(Against Judgment and Award dated 08.08.2019 passed by learned District Judge IV–cum- Motor Accidents v. 1. Podina Devi wife of Late Arjun Das 2. Kishor Das son of Late
Case Details
1 M.A. No. 47 of 2020 IN THE HIGH COURT OF JHARKHAND AT RANCHI M.A. No. 47 of 2020 (Against Judgment and Award dated 08.08.2019 passed by learned District Judge IV–cum- Motor Accidents Claim Tribunal, Dhanbad) M/s National Insurance Co. Ltd through its Divisional Manager, B.P.Agarwalla Building, P.O. & P.S.- Dhansar, Dhanbad represented through Assistant Manager, having its Office at National Insurance Co. Ltd Kurchery Road, P.S.- Kotwali, P.O. & Dist.- Ranchi …... Opp.Party no. 2 / Appellant Versus 1. Podina Devi wife of Late Arjun Das 2. Kishor Das son of Late Arjun Das 3. Pappu Kumar Das Son of Late Arjun Das 4. Jitendra Das son of Late Arjun Das All residents of Village- Barhabad P.O. & P.S. Jamua District Giridih (Claimant Nos. 1 to 4 respectively) 5. Raj Kumar Yadav, Son of Late Jaigovind Yadav resident of House No. 110, P.S. & P.O Jeenagora, Khas Jeenagora, Dhanbad-828115 6. New India Assurance Co. Ltd through its Divisional Manager, B.P. Agarwalla Building P.O. & P.S. Dhansar, Dhanbad (Owner) (Opposite Party No. 1) (Opp. Party No. 3) ….... Respondents For the Appellant For the Respondents : Mr. Alok Lal, Adv. : Mr. S.K. Laik, Adv. Mr. Pratiyush Kumar, Adv. P R E S E N T HON’BLE MR. JUSTICE ANIL KUMAR CHOUDHARY By the Court:- Heard the parties. 2. This Miscellaneous Appeal is preferred against the judgment and award dated 08.08.2019 passed by learned District Judge IV–cum- Motor Accidents Claim Tribunal, Dhanbad whereby and whereunder in a petition under Section 173(1) of Motor 2 M.A. No. 47 of 2020 Vehicles Act in Motor Accident Claim Case No. 213 of 2015, the learned tribunal awarded a total compensation amount of Rs. 75,98,066/- with Simple Interest @ 6% per annum from the date of filing of the claim application on 20.08.2015 till realization from the opposite party no. 2- the appellant insurance company but given the appellant – insurance company the right to recover the amount from the owner of the vehicle. 3. The brief facts of this case is that on 19.05.2015, while the deceased Arjun Das, was going by his motorcycle, the offending Hywa bearing registration no. JH-10R-2477, having been driven rashly and negligently, dashed the motorcycle of the deceased. As a result of the same, the deceased sustained injuries and died on the spot. The police registered Govindpur P.S. case number 204 of 2015 against the driver of the offending vehicle for having committed the offences punishable under section 279/304A of IPC. After investigation of the case, the police submitted charge-sheet against the driver of the offending Hywa vehicle for the said offences. It is stated that the deceased was aged about 49 years and at the time of accident he was an employee of Bahula Colliery under the Eastern Coalfields Ltd. and was working as an Explosive Carrier and the total annual income of the deceased was Rs. 6,16,980/-. The opposite party no. 1 being the owner of the offending Hywa vehicle admitted his ownership. It was pleaded by the owner of the offending vehicle, that the vehicle was insured with the opposite party no. 2 being appellant insurance company at the relevant point of time and the driver was having a valid and effective driving license at the time of the accident; hence the appellant -opposite party no. 2 - insurance company is liable to pay the compensation. The appellant-opposite party number 2 being the Insurance company, in its written
Legal Reasoning
statement, challenged the maintainability of the claim 3 M.A. No. 47 of 2020 petition on various technical grounds and further pleaded that the driver of the offending vehicle was not holding valid and effective driving licence at the time of the accident and Hywa vehicle was not having any permit to ply the vehicle. Thus there is commission of breach of the terms and condition of the insurance policy. It is then pleaded that, since it is a case of head on collision between two vehicles involved in the accident, therefore, there was contributory negligence on the part of the deceased. The opposite party no. 3 being New India Assurance Company Limited admitted that the motorcycle in which the deceased was riding at the time of accident, was insured by it but it pleaded that since the accident was caused due to rash and negligent driving of the