1 IN THE HIGH COURT AT CALCUTTA CIVIL APPELLATE JURISDICTION APPELLATE SIDE Present: The Hon’ble Justice Ananya Bandyopadhyay F.M.A 1491 of 2024 The Oriental Insurance Company Ltd. -Vs- Kishore Mohanta and Others For the Appellant/ : Mr. Parimal Kumar Pahari Insurance Company For the Respondents/ : Mr. Sanjit Kumar Ghosh Claimants Heard on : 31.07.2025 Judgment on : 24.10.2025 Ananya Bandyopadhyay, J.:- 1. The instant appeal had been filed against the judgment dated 25th July, 2024 passed by the Learned Judge, Motor Accident Claims Tribunal, 5th Court, Paschim Medinipur in MACC Case No. 178 of 2014. 2. The Learned Advocate representing the appellant – Insurance Company submitted that ADJ, 1st Court of Motor Accident Claims Tribunal, Paschim Medinipur vide a judgment dated 8th November, 2017 in MAC Case No. 54 of 2014 arising out of same accident. In an application filed under Section 166 of the Motor Vehicles Act wherein victim of the same accident had expired, the Learned Tribunal had considered composite negligence of both the vehicles involved and had assessed ratio of proportional liability to the 2 extent of 70 % : 30% to be borne by the Insurance Company relating to the tractor and the auto respectively. 3. It was further submitted in the instant case that with regard to separate victim the Learned Tribunal had cast the entire liability upon the appellant- Insurance Company without considering the aspect of contributory negligence conferring liability upon other Insurance Company. 4. The Learned Advocate representing the respondents-claimants submitted the observation of the Learned Tribunal as far as the MAC Case No. 54 of 2014 was concerned. The same ratio had not been applied in the instant case. However, the occurrence of the accident as well as the rash and negligence on the part of the offending vehicle had been proved whereby the respondents-claimants should not suffer. 5. The Learned Tribunal in the deciding MAC Case No. 54 of 2014 in his judgment dated 8th November, 2017, inter alia, observed as follows:- “Taking in view the total scenario of the case and considering the attending facts and circumstances and keeping in mind the oral and documentary evidence on record-from the end of petitioners I am of the view that the accident in question involved the contributory negligence on the part of both the drivers, i. e, driver of Auto Rickshaw and driver of the said Tractor. It may further be pointed out that considering the size, structure of body and the features of Auto Rickshaw and the said Tractor I am of the view that ratio of contributory negligence should be 30: 70 (30% for the Auto Rick and 70% for the said Tractor). The attending facts and 3 circumstances clearly indicate that the registered owner of said Tractor bearing no. W. B. -33B/5894 and its Insurer are jointly and severally liable to pay the 70% compensation for the death of victim Sk. Nijam to be assessed. Exbt. 15 is the copy of Insurance Policy in respect of Tractor bearing no. W.B.-33B/5894. It is evident from Exbt. 15 that vehicle stood insured with the O. P. no. 2/Oriental Insurance Company Ltd. on the date of accident and it is the Insurer who agreed to indemnify liability of the registered owner of the Tractor to pay compensation. Exbt. 16 (driving licence of Sk. Nijam) indicates that he had a valid driving licence on the date of accident. All these circumstances lead me to conclude that it is the O. P. no. 2 who will bear the 70% of amount of compensation to be assessed in this case. ............................... Therefore the total amount of compensation comes to Rs. 4,25,000/- (Rs.4,20,000/- + Rs. 5,000/-). 70% of Rs. 4,25,000/- comes to Rs. 2,75,500/- which is required to be paid towards compensation. ................................. Hence it is, : O R D E R E D : that the claim case u/sec. 166 of M.V. Act is allowed on contest in part against O. P. No. 2, The Oriental Insurance Company and on ex parte against the rest, but without any cost. The petitioners do get an award of Rs.2,97,500/-. 4 The O. P. no. 2, the Oriental Insurance Company Ltd. is directed to pay 4 (four) Account Payee cheques in the names of petitioners which are as follows within two months from this date of delivery of judgement failing which the award shall carry an interest @ 8% per annum from this day till realisation of the entire amount. In the name of petitioner no. 1, Shahnaj Bibi @ Saina Bibi @ Smt. Sainaj Khatun @ Smt. Sahhaz Bibi @ Smt. Sahnaz Bibi Rs. 78,125/-. In the name of petitioner no. 2, Sk. Suhel @ Sk. Soail @ Md. Suhal Rs. 73,125/-. In the name of petitioner no. 3, Rashni Khatoon @ Khatun Rs. 73,125/-. In the name of petitioner no. 4, Sk. Sahil @ Md. Sahil Rs. 73,125/. The petitioner no. 1 is directed to keep the sum awarded to the minor petitioner nos. 3 & 4 in two fixed deposit scheme either of a nationalised or a Post Office till they attain majority. The Account Payee cheque in the name of petitioner no. 1 will be delivered to her on production of documents showing deposit of the sum awarded to the minor petitioner nos. 3 & 4 in two fixed deposits scheme as directed. The O. P. no. 2 be furnished a copy of this judgement free of costs at once for compliance.” 6. In the aforesaid judgment pronounced by the ADJ, 1st Court, Motor Accident Claims Tribunal, Pashim Medinipur 30% of the compensation to be provided on behalf of the auto rickshaw had not been mentioned. 5 Though the aforesaid MAC Case No. 54 of 2014 had not been under challenge before this Court it should not be prudent to evaluate the same in connection with the instant appeal. 7. Perused the impugned judgment and order dated 25th July, 2025 in its entirety which is reasoned. Taking into considering the occurrence of the accident, the chare-sheet, the evidence of the prosecution witnesses as well as the relevant case decisions and this Court is not inclined to interfere with the same. 8. The impugned judgment and order is modified to the aforesaid extent. 9. The respondents-claimants are entitled to a sum of Rs. 32,05,880/- along with interest at the rate of 6% per annum from the date of filing of the application under Section 166 of the MV Act till the date of its realisation. 10. The learned Advocate representing the appellant/Insurance Company submits to have deposited a sum of Rs. 1,03,72,647/=(Rs. 25,000 + 1,03,47,647) through two separate cheques as per challan filed by the learned advocate representing the appellant/insurance company. 11. 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 directly to the bank accounts of the present respondents/claimants as mentioned in the impugned judgment and order passed by the Learned Judge, Motor Accident Claims Tribunal, 5th Court, Paschim Medinipur in MACC Case No. 178 of 2014 on proof of proper identification of the respondents/claimants subject to payment of ad 6 valorem Court fees within four weeks and refund the differential amount if any to the accounts of the insurance company. 12. The instant appeal is dismissed accordingly. 13. The pending applications, if any, stands disposed of. 14. The TCR be sent down to the concerned Tribunal forthwith. 15. Copy of the order be sent to the Department as well as the concerned tribunal as expeditiously as possible. (Ananya Bandyopadhyay, J.)