KALYAN DANGRE AND ANR vs NATIONAL INS CO LTD AND ANR

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IN THE HIGH COURT AT CALCUTTA
Civil Appellate Jurisdiction
Appellate Side

Present:

The Hon’ble Justice Biswaroop Chowdhury

F.M.A.T. (MV) 181 of 2024
National Insurance Company Limited
VERSUS
Sri Kalyan Dangre & Ors.
With
COT 145 of 2024
Sri Kalyan Dangre & Ors.
VERSUS
National Insurance Company Limited & Anr.


For the appellant in FMAT (MV) 181 of
2024 and respondent no.1 in COT
145 of 2024:
Mr. Saibalendu Bhowmik, Adv.


Mr. Jayanta Banerjee, Adv.
Mr. Sandip Bandyopadhyay, Adv.
Mrs. Ruxmini Basu Roy, Adv.
Mr. Argha Bhattacharjee, Adv.

For the respondents in FMAT (MV)
181 of 2024 and appellants in COT
145 of 2024:


Last Heard on: March 11, 2026
Judgment on: April 30, 2026
Biswaroop Chowdhury,J:
The Appellant before this Court was an opposite party in a case under
Section 166 of the Motor Vehicles Act 1988 and is aggrieved by the Judgment

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th
and Award dated 17.02.2024. Passed by Learned Additional District Judge 4
Court Paschim Medinipur in MAC Case No. 160 of 2017. The
claimants/respondents no-1 and 2 being also aggrieved by the Judgment and
Award passed by the Learned Trial Court have filed cross objection being COT
No-145 of 2024.
The case of the claimants before Learned Trial Court may be summed up
thus:
On 31/12/2016 at about 10.00 P.M. the victim was returning his house
from Chhota Tangra near Khargapur SD. Hospital by foot through the left side
of Chhota Tangra to Jhapatapur Road. At that time on the way near Chhota
Tangra Kali Mandir under Khargapur Town P.S. one Motor Cycle bearing No.
WB-36E/2518 came from Khargapur. S.D. Hospital side towards Jhapatapur
side with a very high speed and in rash and negligent manner and dashed the
victim from his back side as he was thrown off and he came in contact with
road side pole and received head injury and other injuries all over his body and
became unconscious. Immediately after accident local people admitted him in
Khargapur S.D. Hospital. As the injuries were serious he was referred to
Midnapore Medical College and Hospital in that night but the victim died on
the next day ie on 01/01/2017 in Midnapore Medical College and hospital.
The accident took place solely due to rash and negligent driving of the
driver of the Motor Cycle bearing No. WB-36E/2518. The deceased was a
bachelor. He was working as security Guard under Contractor DOLPHIN

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ENTERPRISE Subhas Pally Khargapur and he was posted at NURSING
TRAINING SCHOOL, Khargapur S.D. Hospital and was drawring salary of Rs.
9,500/- (Rupees nine thousand and five hundred) approx. He was the sole
earning member of his family consisting of himself and the petitioners. On his
death the whole family is put to inconceivable difficulties and hardship and the
petitioners received tremendous mental pain and shock which will continue
throughout their lives.
Pursuant to the filing of this case notice was issued upon opposite party
vehicle owner and opposite party Insurance Company. Opposite party owner
although appeared and filed written statement but thereafter did not contest
the case. Opposite Party National Insurance Company filed written statement
and contested the case. ISSUES were framed and evidence was adduced by the
claimants and Insurance Company. Learned Trial Judge by Judgment and
Award dated 17-02-2024 was pleased to dispose the claim case by observing
and directing as follows:
‘Hence it is ordered that the MAC case no-160 of 2017 be and the same
is allowed on contest without cost against the OP No-2, National Insurance
Company Limited and in ex-parte against the owner of the vehicle without
costs.
However in accordance with the direction of Hon’ble Supreme Court in
the above referred judgment reported in 2018(1) TAC 360(SC) the insurance

