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2013 DIGILAW 71 (GAU)

Union of India v. Rabindra Ch. Das

2013-02-02

S.C.DAS

body2013
JUDGMENT S.C. Das, J. 1. Feeling dissatisfied with the quantum of compensation awarded by the Tribunal, the appellants, named above, approached this Court preferring appeal under Section 173 of the M.V. Act, 1988 for granting adequate compensation. Heard learned Assistant SG, Mr. P.K. Biswas for the appellants and learned counsel, Mr. P. Datta for the respondent No. 2, National Insurance Co. Ltd. 2. Respondent No. 1 chosen to remain absent. 3. The appellants presented a petition under Section 166 of M.V. Act, before Motor Accident Claims Tribunal, Agartala inter alia stating that on 08.04.1997 at about 11 am, Maruti Gypsy vehicle No. BA-94B-13680 was on way to Agartala from Bagafa and when the vehicle reached at a place about 677 km, east from Bisramganj, a commander jeep vehicle bearing No. TR-01-3138 being driven rashly and negligently with a high speed, coming from opposite direction violently dashed against the right side of Maruti Gypsy vehicle which was in normal speed and as a result, the gypsy vehicle was badly damaged and the driver of the Maruti Gypsy vehicle namely, Sri Anil Kumar and an officer of the appellants, namely Sri Debabrata Sarkar were also seriously injured. It is alleged that the accident occurred for rash and negligent driving of the jeep vehicle by its driver. A police case bearing Bishalgarh P.S. Case No. 30/97 under Section 279/338 of IPC was registered on the basis of an F.I.R. lodged by A.K. Diksikt, Executive Engineer of GREF. The petitioners contended that an amount of Rs. 2,04,238/- has been estimated as cost for repair of the vehicle and they claimed a total compensation of Rs. 2,55,838/- including that of a compensation of Rs. 51,600/- for non-utilization of the vehicle. In the schedule of the claim petition, the petitioners mentioned item wise costs involved for the repair of the vehicle. 4. Respondent No. 1, the owner of the alleged offending vehicle submitted written statement denying the averments made in the claim petition and further stated that the vehicle was insured with National Insurance Company covering the risk on the date of accident and if, any award is passed, the Insurance Company shall be held responsible for making payment of the compensation. A photocopy of the driving licence and insurance certificate was enclosed. A photocopy of the driving licence and insurance certificate was enclosed. Respondent No. 2, the National Insurance Company also contested the claim case by filing written statement denying the averments made in the claim petition, but, did not specifically, deny the factum of insurance of the vehicle covering the risk on the date of the accident. 5. Considering the pleadings of the parties, the Tribunal framed following issues:- (1) Whether vehicle Maruti Gypsy bearing Regn. BN No. 948-13680 under Commandant, 755 BRTF, C/O. 99 APO, Agartala was damaged due to motor accident on 8.4.97 at about 11.00 a.m. at 677 K.M. east from Bisramganj Out Post on Agartala Udaipur Road? (2) Whether said accident occurred due to rash and negligent driving of the driver of vehicle TR-01-3138 (Commander Jeep)? (3) Whether the claimant petitioners are entitled to get compensation? If so, what should be the just compensation? (4) Who is liable to pay compensation if awarded? 6. In course of trial, the appellant-petitioners examined two witnesses namely, P.W. 1, B. Venkateswa Row, Officer Commanding of 120 R.C.C., Bagafa and PW 2, Anil Kumar, driver of the damaged vehicle of the appellants. 7. Respondents adduced no evidence. 8. The Tribunal, by impugned judgment dated 02.09.2002 held that the accident occurred for rash and negligent driving of the Commander Jeep vehicle belonged to the respondent No. 1 and as a result of the accident, Maruti Gypsy vehicle of the appellant-petitioners was damaged. Petitioners claimed compensation of Rs. 2,55,838/-. P.W. 1 while deposing before the Tribunal, claimed the amount as compensation. In his cross-examination, he stated that they have not filed any document regarding the amount involved in repairing the damaged vehicle and, therefore, the Tribunal held that in the absence of any document regarding the expenses incurred in repairing the vehicle, the Tribunal applied guess work and awarded a lump sum compensation of Rs. 10,000/-. 