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2006 DIGILAW 1203 (MP)

ORIENTAL INSURANCE CO. LTD. v. NARAYANI MODI

2006-10-18

DIPAK MISRA, R.S.JHA

body2006
DIPAK MISRA, J. ( 1 ) THE present appeal is preferred against the award dated 23. 1. 2006 passed by the Eighth Motor Accidents claims Tribunal, Jabalpur (in short, 'the tribunal') in M. V. C. No. 705 of 2005 by the insurer, Oriental Insurance Co. Ltd. Be it placed on record, a cross-objection has been filed by the claimants, the legal representatives of the deceased late Ram Gopal Modi. ( 2 ) THE facts which are requisite to be stated are that on 28. 3. 2005, the deceased ram Gopal was returning to his house after getting the shaving done in a barber shop at Damoh Naka Road. At that juncture, a minibus bearing registration No. MP 20-E 9528 being rashly and negligently driven by the concerned driver dashed against the scooter. He was taken to National Hospital, jabalpur but after sometime he breathed his last. The wife and other legal representatives initiated an action under section 166 of the Motor Vehicles Act putting forth a claim of Rs. 11,00,000 on the foundation that the deceased was a transporter and his monthly income was Rs. 8,000. It is worth mentioning here that claim petition incorporated claims on two heads, namely, loss of consortium and amount spent on treatment and others. On the first head, Rs. 5,00,000 were claimed and for the second head a sum of Rs. 7,00,000 was claimed. ( 3 ) THE claim put forth by the claimants was contested by the owner and the driver of the vehicle disputing the accident as well as the claim put forth by the claimants. A stand was taken that accident had not taken place due to rash and negligent driving of the driver. Alternatively, it was set forth that the vehicle was insured with Oriental Insurance Co. Ltd. and in case if there is any liability, it is to be saddled on the insurer. ( 4 ) THE insurance company filed its written statement contending, inter alia that the owner of the vehicle was one Bajpai, who was not impleaded as a party and, therefore, the application was not maintainable. It was also urged that there had been breach of terms and conditions of policy and hence, the claim as laid was liable to be dismissed. ( 5 ) BEFORE the Tribunal, the claimants examined a number of witnesses and many a document were brought on record. It was also urged that there had been breach of terms and conditions of policy and hence, the claim as laid was liable to be dismissed. ( 5 ) BEFORE the Tribunal, the claimants examined a number of witnesses and many a document were brought on record. On appreciation of the material brought on record, the Tribunal came to hold that the deceased had contributed to the accident and determined 50 per cent negligence on the part of the deceased; that the owner of the vehicle was one Mohd. Yasheen who had been impleaded as party and, therefore, the ground urged by the insurance company in that regard was not tenable; that the deceased was a transporter and if the evidence of pw 2 is taken into consideration, the monthly income of the deceased would be Rs. 10,000; that the deceased was contributing Rs. 6,665 per month to the family and thereby Rs. 79,980 per annum; that the deceased was aged about 44 years and that would attract multiplier of 15; that the legal representatives of the deceased are entitled to Rs. 10,000 towards loss of consortium, rs. 10,000 for loss to estate, Rs. 10,000 towards love and affection and Rs. 2,000 towards funeral expenses. Thus, in toto, the tribunal awarded a sum of Rs. 12,31,700. ( 6 ) BE it noted, the Tribunal deducted 50 per cent from the aforesaid sum on the basis that the deceased had contributed 50 per cent to the causation of the accident. ( 7 ) WE have heard Mr. S. K. Rao, learned senior counsel along with Mr. Ajit Agrawal, learned counsel for the appellant and Mr. Sanjay Sarwate, learned counsel for the claimants-respondents. ( 8 ) MR. Rao and Mr. Ajit Agrawal, learned counsel have submitted that the Tribunal has grossly erred by coming to hold that the deceased contributed 50 per cent towards the accident though as an actual fact, he was in a drunken state and the accident had occurred totally due to negligence of the deceased himself. It is further submitted that the Tribunal could not have granted more than what was pleaded in the petition. ( 9 ) FIRST, we shall proceed to deal with the aspect relating to rejection of the application preferred under section 170 of the act. It is further submitted