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company is at liberty to recover the amount from the owner of the vehicle after
making payment of the compensation to the petitioners.
OP No. 2 National Insurance Company Limited, the insurer of the
offending vehicle bearing no. WB-36E/2518 is directed to pay the
compensation of Rs. 10,91,200/- (Rupees Ten Lakh Ninety One Thousand and
Two Hundred only except Rs. 50,000/- to the claimant no. 2 by account payee
cheque and Rs. 50,000/- shall be payable to claimant no. 1 by account payee
cheque within two months hereof with the interest as per banking rate
applicable to fixed deposit from the date of filing of the application till
realization of the amount.’
The appellant National Insurance Company Limited being aggrieved by
the Judgment and Award dated 17-02-2024 passed by the Learned Trial Judge
has come up with the instant appeal. Heard Learned Advocate for the appellant
Insurance Company and Learned Advocate for the respondent no. 1 to
3/claimants. Perused the evidence adduced and materials on record.

Learned Advocate for the appellant Insurance Company submits that
there is long delay in lodging FIR without any explanation and the claim case
was implanted against the owner.
Learned Advocate further submits that the evidence of P.W. 2 as eye
witness in examination in chief and cross examination are at variance. Learned

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Advocate also submits that driver of the offending motor cycle did not possess
valid and effective driving license rather the D/L mentioned in the sezure list
and charge sheet (Ext-3 and Ext-5) in the name of Rabindra Nemai was proved
to be fake one.
Learned Advocate also submits that the evidence of P.W. 3 will go to
show that Income Certificate was manufactured for the purpose of claim case.
Learned Advocate relies upon the following Judicial Decision:
Pappu and Ors. VS Vinod Kr. Lamba
Reported in 2018(3) SCC-208.
United India Insurance Co. Ltd. VS Rakesh Kr Arora and Ors.
Reported in 2008(13) SCC.
V. Subhulakshmi VS Lakshmi and Anr.
Reported in 2008 ACJ-936.
Rani and Ors VS National Insurance Company Ltd.
2018(8) Supreme 252.
Kerala State Electricity Board and Anr. VS Valsolak and Anr.
Reported in 1998(8) SCC-254.
National Insurance Co. Ltd. VS Challa Bharathamma and Ors.

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Reported in 2005(1) WBLR(SC)-271.
Learned Advocate for the respondents/claimants submits that P.W.2 as
eye witness deposed that a two wheeler bearing registration number WB/36E-
2518 came from the back side i.e.; Khargapur S.D. Hospital side with a very
high speed and dashed one young man as a result he was thrown of and
collided in street pole and received injuries all over his body. In cross
examination he stated that he was examined by the I.O. of the case and he
took the victim to hospital.
Learned Advocate also submits that the opposite party Insurance
Company has not adduced evidence to show that there was no rash and
negligent driving.
It is submitted by the Learned Advocate that merely 25 days delay in
lodging the FIR, does not negate the claim case. It is further submitted that in
our country it cannot be expected that a common man first rush to the police
station after accident. Human behavior occupy the mind of Kith and kin to an
extent that they give more importance to treatment rather than lodging F.I.R.
Learned Advocate also submits that during investigation the I.O. of the case
seized one driving license bearing number 067492 (NPL) in the name of
Rabindra Nimai valid up to 21-06-2036. The said seizure list has been
exhibited as Exhibit 4 without objection. The I.O. of the case after conclusion of
investigation submitted charge sheet against the said Rabindra Nimai being the
sole accused of the case who was driving the motor cycle at the time of

