Item No. 4, 5 and 6 Ct 09 rup 13.01. 2026 IN THE HIGH COURT AT CALCUTTA CIVIL APPELLATE JURISDICTION APPELLATE SIDE FMA 304 of 2025 The New India Assurance Company Limited Vs Jaly Singha & Ors. WITH COT 115 of 2025 Jaly Singha & Anr. Vs. United India General Insurance Company Ltd. & Ors. WITH FMA 1211 of 2025 JLY Singha & Anr. Vs. United India General Insurance Company Ltd. & Ors. Mr. Rajesh Singh. … for the appellant in FMA 304 of 2025, respondent No.2 in COT 115 of 2025 and respondent no.2 in FMA 1211 of 2025. Mr. Subir Banerjee, Mr. Sandip Bandyopadhyay, Mrs. Ruxmin Basu Roy. … for the respondents/claimants in FMA 304 of 2025, appellant in COT 115 of 2025 and appellants in FMA 1211 of 2025. Mr. M. P. Chakraborty, Ms. Ratnadipa Karmakar. … for the respondent no.5 in FMA 304 of 2025, respondent No. 1 in COT 115 of 2025 and respondent no.1 in FMA 1211 of 2025. Learned advocates for the appellant /New India Assurance Company Limited in FMA 304 of 2025 and learned advocates for the respondent nos. 1 and 2/claimants and learned advocate for the respondent no.5/United India Assurance Company Limited are present. Heard learned advocates for the parties. The appellant before this Court was an opposite party in claim under Section 166 of the Motor Vehicles Act 1988 and is aggrieved by the judgement and award dated 11.09.2024 passed by the Learned Additional District Judge, Fast Track, 2nd Court, Raiganj, Uttar Dinajpur in MAC Case 2 of 2020. The respondent nos. 1 and 2/claimants being also aggrieved by the said judgment and order has filed cross-objection being COT 115 of 2025 as well as a separate appeal being FMA 1211 of 2025 The case of the respondent No.1/claimant before the learned Trial Court may be summed up thus:- On 29.11.2019 at night Palash Kumar Singha since deceased boarded on the bus being No. WB 73A/3697 at Siliguri for going to Berhampur and the bus was proceeding in high speed in negligent manner and when the bus reached at Khairakandi at about 5:15 hours at that time another truck being No. BR- 01GH/5651 was proceeding from Berhampur side to Malda Side from a opposite side at a high speed in a rash and negligent manner and due to high speed and rash driving both the drivers of the bus and the truck 2 lost control over the bus and the truck and made a head to head collusion and as result most of the passengers of the bus received injuries and the driver of the bus and the truck also received injuries and at first they were taken to Tarapur and Beniagram Hospital and out of them the drivers of the two vehicles and two passengers of the bus i.e. Palash Kumar Singha and one girl Dipika Modak succumbed to their injuries. The drivers of the bus and the truck were driving their vehicle in a rash and negligent manner and the accident took place. The deceased Palash Kumar Singha was a man of active habits and he was the only earning source of his family and the applicants were the dependent in his income. The deceased had a chance to get promotion very soon and due to his pathetic and early death the claimants have sustained great financial loss and mental pain and agony and we have to suffer through out of their lives. Pursuant to the filing of the case notice was issued upon the New India Assurance Company Ltd./appellant herein, United India Assurance Company Ltd. and the vehicle owners. The appellant/New India Assurance Company Ltd. and the respondent no.5/ United India Assurance Company Ltd. contested the claim by filing the written statement. Evidence was adduced and the Learned Trial Judge upon considering the evidence and upon 3 hearing the learned advocates was pleased to dispose of the claim case by the judgement and award dated 11.09.2024 by observing and directing as follows:- “ ORDERED 87. 1) that, the M.A.C. Case No. 02 of 2020 under Section 166 of the Motor Vehicles Act is allowed on contest against the O.P. No.3/Insurance Company namely United India Gen. Insurance Co. Ltd. and O.P. No. 4 New India Assurance Co. Ltd. and exparte against the O.P. No.1 and O.P. No.2 but without any order of Cost. 87. 2) The Claimants do get an award of compensation of Rs.42,70,000/- ( Rupees Forty Two Lakhs Seventy Thousand only) from the O.P. No.3/Insurance Company namely United India Gen. Insurance Co. Ltd. and O.P. no.4 New India Assurance Co. Ltd. Along with interest at the rate of 6% per annum since filing of the case i.e. since 02.01.2020. 87.3) The O.P. No.3/Insurance Company namely United India Gen. Insurance Co. Ltd. and O.P. no.4 New India Assurance Co. Ltd. are directed to pay the said amount of compensation in equal share i.e. 50% each of it to the claimants. 87. 4) Both the petitioners being the wife and daughter of the deceased are entitled to get equal share on the amount of compensation awarded. 87. 5) The O.P. No.3/Insurance Company namely 4 United India Gen. Insurance Co. Ltd. is directed to pay Rs.21,35,000/- (50% of the total amount of compensation) and the said interest by way of issuance of one Account Payee Cheque in favour of the petitioner/claimants no.1 Jaly Singha within two months from the date of passing of this Judgment through this Tribunal, failing which the petitioner/Claimant will be at liberty to realize the awarded sum of compensation along with said interest in accordance with the provisions of law. 87.6) The O.P. no.4 New India Assurance Co. Ltd. is directed to pay Rs.21,35,000/- (remaining 50% of the total amount of compensation) and the said interest by way of issuance of one Account Payee Cheque in favour of the petitioner/Claimants no.2 Paramita Singha within two months from the date of passing of this Judgement through this Tribunal, failing which the petitioner/Claimant will be at liberty to realize the awarded sum of compensation along with said interest in accordance with the provisions of law. 87. 