that the Tribunal could not have granted more than what was pleaded in the petition. ( 9 ) FIRST, we shall proceed to deal with the aspect relating to rejection of the application preferred under section 170 of the act. It is contended that the insurer had filed an application under section 170 of the act which had been improperly rejected, though the said application was absolutely bona fide. In the case of National Insurance Co. Ltd. v. Nicolletta Rohtagi, 2002 acj 1950 (SC), the Apex Court in para 31 has expressed the view as under: " (31) We have already held that unless the conditions precedent specified in section 170 of the 1988 Act are satisfied, an insurance company has no right of appeal to challenge the award on merits. However, in a situation where there is a collusion between the claimants and the insured or the insured does not contest the claim and, further, the Tribunal does not implead the insurance company to contest the claim in such cases it is open to an insurer to seek permission of the tribunal to contest the claim on the grounds available to the insured or to a person against whom a claim has been made. If permission is granted and the insurer is allowed to contest the claim on merits, in that case it is open to the insurer to file an appeal against an award on merits, if aggrieved. In any case, where an application for permission is erroneously rejected the insurer can challenge only that part of the order while filing an appeal on grounds specified in subsection (2) of section 149 of 1988 Act. But such application for permission has to be bona fide and filed at the stage when the insured is required to lead his evidence. So far as obtaining compensation by fraud by the claimant is concerned, it is no longer res Integra that fraud vitiates the entire proceeding and in such cases it is open to an insurer to apply to the Tribunal for rectification of award. " ( 10 ) WE have been apprised at the Bar that in a connected case which arose from the same accident, the Tribunal granted leave on a similar application. " ( 10 ) WE have been apprised at the Bar that in a connected case which arose from the same accident, the Tribunal granted leave on a similar application. In view of the aforesaid, we are inclined to hold that the Tribunal should have granted leave to the insurer and so we proceed accordingly. ( 11 ) PRESENTLY to the issue of contributory negligence submission of Mr. S. K. Rao, learned senior counsel is that the deceased was entirely at fault and hence, the liability fastened on the insurer is incorrect. Per contra, Mr. Sarwate would contend that the Tribunal has grossly erred in attributing negligence to the deceased and thereby reducing the quantum of compensation on such basis. Learned counsel contended that he has filed the cross-objection challenging the finding on that score inasmuch as such a finding runs counter to the material brought on record. ( 12 ) BEFORE we proceed to delve into the factual scenario, it is seemly and profitably to notice some decisions in the field. In the case of National Insurance Co. Ltd. v. Kamla Prasad, 2004 ACJ 2154 (MP), in para 7, it has been held as under: " (7) After hearing the learned counsel for both the sides and perusal of the material on the record, we are of the opinion that the view taken by the Tribunal is correct. The first striking feature of the case is that though the appellant insurance company obtained the permission of the Claims Tribunal under section 170 of the Act to contest the claims on all the grounds it made no efforts to summon and examine the driver of the tanker who is alive. The driver of the minibus has died in the accident. Therefore, the driver of the tanker alone could explain how the accident happened. He alone could show how the driver of the minibus was negligent. He could alone establish that he himself was not solely negligent but the conduct of the driver of the other vehicle was equally blameworthy or he had the last opportunity to avert the accident. The alleged contributory negligence of the driver of the other vehicle could be proved by adducing the evidence of the tanker driver. He could alone establish that he himself was not solely negligent but the conduct of the driver of the other vehicle was equally blameworthy or he had the last opportunity to avert the accident. The alleged contributory negligence of the driver of the other vehicle could be proved by adducing the evidence of the tanker driver. As he did not enter the witness-box the inference