S/L 1 09.09.2026 Court No.9 Swd IN THE High COURT AT CALCUTTA CIVIL APPELLATE JURISDICTION APPELLATE SIDE FMA 83 of 2026 With CAN 3 of 2026 Cholamandalam MS General Insurance Company Limited Vs. Astami Jana Maiti & Ors. With COT 36 of 2025 Astami Jana Maiti & Ors. Vs. Cholamandalam MS General Insurance Company Limited & Anr. Mr. Soumalya Ganguli. … for the Appellant/Insurance Co. Mr. Amit Ranjan Roy. … for the Respondent/Claimant. 1. Learned Advocates for the parties are present. 2. Heard learned Advocates. 3. The appellant before this Court was an opposite party in a case under Section 166 of the Motor Vehicles Act, 1988 and is aggrieved by the judgment and award dated 18th June, 2025 passed by the learned Additional District Judge, Fast Track, 3rd Court, Tamluk, Purba Mednipur in M.A.C Case No.9 of 2019. 4. The case of the claimant before the learned Trial Court may be summed up thus: 2 On 19.12.18 at about 5.30 P.M. the victim was standing near Bakhrabad Bus Stoppage keeping his extreme left side morum portion of NH-41. Suddenly the offending vehicle bearing no.-WB- 11D/7561 (Bus) which was coming from Mecheda side towards Haldia side with extreme high speed, endangering the human life and safety with zig-zag manner without blowing any horn dashed the victim with great force from behind. As a result the victim sustained grievous bleeding injury all over the body, specially on head. After the accident the victim was taken to Purba Medinipur District Hospital at Tamluk, where the attending doctor examined him and declared him dead. The accident was caused due to rash and negligent driving on the part of the driver of the offending vehicle bearing No.WB-11D/7561 (Bus). 5. Pursuant to filing of this case, notice was issued upon the opposite parties. The opposite party vehicle owner did not appear to contest the case. However, the opposite party Insurance Company contested by filing written statement. Issues were framed and evidence was adduced. 6. By judgment and award dated 18.06.2026 the learned Trial Judge was pleased to dispose the claim case by observing and directing as follows: 3 “Hence, It Is, ORDERED that the instant claim petition u/s 166 of the M.V Act be and the same is allowed on contest against the O.P / Insurer/ Cholamandalam M.S General Ins. Co. Ltd. and exparte against O.P/Owner, however, without any cost. The claimants/petitioners are entitled to an award of compensation amounting to Rs.4,42,640 /-with interest at a rate of Rs.7% per annum from the date of filing of the case (w.e.f. 29.01.2019) till the realization of the amount of compensation. O.P / Insurer/ Cholamandalam M.S General Ins. Co. Ltd is directed to pay Rs.4,42,640 /-(Four Lakh Forty Two Thousand Six Hundred and Forty only) with accrued interest at a rate of Rs.7% per annum from the date of filing of the case (w.e.f. 15.09.2017) till the date of payment to the four (04)claimants / petitioners i.e. petitioner no. 1) Astami Jana Maiti, 2) Debasish Maiti, 3) Pushpita Kuilya Ray and 4) Papiya Jana equal share by issuing separate A/C payee cheques to be drawn in their favour or through NEFT/RTGS directly to their bank accounts, if any, furnished by the claimants / petitioners to the insurers within 60 days from the date of this order, in default, the claimants / petitioners shall be at liberty to realise 4 the compensation along with interest in accordance with law. O.P/Insurance Company is not responsible to pay the aforesaid interest from the date of order till the date of deposit of the deficit court fees by the claimants / petitioners, if any. The claimants / petitioners are directed to pay the deficit court fees within 30 days from the date of this order, if any. Let a copy of this order/judgement be handed over to the parties free of to the claimants / costs in terms of Section 168 (2) of the M.V.Act. The copy of the order/judgement shall not be supplied petitioners until payment of deficit court fees.” 7. The appellant Cholamandalam MS General Insurance Company Limited being aggrieved by the judgment and award passed by the learned Trial Court has come up with the instant appeal. 8. The claimant respondent being also aggrieved by the quantum of compensation awarded has filed cross objection. 9. Heard learned Advocate for the appellant and learned Advocate for the claimant respondent. Perused the evidence adduced and the materials on record. 10. Learned Advocate for the appellant submits that the learned Trial Judge although was pleased 5 to observe that the insurance company opposite party was entitled to recover the compensation from the vehicle owner, but has not observed the same in the ordering portion of the award. 