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accident. Learned Advocate submits that the driver of the offending vehicle was
the owner of the same who initially turned up to contest the case by filing
written statement in the tribunal. But ultimately he did not contest the case.
Even in the present context the insurance company failed to explain why they
did not summon the said owner/driver before the tribunal to reveal the truth
as to the driving license in question was fake or genuine since the insurance
company itself took the plea before the learned tribunal that the driving license
was not genuine and it’s fake one.
On perusal of the record it is found that driving license vide No. 067492
is not produced in Court. The Trial Court had no opportunity to peruse the
driving license to arrive at any definite conclusion. On the contrary, the
contents of charge sheet (Exhibit-3) show that the driving license 067492 was
valid up to 21-06-2036. The findings of the charge sheet are not proved to be
false by adducing any cogent oral and documentary evidence.
Learned Advocate submits that the Insurance Company failed to
establish that the driving license which was seized by the I.O. of the case was
067492 in the name of Rabindra Nemai as appearing from seizure List (Exhibit-
5) and the driving license in the name of Animesh Mahato are different. Since
the insurance company failed to produce the seized driving license of Rabindra
Nimai it cannot be ascertained that the said driving license actually issued by
the RTA Paschim Medinipur itself. Learned Advocate submits that if the driving
license of Rabindra Nimai had been in the record of the tribunal then the

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tribunal could have justified whether the document is fake or genuine. From
the evidence of OPW. 3 the Court cannot come to a definite conclusion whether
the said Driving License in question issued by the RTO Paschim Midnapore
and not by any other RTO of the country.
Learned Advocate for the Respondents/Claimants examined P.W. 3
Prasanta Ghosh who stated that on being authorized on behalf of his wife Smt.
Sutapa Ghosh he produced one authorization letter (Exhibit 10) and one
Aadhar Card of himself, he also produced one income certificate of the
deceased from his wife Smt. Sutapa Ghosh as proprietor of Nursing Training
Institute Dolphin Enterprise of SD. Hospital. Thus evidence of P.W. 3 should be
accepted.
Learned Advocate relies on the following judicial decisions:-
Ravi VS Badrinarayan and others.
Reported in 2011(1) TAC. 867(SC)
Smt. Anjali Ray and Ors. VS Bajaj Allianz General Insurance Co. Ltd.
FMA 58-2025 High Court at Calcutta.
st
Now with regard to 1 submission of Learned Advocate for the appellant
that the vehicle was implanted in the instant case as there was long delay in
lodging FIR, it is to be remembered that in the instant case the victim being
son of the claimants died on the following day of the accident. Thus when
parents loose their child in street accident the extent of mental depression and

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agony which comes requires no explanation. It is only when the mental agony
reduces and there is advice of well wishers and legal Practitioners the parents
choose to lodge FIR and file claim case. In the case of Ravi VS Badrinarayan
and others reported in 2011(1) TAC 867 (S.C.) the Hon’ble Supreme Court
observed as follows:-
‘ It is well-settled that delay in lodging FIR cannot be a ground to doubt the
claimant‟s case. Knowing the Indian conditions as they are, we cannot expect a
common man to first rush to the Police Station immediately after an accident.
Human nature and family responsibilities occupy the mind of kith and kin to
such an extent that they give more importance to get the victim treated rather
than to rush to the Police Station. Under such circumstances, they are not
expected to act mechanically with promptitude in lodging the FIR with the Police.
Delay in lodging the FIR thus, cannot be the ground to deny justice to the victim.
In cases of delay, the courts are required to examine the evidence with a closer
scrutiny and in doing so; the contents of the FIR should also be scrutinized more
carefully. If court finds that there is no indication of fabrication or it has not been
concocted or engineered to implicate innocent persons then, even if there is a
delay in lodging the FIR, the claim case cannot be dismissed merely on that
ground.‟
With regard to the dispute of the accident taking place as raised by the
Learned Advocate for the appellant upon perusal of evidence of P.W. 2 it
appears that how he saw the accident how the accident took place is stated

