Bajaj Allianz General Insurance Company Limited v. Mousumi Das (Chatterjee) & Ors.

Ratnamaya Rai & Others2, he submitted that delay in lodging F.I.R. per se does not effect the claimant’s case until and unless there is proven fact of concoction, engineering and fabrication of the F.I.R. Since no evidence of concoction, engineering and fabrication of the F.I.R. has come on record, even if there is delay that is not fatal to the claimant’s case. He further submitted that even though the vehicle number is not mentioned in the inquest report that does not entitle the Tribunal to disbelieve that the vehicle implicated in the claim application was the offending vehicle. To buttress his contention, he relied on the decision of this Court passed in National Insurance Company Ltd. versus Smt. Sarmishta Sikdar and Others3. Moreover, he submitted that the insurance company has not examined the owner or the driver of the offending vehicle to establish the fact of non-involvement of the offending vehicle in spite of taking leave under Section 170 of the 1 2011 (1) T.A.C. 867 (S.C.) 2 FMA 920 of 2021 (High Court at Calcutta) 3 2018 (4) T.A.C. (Cal.) 6 Motor Vehicles Act, 1988 and thus, the Tribunal has no other option but to accept the contention of the claimants of the involvement of the offending vehicle since the same has not been controverted by cogent evidence from the side of the insurance company.

That apart, P.W.2, Chandan Das, who is also a chargesheeted witness, has categorically stated that he has witnessed the accident in which the offending vehicle was involved and such evidence of P.W.2 has remained unchallenged in cross-examination. In support of his contention, he relied upon the decision of this Court passed in The New India Assurance Co. Ltd. versus Mita Samanta & Others4. Moreover, he indicated that not a single suggestion has been given to P.W.2 challenging involvement of the vehicle. The rule of evidence is wherever the opponent has declined to avail himself of the opportunity to put his essential and material case in cross- examination, it must follow that he believed the testimony given could not be disputed at all. In support of his contention, he relied on the decision of this Court passed in A.E.G. Carapiet versus A.Y. Derdarian5 and another decision of this Court passed in National Insurance Co.

Ltd. Versus Smt. Runu Singh & Ors.6. He further submitted that it is a normal rule that in civil proceedings a fact is said to be established if it is proved by preponderance of probabilities. In support of his contention, he relied on the decisions of Hon’ble Supreme Court passed in Dr. N. G. Dastane versus Mrs. S. Dastane7 and in 4 2010 (1) T.A.C. 343 (Cal.) 5 AIR 1961 Calcutta 359 6 F.M.A. 3896 of 2015 (High Court at Calcutta) 7 AIR 1975 SC 1534 7 Mangla Ram versus Oriental Insurance Company Limited and Others8. Since the evidence of the eyewitness P.W.2 of the involvement of the vehicle has not been challenged or thwarted by any rebuttal evidence, hence applying the principles of preponderance of probabilities, the involvement of the offending vehicle has been well-established by the claimants. He also indicated that though the statement of the witness, Dhruba Narayan Mitra recorded under Section 161 of the Criminal Procedure Code (part of Exhibit A) reveals of some other vehicle and the inquest report under Section 174 of the Criminal Procedure Code does not disclose of offending vehicle in the accident, however, none of the aforesaid statements/reports is substantive piece of evidence to rely upon.

Moreover, he submitted that the learned Tribunal erred in determining the income of the deceased at Rs. 43,840/- per month whereas it ought to have considered the gross income of Rs. 56,370/- less Income Tax and Professional Tax as the actual income of the victim. Although the salary register does not disclose of any tax been paid but if the annual income comes within taxable range, the same needs to be deducted from gross income. To buttress his contention, he relied on the decision of Hon’ble Supreme Court passed in Vimal Kanwar and Others versus Kishore Dan and Others9. Further the learned Tribunal ought to have granted future prospect of 15% of the annual income of the deceased.