06.01.2026 Item No.97

Ali

ct. no.9

FMA 1053 of 2025

Cholamandalam MS General Insurance Co. Ltd.

Vs.

Saraswati Kar & Ors.

Mr. Soumalya Ganguli ………for the appellant.

Mr. Krishanu Banik, Mr. Tathagata Banik

…for the respondents/claimants.

1. Learned advocate for the parties are present.

2. Heard learned advocates for the parties.

3. The appellant before this Court was an opposite

party in a case under Section 166 of the Motor Vehicles Act, 1988 filed by the respondent Nos. 1 and 2. The case of the claimant respondent No. 2 before the learned Trial Court may be summed up

thus:

“On 22.10.2020 at around 12:30 p.m., while the victim Subha Kar alongwith his friend, namely, Mou Mondal were going to Jhargram from Bohijuri by riding a motor cycle bearing no. WB-34G-7587 wearing helmet, in a normal speed keeping themselves on the left side of the road when they reached near Betkundri, at that time one vehicle (Mahindra Supro Maxi Truck) bearing

registration no. WB-49-1099 which was coming from the side of Jhargram with a very high speed and in rash and negligent manner, suddenly lost its control and dashed the motorcycle of the victim with great force. As a result of which victim and his friend were thrown out of the motorcycle and both of them sustained grievous bleeding injuries on their heads and other parts of their body. Therefore, the local people took the victim and his friend to Jhargram District Hospital for treatment where the attending doctor of the aforesaid hospital after examining both the victim declared them as brought dead.

4. The accident took place due to rash and negligent driving of the driver of the Motor Vehicle bearing registration no. WB-49-1099. Pursuant to the filing of this case notice was issued upon the opposite party. The opposite party/appellant Cholamandalam MS General Insurance Company Limited contested the case by filing written statement and adducing evidences. However, the opposite party/respondent No. 3 did not contest the case. By judgment and award dated 30.08.2024 the learned Trial Court was pleased to dispose of the claim case by observing and directing as follows:

“Hence, it is,

O R D E R

34. That the instant case being MACC No. 549 of 2020 be and the same is hereby allowed on contest against the Opposite Party No. 2 and ex parte against the Opposite Party no. 1 but without costs.

35. the Opposite Party no. 2 (Cholamandalam MS General Insurance Co. Ltd.), which indemnified the Opposite Party no. 1, is hereby directed to pay the total compensation amount of Rs. 48,65,630- (Rupees forty eight lakh sixty five thousand six hundred and thirty) only together with interest @ 6% per annum from the date of filing of the claim application till full liquidation by issuing the A/C payee Cheques in thej name of the claimant no. 1, Saraswati Kar under Section 166 of Motor Vehicles Act, 1988 within two (02) months from the date of this order, failing which the claimant shall be at liberty to put the order in execution”.

5. The appellant/ Cholamandalam MS General Insurance Company Limited being aggrieved by the judgement and award passed by the learned Trial Court has come up with the instant appeal. Although different grounds were taken by the appellant at the time of preferring this appeal but at the time of argument learned advocate for the appellant confined only to the grounds that the learned Trial Judge erred in holding that the driver of the offending vehicle was driving without the valid driving licience and by not granting liberty to the appellant/ Cholamandalam MS General Insurance Company Limited to recover from the owner of the offending vehicle.

6. Learned advocate submits that the claimants respondent Nos. 1 and 2 has filed all relevant documents but has not filed the driving licence of the driver. Thus, it is to be presumed that the driver did not have any valid driving licence. Although the owner of the vehicle being respondent No. 3 did not appear to contest this appeal but learned advocate for the claimants respo