High Court · 2012

The findings as returned by the Tribunal as regards the accident that occurred on 18.07.2003 involving the vehicles bearing registration Nos.AS- 01/L-8268 (Bus) and AS-21/1357 (Bus), death of Abul Ali, the driver of the vehic le bearing registration No. AS-01/L-8268 (Bus) in the said accident and the insu rance coverage of the vehicle bearing registration No.AS-21/1357 (Bus) by the ap pellant, the Oriental Insurance Co. Ltd. are not in dispute by either of the par ties or in the appeal. As such, those findings stand affirmed requiring no furth er appraisal whatsoever. 04. The questions those have been projected in the appeal are relate d to (1) when there was a head-on collision, the Tribunal by not directing any p art of the awarded sum to be paid by the owner of the vehicle bearing registrati on No.AS-01/L-8268 (Bus) has committed serious illegality and (2) in absence of any evidence, the Tribunal by considering the age of the deceased at 38 years ha s departed from the settled state of law. 05. Mr. Goswami, learned counsel for the appellant seriously questio ned the finding of the Tribunal that (cid:28)From the materials on record it is clearly established that due to fault and rash and negligent driving of the vehicle no. AS-21-1357 (Bus) owned by OP No.2 and the driver was OP No.3 who has authorized driving licence and the vehicle was also duly insured with OP No.1, Oriental Ins urance Co. Ltd. There is also no dispute about the insurance coverage of the veh icle. So, I am constrained to hold that the insurance Co. is to indemnify the ow ner. The issue is answered accordingly in favour of the claimants. (cid:29) He further questioned the finding that (cid:28)There is also no proof of age of the deceased. But Ex-2, Death certificate and Ex-3, PM Report which reveals the age of the decease d was 38 years. As such ’15’ is the appropriate multiplier to be used in this ca se. According to Mr. Goswami, learned counsel for the appellant those are not th e documents for proving the age of the deceased and as such the finding cannot b e sustained in law. In support of his contention, Mr. Goswami, learned counsel r elied on a decision of the apex Court in Bijoy Kumar Dugar Vs. Bidya Dhar Dutta and others as reported in (2006) 3 SCC 242 where it has been held that: (cid:28)12. rt has not dealt with the point in issue. However, we have noticed the reasoning and finding of MACT recorded under Issue 2. It is the evidence of Rajesh Kumar Gupta PW 2 who was travelling in the Maruti car along with the deceased Raj Kuma r Dugar on the day of the accident that he also suffered some injuries in the sa id accident. He stated that while coming from Digboi, the Maruti car being drive n by the deceased met with an accident at a place near Kharjan Pol. Before the a ccident, Raj Kumar Dugar noticed a passenger bus coming from the opposite direct ion and the movement of the bus was not normal as it was coming in a zigzag mann er. The Maruti car being driven by the deceased Raj Kumar Dugar and the offendin g bus had a head-on collision. MACT has not accepted the evidence of PW 2 to pro ve that the driver of the offending bus was driving the vehicle at abnormal spee d. If the bus was being driven by the driver abnormally in a zigzag manner, as P W 2 wanted the Court to believe, it was but natural, as a prudent man, for the d eceased to have taken due care and precaution to avoid head-on collision when he had already seen the bus coming from the opposite direction from a long distanc e. It was head-on collision in which both the vehicles were damaged and, unfortu nately, Raj Kumar Dugar died on the spot. MACT, in our view, has rightly observe d that had the knocking been on one side of the car, the negligence or rashness Adverting to the next contention of the claimants, no doubt the High Cou could have been wholly fastened or attributable to the driver of the bus, but wh en the vehicles had a head-on collision, the drivers of both the vehicles should be held responsible to have contributed equally to the accident. The finding on this issue is a finding of fact and we do not find any cogent and convincing re ason to disagree with the well-reasoned order of MACT on this point. MACT has aw arded interest at the rate of 10% per annum on the amount of compensation from t he date of filing of the claim application till the date of payment. It is a dis cretionary relief granted by MACT and, in our view, the discretion exercised by MACT cannot be said to be inadequate and inappropriate. (cid:29)

