S/L 2-3 30.07.2026 Court No.9 Swd IN THE High COURT AT CALCUTTA CIVIL APPELLATE JURISDICTION APPELLATE SIDE FMA 538 of 2023 With IA NO: CAN/1/2014(Old No:CAN/8739/2014), CAN/2/2014(Old No:CAN/8762/2014), CAN/3/2017(Old No:CAN/12210/2017), CAN/4/2017(Old No:CAN/12211/2017) National Insurance Co. Ltd. Vs. Aruna Basak & Ors. With COT 56 of 2023 Aruna Basak & Ors. Vs. National Insurance Co. Ltd. & Ors. Mrs. Gopa Das Mukherjee. … for the Oriental Insurance Co. Mr. Parimal Kr. Pahari. … for the National Insurance Co. Mr. Amit Ranjan Ray, Mr. Atanu Biswas, Mr. Mrinal Saha. … for the Respondent in FMA 538 of 2023 and appellant in COT 56 of 2023. 1. Learned Advocates for the parties are present. 2. Heard learned Advocates. The appellant National Insurance Company Limited was an opposite party in case under Section 166 of the Motor Vehicles Act, 1988 and is aggrieved by the judgment and award dated 7th November, 2013 passed by the learned Additional District Judge, 2 Kalna, Purba Bardhaman in MAC Case No.13 of 2011. 3. The case of the claimants before the learned Trial Court may be summed up thus: On 05.09.2010 at about 5 a.m. while Shankar Basak (since deceased) was proceeding towards Balurghat from Malda by a Tata Magic bearing Registration No.WB 65A/0715 for the purpose of his business at that time one Truck bearing Registration No.WB 03A/5629 coming from opposite direction towards Malda and proceeding at a high speed and with jute loaded all on a sudden near at the place of Kalan Dighi on the National Highway No.34, the driver of the said truck lost its control and collided with the said Tata Magic. As a result of which Shankar Basak received serious multiple injuries on this person and he was admitted to Malda District Hospital under the jurisdiction of English Bazar P.S. and he died at the said hospital on the same day. The accident was result of rash and negligent driving of the aforesaid Truck by its driver. 4. Pursuant to filing of the claim case, notice was issued upon the opposite parties. Opposite party truck owner and the opposite party Tata Magic vehicle owner did not appear to contest the case. However, National Insurance Company Ltd. the insurer of Tata Magic vehicle and Oriental 3 Insurance Company Ltd. being insurer of the truck contested the case by filing written statement. Issues were framed and evidence was adduced. 5. Learned Trial Judge upon the considering the evidence adduced and upon hearing the learned Advocates was pleased to dispose the claim case by observing and directing as follows: “Hence, It is ORDERED that the instant MAC case be and the same is allowed on contest in part against OP No.3 & 4 National Insurance Co. Ltd & The Oriental. Insurance company Ltd. and ex parte against OP no.1 & 2. owner of the offending Truck bearing no. WB 03A/ 5629 and Tata Magic car bearing no. WB 65A/0715. All the Ops are jointly and severally liable to pay the compensation to the petitioners. The petitioners do get the compensation of Rs.14,49,500/- (Rupees fourteen lakhs forty- nine thousand and five hundred )only against the OP/The Oriental Insurance Co. Ltd and National Insurance Co. Ltd in equal share along with interest at the rate of 6% per annum from the date of filing of the case i.e. from 10.5.2011 till realisation of the entire amount. 4 Out of the compensation amount of Rs.14,49,500/- an amount bf Rs.5000/- will be paid exclusively to petitioner no. 1 Smt. Aruna Basak being the wife of victim for suffering loss of consortium. So her share of compensation will be 4,86,500/--(four lakhs eighty-six thousand five hundred )only and the rest share of each of the petitioners shall stand at Rs 4,81,500/-/-(Rupees four lakhs eighty one thousand five hundred) only each. The share of the minors namely, Rakesh Basak and Priya Başak are to be paid through account payee cheques in favour of 1. their mother subject to the condition that the share amount of the minors shall be deposited in a nationalised bank or post office fetching maximum interest by: purchasing cash certificate till minors attain majority and the same are to be paid after attainment of their majority. Mother shall submit compliance report to this Tribunal by swearing an affidavit along with xerox copies of the cash certificates within 15 days of such deposit. The Ops National Insurance Company and The Oriental --Insurance company Ltd are directed to make payment of the aforesaid amount of compensation in equal share as compensations to the petitioners by account payee cheques within two months from the date of delivery of judgement as per findings of the Tribunal failing which the 5 petitioners shall be at liberty to execute the award as per law along with further interést at the rate of 6.5% per annum from the date of failure of payment, if any, till realisation of the entire amount. Let a copy of this judgment be sent to the Ops National Insurance Co. Ltd & The Oriental Insurance Co. Ltd each free of cost for information, and compliance through its lawyer on record. Cheques be handed over to the petitioners after payment of deficit court fees, if any. The M.A.C Case is thus disposed of finally on contest.” 