offending vehicle, there was no fault on the part of the deceased. It was also pleaded by the opposite party no. 3, that it was not a case of head on collision between the two vehicles and the offending Hywa vehicle, being driven rashly and negligently dashed the deceased, who died on the spot, and the contributory negligence on the part of the deceased does not arise and consequently, the liability of the opposite party, no. 3, does not arise also. 4. On the basis of the rival pleading of the parties, the learned tribunal settled the following nine issues: 1. Whether the claim petition is maintainable in its present form? 2. Whether there is valid cause of action for the present claim petition? 3. Whether the deceased Arjun Das died in a road accident due to rash and negligent driving by the driver of Hywa no. JH-10R-2477? 4. Whether the driver of the Hywa no. JH-10R-2477 was holding a valid and effective driving license at the time of the accident? 5. Whether Hywa no. JH-10R-2477 had valid permit at the time of the accident or not ? 6. Whether of Hywa no. JH-10R-2477 was insured with O.P. No. 2, M/s National Insurance Company Ltd., at the time of the accident? 7. Whether there was any contributory negligence on the part of the deceased who was driving motor cycle no. WB-03AE-5657 at the time of the accident? 8. Whether the claimants are entitled to get any compensation, if so, for what amount and from whom? 9. Whether the claimants are entitled to get any other relief or relief? 4 M.A. No. 47 of 2020 5. In support of their case, the claimants examined four witnesses being PW 1- Podina Devi, who is the wife of the deceased, PW2- Kishor Das, who is the son of the deceased and PW3- Sudeep Kumar Mazumdar, who is an eyewitness to the occurrence and who has stated that the offending Hywa vehicle being driven rashly and negligently by the driver, dashed the motorcycle due to which the deceased sustained the injuries. PW4- Md. Ziya, proved the Form No. 16 of the I.T. Act, which has been marked as Exhibit 1. Besides the oral testimony, the claimants also proved the documents which have been marked as Exhibit 1 to 11. The opposite parties did not bring any evidence in the record, either oral or documentary. Learned tribunal first took up issue no. 3 and considering the evidence in the record came to the conclusion that it has been proved that the deceased died in a road accident on 19.05.2015 due to rash and negligent driving of the driver of the offending vehicle bearing registration no. JH-10R-2477. Learned tribunal next took up issue no. 4 and came to the conclusion that the driver of the offending vehicle was plying the offending vehicle without valid and effective driving license. In respect of issue no. 5 next taken up by learned Tribunal, learned tribunal came to the conclusion that the offending vehicle had valid permit on the date of accident. In respect of issue no. 6, next taken up by the tribunal, learned tribunal came to the conclusion that the offending vehicle was insured by the insurance policy issued by the opposite party no. 2 at the time of the accident. In respect of issue no. 7, learned tribunal considering the evidence in the record and considering the fact that the opposite party no. 2 has not adduced any oral or documentary evidence, moreover, as PW3, who is an eyewitness to the occurrence of accident having categorically stated that the driver of the offending vehicle was driving the vehicle, in a rash and negligent manner and hit the deceased 5 M.A. No. 47 of 2020 and the fact that the police has submitted the charge-sheet only against the driver of the offending Hywa vehicle namely Dukhan Paswan, observed that there is no material in the record to prove that there was any contributory negligence on the part of the deceased. Learned tribunal next took up issue nos. 1, 2, 8 and 9 together, and assessed the age of the deceased to be 48 years at the time of the accident and his annual income less the income tax is Rs. 5,93,930/- and keeping in view of the principle of law settled by the Hon’ble Supreme Court of India in the case of National Insurance Company Limited v. Pranay Sethi and Others reported in (2017) 16 SCC 680, learned tribunal added 30% of the established income of the deceased towards future prospects and applied multiplier 13 and deducted one fourth of the total income towards his personal expenses and arrived at the compensation of Rs. 75,98,066/-.