has to be drawn that if he had been examined he would not have supported the theory of contributory negligence of the minibus driver. Illustration (g) to section 114 of the Evidence Act provides that the court may presume that the evidence which could be and is not produced would, if produced, be unfavourable, to the person who withholds it. It was held by their lordships of the Privy Council in Gurbux singh v. Gurudayal Singh, AIR 1927 pc 230, that it is the bounden duty of a party acquainted with the facts of the case to give evidence in support of his case and the failure to do so would be the strongest possible circumstance going to discredit the truth of his case. Following this decision it has been reiterated by this court in G. K. Carpenter v. N. N. Rawat, air 1970 MP 225 , that when a material fact is within the knowledge of a party and he does not go into the witness-box without any plausible reason, an adverse inference must be drawn against him. A presumption must be drawn against a party who having knowledge of the fact in dispute does not go into the witness-box particularly when a prima facie case has been made out against him. As in the present case the tanker driver was the best witness to establish the contributory negligence, if any, on the part of the minibus driver and as he has been kept out of the court the story of contributory negligence becomes extremely weak. " ( 13 ) IN the case of Dewakar Shukla v. Ashok Thakur, 2006 ACJ 2517 (MP), the division Bench after referring the decision rendered in case of Pushpabai Purshottam udeshi v. Ranjit Ginning and Pressing Co. " ( 13 ) IN the case of Dewakar Shukla v. Ashok Thakur, 2006 ACJ 2517 (MP), the division Bench after referring the decision rendered in case of Pushpabai Purshottam udeshi v. Ranjit Ginning and Pressing Co. , 1977 ACJ 343 (SC), in para 9 has opined as under: " (9) When appellant prima facie proved that this accident occurred and Sanjay alias Radhey Shyam died due to this accident then on the basis of the doctrine of res ipsa loquitur the driver of the vehicle, respondent No. 1, could be held liable and presumption can be drawn that he was driving the vehicle rashly and negligently in the absence of his statement. " ( 14 ) IN the present case, considering the material on record and non-examination of the driver, we are of the considered opinion that the finding recorded by the Tribunal with regard to the contributory negligence on the part of the deceased is fallible and we so hold. ( 15 ) THE next contention that has been urged by Mr. Rao relates to the quantum determined by the Tribunal. It is urged by him that the entire approach is erroneous. Per contra, Mr. Sarwate has submitted that the just compensation had been determined but due to reduction of quantum because of finding of contributory negligence, injustice has been done and hence, this court should uphold the determination and grant the compensation. It is perceptible from the pleadings that the deceased was earning rs. 8,000 per month as he was a transporter. Regard being had to the evidence brought on record, we are inclined to hold that the monthly income of the deceased would not be more than Rs. 6,000. On such acceptance of income, the monthly contribution would come to Rs. 4,000 and thereby the yearly contribution would be Rs. 4,000 x 12 = Rs. 48,000. Regard being had to the age of the deceased multiplier of 16 would be applied. Thus, the compensation on this score would come to Rs. 48,000 x 16 = rs. 7,68,000. To the aforesaid we shall add rs. 10,000 on the three heads, namely, loss of consortium, loss to the estate and funeral expenses. Ergo, the amount of compensation, in toto, would be Rs. 7,78,000 (rupees seven lakh seventy-eight thousand ). Thus, the compensation on this score would come to Rs. 48,000 x 16 = rs. 7,68,000. To the aforesaid we shall add rs. 10,000 on the three heads, namely, loss of consortium, loss to the estate and funeral expenses. Ergo, the amount of compensation, in toto, would be Rs. 7,78,000 (rupees seven lakh seventy-eight thousand ). The differential enhanced sum shall carry interest at the rate of 6 per cent per annum from the date of presentation of the application before the Tribunal till the date of deposit before it. The insurer is directed to deposit the amount before the Tribunal within a period of three months from the date of receipt of the order passed today. ( 16 ) THE appeal and cross-objection stand disposed of accordingly. There shall be no order as to costs. Appeal allowed. .