The National Insurance Co. Ltd. v. Rabiya Bibi And ORS

IN THE HIGH COURT AT CALCUTTA

[ CIRCUIT BENCH AT PORT BLAIR ] *** FMAT/2/2022 IA No.CAN/1/2022 IA No.CAN/2/2022 The National Insurance Co.Ltd Vs.

Rabiya Bibi and others Mr. N.A.Khan ... for the appellant Ms. A.S.Zinu ... for the respondents February 16, 2023 [SR] Item No.30 Re: CAN/2/2022 (Condonation of delay) Heard.

The delay of 210 days in preferring the appeal is condoned, subject to payment of cost of Rs.10,000/- to the claimants/respondent nos.1, 2 and 3 within a period of 15 days.

The interim application being CAN/2/2022, is disposed of.

( Chitta Ranjan Dash, J.) Later Re: FMAT/2/2022 The appeal is heard with the consent of learned counsel for the parties. Respondent no.4 has not appeared despite sufficient services.

The appellant is aggrieved by the fact that the driver of the vehicle was in drunken state at the time of accident and

he had no valid driving licence. For that reason, the police had filed charge-sheet under sections 185/3/181 of the Motor Vehicles Act coupled with other offences under Indian Penal Code. Learned counsel for the respondents submits that the driver has, however, been acquitted from the charge by the competent criminal court in the meantime. Learned counsel for the respondent, in reply, submits that though the driver has been acquitted from the charge, that does not erase completely the question of irresponsibility of drunkenness on the part of the driver when he himself had taken the liquor and he was driving the vehicle without valid driving licence. The Insurance Company in an appropriate proceeding has the entitlement to prove such fact of irresponsibility on the part of the driver to get the amount paid to the claimants towards awards, recovered from the insured.

It is further submitted by learned counsel for the appellant that being cognizent of such fact, though the Insurance Company has been directed to indemnify the insured, learned Tribunal has gone wrong in passing the award, without any authorization to Insurance Company to recover the award amount from the insurer. The Insurance Company is aggrieved by that.

Having heard learned counsel for the parties and taking into consideration the fact that there is no grievance of learned counsel for the appellant so far as the quantum of award is concerned, the quantum of award passed by the

MACT is affirmed and the Insurance Company is directed to satisfy the award within sixty days from today. So far as the right of the Insurance Company to recover the amount from the insured is concerned, this Court disposes of the appeal with liberty to the appellant to initiate appropriate proceeding before the appropriate authority for such recovery from the insured, subject to proving of the fact by the Insurance Company before such appropriate authority that at the time of driving of the vehicle, the driver was in an inebriated state and he had no valid driving licence. The petition to the aforesaid fact be filed in accordance with law within four weeks from date and be disposed of in accordance with law, as expeditiously as possible after due notice to the parteis.

It is made clear that I have expressed no opinion about the merit of the claim of the appellant so far as recovery is concerned.

Accordingly, the appeal being FMAT/2/2022 and the interim application being CAN/1/2022 are disposed of. The appellant may take return of the amount deposited before the Registry of this Court on satisfaction of the Registry that the award amount has been paid to the claimants.

( Chitta Ranjan Dash, J.)