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and that he and two other person took him to Kharagpur S.D. Hospital and
admitted him there is also mentioned. In cross examination P.W. 2 stated that
he was examined by I.O. after 20-25 days of the accident. He stated that the
offending vehicle fell down and the accident occurred. Nothing could be shaken
in the cross examination that P.W. 2 did not witness the accident. P.W. 2 is
also a witness in the charge sheet submitted by Police Authority. Moreover the
FIR and charge sheet corroborates the evidence of P.W. 2. The evidence was
considered in details by the Learned Trial Court and Learned Court came to
findings about rash and negligent driving. Thus there is nothing to interfere.
Now with regard to the argument of the Learned Advocate for the
appellant that the driving license of the driver of the offending vehicle was fake
and the Insurance Company was not liable to pay compensation, it appears
that O.P.W. 1 in his evidence has stated that he is producing the driving
license register showing issuance of original driving license in favour of
Animesh Mahato.
In Cross examination O.P.W. 1 stated that the driving license no-064792
in the name of Rabindra Nemai was not issued from the office of Regional
Transport Authority Paschim Mednipur which does not mean that the driving
license is fake. A driving license can be issued in accordance with law under
Section 9 of the Motor Vehicles Act 1988.
Section 9 of the Motor Vehicles Act 1988 provides as follows:-

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S-9-Grant of driving license – Any person who is not for the time being
disqualified for holding or obtaining a driving license may apply to the licensing
authority having jurisdiction in the area-
i) in which he ordinarily resides or carries on business.
ii) in which the school or establishment referred to in Section 12 from
where he is receiving or has received instruction in driving a motor
vehicle is situated.
For the issue to him of a driving license.
Thus Section 9 of the Motor Vehicles Act 1988 mentions before which
licensing authority application for driving license has to be made. Hence it
cannot be inferred that save and except Regional Transport Authority Paschim
Medinipur no other Regional Transport Authority can grant driving license.
Moreover a driving license in order to be proved as fake should be produced
before court and the holder of license should be given an opportunity of being
heard. In the instant case the I.O. could have been summoned and examined
and the driving license seized by him could have been produced and the vehicle
owner cum driver should also have been summoned and examined by
Insurance Company to enable the Learned Trial Court to come to a finding that
driving license was fake and there was breach of policy condition. Thus the
Learned Trial Court did not commit any error in coming to a finding that the
Insurance Company has failed to prove breach of policy condition. The decision
of the Hon’ble Supreme Court in the case of Pappu and Ors. (supra) and United

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India Insurance Company Limited (supra) are not applicable to the facts of the
case.
Normally a vehicle owner usually does not contest a motor accident claim
case when the vehicle is insured. However in case of allegations by Insurance
Company that there is breach of policy condition a new issue should be framed
necessary evidence should be adduced and fresh notice should be issued upon
vehicle owner.
This issue was dealt in the case of Lirasa Bibi VS United India
Insurance Company Ltd. being FMA 1003 of 2025 Reported in
MANU/WB/0213/2026 ‘The observation was as follows.’
„Now with regard to the submission of pay and recovery it is well settled
that in case of violation of Insurance Policy Condition, the Insurance Company is
entitled to recover from the insured the compensation amount awarded after
making payment to the claimant/victim. However before proceeding to recover
from the insured, the compensation amount the insurer upon making necessary
enquiry and upon giving the vehicle owner an opportunity of being heard shall
ascertain as to whether the violation of policy condition was bona fide
unintentional or deliberate. Thereafter the Insurance Company may decide
whether to proceed against the insured or to condone such breach.‟
It was further observed as follows:

