Form No. J(2)

IN THE HIGH COURT AT CALCUTTA

CIVIL APPELLATE JURISDICTION

APPELLATE SIDE

Present:

The Hon’ble Justice Ananya Bandyopadhyay

IA No.:CAN/1/2013 (Old No: CAN 7335 of 2013),

CAN/2/2016 (Old No: CAN 7429 of 2016)

in

FMA 102 of 2007

Smt. Protima Mitra & Anr.

Versus

The New India Assurance Co. Ltd. & Anr.

For the Appellant : Mr. Krishanu Banik,

Mr. Tathagata Banik.

For the Respondents : Mr. Animesh Das

Heard & Judgment on : 19^th August, 2025.

Ananya Bandyopadhyay, J:

1. The Learned Advocates representing the respective parties are

present in Court.

2. The instant appeal had been preferred against the impugned

judgment and award dated 13.06.2006 passed by the Learned Judge, Motor Accident Claims Tribunal, Hooghly in MAC Case No.

365 of 2004.

3. The learned advocate representing the appellants/claimants submitted to have filed the instant appeal exclusively on the ground that the Learned Tribunal had awarded a compensation to the extent of Rs.1,74,500/- to be paid by the owner of the offending vehicle which till date has not been complied with. Moreover, the Learned Tribunal disregarding the fact that the victim had been a gratuitous passenger whereby the Insurance Company should have been made liable to pay the compensation awarded and thereafter recover the same from the owner of the offending vehicle had exclusively directed the owner of the offending vehicle to pay for such compensation as awarded.

4. Learned Advocate representing the respondents/Insurance Company submitted that the insurance policy had not been possessed by the owner of the offending vehicle with regard to the same and the respondents/Insurance Company should not have been made liable to pay the compensation.

5. Since the occurrence of the accident, the driving licence, route permit etc and other ancillary issues are not disputed by the learned advocate representing the respondent/Insurance Company, this Court restrict itself only to the extent of determine the above-mentioned issues.

6. Considered the rival contentions of the Learned Advocates representing the respective parties.

7. The written statement filed by the respondents/Insurance Company before the Learned Tribunal, inter alia, stated as follows:-

“11. That the statements made in para nos.14, 15, 16 & 17 of the claim petition, this answering opposite party only admits the alleged lorry bearing No.WB.41/3893(Lorry) covered by a policy of insurance with the New India Assurance Co. Ltd. at the material date and time of alleged accident subject to the terms and conditions, limitation and exception therein and all other allegations are denied by this answering opposite party. Moreover, it transpires on enquiry that owner of the vehicle died on 8.11.99.”

8. The charge-sheet mentioned the articles to have been seized vide the seizure list which mentioned the policy number with regard to the insurance policy issued by the respondents/Insurance Company against the offending vehicle bearing registration No.WB-41/3893 being a lorry. It had been an indisputable fact that the victim had been a gratuitous passenger in view of the reasoning of the Learned Tribunal in the impugned judgment and order as follows:-

“It is proved that truck is for carrying articles and it is not for carrying passengers. The deceased was not the helper of that offending vehicle. But nonetheless he voluntarily came by means of that offending vehicle as passenger. In such a case Insurance Co. can have no liability to pay compensation for the death of gratuitous passengers. It is held in the ruling of 2005ACJ (Accidents’ Claims Journal) 721 that Insurance Co. is not liable to pay compensation for the death of gratuitous passengers in the offending vehicle.

Furthermore, the petitioners moved this petition so casually that they did not produce the insurance certificate. P.W.1 also did not state that the offending vehicle was then under the insurance coverage in the book of O.P. No.2 Insurance Co. So the Court is really handicapped to assess whether at the day of