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2011 DIGILAW 2698 (RAJ)

New India Assurance Co. Ltd. v. Reshami Devi

2011-12-08

MOHAMMAD RAFIQ

body2011
Hon'ble RAFIQ, J.—This appeal has been filed by the appellant-New India Assurance Co.Ltd. against the award dated 11/5/2002 passed by the Motor Accident Claims Tribunal, Jhunjhunu whereby a sum of Rs.4,37,500/- has been awarded as compensation. 2. The accident took place on 4/10/1997, due to head-on collusion between Jeep No.RJ-18C-2087 and Bus No.RJ-18P-0638. Shri Ram Singh jeep driver also happened to be owner of the jeep, who died in that accident. The jeep was insured with the appellant-New India Assurance Co.Ltd. It was comprehensive policy, which also covered the damage to the vehicle and the risk of passengers as also the 3rd party risk. Tribunal has held it to be a case of contributory negligence to the extent of 25% on the part of deceased-jeep driver Shri Ram Singh and 75% on the part of bus-driver Bhawani Singh and has held both the insurance companies i.e. New India Assurance Co.Ltd.-appellant and National Insurance Company-respondent No.7 liable to indemnify the respective owners for payment of compensation. The National Insurance Company was directed to indemnify the owner of the Bus to make payment of compensation to the claimants. 3. Shri Vinod Tyagi, learned counsel for the appellant-insurance company has cited the judgment of Supreme Court in Dhanraj vs. New India Assurance Co. Ltd. & Anr. reported in 2005 ACJ page 1 SC and argued that controversy in that case was identical to the one in the present case. The policy in that case also did not cover the risk for injury to owner. Premium charges for "own damage" was clarified by the words "premium on vehicle and non-electrical accessories" thus, it was held to cover only damage to the vehicle and not the injuries on the person of the owner. It was argued that the agreement of the insurance was between the jeep-owner and the appellant insurance company and owner of jeep Shankar was not party to the proceedings before the Tribunal, therefore the appellant-insurance company cannot be held liable to indemnify the owner of the jeep to make payment of compensation to the claimants. It could be required to pay compensation arising out of the death or injury claim on account of use of motor vehicle or damage to any property of a third party. It could be required to pay compensation arising out of the death or injury claim on account of use of motor vehicle or damage to any property of a third party. The appellant insurance company cannot therefore be expected to indemnify the owner himself, who was driving the jeep at the time of accident because he cannot be termed as third party and on the same analogy, in the scope of proceedings in a motor accident claims case, claimants could not be awarded compensation for the loss caused to the vehicle for which they were required to follow the ordinary procedure meant for the purpose. If his claim was about damage to vehicle not honoured or paid, he should have approached the District Consumer Redressal Forum under the Consumer Protection Act. Learned counsel for the appellant argued that respondent insurance company ought to have been required to pay even the damages caused to the jeep, for which the bus-owner or its Insurance company should have been held liable because they failed to show that the policy of the bus was not comprehensive policy. Learned counsel argued that Tribunal held it to be a case of contributory negligence because of the compromise arrived at between two insurance companies in other Claim Case Nos.20/1998 & 22/1998, whereat they agreed to pay compensation to the extent of 25% & 75%, respectively but that was a case of composite negligence in claim petition filed for death/injury of passengers, where appellant insurance company could not avoid answering its liability. But in the event of contributory negligence when the question comes to indemnify the owner, appellant insurance company cannot be saddled with the liability to pay compensation to the owner himself for his own negligence because claimants after the death of jeep-owner Ram Singh stepped into his shoes and therefore owner of the jeep cannot be required to pay the compensation. It was argued that the entire liability of making payment of compensation to the claimants ought to have been on the respondent insurance company if this court holds that the whole negligence was on the part of bus-driver Bhawani Singh and not on jeep-driver Ram Singh and that the jeep-driver was not at all negligent. 4. It was argued that the entire liability of making payment of compensation to the claimants ought to have been on the respondent insurance company if this court holds that the whole negligence was on the part of bus-driver Bhawani Singh and not on jeep-driver Ram Singh and that the jeep-driver was not at all negligent. 4. Learned counsel for the claimants has opposed the appeal and argued that once in their other claim cases, it has been held to be a case of composite negligence in the ratio of 25% on the side of the jeep-driver and 75% on the side of the Bus-driver, Tribunal was not bound to record the same finding in the present case. Merely because the jeep-owner has not been impleaded as party respondent before the Tribunal, it would not change complexion of the matter. Although inevitable consequence of it may be that the respondent insurance company would be required to pay only 75% compensation. Learned counsel submitted that the respondent insurance company has rightly been held liable to pay compensation of Rs.6,000/- for the damage caused to the jeep because respondent insurance company had issued a comprehensive policy covering risk of "damages" to the jeep. Learned counsel for the respondent-claimants submitted that the Tribunal was unduly influenced by the factum of compromise recorded in earlier two claim petitions as to the contributory negligence of 25% on the side of the jeep-driver and 75% on bus-driver. Finding of that case could not bind the claimants in the present case for two reasons; firstly, this fact was recorded on the basis of compromise or concession given by the parties thereto and secondly, evidence in the present case has not been properly analyzed by the Tribunal. Learned counsel referred to the statement of eye-witness AW2 Bhajanlal, who was also a passenger in the jeep. This witness has stated that the Bus driver was solely negligent on account of which accident took place, who was driving the bus in a rash and