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In the case of Reliance General Insurance Company Ltd. VS Niyati
Kumar and ors FMA-1326 of 2025 reported in 2025 SCC Online Cal 8886 it was
observed as follows:
“Thus it is well settled that in order to absolve from liability of paying
compensation and to obtain an order of pay and recovery it is mandatory for the
Insurer to prove breach of the condition of Insurance Policy. Although all
Insurance Companies are not „State‟ within the meaning of Article 12 of the
Constitution of India but the fact that third party Motor Insurance Law is a
beneficial Legislation and it has a public aspect and its object is to protect the
public (third parties) from financial losses due to accidents caused by a motorist
by ensuring that victims are compensated. On one hand, and also to protect the
vehicle owners from bearing huge burden of compensation in case of accidents
where the insurance policy condition is complied with on the other hand. Thus
considering the public aspect of Motor Insurance Claims Insurance Companies
have responsibilities to ensure that genuine accident claims are settled without
delay and the vehicle owner who has not violated the terms of policy is not
unnecessarily harassed. In the event the Insurance Company has reasons to
believe that policy conditions were violated it should conduct an enquiry issue
notice upon the vehicle owner and give him an opportunity of being heard. Where
the Insurance Company is satisfied after enquiry that conditions of policy were
not violated the allegations of violation of policy, namely the vehicle was driven
without permit or without valid driving license should not be raised in Court.
However upon Enquiry if the Insurance Company finds that there was violation

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of terms of policy such findings should be recorded by Insurance Company and
necessary evidence should be adduced in Court. In such a case the Enquiry
Report should also be filed in Court, apart from adducing evidence. A vehicle
owner after getting his vehicle insured proceeds with the assumption that
Insurance Company will settle the compensation claim in case of accidents thus
the vehicle owners ordinarily do not appear in Court to contest claim cases. Thus
in the event there is allegation of violation of condition of Policy the vehicle
owners should be given an opportunity of being heard before such allegation
being made in Court and before being examined in Court as witness. Upon such
enquiry being made the Insurance Company can decide as to whether policy
violation was minor or major and whether to condone such violation or recover
the amount of compensation paid.”
It was also observed in the case of Lirasa Bibi as follows.
„In the event the violation of policy condition appears at the time of
argument when the case is at the verge of disposal and there was no scope for
the Insurance Company to make preliminary enquiry and give the vehicle owner
an opportunity of being heard the Learned Tribunal after it arrives at a finding
that there was breach of policy condition shall after directing payment by the
Insurance Company to the claimant issue show cause upon the Insured/vehicle
owner as to „why the compensation amount directed to be paid shall not be
recovered.‟ Copy of the Award shall also be enclosed with the notice. Upon
hearing the vehicle owner/insured with regard to violation of policy condition if

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the tribunal/Court comes to the conclusion that there was violation of policy
condition which was not bona fide and without sufficient explanation, the
Court/Tribunal will order recovery of amount directed to be Paid by Insurance
Company. In the normal course where vehicle owners receives notice of claim
case they ordinarily do not appear in Court on the ground that Insurance
Company will settle the claim. However if subsequent allegation is made in the
written statement about violation of policy condition and additional issue in this
regard is framed, and evidence adduced by the Insurance Company further
notice in this regard should be issued upon vehicle owner to meet the allegation.
In the event the Court/Tribunal is of the view that notice to be issued after
considering the evidence adduced in this regard Learned Tribunal may issue
notice after evidence. In any event prior to directing recovery after payment notice
in this regard must be issued specifically and the vehicle owner should be given
an opportunity of being heard. In the instant case the vehicle owner/insured was
not put to notice with regard to violation of policy condition for the purpose of pay
and recovery. Thus no order with regard to recovery can be directed without the
Appellant Insurance Company causing enquiry and giving the vehicle
owner/insured an opportunity of being heard. Thus the Appellant National
Insurance Company Limited is granted liberty to cause service of notice upon the
vehicle owner/insured annexing copy of the order of trial Court and this order
and upon hearing him with regard to violation of policy condition and recovery of
compensation amount awarded. Upon hearing the insured respondent no-2
Subrata Nath the Appellant National Insurance Company Limited will decide

