National insurance co. Ltd. v. Roma Savapandit and Ors.
2015-02-03
RUMI KUMARI PHUKAN
body2015
DigiLaw.ai
1. The appellant, herein, has challenged the judgment and award dated 01.09.2011 passed by the learned Member, MACT, Lakhimpur, in MACT case No. 60 of 2009, awarding a sum of Rs. 1,70,000/- along with interest @ 9% per annum in favour of the claimant and apportioning the liability for payment to the present appellant and the other respondent United India Insurance Co. Ltd.. Out of the total compensation amount, the MACT has passed on the shoulder of the appellant to pay 40% of the amount i.e. Rs. 58,000/- being the insurer of one of the vehicle (bearing Truck No. AS-25-7279) involved and rest 60% to be paid by the other insurance company (insurer of the vehicle No. AS-17-1725). 2. The basic point of challenge of the appellant is that the learned Court below did not properly appreciate the evidence of the claimant as discussed in paragraph No. 17 of the Judgment i.e. the deceased was coming in the vehicle No. AS-25-7279 and accident took place due to the fault of the vehicle No. AS-17-1725 and the learned Tribunal did not absolve the insurer of the vehicle, i.e. the appellant, of the liability in this case. One of the points of challenge to the judgment and award is that though the learned Tribunal discussed in Para 18 of the judgment, that accident took place solely due to the rush and negligent driving of the offending vehicle bearing Reg. No. AS-17-1725(Truck) but at the time of awarding compensation, both the vehicles were held liable for the accident and the liability to pay the compensation is apportioned between two insurance companies at the ratio of 60:40. Another point of challenge is that the vehicle was insured with the appellant under Act policy, which only covers third-party liability. 3. Brief facts of the claimant's case is that on 30.09.2008 at about 3PM, the son of the claimant was travelling in the Truck bearing No. AS-25-7279 and the vehicle was hit by another vehicle bearing No. AS-17-1725 resulting spot death of the driver of the vehicle No. AS-25-7279 and the son of the claimant who was travelling in the vehicle sustained grievous injuries all over the body. He was immediately evacuated to the Mangoldoi civil Hospital and was admitted in the Hospital and on the next day, he succumbed to his injuries.
He was immediately evacuated to the Mangoldoi civil Hospital and was admitted in the Hospital and on the next day, he succumbed to his injuries. It has been alleged that the accident took place solely due to the rash and negligent driving of the driver of Truck No. AS-17-1725. The father of the injured lodged a claim petition before the tribunal impleading the owner, driver and insurer of both the vehicles. The claim petition was resisted by both the insurer of the Truck by filing written statement. On completion of the inquiry and on the basis of the evidence on record, the learned Claims tribunal passed the impugned order and though held that the truck No. AS-17-1725 was solely responsible for the accident and also assessed the compensation but learned Tribunal apportioned the liability for payment of compensation to both the insurers i.e. the present respondent/ insurance company and also the respondent No. 5 viz. United India Insurance Co. Ltd.. Being aggrieved by the order of apportionment and also about having liability only under the Act policy, which only covers third party liability, has preferred the appeal. 4. During the course of argument, it has been vehemently argued by the learned counsel for the appellant that since there was no contributory negligence on the part of the driver of the vehicle bearing No. AS-25-7279 and whereas there is no evidence on record and the learned Tribunal held on the matter in his judgment in paragraph No. 11, then how the learned Tribunal can jump to another conclusion that as there was a head-on collision between the vehicles so both the insurers of the vehicles are liable to pay the compensation. On the other hand, the learned counsel for the respondent has contended that in view of the averment made in the claim petition and the evidence of the claimant that there was a head-on collision between the two vehicles so the learned Tribunal has rightly apportioned the compensation amount. 5. Upon hearing the submissions of the learned counsel for both sides and on perusal of the pleadings and impugned judgment, it appears that the only question to be adjudicated in this appeal is to whether the learned claim Tribunal was justified in apportioning the liability for payment of compensation to both the insurers or not.
5. Upon hearing the submissions of the learned counsel for both sides and on perusal of the pleadings and impugned judgment, it appears that the only question to be adjudicated in this appeal is to whether the learned claim Tribunal was justified in apportioning the liability for payment of compensation to both the insurers or not. However, the second point of challenge by the appellant as regard the condition of the insurance policy that it only covers the third party being a policy under the Act only policy cannot be taken into consideration as it was not pleaded in the written statement nor any evidence was adduced in this regard. 6. I have carefully gone through the pleadings between the parties and the evidence on record. There is no dispute about the involvement of the two vehicles in the accident and the present appellant as well as the respondent No. 5 are the insurers of both the vehicles. It is to be noted that the claimant in his claim petition as well as in his evidence which is supported by one eye-witness(CW-2) has fully asserted that the accident took place explicitly for the fault of the driver of the truck bearing Reg. No. AS-17-1725 which was coming from the opposite direction. The findings of the learned Tribunal while deciding issue No. 1, in paragraphs No. 11 and 12, is quoted as below: “11. The learned counsel for the O.P. No. 4(United India Insurance Co. Ltd.) vehemently submitted that the accident took place due to rash and negligent driving of the driver of the offending vehicle bearing Reg. No. AS-25-7279. But from the evidence on record, it appears that the accident took place due to rash and negligent driving of the offending vehicle bearing Reg. No. AS-17-1725. Though the learned counsel for the O.P. No. 4 cross-examined the CWs at length but fail to discredit their evidence in this respect.” “12. From the oral evidence of CW.1, CW-2 and CW-3 together with the documentary evidence i.e. Ext. 1, the Accident Information Report, it appears that the accident took place due to head -on collision between two vehicles and the offending vehicle bearing Reg. No. AS-17-1725 was primarily responsible for the said accident as the driver of the offending vehicle bearing Reg. No. AS-17-1725 drove the vehicle in a rash and negligent manner for which the accident took place.” 7.
