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2011 DIGILAW 645 (GAU)

Jyotila Debbarma v. Union of India

2011-08-02

A.C.UPADHYAY

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JUDGMENT A.C. Upadhyay, J. 1. This appeal is directed against the impugned judgment and award dated 27.08.2010, passed by the learned Member, Motor Accident Claims Tribunal, West Tripura, Agartala, Court No. 4, in Case No. TS(MAC) 282 of 2007, whereby a sum of Rs. 79,965/- (rupees seventy nine thousand and nine hundred and sixty five) was awarded to the claimants-Respondents/Union of India. 2. I have heard Mr. P. Rathor, learned Counsel for the Appellant, and Mr. P. Gautam, learned Counsel appearing for the Respondent No. 4. However, none has appeared on behalf of Respondent Nos. 1, 2 and 3. 3. The facts, leading to the filing of this appeal, may be stated, in brief, as follows: On 08.07.2006, a vehicle bearing registration No. TR-01-B-0297 (Maruti Gypsy), belonging to the 22nd Bn. BSF, Fatikcherra, was proceeding towards Agartala from Fatikcherra on government duty. When the said vehicle reached at a distance of about 3 K Ms. from 22nd Bn. BSF Headquarters, a commander jeep, bearing registration No. TR-01-B-2298 collided with the BSF vehicle. As a result of the said collision between the two vehicles aforesaid, two BSF personnel traveling in the BSF vehicle, sustained injuries on their persons and the BSF vehicle also got badly damaged. 4. A departmental inquiry was conducted by Sri Naresh Kumar Lohia, Deputy Commandant (Law), 59 Bn. BSF, Fatikcherra, who was appointed as one Man Staff Court of Enquiry by the BSF, to enquire into the circumstances leading to the accident. The one Man Staff Court of Enquiry submitted its enquiry report, wherein it was held that the accident took place due to rash and negligent driving of the driver of the commander jeep, bearing No. TR-01-B-2298. The BSF technical experts assessed the cost of damage of the BSF vehicle at Rs. 79,965/-. 5. A claim petition was filed by the claimants Respondents/Union of India before the learned Court below. 6. In the claim case, the Appellant as well as the Respondent-Insurance Company had entered their appearance and filed written statements. However, the driver of the vehicle did not contest the case. 7. The owner of the commander jeep (the Appellant herein), in her written statement, denied all the material averments made by the claimants-Respondents in their claim petition. 6. In the claim case, the Appellant as well as the Respondent-Insurance Company had entered their appearance and filed written statements. However, the driver of the vehicle did not contest the case. 7. The owner of the commander jeep (the Appellant herein), in her written statement, denied all the material averments made by the claimants-Respondents in their claim petition. However, she admitted that at the time of accident, she was the registered owner of the commander jeep, bearing registration No. TR-01-B-2298, which was driven by an authorized driver, having valid driving licence. She has also refuted the allegations regarding occurrence of accident due to negligent driving of the vehicle. 8. The Insurance Company (Respondent No. 4 herein) also submitted written statement, stating inter alia, therein that the liability of the Insurance Company is to pay compensation of Rs. 6,000/- (rupees six thousand) towards the damage of third party property. 9. In the light of the pleadings, the learned Tribunal framed the following issues, for just settlement of the claim petition: 1. Whether the Maruti Gypsy bearing registration No. TR-01-B-0297 belonging to the claimant-Petitioners got badly damaged in a vehicular accident which occurred on Fatikcherra-Agartala road at Fatikcherra on 08-07-2006 due to rash and negligent driving of the Commander Jeep bearing registration No. TR-01-B-2298 by its driver? 2. Whether the claimant-Petitioners are entitled to compensation as prayed for? 10. To establish the claim, claimants-Respondents adduced the testimony of the driver of the offending BSF vehicle and also the testimony of his colleagues, who were traveling with the same vehicle. However, the owner of the vehicle did not adduce any evidence. 11. The learned Tribunal, on careful evaluation of the materials on records, held that there was no reason to disbelieve the estimate prepared by the technical experts, towards repairing of the damaged vehicle of the BSF and also observed that it was not expected that a disciplined force, like the BSF, would make a false or exaggerated claim, towards repairing of the damaged vehicle. Learned Tribunal also appreciated the report of Sri Naresh Kumar Lohia, the Deputy Commandant (Law), 59 Bn. BSF, Fatikcherra, who was appointed as one Man Staff Court of Enquiry by the BSF, who submitted the enquiry report holding that the accident took place due to rash and negligent driving of the commander jeep, bearing registration No. TR-01-B-2298. 12. Mr. Learned Tribunal also appreciated the report of Sri Naresh Kumar Lohia, the Deputy Commandant (Law), 59 Bn. BSF, Fatikcherra, who was appointed as one Man Staff Court of Enquiry by the BSF, who submitted the enquiry report holding that the accident took place due to rash and negligent driving of the commander jeep, bearing registration No. TR-01-B-2298. 12. Mr. Rathor, learned Counsel for the Appellant submitted that the driver of the vehicle, though charge sheeted by the investigating police officer, but subsequently, was acquitted by the learned trial Court. Learned Counsel for the Appellant has further pointed out that the driver of the BSF vehicle, Sri Paramjit Singh, PW.3, himself admitted in his evidence that the accident took place due to collision of both the vehicles on movement, which implies a head of collision since there is no explanation to specify that the BSF vehicle was on the side of the road. 13. By drawing the attention of this Court Mr. Rathor, learned Counsel for the Appellant has pointed out that PW.1, Sri Gabar Singh Rana, has categorically stated that the accident took place due to head on collision of both the vehicles on the road. The relevant extracts of the evidence on affidavit filed on behalf of PW.1, reads as follows: When our said vehicle reached at a distance of about 3(three) K.M. away from our 22nd Battalion location a civilian passenger Commander Jeep bearing registration No-01-B-2298 which was coming at a very high speed in negligent manner from the opposite direction dashed our vehicle as the driver of the said civilian Commander Jeep had failed to control the speed and direction of the said Commander Jeep. Due to such sudden and unexpected dashing, our vehicle was damaged extensively and as a result of the accident the B.S.F. Jawans who were traveling the vehicle suffered injuries on their person. 