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2005 DIGILAW 630 (GAU)

National Insurance Co. Ltd. v. Bikram Kumar Das

2005-08-29

BROJENDRA PRASAD KATAKEY

body2005
JUDGMENT B.P. Katakey, J. 1. The writ petitioner Insurance Company by the present writ petition has sought to invoke the jurisdiction of this Court under Article 227 of the Constitution of India by challenging the judgment and award dated 4.4.2005 passed by the learned Member, Motor Accident Claims Tribunal, West Tripura, Agartala in Case No. T.S.(MAC) 225/2003 whereby an amount of Rs. 3,80,000 with interest at 6% per annum from the date of filing of the claim petition till the date of realisation, if the amount is deposited within 2 months or to pay interest at 9% per annum if the said awarded amount is not deposited within the said period of two months. 2. A claim petition was filed by Smti. Laxmi Adhikari on behalf of her husband Kartik Adhikari under Section 166 of the Motor Vehicles Act, 1988 claiming compensation of Rs. 12,00,000 for the injuries sustained by her husband in a motor accident occurred on 17.12.2002 involving the motor vehicle bearing registration No. TR-03-7834 (Motor Cycle) belonging to Shri Bikram Kumar Das, the respondent No. 1 herein. The said application was registered as Case No. T.S.(MAC) 225/2003 before the learned Member, Motor Accident Claims Tribunal, West Tripura, Agartala. In the said claim case, the owner of the motor cycle as well as the Insurance Company, the writ petitioner herein were arranged as the opposite parties. The owner as well as the Insurance Company on receipt of the summons entered appearance and filed a written statement. The claimant in support of her claim examined two witnesses, namely, the claimant herself and her husband, i.e., the injured Kartik Adhikari. The opposite parties, the writ petitioner and the respondent No. 1 herein did not examined any witness. The learned Tribunal upon consideration of the materials on record and evidence adduced by the claimant awarded a sum of Rs. 3,80,000 with interest as stated above and directed the Insurance Company to satisfy the said award since the vehicle was insured with the said Insurance Company. Hence, the present writ petition by the Insurance Company under article 227 of the Constitution before this Court. 3. I have heard Mr. A. Lodh, learned Counsel for the petitioner and Mr. A. Nandi, learned Counsel appearing on behalf of respondent No. 2, the claimant. None appears for the respondent No. 1 despite service of notice. 4. Mr. Hence, the present writ petition by the Insurance Company under article 227 of the Constitution before this Court. 3. I have heard Mr. A. Lodh, learned Counsel for the petitioner and Mr. A. Nandi, learned Counsel appearing on behalf of respondent No. 2, the claimant. None appears for the respondent No. 1 despite service of notice. 4. Mr. Lodh, learned Counsel for the writ petitioner, Insurance Company has submitted that though there was no evidence on record to the effect that the vehicle bearing Registration No. TR-01-7834 was involved in the motor accident, the learned tribunal has passed the award awarding compensation by holding that the said motor vehicle was involved in the motor accident on 17.12.2002. According to the learned Counsel, no accident 'as ever occurred on 17.12.2002 at least involving the said motor vehicle which was evident from the judgment of acquittal recorded by the learned Criminal Court on 6.4.2005 in G.R, Case No. 475/2003 registered against Bikram Kumar Das, the owner of the said vehicle. Mr. Lodh, the learned Counsel, therefore, submits that it is a fit case where this Court in exercise of the extraordinary power under Article 227 of the Constitution of India should interfere with the judgment and award passed by the learned Court below and set aside the same. 5. Mr. Nandi, the learned Counsel appearing on behalf of respondent No. 2, claimant, on the other hand, has submitted that P.Ws. 1 and 2 namely, the claimant and her husband has specifically stated about the involvement of the motor vehicle bearing registration No. TR-01-7834 in the accident occurred on 17.12..2002 and the said witnesses were never been cross examined by the Insurance Company and not even a suggestion was given to the effect that the said vehicle was not involved in the accident. It has further been submitted by the learned Counsel that the owner of the vehicle who contested the claim by filing written statement as well as participated in the proceeding before the learned Tribunal, has admitted in the written statement about occurrence of the accident on 17.12,2002 and involvement of the said motor vehicle bearing registration No. TR-01-7834 (motor cycle). It has further been submitted by the learned Counsel that the owner of the vehicle who contested the claim by filing written statement as well as participated in the proceeding before the learned Tribunal, has admitted in the written statement about occurrence of the accident on 17.12,2002 and involvement of the said motor vehicle bearing registration No. TR-01-7834 (motor cycle). Therefore, according to the learned Counsel, the writ Court in exercise of the power under Article 227 of the Constitution of India may not interfere with the judgment passed by the learned Tribunal awarding compensation by holding that the vehicle was involved in the accident, accident occurred due to rash and negligent driving and the husband of the claimant suffered injury in the said accident occurred on 17.12.2002, as this Court in exercise of the power under Article 227 of the Constitution of India cannot re-appreciate the evidences on record and come to a different finding from the finding already recorded by the learned trial Court and such power under Article 227 of the Constitution of India is to be exercised very sparingly. 