9. Learned Assistant SG, Mr. P.K. Biswas has submitted that in course of trial, appellant-petitioners examined two witnesses in support of their pleadings and to controvert it, no evidence adduced by the respondents. The appellants produced the Log book of the damaged vehicle and a joint inspection report signed by Motor Vehicle Inspector of the Government of Tripura and also a copy of the schedule of properties damaged with estimated cost. The appellants produced the Log book of the damaged vehicle and a joint inspection report signed by Motor Vehicle Inspector of the Government of Tripura and also a copy of the schedule of properties damaged with estimated cost. He has also submitted that the cost for repairing of the vehicle was ascertained in the garage of the BRTF by responsible officer and copy of the same has been placed on record. He has further submitted that the original document of estimated cost signed by concerned officers has been kept in the file of the appellants and copy was placed on record. Since the estimated cost has already been stated in the schedule of claim petition as well as in the exhibited documents, the Tribunal would award the entire amount of Rs. 2,04,238/- as compensation to the appellant-petitioners. He has also submitted that where definite evidence is on record, the Tribunal would not award a lump sum amount applying guess work. 10. Learned counsel, Mr. P. Datta, on the contrary, has submitted that the log book has been placed in original, but the joint inspection report and the document showing estimated cost are not in original. The joint inspection report is a photocopy of the report signed by senior Inspector of Motor Vehicles, but, the document of estimated cost is neither signed nor in original. But, the Tribunal has marked it as exhibit and on the basis of it, no compensation can be ascertained and paid to the claimants. 11. In the course of hearing, learned Assistant SG, Mr. Biswas has shown before the Court, the original document, in which, the cost was assessed. But, since it has not been placed before Tribunal and was not exhibited, at this stage, showing the same before the Court, will serve no purpose. 12. The finding of the Tribunal that the accident occurred because of the rash and negligent driving of the commander jeep vehicle belonged to respondent No. 1 has not been disputed, The further finding of the Tribunal that the Maruti Gypsy vehicle belonged to the appellant-petitioners was damaged due to the accident has also not been challenged. The points to be determined are- (a) Whether lump sum compensation of Rs. 10,000/-, as awarded by the Tribunal, was justified? The points to be determined are- (a) Whether lump sum compensation of Rs. 10,000/-, as awarded by the Tribunal, was justified? (b) Whether the documents, which have been marked as Exhibit 1 series by the Tribunal in course of trial can be acted upon, though those are photocopies? (c) Whether the oral evidence of the petitioner supported by Exhibit 1 series are sufficient to determine the compensation payable to the appellant-petitioners for the alleged damage? 13. Motor accident claim cases are decided by the Tribunals, constituted as per the provisions prescribed under the Motor Vehicles Act. The Tribunal while deciding a claim case is to follow the principles of natural justice. It is not required to follow the procedural law or the rule of evidence, in strict sense. Tribunal can formulate its own procedure consistent with the principles of natural justice and not in violation of the provisions of law. Materials which are probative and produced before the Tribunal in the presence of other side having given the scope to controvert, may be taken to consideration for determination of a claim. 14. In the present case, the appellant-petitioners stated that the Gypsy vehicle belonged to them was badly damaged and in the schedule of the petition, they have given a list of the properties of the damaged vehicle with estimated cost. Respondents by filing written statement flatly denied the fact pleaded in the petition. P.W. 1 is the Commanding Officer of the GREF and in his deposition, he stated that the damage as has been assessed is to the tune of Rs. 2,55,848/- and accordingly, compensation has been claimed. A departmental enquiry was set up and the damage was assessed. He proved the log book, the photocopy of Joint Inspection Report and a photocopy of a document titled "Schedule of the properties damaged with estimated cost of the damage." In his cross-examination, he stated that they did not file any document regarding the amount involved in repairing the Gypsy vehicle. But, he denied the suggestion that no amount was required for repairing of the vehicle. The Tribunal picked up the line from the cross-examination and arrived at a conclusion that no document produced regarding the amount involved in repairing of the vehicle. The Tribunal ignored Exbt. 1 series, which was brought on record, as evidence by the Tribunal itself. But, he denied the suggestion that no amount was required for repairing of the vehicle. The Tribunal picked up the line from the cross-examination and arrived at a conclusion that no document produced regarding the amount involved in repairing of the vehicle. The Tribunal ignored Exbt. 1 series, which was brought on record, as evidence by the Tribunal itself. Though those were photocopies, the respondents did not challenge it at the time, when those photocopies were admitted evidence. In a case, before Tribunal, while a photocopy of a document is marked as Exhibit without objection raised, at the time of admitting the document, the Tribunal would not ignore it and totally brush it aside from consideration. 