7) The petitioners/Claimants are directed to pay the requisite Court-Fee at the earliest. 87.8) The O.P. No.3/Insurance Company namely United India Gen. Insurance Co. Ltd. and O.P. No.4 New India Assurance Co. Ltd. are directed to get copy of the judgment from the official portal of the e-Courts services for information an compliance. 5 87.9) The case is thus disposed of. Note accordingly.” The appellant/New India Assurance Company Limited being aggrieved by the judgment and award passed by the learned Trial Judge, has come up with the instant appeal. The claimants/respondent No 1 and 2 also being aggrieved by the said judgment and award has also preferred a separate appeal and cross-objection to the appeal filed by the appellant/New India Assurance Company Limited. Heard learned advocates for the parties. Perused the petition filed and the material on record. Mr. Rajesh Singh, learned advocate for the appellant/New India Assurance Company Limited submits that the learned Judge failed to appreciate the evidence adduced both oral and documentary and imposed the liability on his client to pay 50% of the awarded sum. Mr. Singh draws attention to the copy of the complaint made before the police authority on 01.12.2019, wherein the allegation against the BR- 01GH/563K is made for causing the accident due to rash and negligent driving. Mr. Singh further draws attention to the copy of the charge-sheet wherein it is stated that driver of the oil tanker namely Sonu Kumar Roy was driving with excessive speed that he could not move for the left way and was moving through wrong lane and it is further stated in the said 6 charge-sheet that the accident took place due to rash driving of the driver of the oil tanker who had died on that day. Mr. Singh also draws attention to the evidence of the witness of the claimants wherein in cross-examination PW-3 stated that he boarded on the concerned bus in the night of 29/30.11.2019 at Durgapur for going to Baharampur and he is driver by profession. He further stated in his cross-examination that one and half hours has been taken on that day to reach Malda by the concerned bus and the bus took stoppage at Rathbari More, Malda at about 1:00 at night. Few passengers boarded there. The bus started running thereafter and reached Farakka about 02:15 A.M. The accident was caused half and hour after leaving Farakka. He was in the bus at the time of accident and was sitting rearest seat of it. He also stated bus was running in normal speed and offending truck dashed the bus from its front in high speed by coming from the opposite side. It is stated the accident might not be happended if the driver of the truck drove the truck cautiously in normal speed. The opposite party/United India Assurance Company Limited being respondent no.5 herein did not put anything else in the cross examination but simply adopted the cross-examination of New India Assurance Company Limited. Learned advocate for the United India Assurance 7 Insurance Company Limited submits that as the case involves composite negligence of both bus and the oil tanker, the learned Trial Judge has rightly directed both the parties to pay equal compensation. Mr. M. P. Chakraborty, learned advocate for the United India General Insurance Company Limited relies upon the decision of Khenyei vs. New India Assurance Company Limited and Others reported in (2015) 9SCC 273, the Hon’ble Supreme Court in the said judgment and decision while dealing with the issue of composite negligence was pleased to observed as follows:- “11. A Full Bench in Karnataka SRTC v. Arun while answering aforesaid questions has observed that it was a case of composite negligence and the liability of tort feasors was joint and several. Hence, even if there is non-impleadment of one of tort feasors, the claimant was entitled to full compensation quantified by the Tribunal. The Full Bench referred to the decision of a Division Bench of the Gujarat High Court in Hiraben Bhaga & Ors. v. Gujarat SRTC in which it has been laid down that it is entirely the choice of the claimant whether to implead both the joint tort feasors or either of them. On failure of the claimant to implead one of the joint tort feasors, contributory liability cannot be fastened upon the claimant to the extent of the negligence of 8 non-impleaded joint tort feasors. It is for the joint tort feasors made liable to pay compensation to take proceedings to settle the equities as against other joint tort feasors who had not been impleaded. It is open to the impleaded joint tort feasor to sue the other wrong doer after the decree or award is given to realize to the extent of others’ liability. It has been laid down that the law in Ganesh’s case has been rightly laid down and it is not necessary to implead all joint tort feasors and due to failure of impleadment of all joint tort feasors, compensation cannot be reduced to the extent of negligence of non- impleaded tort feasors. Non-impleadment of one of the joint tort feasors is not a defence to reduce the compensation payable to the claimant. In our opinion, the law appears to have been correctly stated in Karnataka SRTC v. Arun. 