06. The Criminal court by the judgment dated 6.4.2005, copy of which has bee Mr. Goswami, learned counsel for the appellant giving sufficient stress on the said finding submitted that when the vehicle had a head-on collis ion, the drivers of both the vehicles should have been held responsible to have contributed equally to the accident. He also relied on a decision of this Court in National Insurance Company Ltd. Vs. Bikram Kumar Das and anr. as reported in 2005 (4) GLT 705 to support his contention that evidence in a criminal proceedin g cannot be relied without doing necessary inquiry into the fact that has been p leaded by the parties. In para-7 of the judgment, this Court held that: (cid:28)7. n produced before this Court, has decided the criminal liability of the owner of the vehicle and has acquitted the accused from the charges under Section 279/33 8 of I.P.C. on the ground that the prosecution has failed to prove the charges b eyond all reasonable doubts. The standard of proof in a criminal case and in a c laim case under the provisions of Motor Vehicles Act, are different. In a crimin al Case, the prosecution has to bring home the charges beyond all reasonable dou bt but, in a Civil case it is preponderance of probabilities. Therefore, the sub mission of the learned counsel for the writ petitioner that, since the owner of the vehicle who drove the same on the fateful date was acquitted from the crimin al charges, no award can be passed by the learned Tribunal, cannot be accepted a nd hence, rejected. (cid:29)

07. On the other hand, Mr. Bhattacharjee, learned counsel for the re spondent Nos.1 to 5 submitted that Bikram Kumar Das (supra) cannot be read isola tedly alienating fact related to that particular case whether there had been con tributory negligence on the part of both the vehicles or not has to be establish ed by way of evidence. In absence of the evidence to provide necessary basis for presumption it cannot be held that a head-on collision always is the outcome of contributory negligence. There cannot be any such universal rule. Learned couns el for the respondent Nos.1 to 5 further submitted that the finding of the Tribu nal as regards the age of the deceased which is based on the PM Report and the D eath Certificate cannot be faulted with. Even there was scope of adducing the be tter evidence but for the purpose of inquiry and in absence of other evidence th e Tribunal always can rely on such document. 08. This Court before discussing the rival contentions as advanced b y the learned counsel for the parties made a scrutiny of the records. It appears from the Accident Information Report that the police registered a case being No agaon PS Case No.557 of 2002 under Sections 279/337/338/427 of the IPC against t he driver of the vehicle, namely, Lakhbindar Pal Gill of the vehicle bearing reg istration No.AS-21-1357 (Bus). There is no other evidence. Similarly, after inve stigation the charge sheet was filed, not against the driver of the other vehicl e bearing registration No.AS-01/L-8268(Bus), namely, Md. Abul Ali. The police su bmitted the charge-sheet against the driver of the vehicle having registration N o.AS-21-1357 (Bus) namely, Lakhbindar Pal Gill who later on pleaded guilty and w as accordingly sentenced to suffer one month’s simple imprisonment for the offen ce under Sections 279/337/427 of the IPC. Thus the case was finally disposed of. Apart that, one claimant, namely, Saharban Begum examined herself in support of the claim as the PW-2 and brought the relevant documents including the cost of treatment etc. on evidence but the respondents did not examine any witness or pr oduce any document to support their contention that both the vehicles were negli gent and responsible for the said accident.

09. While deposing in the tribunal, the PW-1 categorically stated th at for rash and negligent driving of the driver, namely, Lakhbindar Pal Gill of the vehicle No.AS-21-1357 (Bus), the said accident occurred but there was no cro ss-examination on that point. In the Examination-in-Chief however she admitted t hat she did not sight the accident. Except the judicial order dated 15.10.2004(E xbt.8) no other document speaks of the negligent driving. 10. On the face of such records, the probable inference that might b e drawn is that the vehicle bearing No.AS-21-1357 (Bus) entirely responsible for the said accident particularly so in absence of any materials to indicate the n egligence of the other vehicle. 11. Regarding the presumption of the contributory negligence for hea d-on collision Bijoy Kumar Dugar (supra) has been distinguished by the apex Cour t in Usha Rajkhowa and others Vs. Paramount Industries and others as reported in (2009) 14 SCC 71 . In Usha Rajkhowa (supra) it has been held that: The High Court firstly endorsed the finding of the Tribunal that Orienta (cid:28)12. l Insurance Co. Ltd. was not liable to pay any compensation, since the policy wa s an Act policy. The High court then went into the exercise of appreciation of e vidence and observed that the Tribunal had held that the accident took place due to contributory negligence of the drivers of the truck and the Maruti car. Cons idering the evidence of PW 3, it referred to the stray sentence, which we have q uoted earlier, to the effect that the witness was not able to say clearly as to which vehicle was at fault. On this very basis, the High Court endorsed the so-c alled finding of the Tribunal that it was an act of contributory negligence. The High Court, therefore, held both the vehicles equally responsible for the accid ent and proceeded to dismiss the appeal. It is this judgment, which has fallen f or consideration before us. 14. In spite of our minute scrutiny of the award, we have not been able to e ven find a mention of the words \contributory negligence\ in the award passed by the Tribunal. There is, in fact, no finding given by the Tribunal as regards th e contributory negligence. The subject is discussed in paragraphs 10 and 11, whe re we do not find any specific finding to the effect that the Maruti Car was gui lty of the contributory negligence. It is only because the amount of compensatio n is restricted to 50% of the assessed amount that we have to infer that the Tri bunal had given a finding of contributory negligence. Even at the cost of repeti tion, we may say that the words \contributory negligence\ nowhere appear in the award passed by the Tribunal. There is only one stray statement in the award, co ncerning the evidence of PW-3 Madhuriya Rajkhowa to the effect that he failed to state which of the vehicles was actually at fault.