15. On going through the joint inspection report of the damaged motor vehicle, it is found that there were damages in 19 items (parts) of the vehicle namely:- (1) Frame Assy (2) Front pannel (3) Radiator Assy (4) Extension Front bumper (5) Spring Assy (6) Carburetor Assy (7) Pannel fender (8) Shock absorber (9) Pannel front door R/H (10) Instrument pannel assy (11) Steering assy complete (12) Housing front axle (13) Stabilizer assy (14) Panncl front (15) Head lamp assy (16) Front bumper (17) Master cylinder assy (18) Engine assy (19) Glass wind shield The above items of properties of the damaged vehicle, if tallied with the schedule of the petition as well as the other exhibited document of estimated cost at least corroboration in 18 items are clearly found. Cost of damages of those 18 items, the appellant-petitioners are definitely entitled to get. The finding of the Tribunal in arriving at a lump sum amount applying guess work was not justified. No doubt, in such claim cases, some sorts of guess work, and some hypothetical consideration is required to be made for arriving at a reasonable conclusion for ends of justice. Such guess work or assumption or hypothetical consideration cannot be made from the air, but, must be on the basis of the facts and circumstances and materials placed on record. 16. Such guess work or assumption or hypothetical consideration cannot be made from the air, but, must be on the basis of the facts and circumstances and materials placed on record. 16. In the present case, while the documents, which are exhibited by the Tribunal, not disputed by the respondents, at the time of trial though those are photocopies and/or un-signed copies, may be looked into for collateral purpose, for fair appreciation of the oral evidence and taking into consideration, those documents with oral evidence, I am of considered opinion that the damages for the following items as reflected in the schedule of the claim petition and in Exbt. 1 series may be awarded as compensation. The damages shown in the document and in the schedule of the claim petition of the particular admissible item are:- The appellant-petitioners are therefore, entitled to get an amount of Rs. 1,87,400/- (Rupees One lakh eighty seven thousand four hundred) as compensation towards cost of damages for repairing of the vehicle. 17. Learned counsel, Mr. Datta has submitted that the liability of the insurance company for damage to the vehicle only extends to an amount of Rs. 6,000/- and so, the insurance company cannot be saddled with more responsibility. No document to that effect produced before the Tribunal. The photocopy of the insurance certificate which was produced by respondent No. 1, though not exhibited, does not reflect anything that the liability of the insurance company extends only to the extent of Rs. 6,000/-. No policy of the insurance produced, Under such circumstances, the submission of the learned counsel, Mr. Datta cannot be accepted and the insurance company is held responsible for making the payment of the total amount of compensation excluding that of the amount determined by the Tribunal, if paid, in the meantime. 18. Accordingly, it is hereby ordered that the appellant-petitioners are entitled to an amount of Rs. 1,87,400/- (Rupees One lakh eighty seven thousand four hundred) as compensation towards damage of the vehicle and the respondent No. 2, National Insurance Co. Ltd. is responsible to make payment of the said amount within 60 days from today, failing which, it shall carry interest @ 9% per annum. Amount, if any, paid in the mean time, pursuant to order of the Tribunal shall be excluded. 19. The appeal accordingly, stands disposed of. Send back the LCR along with the copy of the judgment. Ltd. is responsible to make payment of the said amount within 60 days from today, failing which, it shall carry interest @ 9% per annum. Amount, if any, paid in the mean time, pursuant to order of the Tribunal shall be excluded. 19. The appeal accordingly, stands disposed of. Send back the LCR along with the copy of the judgment. Disposed off.