Legal Reasoning
6. Mr. Alok Lal, learned counsel for the appellant submits that learned tribunal could not appreciate the evidence in the record in its correct perspective. It is then submitted that the learned tribunal applied incorrect method of awarding the compensation. It is next submitted by Mr. Lal that learned tribunal committed grave error of law in deciding the issue no. 7 on the point of contributory negligence of the deceased in the said accident as the deceased, who was riding the motorcycle was negligent in riding the motorcycle without protective headgear and learned tribunal overlooked the fact that the deceased was riding the motorcycle without helmet; which is itself is an offence, hence, it is submitted that learned tribunal should have deducted 40% of the compensation on account of negligence on the part of the deceased. It is next submitted that respondent no. 5 practiced fraud upon learned tribunal in establishing that the permit marked as Exhibit 11 is valid and effective for plying the Hywa vehicle on the date of accident to avoid the liability of 6 M.A. No. 47 of 2020 paying the compensation, hence, the impugned judgment and award be modified. 7. Learned counsel for the respondents, on the hand, vehemently opposes the prayer for modification of the impugned judgment and award and submits that since the opposite party no. 2 has not adduced any evidence and on the other hand, PW 3 who is the eye-witness to the occurrence, has categorically stated about the deceased sustaining injuries because of rash and negligent driving of the driver of the Hywa vehicle. 8. Relying upon for the judgment of the Hon’ble Supreme Court of India in the case of Minu Rout vs. Satya Pradyumna Mohapatra reported in 2013 AIR SCW 5375, para 12 of which read as under : “12. P.W.3 was a betel shop owner, whose shop is situated near the spot of the accident. Though he was not examined by the Investigating Officer in the police case he is examined before the Tribunal whose evidence is required to be accepted for the reason that the same is not rebutted by the respondents. P.W.4 has stated in his cross examination that he saw the accident from a little distance from the market place, where about 10 to 20 persons were present. He has further deposed that the truck was in a high speed and the people travelling in the car sustained injuries and the driver of the car Susil Rout suffered grievous injuries and succumbed to the same. He was conscious when he was taken to the Jajpur Hospital on a trekker. The Tribunal, on appreciation of the oral and documentary evidence, has recorded the erroneous finding by placing strong reliance upon the charge-sheet-Exh.1 without considering the fact that the criminal case was abated against the deceased and further has made observation in the judgment that the appellants had not produced the FIR. Therefore, it has held that there was 50% contributory negligence on the part of the deceased driver in causing accident. The Tribunal ought to have seen that non production of FIR has no consequence for the reason that charge sheet was filed against the truck driver for the offences punishable under Sections 279 read with Section 302 of IPC read with the provisions of the M.V. Act. The Insurance Company, though claimed permission under Section 170(b) of the Motor Vehicles Act, 1988 from the Tribunal to contest the proceedings by availing the defence of the owner of the offending vehicle, it did not choose to examine either the driver of the truck or any other independent eye witness to prove the allegation of contributory negligence on the part of the deceased Susil Rout on account of which the accident took place as he was driving the car in a rash and negligent manner. In the absence of rebuttal evidence adduced on record by the Tribunal, the Tribunal should not have placed reliance on the charge-sheet-Exh.1 in which the deceased driver was mentioned as an accused and on his death; his name was deleted from the charge sheet. The Tribunal has referred to certain stray answers elicited from the evidence of P.W.2 and P.W.3 in their cross-examination and placed reliance on them to record the finding on issue No.1. For the aforesaid reasons, the findings and reasons recorded by the Tribunal on the contentious issue No.1 holding that there is contributory negligence on the part of the deceased driver in the absence of legal evidence adduced by the 7 M.A. No. 47 of 2020 Insurance Company to prove the plea taken by it that accident did not take place on account of rash and negligent driving of the truck driver is erroneous in law. The Tribunal has accepted the part of oral evidence of the eye witnesses regarding the scene of