IN THE HIGH COURT AT CALCUTTA CIVIL APPELLATE JURISDICTION APPELLATE SIDE Present:

The Hon’ble Justice Ananya Bandyopadhyay F.M.A. 151 of 2024 National Insurance Co. Ltd.

-Vs-

Smt. Sulochana Mahata & Ors.

For the Appellant : Mr. Gopa Das Mukherjee For the Respondents : Mr. Amit Ranjan Roy Heard & Judgment on : 20.06.2025 Ananya Bandyopadhyay, J.:-

1. The Learned Advocates representing the appellant/Insurance Company as well as respondents/claimants are present in Court.

2. The instant appeal had been preferred by the appellant/Insurance Company against the impugned judgment and award dated 09.10.2023 passed by the Learned Additional District and Sessions Judge, Motor Accident Claims Tribunal, 3^rd Court, Paschim Medinipur in M.A.C. Case No.

381 of 2018.

3. The learned Advocate representing the appellant/Insurance Company submitted to have filed the instant appeal exclusively on the ground to claim the right to recover the compensation awarded in favour of the claimants after disbursing the same from the owner of the offending vehicle. It was further submitted that the offending vehicle was being driven by the son of the owner of the offending vehicle who did not possess any valid driving licence which entitled the appellant/Insurance Company to pay the awarded compensation and, thereafter, recover the same from the owner of the offending vehicle.

4. The learned Advocate representing the respondents/claimants submitted that the Insurance Company being the opposite party before the learned Tribunal did not raise the issue that the driving licence was not possessed by the driver of the offending vehicle and, therefore, the appellant/Insurance Company had no scope to agitate the issue at this stage of appeal.

5. Considered the rival contention of the learned Advocates representing the respective parties.

6. Since the occurrence of the accident, involvement of the offending vehicle, Insurance certificate etc. are not disputed by the learned advocate representing the appellant/insurance company, this Court restricts itself only to the point of pay and recovery as raised by the learned Advocate representing the appellant/Insurance Company. The written statement filed by the Insurance Company before the learned Tribunal did not categorically mention that the driver of the offending vehicle or else the owner of the offending vehicle did not possess the driving licence. It was further submitted that the charge-sheet did not mention seizure of the driving licence which had been marked exhibit-1. It appeared that the properties/articles/documents mentioned in serial no. 11 of the charge-sheet did not refer to the driving licence to have been seized. However, it had been mentioned, inter alia, that “during investigation of this case on 19.07.2017 motor cycle owner, namely Anil Mahata came to Police Station and produce valid document in respect of said motor cycle, I prepared proper seizure list duly signed by witnesses. I received source information the FIR named accused roaming at Bazer I informed O/C, Sankrail Police Station. On 24.07.2017 myself along with force held raid and the FIR named accused person, namely, Rabindra Nath Mahata (Gaju), S/o – Anil Mahata, Village – Bhaudi, P.O.-Chingur Kosa, P.S.-Jhargram, Dist.-Jhargram I mentioning all arrest formalities. Accused driver confessed his guilt. Driver no produces any driving license and forwarded to Ld. AJM, Jhargram Court on 24.07.2017 and also send a prayer to the R.T.A., Jhargram for mechanical examination seized motor cycle registration bearing no. WB34AZ2903”. Failure on the part of the driver to produce the driving licence cannot generally be presumed that the driver did not possess the driving licence. It was incumbent upon the appellant/Insurance Company to have adduced evidence through the concerned R.T.O. to prove that the driver did not possess a driving licence. Moreover, this issue was not agitated before the learned Tribunal and the impugned Judgment and order did not mention an