12. A Full Bench of Madhya Pradesh High Court in Sushila Bhadoriya v. M.P. SRTC has also laid down that in case of composite negligence, the liability is joint and several and it is open to implead the driver, owner and the insurer one of the vehicles to recover the whole amount from one of the joint tort feasors. As to apportionment also, it has been observed that both the vehicles will be jointly and severally liable to pay the compensation. Once the negligence and 9 compensation is determined, it is not permissible to apportion the compensation between the two as it is difficult to determine the apportionment in the absence of the drivers of both the vehicles appearing in the witness box. Therefore, there cannot be apportionment of the claim between the joint tort feasors.” It is also submitted that the Hon’ble Supreme Court that in case of all joint tortfeasors have been impleaded and evidence is sufficient, it is open to the Court/tribunal to determine inter se extent of composite negligence of the drivers. However, determination of the extent of negligence between the joint tortfeasors is only for the purpose of their inter se liability so that one may recover the sum from the other after making while of the payment to the plaintiff/claimant to the extent it is satisfied the liability of the other. In case of both of them have been impleaded and the apportionment/extent of their negligence has been determined by the Court/Tribunal, in the main case one joint tortfeasor can recover the amount from the other in the execution proceeding. Mr. Chakraborty further submits that both the insurance companies namely New India Assurance Company Limited and United India General Insurance Company being government companies can share the 10 liabilities equally. Learned advocate for the claimants/respondents no. 1 and 2 submits that the decision Khenyei should be followed in this case and the liability should be distributed among both the insurance companies. Learned advocate further submits that in another case arising out of the accident where both the insurance companies were directed to pay equally to satisfy the awarded sum, no appeal is preferred by New India Assurance Company Limited. Learned advocate also relies an unreported decision of the learned Co-ordinate Bench of this Court passed in F.M.A. 642 of 2023. Upon considering the decision relied upon and the facts of the case at the very outset the cases relied upon does not appear to be similar to the facts of this case. Moreover the Hon’ble Supreme Court in the case of Khenyei (Supra) has observed that the direction to recover from one of the joint tortfeasor can be issued when both of them have been impleaded and the apportionment/extent of their negligence has been determined by the Court/Tribunal. Further there should be a determination of negligence of the tortfeasor. Thus, one of the primary consideration in this aspect is at the very outset there should be determination of the negligence of both the tortfeasors and without determination of the negligence the 11 liability of paying compensation cannot be imposed. Where the evidence is not sufficient to determine the negligence of either of the joint tortfeasor liability upon the said tortfeasors cannot be fastened. Upon considering the materials on record, the evidence of PW-3 in cross-examination the First Information Report and the Charge-sheet submitted by the police authority there is a clear involvement of the oil tanker with regard to the rash and negligent driving being vehicle No. BR- 01GH/5651. The evidence on record does not satisfy the conscience of the Court to hold the driver of the bus being No. WB 73A/3697 to be negligent and to impose the liability upon the said vehicle owner. In the facts and circumstances, this Court is of the view that the liability to pay equally by both the insurance companies namely the New India Assurance Company Limited and United India Assurance Company Limited should be modified. With regard to the cross objection about the quantum of compensation and from the separate appeal filed by the claimants being FMA 1211 of 2025 this Court is of the view that as the compensation awarded is just and reasonable there is no scope to interfere in the compensation awarded. Thus, FMA 304 of 2025 along with COT 115 of 2025 and FMA 1211 of 2025 stands disposed of. The 12 judgement and award of the Learned Additional District Judge, Fast Track 2nd Court, Raijanj, Uttar Dinajpur in M.A.C. Case No. 02 of 2020 stands affirmed so far as the compensation is concerned. However, the direction upon both the insurance companies stands modified to the extent that United Assurance Company Ltd. shall deposit balance amount of the awarded sum along with interest as directed by the Learned Trial Judge from the date of filing of the claim case till today. Such deposit shall be made within period of eight (08) weeks before Registrar General, High Court, Calcutta from date of communication of this order. Upon deposit being made the claimants/respondents no.1 and 2 will be entitled to withdraw the sum upon compliance of all formalities and the appellant/New India Assurance Company Limited will be entitled to withdraw the sum deposited by them along with accrued interest. With the aforesaid observation, all the appeals and corss objection stands disposed of. Urgent photostat certified copy of the order, if applied for, be given to the parties on usual undertakings. (Biswaroop Chowdhury, J.) 13 14