Research › Search › Judgment

Gauhati High Court · body

2009 DIGILAW 178 (GAU)

New India Assurance Co. Ltd. v. Sumita Agarwal

2009-03-13

MAIBAM B.K.SINGH

body2009
JUDGMENT Maibam B.K. Singh, J. 1. Heard Mr. Imti Imsong, learned Counsel appearing for the Appellant and Mr. B. Devnath, learned Counsel appearing for the Respondent No. 3. None appears for the remaining Respondents despite proper service of notice on them. 2. This appeal has been filed against the judgment and Order dated 9.5.06, passed by the Motor Accident Claims Tribunal-II, Dimapur, Nagaland in MAC Case No. 2 of 2004, awarding a sum of Rs. 12,88,063.17 (Rupees twelve lakhs eighty eight thousand sixty three and seventeen paisa) as compensation in favour of the claimant and apportioning the liability for payment to the Respondent No. 3 and the present Appellant respectively. Out of the total compensation amount, the MACT fastened on the shoulder of the Appellant to pay a sum of Rs. 3,94,120/- (Rupees three lakhs ninety four thousand one hundred twenty) to the claimant. 3. Facts, in brief, are that on 26.6.04, while the claimant namely, Nasiruddin Barbhuiya accompanied by a friend proceeding towards Badarpur from Silchar in a Maruti Car bearing No. AS-01/C 6894, being driven by himself met a vehicular accident at Salchapra Gehagrapar, as hit by a Truck bearing No. AS-25/B-4592 coming from the opposite direction. In the said vehicular accident, the claimant sustained multiple fracture and grievous injuries on his body and ultimately became a permanently disabled person. The claimant being represented by his younger brother filed a claim application under Section 166 read with Section 140 of the Motor Vehicles Act, 1988 claiming a sum of Rs. 13,73,063.17 (Rupees thirteen lakhs seventy three thousand sixty three and seventeen paisa) as compensation against the owner, driver and insurer of the truck and that the owner and the insurer of the Maruti car were also impleaded as proforma-opposite parties. The claim application was resisted by the insurer of the truck and the proforma opposite parties by filing separate written statement. At the conclusion of the enquiry and on the basis of the evidence on record, the learned Claims Tribunal passed the impugned order and held that the truck was solely responsible for the vehicular accident in question and assessed the compensation amount at Rs. 12,88,063.17 (Rupees twelve lakhs eighty eight thousand sixty three and seventeen paisa). However, the learned Claims Tribunal apportioned the liability for payment of compensation to both the insurers i.e. the present Respondent No. 3 and the Appellant. 12,88,063.17 (Rupees twelve lakhs eighty eight thousand sixty three and seventeen paisa). However, the learned Claims Tribunal apportioned the liability for payment of compensation to both the insurers i.e. the present Respondent No. 3 and the Appellant. Being aggrieved by the order of apportionment, the Appellant has preferred the present appeal. 4. That, the learned Counsel appearing for the Appellant submits that since there was no contributory negligence from the driver of the Maruti vehicle in the said accident, no liability for payment of compensation could be fastened on the shoulder of the Appellant. Per contra, the that the accident was a head on collision between two vehicles due to contributory negligence of both the vehicles and as such the learned Claims Tribunal rightly apportioned the compensation amount. 5. Upon hearing the submissions of the learned Counsel appearing for the parties and on perusal of the impugned judgment, it appears that the only question to be adjudicated in this appeal is as to whether the learned Claims Tribunal was justified in apportioning the liability for payment of compensation to both the insurers or not? 6. In the instant case, there is no dispute about the involvement of two vehicles in the said accident and the present Appellant as well as the Respondent No. 3 are the insurer of the Maruti vehicle and the truck. It is also an admitted fact that the claimant was driving the Maruti vehicle at the time of the accident. The claimant through his younger brother filed the claim application against the driver owner and the insurer of the truck alleging that the accident took place exclusively for the fault of the driver of the truck which was coming from the opposite direction. During the course of enquiry, the Claims Tribunal while deciding the issue Nos. 1 and 6 categorically held as follows: Having heard the Learned Counsels for the parties and upon due consideration of the evidence on record, this Tribunal is satisfied that there was an accident between the Maruti Car bearing registration No. AS-01/C-6894 and the Truck bearing registration No. AS-25/B-4592 on 26.06.04 at Silchapra Gehagrapar under Silchar P.S. and that the said Truck was responsible for causing the same. So far as the injured is concerned, I have perused the documents on record in addition to the deposition made by the claimant and 1 am convinced that the injured was driving the illfated Maruti Car bearing registration No. AS-01C/6894, at the time of accident. Accordingly, I decide issue No. 1 and 6 in the affirmative and in favour of the claimant. 7. Against the said finding no appeal has been filed either by the owner or driver or the insurer of the truck. That being the situation, the judgment and Order in respect of the said finding has attained the finality. It may be mentioned that if two vehicles are involved in an accident and the compensation amount is to be apportioned for payment to the insurer of both vehicles, the Claims Tribunal is to examine during the course of enquiry as to whether the accident was occurred due to contributory negligence of the drivers of both vehicles. In such an enquiry, the Claims Tribunal has to see whether the injured claimant was also partly responsible for the said accident and if the injured claimant is also held responsible in such accident, the Claims Tribunal has to find out the extent of his responsibility to the accident. 8. In the present case, the Claims Tribunal during the course of enquiry came to the finding that the truck was solely responsible for the said vehicular accident. In other words, there was no contributory negligence of the driver of the Maruti vehicle in the accident. Under the M.V. Act, the Claims Tribunal is to fix the liability for payment of compensation only to the owner and driver of the vehicle for whose fault the accident was occurred. The apportionment of liability for payment of compensation can be made in case of the accident occurred due to contributory negligence of two vehicles or composite negligence of two or more vehicles. However, the learned Tribunal in the present case calculated the compensation amount under the M.V. Act and thereafter, apportioned the liability for payment of compensation to both the insurer by calculating the liability payable by the Appellant under the Workman Compensation Act, 1923, the insurer by calculating the liability payable by the Appellant under the Workman Compensation Act, 1923. 9. In the fact and circumstances of the case and in view of the finding of the Issue Nos. 9. In the fact and circumstances of the case and in view of the finding of the Issue Nos. 1 and 6, I do not see any reason as to how and why the learned Claims Tribunal apportioned the liability for payment of compensation to both the insurer companies. It appears that the learned Claims Tribunal has committed error in holding that the insurer of the Maruti vehicle i.e. the present Appellant shall pay the amount which is statutorily payable under the Workman Compensation Act, 1923. It is reiterated that once it is established that the accident was taken place due to rash and negligent driving of one of the vehicles and the said vehicle was solely responsible for the said occurrence, no portion of the liability for payment of compensation can be fixed to the owner, driver and insurer of the other vehicle even though two vehicles are involved in the accident. The apportionment of liability for payment of compensation shall only be permissible only when the accident was occurred due to contributory negligence of two or more vehicles. 10. Having regards to the fact and circumstances of the case and for the reasons and discussions made hereinabove, I do not find any justification to the apportionment of the liability for payment of compensation thereby directing the Appellant to pay a sum of Rs. 3,94,120/-. Accordingly, the findings of the learned Claims Tribunal directing the Appellant to pay a sum of Rs. 3,94,120/- out of the total compensation amount of Rs. 12,88,063.17 is hereby set aside. The case is, however, remanded to the learned Claims Tribunal to re-fix the liability for payment of said sum of Rs. 3,94,120/- in accordance with law. Consequently, the appeal is allowed. No order as to costs.