14. Mr. Rathor, learned Counsel for the Appellant further pointed out that the complaint submitted on behalf of the claimants-Respondents also categorically stated that the accident took place due to head on collision of the vehicles of the Appellant on the middle of the road. Unless there is sufficient evidence to rule out the possibility of negligence of any of the vehicles, the normal presumption would be that the drivers of both the vehicles were negligent in the commission of the accident. 15. Unless there is sufficient evidence to rule out the possibility of negligence of any of the vehicles, the normal presumption would be that the drivers of both the vehicles were negligent in the commission of the accident. 15. Learned Counsel for the Appellant by relying on a decision of Hon'ble Supreme Court, reported in AIR 2006 SCW 1116 : Bijoy Kumar Dugar v. Bidyadhar Dutta and Ors. has submitted that drivers of both the vehicles should be held responsible to have contributed equally to the accident. When the collision takes place in the middle of the road between two vehicles, moving in opposite direction, unless there is specific evidence to rule out negligence of one of the vehicles. The relevant extracts of the decision in Bijoy Kumar Dugar (supra) reads as follows: 12. Adverting to the next contention of the claimants, no doubt the High Court has not dealt with the point in issue. However, we have noticed the reasoning and finding of the MACT recorded under Issue No. 2. It is the evidence of Rajesh Kumar Gupta-P.W.2 who was traveling in the Maruti car along with the deceased Raj Kumar Dugar on the day of the accident that he also suffered some injuries in the said accident. He stated that while coming from Digboi, the Maruti car being driven by the deceased met with an accident at a place near Kharjan Pol. Before the accident, Raj Kumar Dugar noticed a passenger bus coming from the opposite direction and the movement of the bus was not normal as it was coming in a zigzag manner. The Maruti car being driven by the deceased Raj Kumar Dugar and the offending bus had a head-on collision. The MACT has not accepted the evidence of P.W. 2 to prove that the driver of the offending bus was driving the vehicle in abnormal speed. If the bus was being driven by the driver abnormally in a zigzag manner, as P.W. 2 wanted to believe the Court, it was, but natural, as a prudent man for the deceased to have taken due care and precaution to avoid head-on collision when he had already seen the bus from a long distance coming from the opposite direction. It was head-on collision in which both the vehicles were damaged and unfortunately, Raj Kumar Dugar died on the spot. It was head-on collision in which both the vehicles were damaged and unfortunately, Raj Kumar Dugar died on the spot. The MACT, in our view, has rightly observed that had it been the knocking on one side of the car, the negligence or rashness could have been wholly fastened or attributable to the driver of the bus, but when the vehicles had a head-on collision, the drivers of both the vehicles should be held responsible to have contributed equally to the accident. The finding on this issue is a finding of fact and we do not find any cogent and convincing reason to disagree with the well-reasoned order of the MACT on this point. The MACT has awarded interest at the rate of 10% per annum on the amount of compensation from the date of filing of the claim application till the date of payment. It is a discretionary relief granted by the MACT and, in our view, the discretion exercised by the MACT cannot be said to be inadequate and inappropriate. 16. Therefore, as observed by the Hon'ble Supreme Court in Bijoy Kumar Dugar (supra), since the vehicles in the instant case collided in the middle of the road, though there was an enquiry made by the BSF authority, but neither the investigating police officer of the case, nor the driver of the commander jeep were examined as witness in the enquiry. Further neither the investigating officer of the case was examined as a witness nor the documents relating to the investigation made by the police was ever placed before the Tribunal to show that the driver of the commander jeep was exclusively responsible for his negligent act. 17. Therefore, without lingering the discussions any further, I am of the considered view that since the accident took place in the middle of the road, the responsibility of the drivers of both the vehicles in the commission of the accident, cannot be ruled out, without any contrary evidence on record to establish such proposition. Therefore, the impugned order passed by the learned Tribunal, holding the driver of the commander jeep only exclusively responsible for the negligence in driving of the vehicle is not based on material evidence on record and thus not acceptable. 18. Therefore, the impugned order passed by the learned Tribunal, holding the driver of the commander jeep only exclusively responsible for the negligence in driving of the vehicle is not based on material evidence on record and thus not acceptable. 18. The compensation, which has been awarded by the learned Tribunal has been directed to be paid exclusively by the owner of the commander jeep, is apparently illegal. Accordingly, in the facts and circumstances, I hold that the drivers of both the vehicles are responsible for the collision of the vehicles on the middle of the road. 19. In the facts and circumstances discussed above, I consider that modification of the impugned judgment and award dated 27.08.2010, passed by the learned Member, Motor Accident Claims Tribunal, West Tripura, Agartala, Court No. 4, in Case No. TS(MAC) 282 of 2007, is warranted. 20. I allow the appeal by directing the award to be modified to the extent of sharing of the entire compensation of Rs. 73,965/- (rupees seventy three thousand and nine hundred and sixty five), by the owners of both the offending vehicles equally to the extent of 50% by each of them. The Appellant is directed to pay the 50% of the award made by the learned Tribunal within a period of one month from the date of passing of this order. 21. With the above observations and directions, this appeal stands disposed of. 22. Send back the Lower Court Records together with a copy of the judgment immediately.