Form No. J(2)

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

The Hon’ble Justice Ananya Bandyopadhyay FMA 1035 of 2024 National Insurance Company Limited Versus Swarup Chatterjee & Ors.

For the Appellant : Ms. Gopa Das Mukherjee For the Respondent Nos. 1 & 2 : Mr. Debabrata Nanda Heard & Judgment on : 17^th March, 2025.

Ananya Bandyopadhyay, J:

1. Both the Learned Advocates representing the appellant/Insurance Company and the respondent Nos. 1 and 2/claimants are present.

2. The instant appeal had been filed against the judgment and award dated 27.02.2024 passed by the Learned Judge, Motor Accident Claims Tribunal cum Additional District Judge, FTC-IV Bench, Alipore Court, South 24 Parganas M.A.C. Case No. 11 of

2016.

3. An application under Section 163A of the Motor Vehicles Act had been filed on account of the death of the victim in an accident which occurred on 05.05.2015 at about 11.30 a.m. at the crossing of the N.S.C. Bose Road to D.P.P. Roadnear Ananda Ashram with the involvement of the offending vehicle being Motor Cycle bearing registration No. WB-20AF-0309 which proceeded at an exceeding speed, rashly and negligently hit the victim who had been a pedestrian was sifted to M.R. Bangur Hospital, Kolkata and eventually expired on 10^th May, 2015.

4. The learned Advocate representing the appellant/Insurance Company that the Learned Tribunal despite having noted that the appellant/insurance company would pay the compensation amount and subsequently recover the same from the owner of the offending vehicle did not mention the same in the final portion of the impugned judgment. More-over, the learned Tribunal had granted an interest at the rate of 6% per cent per annum of Rs. 5,00,000/- with effect from 22.05.2018 till the date of issuing cheques for payment together with another interest @ 9% per annum on Rs. 1,14,500/- with effect from the date of filing of the case i.e. 21.01.2016 till 21.05.2018. The entire amount has to be divided equally between the claimants.

5. The learned Advocate representing the respondent Nos. 1 and

2/claimants did not object to the submission of the Learned Advocate representing the appellant/insurance company.

6. The Learned Tribunal in paragraph 13 of the impugned judgment and order observed as follows:

“Applying the principle of “pay & recovery’ in the facts and circumstances of the instant case, I am of the view that the insurance company has to pay compensation to the claimants at the first instance and then it will have the liberty to recover the amount from the owner of the vehicle subject to fulfillment of the conditions as enunciated by the Hon’ble Apex Court. However, so far as the instant case is concerned, OP 2 has not made any attempt to examine the owner of the offending vehicle to establish willful violation”.

7. Since the occurrence of the accident, the driving license, the Insurance policy, the route permit etc. and other ancillary issues have not been disputed by the learned advocate representing the respondent No.1/insurance company, this Court restricts itself in only modifying the impugned judgment and order granting liberty to the appellant/insurance company to recover the compensation award to the tune of Rs. 5,00,000/- along with interest at the rate of 6% per annum from the date of filing of the claim application under Section 163A of the Motor Vehicles Act till the date of its realization and recover the same from the owner of the offending vehicle.

8. The learned Advocate representing the appellant/Insurance

Company submits to have deposited a sum of Rs. 9,28,797/=(Rs.

25,000 + 9,03,797) through two separate cheques as per challan

filed by the learned advocate representing the appellant/insurance company.

9. The respondent Nos.1 and 2/claimants is entitled to receive the balance amount of Rs. 5,00,000/- at the rate of 6% per cent per annum from the date of filing of the claim application till the date of actual realization.

10. The office of the Registra