6. The appellant National Insurance Company Ltd. being aggrieved by the judgment and award passed by the learned Trial Court has come up with the instant appeal. The respondent Oriental Insurance Company Ltd. has satisfied the award as directed by the learned Trial Court. 7. Mr. Pahari, learned Counsel for the appellant National Insurance Company Ltd. submits that as the truck is wholly responsible for the accident the learned Trial Court erred in distributing the compensation to be paid by National Insurance Company Ltd. and Oriental Insurance Company Ltd. 8. Learned Advocate further submits that the allegation in the FIR is against the truck driver 6 and in the charge-sheet there is only mention about the truck driver. It is submitted that the Oriental Insurance Company Ltd. should bear the entire compensation. 9. Mrs. Mukherjee, learned Advocate for the Oriental Insurance Company Ltd. submits that there is involvement of both the vehicles in the accident. Mrs. Mukherjee draws attention to the evidence of PW 2 Jagannath Basak and submits that in the cross-objection the said witness stated that he saw the offending truck after the accident after getting down from the said vehicle and that he was sitting at the back of the vehicle and it is not possible to see the movement of the said truck.It is submitted that on the basis of the statement of PW2 the truck driver should not be made solely liable. 10. Mr. Ray, learned Advocate for the claimant who has filed a cross objection for enhancement of the compensation submits that the learned Trial Judge erred in not considering the issue of future prospect. It is further submitted that the general damages awarded is only Rs.9500/- which should be enhanced. It is also submitted that the total compensation awarded by the learned Trial Court should be enhanced. 11. Upon considering the submission of the learned Advocates for the parties and considering the 7 materials on record, it appears that charge-sheet was submitted against the driver of the truck. Further, in the FIR the allegations were made against the truck driver. It also appears that seven persons who were in the Tata Magic vehicle died and some suffered grievous injuries, including the driver. Upon perusing the materials on record and considering the evidence of PW-2, although the truck driver cannot be made solely liable for the accident and the liability is to be borne by both the vehicle owners, but, both the vehicle owners are not equally liable and the negligence of the truck driver is more in the instant case. 12. Now, with regard to the quantum of compensation, it appears that as the future prospect is not awarded by the learned Trial Judge and the total monthly income considered as Rs.12,000/- and the annual income as Rs.1,44,000/- and one-third being deducted, the net annual income comes to Rs.96,000/-. As the victim was 41 years of age, the multiplier of 14 should be applied. Thus, the net total dependency loss comes to Rs.13,44,000/-. Future prospect being added, the total dependency loss comes to Rs.16,80,000/-. The general damages of Rs.70,000 being added. Total compensation comes to Rs.17,50,000/-. However, 8 in the view of this Court, compensation of Rs.17,00,000/- is just and reasonable. 13. Now, with regard to the liability of compensation to be borne by the vehicle owners, considering the evidence and the acts of both the drivers, this Court is of the view that compensation of Rs.10,00,000/- should be borne by the truck owner which is insured with Oriental Insurance Company and balance amount Rs.7,00,000/- should be borne by the Tata Magic vehicle owner which is insured with the National Insurance Company Limited. 14. Hence, the appeal FMA 538 of 2023 and COT 56 of 2023 along with all connected applications stands disposed. The judgment and award dated 7th November, 20+13 passed by the learned Additional District Judge, Kalna, Purba Bardhaman in MAC Case No.13 of 2011 stands modified to the extent that the claimants and respondents are entitled to compensation of Rs.17,00,000/- from both the insurance companies . 15. The appellant National Insurance Company Limited shall deposit before the Registrar General, High Court, Calcutta Rs.7,00,000 along with interest at the rate of 6% per annum from the date of filing of the claim case till date. 9 16. The respondent Oriental Insurance Company Ltd. shall deposit Rs.10,00,000/- before the Registrar General, High Court, Calcutta Rs.7,00,000 along with interest at the rate of 6% per annum from the date of filing of the claim case till date. 17. In the event, the compensation awarded by the learned Trial Court is already deposited or satisfied the balance amount be deposited by the insurance company along with interest. 18. The claimants respondents will be entitled to withdraw the compensation upon compliance of necessary formalities. 19. The Court fees on the enhance amount if not paid be paid before the learned Trial Court within four weeks. The Trial Court records be sent back at the special messenger cost to be deposited by the respondents claimants within two weeks. The distribution of the compensation shall be in equal shares. 20. Urgent Photostat certified copies of this order, if applied for, be supplied to the parties upon compliance of all necessary formalities. (BISWAROOP CHOWDHURY, J.)