accident and it has erroneously placed reliance upon the charge-sheet-Exh.1, which was filed against the driver of the offending truck and deceased to hold there was contributory negligence on his part by ignoring the fact that the criminal case against the deceased was abated. Therefore, we have to hold that the finding of fact recorded on issue No.1 by the Tribunal and affirmed by the High Court in the impugned judgment, is erroneous for want of proper consideration of pleadings and legal evidence by both of them. Accordingly, we have answered point No.1 in favour of the appellants insofar as the finding recorded by the Tribunal on the question of contributory negligence of 50% on the part of the deceased is concerned.” (Emphasis supplied) it is submitted by Mr. Laik, learned counsel for the respondents that learned tribunal has rightly relied upon the testimony of PW 3 who is an eye-witness to the occurrence, to the effect that the occurrence took place due to rash and negligent driving of the offending vehicle. 9. Mr. Laik next relies upon the judgment of Hon’ble the Supreme Court of India in the case of Jiju Kuruvila and Ors. vs. Kunjujamma Mohan and Ors. reported in 2013 (9) SCC 166, paragraphs 19 and 20.1 to 20.6 of which reads as under :- “19. The High Court based on Ext. B-2 “scene mahazar” and Ext. A-5 post-mortem report held that there was also negligence on the part of the deceased as well. 20.1. The owner of the vehicle Kunjujamma Mohan and the driver of the bus P.C. Kurian who were the first and third respondents before the Tribunal and the High Court, had not denied the allegation that the accident occurred due to rash and negligent driving on the part of the bus driver. 20.2. PW 3, an independent eyewitness was accompanying the deceased during the journey on the fateful day. He stated that the bus coming from the opposite direction hit the car driven by the deceased and the accident occurred due to rash and negligent driving of the bus driver. 20.3. Ext. A-1, FIR registered by Pampady Police against the bus driver P.C. Kurian under Sections 279, 337 and 304-A IPC shows that the accident occurred due to rash and negligent driving on the part of the bus driver. After investigation, the police submitted a charge-sheet (Ext. A-4) against the bus driver under Sections 279, 337 and 304-A IPC with specific allegation that the bus driver caused the death of Joy Kuruvila due to rash and negligent driving of the bus on 16-4-1990 at 4.50 p.m. In view of the direct evidence, the Tribunal and the High Court held that the accident occurred due to rash and negligent driving on the part of the bus driver. 20.4. There is no evidence on record to suggest any negligence on the part of the deceased. Ext. B-2 “scene mahazar” also does not suggest any rash and negligent driving on the part of the deceased. 20.5. The mere position of the vehicles after accident, as shown in a scene mahazar, cannot give a substantial proof as to the rash and negligent driving on the part of one or the other. When two vehicles coming from opposite directions collide, the position of the vehicles and its direction, etc. depends on a number of factors like the speed of vehicles, intensity of collision, reason for collision, place at which 8 M.A. No. 47 of 2020 one vehicle hit the other, etc. From the scene of the accident, one may suggest or presume the manner in which the accident was caused, but in the absence of any direct or corroborative evidence, no conclusion can be drawn as to whether there was negligence on the part of the driver. In absence of such direct or corroborative evidence, the Court cannot give any specific finding about negligence on the part of any individual. 20.6. The post-mortem report, Ext. A-5 shows the condition of the deceased at the time of death. The said report reflects that the deceased had already taken meal as his stomach was half-full and contained rice, vegetables and meat pieces in a fluid with strong smell of spirit. The aforesaid evidence, Ext. A-5 clearly suggests that the deceased had taken liquor but on the basis of the same, no definite finding can be given that the deceased was driving the car rashly and negligently at the time of accident. The mere suspicion based on Ext. B-2 “scene mahazar” and Ext. A-5 post-mortem report cannot take the place of evidence, particularly, when the direct evidence like PW 3 (independent eyewitness), Ext. A-1 (FIR), Ext. A-4 (charge- sheet) and Ext. B-1 (FI statement) are on record.” and submits that merely because there was head on collision, learned tribunal has rightly not held that the deceased was having any contributory negligence. 