negligent manner. Learned counsel submitted that in response to a leading question in cross examination whether the jeep was being driven in the middle of the road or on extreme left side of the road, this witness replied by saying that he could not say definitely. Learned counsel submitted that in response to a leading question in cross examination whether the jeep was being driven in the middle of the road or on extreme left side of the road, this witness replied by saying that he could not say definitely. Tribunal has interpreted this statement to hold that if the jeep would have been taken off the road or if the jeep was driven on extreme left side of the road the accident could have been avoided and on this solitary evidence, Tribunal proceeded to hold the jeep-driver also responsible for contributory negligence to the extent of 25%. Learned counsel argued that even in the appeal filed by the insurance company, this finding is liable to be reversed. In support of his argument, he cited the site plan and argued that place of accident has been indicated to be extreme left side of the road though it was a head-on collusion, which shows that the bus had hit the jeep by going on the wrong side and thereafter the jeep was pushed 15 feet away from the place of accident and the dead body of jeep-driver Ram Singh was found at about 3.5 feet away from the jeep. It cannot be said to be a case of contributory negligence. As regards requiring the claimants to now approach the District Consumer Redressal Forum for payment of the loss to jeep, he argued that Exh.16 report of the surveyor of the insurance company i.e. Shri B.B. Roy assessed the loss of Rs.1,38,378/- and M/s.Gehlot Motors Ltd. assessed the loss of Rs.1,37,612/- vide Exh.17. Tribunal reduced the same to Rs.1,00,000/- only, whereas in fact much more amount was paid by the claimants for repair of the jeep. 5. Having heard learned counsel for the parties and perused the award, I shall first proceed to deal with the first question whether the Tribunal was justified in holding it to be a case of contributory negligence. As rightly argued by the learned counsel for the respondent-claimants, the Tribunal in this case was influenced by the factum of compromise arrived at between the two insurance companies in the earlier two claim petitions, wherein they agreed to apportion the liability in the ratio of 25% on the side of the jeep-driver and 75% on the side of the bus-driver. The factum of compromise in other claim petitions, in my considered view, could not bind the Tribunal to independently analyze the evidence and come to the finding of fact whether or not there was indeed any negligence on the part of the jeep-driver, who also happened to be owner of that jeep. Fortunately, eye-witness AW2 Bhajanlal, who was also a passenger in the jeep survived, however sustaining few injuries. He has stated that accident took place solely due to the negligence of the Bus-driver, who was driving the bus in a rash and negligent manner. In cross-examination, when a leading question was put to him whether the jeep was being driven in the middle of the road or at the extreme left side of the road, he could not give any definite answer. It is on this basis that the Tribunal has made some guess work and then proceeded to record a finding that had the jeep-driver taken the jeep off the road or on the extreme left side of the road, the accident could possibly be avoided. In the court of law especially in proceedings before the Motor Accident Claims Tribunal, finding on these issues ought not to be recorded on surmises and conjectures particularly when there is evidence otherwise available on record and there has been no rebuttal to such evidence. This much is admitted even by the Tribunal when it holds that only mistake of the jeep-driver was that if he had taken the jeep on the extreme left side of the road, possibly the accident would not have taken place. Left side of the road was meant for driving the jeep and if he was not driving the jeep left side of the road, it does not mean that he was negligent. This has also been corroborated from the site plan, where place of accident has been mentioned as "x", which is on the extreme left side of the road and after the jeep was hit by the bus at place "x", which is on the left side, it was pushed to place "z", 15 feet away from place "x" and the dead-body of jeep-driver Ram Singh found lying at place "y" about 3.5 feet away from the jeep. Site plan thus clearly indicates that the bus was being driven in a very high speed. Site plan thus clearly indicates that the bus was being driven in a very high speed. Velocity of the speed of the bus was such that the jeep was pushed to a distance of 15 feet and dead-body was thrown 3.5 feet away therefrom. 6. In the facts like this, therefore, finding of the Tribunal as to the contributory negligence of the jeep driver is perverse and cannot be sustained. 7. Coming now to the question of damage to the vehicle ordered to be paid to the claimants, I find that though the appellant may be justified in contending that it was damage to the third party and Tribunal cannot in the scope of motor accident claims case held the appellant insurance liable to pay the owner such damages but considering the fact that there was report of the surveyor and estimate of M/s.Gehlot Motors Ltd. and the accident took place on 4/10/1997, requiring the claimants now to approach the District Consumer Redressal Forum to follow the protracted procedure under the Consumer Protection Act, 1986 therefor, would be rather too harsh and onerous upon them, particularly when the appellant insurance company has already deposited the said amount with the Tribunal. As regards the argument of the appellant that respondent insurance-company, which insured the bus had unlimited liability, that fact has not been proved by production of that policy of the bus before the Tribunal. It therefore cannot be therefore now entertained before this Court. 8. In the result, the appeal is partly allowed. Finding of the Tribunal as to the contributory negligence of jeep-driver Ram Singh is reversed and Bus-driver Bhawani Singh is held wholly responsible for the negligence and therefore responsible for the accident. Respondent No.7-National Insurance Company is held liable to pay entire amount of compensation to the claimants and the amount paid/deposited by it on this head is liable to be refunded to the appellant-New India Assurance Co.Ltd. However, the claimants are held entitled to retain the amount for damages of Jeep.