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whether to proceed against the said respondent for recovery. In the event
recovery proceedings is instituted parties will be entitled to take relevant points
involved to enable the Court/Tribunal to arrive at a just decision.‟
In the instant case the Learned Trial Judge granted opportunity to
recover the compensation after making payment. The direction issued
regarding recovery should be clarified and modified to prevent further dispute.
Thus in the instant case the Appellant Insurance Company upon causing
enquiry and giving the vehicle owner an opportunity of being heard will be
entitled to recover the compensation amount if it comes to the finding that the
driving license of vehicle owner was fake and the vehicle owner had knowledge.
Now with regard to the quantum of compensation it appears that P.W. 1
Father of the victim in his claim petition as well as in her evidence has
specifically stated the institution where victim was employed, place of work the
name of the proprietor of the institution address of the institution, and the
nature of work which the victim used to do. These particulars regarding
occupation of the victim given by the claimant in evidence is sufficient without
corroboration to hold that the victim was working as Security Guard under
Contractor DOLPHIN Enterprise. With regard to monthly salary. P.W. 3 in his
examination in chief has stated that her wife Sutapa Ghosh is proprietor of
Dolphin Enterprise. Although documents regarding existence of Dolphin
Enterprise was not filed in Court but the Letter head mentioning the name of
the enterprise with specification Govt. Contractor and General Order Supplier

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Service Tax Registration Number ward no-holding number and nature of
services rendered is sufficient to create the belief about existence of the
enterprise. Similarly the particulars of the victim mentioned regarding his place
of posting from 04-03-2016 till 31-12-2016 his place of residence and monthly
salary of Rs. 9,407/- in the certificate issued cannot be disbelieved. Moreover
the nature of service which the victim used to render it is not unusual to earn
salary of Rs. 9,407/- as mentioned in the certificate.
The decisions relied upon by Learned Advocate for the appellant
regarding notional income does not apply to the facts of the case.
Although the income mentioned in the certificate issued by the employer
of the victim is Rs. 9,407/- but it would be proper to proceed on the basis of
monthly income of Rs. 9,000/-.
In the event monthly income is Rs. 9,000/- Future Prospect of 40%
added brings the total monthly income to Rs. 12,600/- 50% deducted on
account of personal expenses brings the net monthly income to Rs. 6,300/-.
The annual dependency loss comes to Rs. 75,600/-. The multiplier of 18
should be applied and total dependency Loss comes to Rs. 13,60,800/-.
Further the claimants/respondents no. 1 and 2 entitled to Rs. 40,000/- each
on account of filial consortium and Rs. 30,000/- on account of funeral
expenses and Loss of estate. Thus total compensation comes to Rs.
14,70,800/- by arithmetical calculation. However in the view of this Court Rs.
14 lakh is just and reasonable compensation.

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Hence this FMAT (MV) No. 181 of 2024 along with COT No. 145 of 2024
stands disposed. The Judgment and Award dated 17-02-2024 passed by
th
Learned Additional District Judge 4 Court Paschim Medinipur in MAC Case
No-160 of 2017 stands modified to the extent that the claimants/respondent
no. 1 and 2 are entitled to Rs. 14,00,000/- from the Appellant National
Insurance Company Limited along with interest @6% per annum from the date
of filing claim case till today. The Appellant National Insurance Company Ltd.
shall deposit before Registrar General High Court Calcutta Rs. 14,00,000/-
along with interest within 8 weeks from the date of communication of this
order. In the event amount awarded by Learned Trial Court is already
deposited the balance amount be deposited. The respondent no-1 and 2
claimants are permitted to withdraw the compensation amount upon
compliance of necessary formalities.
With regard to recovery of compensation amount as observed above the
appellant Insurance Company will be entitled to recover the compensation
amount upon causing enquiry and giving the vehicle owner an opportunity of
being heard. The recovery proceedings may be instituted only if the Insurance
Company comes to a finding that the act of the vehicle owner was not bona fide
and that the license seized by Police Authority was fake one and known to the
vehicle owner. All points of law will be kept open before the Court where
recovery proceedings is instituted.

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Urgent photostat certified copy of this order, if applied for, should be
made available to the parties upon compliance with the requisite formalities.

(Biswaroop Chowdhury, J.)