10. Learned counsel for the respondent no. 6 also defends the impugned judgment and award dated 08.08.2019 passed by learned tribunal and submits that the findings of learned tribunal are based on the reasoning and the testimony of PW3- the eye-witness to the occurrence, which is also corroborated by the charge-sheet submitted solely against the driver of the offending vehicle marked as Exhibit 3; as well as the FIR marked as Exhibit 2, goes to show that the driver of the offending vehicle was wholly and solely responsible for the accident. Hence learned tribunal has rightly held that the deceased did not have any contributory negligence in the said accident. Hence it is submitted that this appeal being without any merit be dismissed. 11. Having heard the submissions made at the Bar and after going through the materials in the record, the following points for determination crop up for consideration: (i) Whether the learned tribunal erred in answering the issue number 7 as to whether there was any contributory negligence on the part of the deceased who was driving the motorcycle? (ii) Whether the insurance company be absolved of the liability to pay the compensation? 9 M.A. No. 47 of 2020 12. Now coming to the facts of the case as already indicated above that the undisputed fact remains that the opposite party no. 2- appellant insurance company did not adduce any evidence whatsoever, either documentary or oral, on the other hand, the claimant examined PW3 - an eye-witness to the occurrence and he has categorically stated that he saw the Hywa vehicle being driven rashly and negligently driven at the high speed, dashed the motorcycle of the deceased causing injury to him. It is pertinent to mention here that in the cross examination of the PW3 who is an eye-witness to the occurrence, the insurance company has not put any question whatsoever to suggest that there was any contributory negligence on the part of the deceased in the said accident and having not done so, the consequence is that the testimony of the PW3 in his examination-in-chief to the extent that the accident took place because of rash and negligent driving of the driver of the offending vehicle, has remained intact and to be accepted as the same has remained unchallenged. 13. In view of the principle of law settled by the Hon’ble Supreme Court of India in the case of Minu Rout vs. Satya Pradyumna Mohapatra (supra) and in the case of Jiju Kuruvila and Ors. vs. Kunjujamma Mohan and Ors. (supra), this court has no hesitation in holding that learned tribunal has not committed any error in holding that the deceased was not having any contributory negligence in the said accident. The first point for determination is answered accordingly. 14. So far as the second point for determination is concerned, learned tribunal, as already indicated above, 10 M.A. No. 47 of 2020 gave liberty to the appellant-opposite party number 2- the insurance company to first pay the compensation amount and then to recover the same from the opposite party no. 1 being the owner of the vehicle. The said order passed by learned tribunal is in consonance with the settled principle of law in this respect, as has been held by the Hon’ble Supreme Court of India in the case of Manuara Khatun and Others v. Rajesh Kumar Singh and Others reported in (2017) 4 SCC 796 and in other cases also. Hence, this court is of the considered view that learned tribunal has not committed any error by directing the opposite party no. 2, being the appellant insurance company to pay the amount of compensation and then to recover the amount from the opposite party no. 2 being the owner of the vehicle, as the validity of the insurance policy is not in dispute, hence the second point for determination is answered in the negative. 15. In view of the discussions made above, this appeal being without any merit is dismissed on contest but under circumstances, without any costs. 16. The Register General of this court is directed to remit the statutory amount of Rs. 25,000/- if any, deposited by the appellant to learned tribunal and in case any amount in excess to the amount awarded by learned tribunal has already been deposited, then after payment of the entire amount to the claimants rest of the amount, if any, may be returned by learned tribunal to the appellant- insurance company. 17. In view of the disposal of this appeal, the interim order, if any, passed earlier is vacated and Interlocutory
Decision
Application if any, is disposed of being infructuous. 11 M.A. No. 47 of 2020 18. Let a copy of this Judgment along with the Lower Court Records be sent back to the Court concerned forthwith. (Anil Kumar Choudhary, J.) High Court of Jharkhand, Ranchi Dated, the 8th August, 2023. Smita /AFR