6. I have considered the submissions of the learned Counsel for the parties and also perused the records of Case No. TS.(MAC) 225/2003. The learned Tribunal registered the said MAC Case on the basis of the application filed by the present respondent No. 2 as claimant, under Section 166 of the Motor Vehicles Act, 1988 claiming compensation for the injuries sustained by her husband in a motor accident occurred on 17.12.2002 involving the motor vehicle bearing registration No. TR-01-7834 (motor cycle) belonging to the present respondent No. 1 and which was insured by the writ petitioner Insurance Company. The owner of the vehicle, respondent No. 1 on receipt of the summon entered appearance and filed a written statement by admitting that the said vehicle was involved in an accident occurred on 17.12.2002 but the owner has denied that there was any rash and negligent driving. Though the Insurance Company in the written statement filed, denied about the occurrence of accident involving the said motor vehicle, the Insurance Company neither cross examined the witnesses examined on behalf of the claimants on that point nor adduce any evidence to prove that the said vehicle was not involved in any accident on 17.12.2002. Though the Insurance Company in the written statement filed, denied about the occurrence of accident involving the said motor vehicle, the Insurance Company neither cross examined the witnesses examined on behalf of the claimants on that point nor adduce any evidence to prove that the said vehicle was not involved in any accident on 17.12.2002. Interestingly the Insurance Company has declined to cross examine the P.W. 1, i.e., the claimant, who has specifically stated that the accident occurred on 17.12.2002 at about 16:30 a.m. for rash and negligent driving of the motor cycle bearing registration No. TR-01-7834. The Insurance Company also cross examined the insured, i.e., the husband of the claimant by putting two suggestions relating to his income, profession, cost of treatment and the claim made in the claim petition. The said witness was also not cross-examined by the Insurance Company relating to the involvement of the said motor vehicle in the said accident. The learned Counsel for the Insurance Company now, before this Court has produced a copy of the judgment dated 6.4.2005 passed in G.R. Case No. 475/2003 registered under Section 279/338 of the Indian Penal Code against the owner of the said motor vehicle and submits that as the Criminal Court has found the owner of the vehicle not guilty and having found that the prosecution has failed to prove the criminal offence against the owner, the award passed by the learned Tribunal should be interfered with by the writ Court in exercise of the power under Article227 of the Constitution of India. 7. The Criminal Court by the judgment dated 6.4.2005, copy of which has been 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 279/338 of I.P.C. on the ground, that the prosecution has failed to prove the charges beyond all reasonable doubts. The standard of proof in a criminal case and in a claim case under the provisions of Motor Vehicle Act, are different. In a criminal case, the prosecution has to bring home the charges beyond all reasonable doubt but, in a civil case it is preponderance of probabilities. The standard of proof in a criminal case and in a claim case under the provisions of Motor Vehicle Act, are different. In a criminal case, the prosecution has to bring home the charges beyond all reasonable doubt but, in a civil case it is preponderance of probabilities. Therefore, the submission 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 criminal charges, no award can be passed by the learned Tribunal, cannot be accepted and hence, rejected. 8. The power of the writ Court under Article 227 of the Constitution of India is very limited. The said power is exercised to keep the subordinate Courts or the Tribunal within the bounds of law and has to be exercised very sparingly. The writ Court in exercise of the said power cannot re-appreciate the evidences on record and come to a finding different from the finding recorded by the learned Tribunal by appreciating the evidences on record. As observed above, the learned Tribunal has passed the award by appreciating the evidences on record as well as the pleadings of the parties. The owner of the vehicle intact, in the written statement has admitted that the accident has occurred. The witnesses for the claimants, as discussed above, have not been cross examined by the Insurance Company on the point of involvement of the said vehicle in the accident. 9. In view of the above, I do not find any merit in the present writ petition and hence, the same is dismissed. No cost. 10. The interim order passed earlier stands vacated. 11. The Registry is directed to send down the record. Petition dismissed