Trial Judge has come up with the instant appeal. The ground of challenge in the instant appeal is that the Learned Trial Court considered the personal deduction as 1/5 which ought to have been ¼ considering the number of dependants. Another ground of challenge is that the Learned Trial Judge although came to a finding that the driver of the vehicle being no. WB-19E-9347 was driven by Sk. Nabinur but he was not holding driving licence but in the ordering portion Learned Trial Judge did not grant any liberty to recover the compensation from the vehicle owner of WB-19E-9347 upon payment. 4 Learned advocate for the respondents/claimants does not dispute the submission of learned advocate for the appellant. With regard to the personal deduction as submitted by the learned advocate for the appellant, this Court is of the view that such submission has some substance thus, considering the number of applicants although they have a right to claim compensation but all cannot be treated to be the dependants of the victim. Thus ¼ on account of personal deduction should have been considered by the Learned Trial Judge. In the event, ¼ deduction is considered, the monthly income taken as Rs.16,000/- per month, 40% future prospect being added the net monthly income comes to Rs.22,400/- per month. Personal expenses of ¼ being deducted, the monthly income comes to Rs. 16,800/- per month. The annual dependency loss comes to Rs. 2, 01,600/-. The multiplier of 15 being applied total dependancy loss is Rs. 30,24,000/-. Further the claimants are entitled to Rs.77,000/- as general damages. Thus, Rs.31,01,000/- is the compensation which the claimants are entitled to from the Insurance Company. However, as quantum of compensation is also under challenge, this Court is of the view that compensation of Rs.31,00,000/- is just and reasonable. Now, with regard to the right of recovery it is necessary to consider certain judicial pronouncements in this regard. In the case 5 of National Insurance Company Ltd. Vs. Lirasa Bibi in FMA 1003 of 2025, it was observed as follows: ‘Now with regard to the submission of pay and recovery it is well settled that in case of violation of Insurance Policy Condition, the Insurance Company is entitled to recover from the insured the compensation amount awarded after making payment to the claimant/victim. However before proceeding to recover from the insured, the compensation amount the insurer upon making necessary enquiry and upon giving the vehicle owner an opportunity of being heard shall ascertain as to whether the violation of policy condition was bona fide unintentional or deliberate. Thereafter the Insurance Company may decide whether to proceed against the insured or to condone such breach. In the case of Reliance General Insurance Company Ltd. VS Niyati Kumar and ors FMA-1326 of 2025 reported in 2025 SCC Online Cal 8886 it was observed as follows: ‘Thus it is well settled that in order to absolve from liability of paying compensation and to obtain an order of pay and recovery it is mandatory for the Insurer to prove breach of the condition of Insurance Policy. Although all Insurance Companies are not 'State' within the meaning of Article 12 of the Constitution of India but the fact that third party Motor Insurance Law is a beneficial Legislation and it has a 6 public aspect and its object is to protect the public (third parties) from financial losses due to accidents caused by a motorist by ensuring that victims are compensated. On one hand, and also to protect the vehicle owners from bearing huge burden of compensation in case of accidents where the insurance policy condition is complied with on the other hand. Thus considering the public aspect of Motor Insurance Claims Insurance Companies have responsibilities to ensure that genuine accident claims are settled without delay and the vehicle owner who has not violated the terms of policy is not unnecessarily harassed. In the event the Insurance Company has reasons to believe that policy conditions were violated it should conduct an enquiry issue notice upon the vehicle owner and give him an opportunity of being heard. Where the Insurance Company is satisfied after enquiry that conditions of policy were not violated the allegations of violation of policy, namely the vehicle was driven without permit or without valid driving license should not be raised in Court. However upon Enquiry if the Insurance Company finds that there was violation of terms of policy such findings should be recorded by Insurance Company and necessary evidence should be adduced in Court. In such a case the Enquiry Report should also be filed in Court, apart from adducing evidence. A vehicle owner after getting his vehicle insured proceeds with the assumption that Insurance Company will settle the compensation claim 7 in case of accidents thus the vehicle owners ordinarily do not appear in Court to contest claim cases. Thus in the event there is allegation of violation of condition of Policy the vehicle owners should be given an opportunity of being heard before such allegation being made in Court and before being examined in Court as witness. Upon such enquiry being made the Insurance Company can decide as to whether policy violation was minor or major and whether to condone such violation or recover the amount of compensation paid. In the instant case the Appellant Insurance Company has merely alleged that the vehicle was driven without permit on the ground permit was not seized by Police Authority but no steps were taken to conduct an enquiry and to examine officers of Regional Transport Authority as witness with regard to permit of the vehicle.' In the event the violation of policy condition appears at the time of argument when the case is at the verge of disposal and there was no scope for the Insurance Company to make preliminary enquiry and give the vehicle owner an opportunity of being heard the Learned Tribunal after it arrives at a finding that there was breach of policy condition shall after directing payment by the Insurance Company to the claimant issue show cause upon the Insured/vehicle owner as to 'why the compensation amount directed to be paid shall not be recovered. Copy of the Award shall also be enclosed with the notice. 8 Upon hearing the vehicle owner/insured with regard to violation of policy condition if the tribunal/Court comes to the conclusion that there was violation of policy condition which was not bona fide and without sufficient explanation, the Court/Tribunal will order recovery of amount directed to be Paid by Insurance Company. In the normal course where vehicle owners receives notice of claim case they ordinarily do not appear in Court on the ground that Insurance Company will settle the claim. However if subsequent allegation is made in the written statement about violation of policy condition and additional issue in this regard is framed, and evidence adduced by the Insurance Company further notice in this regard should be issued upon vehicle owner to meet the allegation. In the event the Court/Tribunal is of the view that notice to be issued after considering the evidence adduced in this regard Learned Tribunal may issue notice after evidence. In any event prior to directing recovery after payment notice in this regard must be issued specifically and the vehicle owner should be given an opportunity of being heard.” Thus, upon considering the judicial decision it will be clear that the appellant/insurance company has the right to recover upon compliance of necessary formalities by conducting necessary enquiry and giving the vehicle owners an opportune of being heard. Hence, this appeal being FMA 1110 of 2025 Stands disposed of. 9 The judgment and award dated 24.02.2025 passed by the Additional District Judge, 16th Court, Alipore, South 24-Parganas in M.A.C. Case No. 117 of 2017 stands modified to the extent that the claimants/respondents are entitled to Rs, 31,00,000/- along with interest @ 6% from the date of filing of the claim case till today from the National Insurance Company Limited. The appellant/National Insurance Company Limited shall deposit Rs.31,00,000/- along with interest @ 6% before the Registrar General, High Court, Calcutta within eight weeks from the date of communication of this order. In the event, compensation awarded by the Learned Trial Judge is already deposited, no further deposit is required to be made. The claimants/respondents will be entitled to withdraw the compensation in equal shares upon compliance of necessary formalities. The balance amount, if any, with accrued interest shall be returned to the appellant/National Insurance company Limited. The National Insurance Company Limited will be entitled to recover the compensation amount in accordance with law by causing necessary enquiry and giving the vehicle owners an opportunity of being heard and following the procedure as laid down in the case of National Insurance Company Limited vs. Lirasa Bibi in FMA 1003 of 2025 (High Court Calcutta). All points will be kept open before Court to be agitated by the parties. 10 The Trial Court Records be send back at the Special Messenger Cost of the respondents/claimants within two weeks. Urgent photostat certified copy of the order, if applied for, be given to the parties on usual undertakings. (Biswaroop Chowdhury, J.) 11