20. The question of contributory negligence on the part of the driver in cas e of collision was considered by this Court in Pramodkumar Rasikbhai Jhaveri v. Karmasey Kunvargi Tak reported in (2002) 6 SCC 455. That was also a case of coll ision in between a Car and a truck. It was observed in SCC p.458, Para 8: (cid:28)8. ......The question of contributory negligence arises when there has been some act or omission on the claimant’s part, which has materially contributed t o the damage caused, and is of such a nature that it may properly be described a s ‘negligence’. Negligence ordinarily means breach of a legal duty to care, but when used in the expression \contributory negligence\, it does not mean breach o f any duty. It only means the failure by a person to use reasonable care for the safety of either himself or his property, so that he becomes blameworthy in par This Court further relied on an observation of the High Court of Austral t as an \author of his own wrong. (cid:29) 21. ia in Astley v. Austrust Ltd. (1999) 73 ALJR 403 to the following effect: (cid:28)A finding of contributory negligence turns on a factual investigation whether t he plaintiff contributed to his or her own loss by failing to take reasonable ca re of his or her person or property. What is reasonable care depends on the circ umstances of the case. In many cases, it may be proper for a plaintiff to rely o n the defendant to perform its duty. But there is no absolute rule. The duties a nd responsibilities of the defendant are a variable factor in determining whethe r contributory negligence exists and, if so, to what degree. In some cases, the nature of the duty owed may exculpate the plaintiff from a claim of contributory negligence; in other cases, the nature of the duty may reduce the plaintiff’s s hare of responsibility for the damage suffered; and in yet other cases, the natu re of the duty may not prevent a finding that the plaintiff failed to take reaso nable care for the safety of his or her person or property. Contributory neglige nce focuses on the conduct of the plaintiff. The duty owed by the defendant, alt hough relevant, is one only of many factors that must be weighed in determining whether the plaintiff has so conducted itself that it failed to take reasonable care for the safety of its person or property. (cid:29)

12. In this case also there is no evidence that the other vehicle in dulged in such act which materially contributed to the damage caused and the sai d act was of such nature that it may properly be described as negligence. 13. Since it has been held in Pramodkumar Rasikbhai Jhaveri (supra) that unless it is found that there had been no use of reasonable care for the sa fety of either himself or for the property, so that he becomes blameworthy in pa rt as an author of his own wrong. The other vehicle therefore cannot be stated t o have contributory negligence. In Astley (supra) the High Court of Australia ha s succinctly underlined the requirement for proving the contributory negligence. The duties and responsibilities of the defendant are several in determining whe ther contributory negligence existed and if so nature of the duty owed from a cl aim of contributory negligence and in another case the nature of the duty may re duce the plaintiff’s share for the damage suffered. Therefore, all what required is the definite proof to establish the contributory negligence, which is conspi cuously absent in the case in hand. Keeping these principles in mind, this Court finds that there wa 14. s absolutely no evidence to suggest that there was any failure on the part of th e other vehicle to take any particular care or that he had breached any duty in any manner. As such, the claim of the contributory negligence does not have any substance and the same is discarded. This Court is in agreement with the submiss ion as made for the claimant-respondents that in absence of the other better evi dence the Tribunal may consider the medical records such as the PM Report, Death Certificate etc. for determining the age of the victim. As such, this appeal is devoid of merit. Accordingly, the same is dismissed. However, there shall not b e any order as to costs. The appellant is directed to pay the entire awarded sum in terms of the impugned judgment and award dated 18.08.2006 as passed by the M otor Accident Claims Tribunal, Kamrup in MACT Case No.266 of 2004 within two mon ths from today in the Tribunal on deducting the sum if any paid by this time. Th e appellant be returned with the statutory deposit for the purpose of making the final payment in the Tribunal. Send down the LCRs forthwith.