11. Learned Advocate further submits that the compensation awarded is excessive as the widow of the victim being one of the claimant is receiving family pension pursuant to the death of the victim. It is also submitted by the learned Advocate that the interest awarded is excessive. 12. Learned advocate for the claimant's respondent disputes the submission made by the learned Advocate for the insurance company. Learned advocate submits that the claimant under law is entitled to receive the compensation without the family pension being adjusted. 13. Learned advocate further submits that the learned trial judge erred in considering the personal deduction as one-third instead of one- fourth. It is also submitted that the learned Trial Judge ought to have awarded consortium of Rs.40,000/- 14. The following decisions are relied upon by the learned Advocate for the parties:- 6 a) Vishavjit Singh Vs. Cholamandalam MS General Insurance reported in SLP No.13442 of 2020, b) Mrs. Helen C. Rebello & Ors. Vs. Maharashtra State Road Transport Corporation & Anr. reported in AIR 1998 SC 3191, c) Binapani Ghosh & Ors. Vs. The New India Assurance Co. Ltd. reported in 2013 SCC OnLine Cal 6441. 15. Upon hearing the learned Advocate and considering the judicial decision relied upon, this Court is of the view that before proceeding to decide the issue as to whether the family pension is to be adjusted at the time of computing the compensation, necessarily the relevant judicial decision should be considered. 16. In the case of Mrs. Helen C. Rebello & Ors. (Supra) the Hon’ble Supreme Court was pleased to observe: “36.Broadly, we may examine the receipt of the provident fund which is a deferred payment out of the contribution made by an employee during the tenure of his service. Such employee or his heirs are entitled to receive this amount irrespective of the accidental death. This amount is secured, is certain to be received, while the amount under the Motor Vehicles Act is uncertain and is receivable 7 only on the happening of the event, viz., accident, which may not take place at all. Similarly, family pension is also earned by an employee for the benefit of his family in the form of his contribution in the service in terms of the service conditions receivable by the heirs after his death. The heirs receive family pension even otherwise than the accidental death. No corelation between the two. Similarly, life insurance policy is received either by the insured or the heirs of the insured on account of the contract with the insurer, for which the insured contributes in the form of premium. It is receivable even by the insured if he lives till maturity after paying all the premiums. In the case of death, the insurer indemnifies to pay the sum to the heirs, again in terms of the contract for the premium paid. Again, this amount is receivable by the claimant not on account of any accidental death but otherwise on the insured's death. Death is only a step or contingency in terms of the contract, to receive the amount. Similarly any cash, bank balance, shares, fixed deposits, etc. though are all a pecuniary advantage receivable by the heirs on account of one's death but all these have no corelation with the amount receivable under a statute occasioned only on account of accidental death. How could such an amount come within the periphery of the Motor Vehicles Act to be 8 termed as “pecuniary advantage” liable for deduction. When we seek the principle of loss and gain, it has to be on a similar and same plane having nexus, inter se, between them and not to which there is no semblance of any corelation. The insured (deceased) contributes his own money for which he receives the amount which has no corelation to the compensation computed as against the tortfeasor for his negligence on account of the accident. As aforesaid, the amount receivable as compensation under the Act is on account of the injury or death without making any contribution towards it, then how can the fruits of an amount received through contributions of the insured be deducted out of the amount receivable under the Motor Vehicles Act. The amount under this Act he receives without any contribution. As we have said, the compensation payable under the Motor Vehicles Act is statutory while the amount receivable under the life insurance policy is contractual.” 17. This Hon’ble Court in the case of Binapani Ghosh & Ors. (supra), upon considering the decision of the Hon’ble Supreme Court in the case of Mrs. Helen C. Rebello & Ors. (supra), was pleased to observe that since the family pension was not receivable by the widow as a benefit arising out of accidental death of her 9 husband, the amount of family pension which the widow is receiving cannot be taken into consideration for ascertaining the actual loss of dependency of the claimants on the death of the deceased. 