Form No. J(2) IN THE HIGH COURT AT CALCUTTA CIVIL APPELLATE JURISDICTION APPELLATE SIDE Present: The Hon’ble Justice Ananya Bandyopadhyay FMA 1397 of 2022 Cholamandalam MS General Insurance Company Limited Versus Aratun Bibi & Ors. And FMA 105 of 2023 Cholamandalam MS General Insurance Company Limited Vs. Santoshi Baichar & Ors. COT 79 of 2023 Santoshi Baichar & Ors. Vs. Cholamandalam MS General Insurance Company Limited & Anr. For the Appellant : Mr. Rajesh Singh For the Respondent/claimants : Mr. Ashique Mondal Heard & Judgment on : 7th April, 2025. Ananya Bandyopadhyay, J: In Re: FMA 1397 of 2022 1. The instant appeal was heard earlier and judgment was reserved. However, the matter was listed under the heading “For Hearing” for further clarification. 2 2. Both the Learned Advocates representing the appellant/Insurance Company and the respondent Nos. 1 to 6/claimants are present. 3. Five claimants in respect of the deceased of the accident filed an application under Section 166 of the M.V. Act in the Court of Motor Accident Claims Tribunal, Additional District Judge, Fast Track, 1st Court, Tamluk, Purba Medinipur MAC Case No. 69 of 2018 claiming an award of Rs. 7,00,000/- with interest from the date of filing the claim application along with litigation cost due to a road traffic accident on 14.09.2017 around 6.15 p.m. 4. The victim was travelling in the offending vehicle, bearing Registration No. WB-29A/9322 when due to the rash and negligent driving of the driver, the car crashed and overturned on the road. 5. Consequently, the victim received grievous injuries and expired on the spot. 6. Subsequently, based on the complaint, Uluberia P.S. Case No. 747/17 dated 15.09.2017 under Section 279/304-A/338/337/427 of the Indian Penal Code was instituted against the driver of the offending vehicle as aforesaid. 7. The owner of the vehicle did not appear and the MAC case was allowed ex-parte against the owner of the vehicle. 8. The respondent, Cholamandalam MS General Insurance Co. Ltd. contested the aforesaid MAC case. 3 9. The Learned Tribunal as aforesaid disposed of the issues framed considering the oral as well as documentary evidences and awarded claimant No.2 an amount of Rs. 11,45,200/- along with an interest payable at 6% from the date of institution of the case till realization. 10. The Learned Advocate representing the appellant/Insurance Company submitted that the victim was gratuitous passenger in the Bolero Pick up van and according to the settled principles of law the appellant/insurance company was entitled to pay the compensation awarded and thereafter recover the same from the concerned owner of the offending vehicle in the instant case. The learned Tribunal had erroneously deducted 1/5th towards personal expenditure which should otherwise be 1/4th. 11. The learned Advocate representing the respondent Nos. 1 to 6/claimants submitted that the learned tribunal had erroneously computed the monthly income of the victim to be Rs. 5000/- contrary to the claimant’s statement of Rs. 7500/- per month to have been earned by the victim. 12. Considered the submissions of the learned Advocates representing both the parties. 13. Since, the occurrence of the accident, involvement of the offending vehicle, the driving license etc. are not disputed by the learned advocate representing the appellant/insurance company, 4 this Court restricts itself only to the extent agitated by the learned Advocates representing the respective parties as aforesaid. 14. In the impugned judgment and order the learned tribunal had inter alia observed as follows: “Finally, let us adjudicate the specific defence case that the victim was gratuitous passenger in a goods vehicle and as such the insurer is not liable to indemnify the owner, even in a “pay and recover” mode. True that there nothing on record to show that the goods vehicle was carrying some “dhlai” (concrete construction) articles or equipments or that the victim was travelling as owner thereof. As correctly accentuated by Ld. Advocate for the O.P./Insurance Company, no seizure list or any other document had been furnished before this Court to establish the contention of the claimant/petitioners. As Such, I am in no hesitation to hold that the deceased victim was gratuitous passenger in a vehicle duly established to be registered for the purpose of carrying goods. In light of the aforesaid discussion, I am of the considered opinion that as per the judicial precedents discussed bereinabove, in the present case involving the death of a gratuitous passenger in a goods carriage, the Insurer shall be liable to pay the compensation, subject to its liability to recover the same from the insured. The judgment of the Hon’ble Gauhati High Court, inspite of being an extremely enlightening and enriching read, cannot be made applicable in the attending circumstances. Liberty is also hereby granted to the said Insurer to agitate before the appropriate forum regarding the scope of recovery of the amount of compensation, so paid by it, from the insured/owner”. Since the learned Tribunal had already granted liberty to the appellant/insurance company to agitate before the appropriate forum to recover the amount of compensation to be paid to the 5 claimants. The impugned judgment and order is not interfered to that extent. However, since the number of claimants had been six the deduction towards personal income should be 1/4th instead of 1/5. 