S/L 33 24.09.2026 Court No.9 Swd IN THE High COURT AT CALCUTTA CIVIL APPELLATE JURISDICTION APPELLATE SIDE FMA 3443 of 2013 Subhajit Sanyal & Ors. VS Bajaj Allianz Gen. Insurance Co. Ltd. & Anr. Mr. Jayanta Kr. Mandal. … for the Appellant. Mr. Rajesh Singh. … for the Respondent. 1. Learned Advocates for the parties are present. 2. Heard learned Advocates. 3. The appellant before this Court were claimants in a case under Section 166 of the Motor Vehicles Act, 1988 and are aggrieved by the judgment and award dated 17th August, 2013 passed by the learned Additional District Judge, 16th Court, Alipore in M.A.C Case No.2 of 2011. 4. The case of the claimants appellants before the learned Trial Court may be summed up thus: On 03.12.2010 at about 12.20 hours the driver of an Oil Tanker bearing Registration No. WB-41E- 2135 drove the same along Mahim Halder Street from South to North in a rash and negligent manner endangering humans life and safety to others and while it reached in front of No. 23. 2 Kalidas Patitundi Lane, Kolkata-26 it ran over a pedestrian victim, namely, Anupam Sanyal while the victim was crossing the road from West to East and while the aforesaid victim Anupam Senyal saw the red light traffic signal at the material time of accident. As a result of the accident victim sustained severe injuries on his person and was removed to the S.S.K.M. Hospital by some local people wherein attending doctors of the Emergency Ward declared "Brought Dead". Rash and negligent driving on the part of the driver of Oil Tanker No. WB-41E-2135 was the sole cause of the accident resulting in death of the victim, 5. Pursuant to the 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 the case by filing written statement. Issues were framed and evidence was adduced. 6. The learned Trial Judge upon considering the evidence adduced and upon hearing the learned Advocate was pleased to dispose the claim case by observing and directing as follows: “Hence, It Is, ORDERED 3 that the motor Accident Claim Case u/s 166 of the M.V. Act be and the same is allowed on contest in part against the insurer and ex-parte against the registered owner Debi Prosad Singh without cost. The claimants Sri Subhajit Sanyal, Reba Sanyal, Arijit Sanyal are entitled to get Rs.1,52,350, each and the claimant Smt. Bela Sanyal is entitled to get Rs.157,350/-. Debi Prosad Singh the registered owner is directed to issue A/C payee cheques of the amount as awarded in the names of the claimants within 30 days from the date of receipt of the copy of judgement. The registered owner is further directed to pay interest @ 6% per annum from the date of the claim application till recovery of the claimed amount. Copy of the judgement be supplied to the parties per rule.” 7. The appellants claimants being aggrieved by the judgment and award passed by the learned Trial Court has come up with the instant appeal. 8. Heard learned Advocate for the appellant claimant and learned Advocate for the respondent Insurance Company. Perused the evidence adduced and the materials on record. 9. Learned Advocate for the appellant submits that the learned Trial Judge erred in not awarding any future prospect. Learned Advocate further 4 submits that the deceased victim was a temporary employee and the Learned Trial Judge ought to have awarded 25% on account of future prospect. 10. Learned Advocate also submits that the learned Trial Judge erred in considering the personal deduction as 1/3rd instead of 1/4th although the total numbers of dependents were four in number. 11. Learned Advocate submits that the learned Trial Judge erred in directing the opposite party vehicle owner to pay the compensation amount instead of directing the Insurance Company to pay and recover the same. 12. It is submitted by the learned Advocate for the appellant that in spite of the direction of the learned Trial Court the vehicle owner did not pay the compensation amount. 13. In this regard, learned Advocate relies upon the following decisions which are as follows:- a) Shamanna & Anr. Vs. The Divisional Manager, Oriental Insurance Company Ltd. & Ors. reported in 2018 SAR (Civil) 1021 b) Amrit Paul Singh & Anr. Vs. TATA AIG General Insurance Co. Ltd. & Ors. reported in 2018 SAR (Civil) 768, 5 c) Sabita @ Baita Bala Pramanik & Ors. Vs. Oriental Insurance Co. Ltd. & Ors. reported in FMA 125 of 2023 d) Smt. Manashi Mailty & Ors. Vs. National Insurance Co. Ltd. & Anr. reported in FMA 2180 of 2018, e) Kirti & Anr. Etc. Vs. Oriental Insurance Co. Ltd. reported in 2021 SAR (Civ) 147. 14. Learned Advocate for the Opposite Party Insurance Company disputes the submission of learned Advocate for the claimant appellant. It is further submitted by the learned Advocate that the learned Trial Judge has applied the multiplier of 15 which ought to have been 14. It is submitted by the learned Advocate that the judgment and award passed by the learned Trial Court may not be interfered with. 15. Upon hearing the learned Advocates and considering the facts of the case and the judicial decisions relied upon, this Court is of the view that considering the number of dependents, the personal deduction of the victim ought to be one- fourth and not one-third. Further, it appears that the victim was a temporary employee of a college and his income was corroborated by the officers of the said college. Thus, the learned Trial Judge ought to have awarded 25% on account of future prospect. 6 16. However, with regard to the multiplier, this Court finds some substance in the submission of the learned Advocate for the respondent Insurance Company and the multiplier applied ought to be 14. 17. With regard to the issue of pay and recovery, it is held in different judicial pronouncement that in case of breach of policy condition, due to disqualification of driver or invalid driving license of the driver, the order to be passed is pay and recover. 1. 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- 7 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 8 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 9 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.” 18. It is further submitted by the appellant that the vehicle owner has not paid the compensation amount to the claimants. Thus, in the instant case, the learned Trial Court ought to have passed the direction of pay and recover. 19. Now, with regard to the quantum of compensation, in the event the monthly income is considered as Rs.4870/-, the annual income 10 comes to Rs.58,440/-. Future prospect of 25% being added, the total annual income comes to Rs.73,050/-. One-fourth being deducted on account of personal expense which is Rs.18,262/-, the annual dependency loss comes to Rs.54,788/-. The multiplier of 14 applied, the total dependency loss comes to Rs.7,67,032/-. Further, the appellants claimants are entitled to loss of consortium, loss of estate and funeral expenses amounting to Rs.84,000/-. Thus, total compensation comes to Rs.8,51,032/-. However, this Court is of the view that compensation of Rs.8,50,000/- is just unreasonable. 20. Hence, this appeal FMA 3443 of 2013 stands disposed. The judgment and award dated 17th August, 2013 passed by the learned Additional District Judge, 16th Court, Alipore in M.A.C Case No.2 of 2011 stands modified to the extent that the claimants appellants shall receive Rs.8,50,000/- along with interest at the rate of 6% per annum from the date of filing of the claim case till today. 21. The Respondent No.1, Bajaj Alliance General Insurance Company Ltd. shall deposit before the Registrar General, High Court, Calcutta Rs.8,50,000/- along with interest at the rate of 6% per annum. Such deposit shall be made 11 within 8 weeks from the date of communication of this order. 22. Upon depositing the compensation amount, Bajaj Alliance General Insurance Company Ltd. Respondent No.1 will be entitled to recover the compensation amount as per the guidelines laid down in the case of National Insurance Company Limited v. Lirasa Bibi & Anr. (Supra). 23. The appellants claimants will be entitled to withdraw the compensation upon compliance of necessary formalities. The deficit Court fee be paid within a period of four weeks. 24. Urgent Photostat certified copies of this order, if applied for, be supplied to the parties upon compliance of all necessary formalities. (BISWAROOP CHOWDHURY, J.)