18. Thus, considering the judicial decision, the Court is of the view that there is no scope to adjust the family pension at the time of computing the compensation. Now, with regard to the personal deduction, considering the number of dependents of the deceased, this Court is of the view that personal deduction should be one-fourth and not one-third. As the consortium is not awarded by the learned Trial Judge, consortium is also to be awarded at the time of ascertaining the compensation. 19. In the event, the monthly income of the victim is considered as Rs.10,828/-, one-fourth being deducted, which is Rs.2,707/-, the net monthly income comes to Rs.8,121/-. The yearly income comes to Rs.97,452/-. The multiplier of 5 being applied, the total dependency loss comes to Rs.4,87,260/-. Further, the claimants respondents are entitled to general damages on account of loss of consortium Rs.80,000/-, funeral expenses Rs.15,000/- and loss of estate Rs.15,000/-, total amounting to Rs.1,10,000/-. 10 Thus Rs.5,97,260/- is the total compensation which comes by arithmetical calculation. 20. However, in the view of this Court, Rs.5,50,000/- is just and reasonable. Thus, the claimants respondents are entitled to Rs.5,50,000/- from the Appellant Insurance Company. 21. However, with regard to the rule of pay and recovery, as the learned Trial Judge has observed that there is the violation of policy condition and the appellant Insurance Company will be entitled to recover, such recovery should be made as per the decision of this Court in the case of National Insurance Company Limited v. Lirasa Bibi & Anr. reported in FMA 1003 of 2025. In the said case 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- 11 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 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 12 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 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 13 not be recovered.‟ Copy of the Award shall also be enclosed with the notice. 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. In the instant case the vehicle owner/insured was not put to notice with regard to violation of policy condition for the purpose of pay and recovery. Thus no order with regard to recovery can be directed without the Appellant 8 Insurance Company causing enquiry and giving the vehicle owner/insured an opportunity of being heard. Thus the Appellant National Insurance Company Limited is granted liberty to cause service of notice upon the vehicle owner/insured annexing copy of the order of trial Court and this order and upon 14 hearing him with regard to violation of policy condition and recovery of compensation amount awarded. Upon hearing the insured respondent no-2 Subrata Nath the Appellant National Insurance Company Limited will decide whether to proceed against the said respondent for recovery. In the event recovery proceedings is instituted parties will be entitled to take relevant points involved to enable the Court/Tribunal to arrive at a just decision.” 22. Hence, this appeal FMA 83 of 2026 with COT 36 of 2025 along with all connected applications stand disposed. The judgment and award dated 18th June, 2025 passed by the learned Additional District Judge, Fast Track, 3rd Court, Tamluk, Purba Mednipur in M.A.C Case No.9 of 2019 stands modified to the extent that the claimant, respondents claimants are entitled to Rs.5,50,000/- from the appellant Cholamandalam MS General Insurance Company Ltd. along with interest @ 6% per annum from the date of filing claim case i.e. 29th January, 2019 till today. 23. The appellant insurance company shall deposit Rs.5,50,000/- along with interest @ 6% per annum. Such deposit shall be made within a period of 8 weeks to the Registrar General, High Court, Calcutta from the date of communication of this order. 15 24. In the event, compensation awarded by the learned Trial Court is already deposited, the balance deposit be made. The claimant respondent will be entitled to withdraw the compensation upon compliance of necessary formalities. Upon payment of the compensation the insurance company will be entitled to proceed for recovery as per the procedure laid down in the case of National Insurance Company Limited v. Lirasa Bibi & Anr. (Supra). All relevant points of law will be kept open. 25. FMA 83 of 2026 and COT 36 of 2025 be treated as days list. 26. Urgent Photostat certified copies of this order, if applied for, be supplied to the parties upon compliance of all necessary formalities. (BISWAROOP CHOWDHURY, J.)