15. Considering the observations of the Hon’ble Apex Court Pranay in National insurance company Ltd. Vs. Pranay Shetty & Anr1 and Sarala Verma & Ors. Vs. Delhi Transport Corporation & Anr.2 The impugned award of Rs. 11,45,200/- is modified as follows: Annual Income Personal Expenses 1/4th Future prospect (40%) Personal Expenses(40%) Multiplier to be “16” Loss of future earning (Rs. 84,000 x 12) General damages Rs. 5000/- Rs. 1,250/- ______________ Rs. 3,750/- Rs. 1,500/- ------------------ Rs. 5,250/- X 16 Rs. 84,000/- Rs. 10,08,000/- Rs. 84,000/- Rs. 10,92,000/- 16. The learned Advocate representing the appellant/Insurance Company submits to have deposited a sum of Rs. 10,82,517/=(Rs. 25,000 + 10,57,517) through two separate cheques as per challan filed by the learned advocate representing the appellant/insurance company. The learned advocate 1 2017(4)TAC 673(S.C) 6 representing the appellant/insurance company will further deposit remaining balance along with 6% interest before the office of the learned Registrar General, High Court at Calcutta within ten weeks from the date of passing of this order. 17. The Respondent Nos. 1 to 6/claimants are entitled to receive the amount of Rs. 10,92,000/- at the rate of 6% per cent per annum from the date of filing of the claim application till the date of actual realization. 18. The office of the learned Registrar General High Court at Calcutta, shall encash the cheques and thereafter disburse the entire awarded amount so deposited along with accrued interest to the present respondent Nos. 1 to 6/claimants in equal proportion in MAC Case No. 69 of 2018 on proof of proper identification of the respondent No.1 to 6/claimants subject to payment of ad valorem Court fees within ten weeks. 19. The instant appeal and cross objection are disposed of accordingly. 20. The pending applications, if any, stands disposed of. 21. Copy of the order be sent to the Department as well as the concerned tribunal as expeditiously as possible. 2 (2009) 6 SC 121 7 In Re: FMA 105 of 2023 22. The instant appeal was heard earlier and judgment was reserved. However, the matter was listed under the heading “For Hearing” for further clarification. 23. Both the Learned Advocates representing the appellant/Insurance Company and the respondent Nos. 1 to 5/claimants are present. 24. Five claimants in respect of the deceased of the accident filed an application under Section 166 of the M.V. Act in the Court of Motor Accident Claims Tribunal, Additional District Judge, Fast Track Court-II,, Tamluk, Purba Medinipur MAC Case No. 30 of 2018 claiming an award of Rs. 8,32,600/- along with interest at the rate of 6% per annum from the date of passing of this judgment. 25. The victim was travelling in the offending vehicle, bearing Registration No. WB-29A/9322 when due to the rash and negligent driving of the driver, the car crashed and overturned on the road. 26. Consequently, the victim received grievous injuries and expired on the spot. 27. Subsequently, based on the complaint, Uluberia P.S. Case No. 747/17 dated 15.09.2017 under Section 279/304-A/338/337/427 8 of the Indian Penal Code was instituted against the driver of the offending vehicle as aforesaid. 28. The owner of the vehicle did not appear and the MAC case was allowed ex-parte against the owner of the vehicle. 29. The respondent, Cholamandalam MS General Insurance Co. Ltd. contested the aforesaid MAC case. 30. The Learned Tribunal as aforesaid disposed of the issues framed considering the oral as well as documentary evidences and awarded claimant No.2 an amount of Rs. 11,45,200/- along with an interest payable at 6% from the date of institution of the case till realization. 31. The Learned Advocate representing the appellant/Insurance Company submitted that the victim was gratuitous passenger in the Bolero Pick up van and according to the settled principles of law the appellant/insurance company was entitled to pay the compensation awarded and thereafter recover the same from the concerned owner of the offending vehicle in the instant case. The learned Tribunal had erroneously deducted 1/5th towards personal expenditure which should otherwise be 1/4th. 32. The learned Advocate representing the respondent Nos. 1 to 6/claimants submitted that the learned tribunal had erroneously computed the monthly income of the victim to be Rs. 5000/- 9 contrary to the claimant’s statement of Rs. 7500/- per month to have been earned by the victim. 