No. AS-17-1725 was primarily responsible for the said accident as the driver of the offending vehicle bearing Reg. No. AS-17-1725 drove the vehicle in a rash and negligent manner for which the accident took place.” 7. Peculiarly enough, inspite of holding the driver of the vehicle No. AS-17-1725, liable for the accident, the learned Tribunal arrived at a perverse conclusion that the accident took place due to head-on collision between the two vehicles without appreciating any other aspect about contributory negligence on the part of the drivers of the vehicles. It may be mentioned that that if two vehicles are involved in an accident and the compensation amount is to be apportioned for payment of the insurers of both the vehicles, the learned Tribunal is to examine during the course of the inquiry as to whether the accident occurred due to contributory negligence of the drivers of both vehicles. 8. The learned counsel for respondent No. 5 has referred to a decision of the Hon'ble Apex Court in the case of Bijoy Kumar Dugar v. Bidyadhar Dutta & ors. AIR 2006 SC 1255 wherein it has been held that when the vehicles had a head-on collision, drivers of both the vehicles should be held responsible to have contributed equally to the accident. But it is to be noted that facts and circumstances of the case in hand, are not similar to the case referred above. 9. The question of contributory negligence on the part of the drivers in case of collision was considered by the Hon'ble Apex Court in Pramod Kumar Rasikbhai Jhaveri v. Karmasey Kunvargi Tak (2002) 6 SCC 455 . It was observed as follows: “The question of contributory negligence arises when there has been some act or omission on the claimant's part which is materially contributed to the damage caused and is of such nature that it may properly be described as negligence. Negligence ordinarily means breach of a legal duty to care but when used in the expression “contributory negligence” it does not mean breach of any duty. It only means the failure by a person to use reasonable care for the safety of either himself or his property so that he became blameworthy in part as an author of his own wrong.” 10. In a similar case, the Hon'ble Apex Court in Usha Rajkhowa & ors.
It only means the failure by a person to use reasonable care for the safety of either himself or his property so that he became blameworthy in part as an author of his own wrong.” 10. In a similar case, the Hon'ble Apex Court in Usha Rajkhowa & ors. v. Paramount Industries & other, (2009) 14 SCC 71 , it has been held that the learned Tribunal limited the appellant's entitlement to 50% of the claim amount, without holding it to be a case of contributory negligence. It has been held as under: “17. Now the following factors are clear from the evidence of PW-3: 1.The truck was coming at high speed. 2.It was the truck which hit the car and not vice versa. 3.The Maruti Car was going on its own side. 18. It seems that the tribunal as well as the high Court has chosen to go by the inference drawn by PW-3 or at any rate, his inability to fix the liability. It is not judgment of the witness which is decisive in the matter. In fact, the tribunal as well as the High Court should have framed their own opinion instead of going by the Judgment as the case may be by inference of PW-3.” In the above cited case, by following the above mentioned judgement of (2002) 6 SCC 455 , the Hon'ble Apex Court held that as the contributory negligence is not proved so there is no question of restricting the claim to 50% of the assessed amount of compensation. 11. In view of the guidelines set forth by the Hon'ble Apex Court, if we examine the instant case, it is found that the learned Tribunal during the course of inquiry came to the finding that the truck No. AS-17-1725 was solely responsible for the vehicular accident. Then apparently, there was no contributory negligence on the part of the driver of the vehicle bearing Reg. No. AS-25-7279 in the accident. Under Section 166 of the M.V. Act, the learned Tribunal has to fix the liability for payment of compensation only to the owner and driver of the vehicle for which fault, the accident occurred.
Then apparently, there was no contributory negligence on the part of the driver of the vehicle bearing Reg. No. AS-25-7279 in the accident. Under Section 166 of the M.V. Act, the learned Tribunal has to fix the liability for payment of compensation only to the owner and driver of the vehicle for which fault, the accident occurred. The apportionment of liability of payment of compensation arose in case of accident occurred due to contributory negligence of two vehicles or composite negligence of two or more vehicles, now as the case has been decided under the M.V. Act, the findings has to be made under the provisions of the Act but the learned Tribunal has deviated from the proposition of law. 12.In the facts and circumstances of the case and in view of the findings recorded in Issue No. 1, it is hard to accept as to how and why the learned Tribunal shall apportion the liability for payment of compensation to both the insurance companies. The learned Tribunal has discarded the positive evidence of the claimant and the eye-witness that the accident occurred due to the fault of the vehicle bearing Reg. No. AS-17-1725 and there is nothing to suggest about the contributory negligence on the part of the deceased driver of the other vehicle wherein the deceased was travelling. In view of all above, there appears no any justification for apportionment of liability of payment of compensation directing the appellants to pay 40% of the compensation amount of Rs. 68,000/- and findings of the learned Tribunal in this respect is hereby set aside. The opposite party respondent No. 5 (United India Insurance Co. Ltd.) is held liable and is directed to pay the full compensation amount to the claimants. 13. The appeal is allowed accordingly. No order as to costs.