33. Considered the submissions of the learned Advocates representing both the parties. 34. Since, the occurrence of the accident, involvement of the offending vehicle, the driving license etc. are not disputed by the learned advocate representing the appellant/insurance company, this Court restricts itself only to the extent agitated by the learned Advocates representing the respective parties as aforesaid. 35. In the impugned judgment and order the learned tribunal had inter alia observed as follows: “Finally, let us adjudicate the specific defence case that the victim was gratuitous passenger in a goods vehicle and as such the insurer is not liable to indemnify the owner, even in a “pay and recover” mode. True that there nothing on record to show that the goods vehicle was carrying some “dhlai” (concrete construction) articles or equipments or that the victim was travelling as owner thereof. As correctly accentuated by Ld. Advocate for the O.P./Insurance Company, no seizure list or any other document had been furnished before this Court to establish the contention of the claimant/petitioners. As Such, I am in no hesitation to hold that the deceased victim was gratuitous passenger in a vehicle duly established to be registered for the purpose of carrying goods. In light of the aforesaid discussion, I am of the considered opinion that as per the judicial precedents discussed bereinabove, in the present case involving the death of a gratuitous passenger in a goods carriage, the Insurer shall be liable to pay the compensation, subject to its liability to recover the same from the insured. The judgment of the 10 Hon’ble Gauhati High Court, inspite of being an extremely enlightening and enriching read, cannot be made applicable in the attending circumstances. Liberty is also hereby granted to the said Insurer to agitate before the appropriate forum regarding the scope of recovery of the amount of compensation, so paid by it, from the insured/owner”. Since the learned Tribunal had already granted liberty to the appellant/insurance company to agitate before the appropriate forum to recover the amount of compensation to be paid to the claimants. The impugned judgment and order is not interfered to that extent. However, since the number of claimants had been six the deduction towards personal income should be 1/4th instead of 1/5. 36. Considering the observations of the Hon’ble Apex Court Pranay in National insurance company Ltd. Vs. Pranay Shetty & Anr3 and Sarala Verma & Ors. Vs. Delhi Transport Corporation & Anr.4 The impugned award of Rs. 11,45,200/- is modified as follows: Monthly Income Annual Income Personal Expenses 1/4th Future prospect (40%) Personal Expenses(40%) Multiplier to be “17” General damages Rs. 5000/- Rs. 60,000/- Rs. 15,000/- ______________ Rs. 45,000/- Rs. 18,000/- ------------------ Rs. 63,000/- X 17 Rs. 10,71,000/- Rs. 84,000/- Rs. 11,55,000/- 1 2017(4)TAC 673(S.C) 4 (2009) 6 SC 121 11 37. The learned Advocate representing the appellant/Insurance Company submits to have deposited a sum of Rs. 14,75,959/=(Rs. 25,000 + 14,50,959) through two separate cheques as per challan filed by the learned advocate representing the appellant/insurance company. 38. The Respondent Nos. 1 to 5/claimants are entitled to receive the amount of Rs. 11,55,000/- at the rate of 6% per cent per annum from the date of filing of the claim application i.e. 05.02.2018 till the date of actual realization. 39. The office of the learned Registrar General High Court at Calcutta, shall encash the cheques and thereafter disburse the entire awarded amount so deposited along with accrued interest to the present respondent Nos. 1 to 5/claimants in equal proportion in MAC Case No. 105 of 2023 on proof of proper identification of the respondent No.1 to 5/claimants subject to payment of ad valorem Court fees within ten weeks and refund the differential amount, if any, through a cheque to the learned advocate for the insurance company for the accounts of the insurance company. 40. The interest generated on the sum of money deposited by the appellant/insurance company at the office of the learned Registrar General, High Court at Calcutta which has been further 12 deposited in the nationalized bank by the office of the learned Registrar General, High Court at Calcutta is to be apportioned and the sum of interest accrued on the aforesaid amount is to be disbursed in favour of the appellant/insurance company through a cheque to be deposited at the office of the appellant/insurance company. 41. The instant appeal and connected cross objection are disposed of accordingly. 42. The interim order if any stand vacated. 43. The pending applications if any stands disposed of. 44. The TCR be sent down to the concerned tribunal forthwith. 45. Copy of the order be sent to the Department as well as the concerned tribunal as expeditiously as possible. (Ananya Bandyopadhyay, J.)