Research › Search › Judgment

Gauhati High Court · body

2015 DIGILAW 274 (GAU)

SANGPARI v. F. LALREMRUATA

2015-03-04

LANUSUNGKUM JAMIR

body2015
JUDGMENT : Lanusungkum Jamir, J. By this appeal, the appellant is challenging the judgment and award dated 1st April, 2014 passed by the learned Motor Accident Claims Tribunal Aizawl, Mizoram in MACT Case No. 17/2013 by which the claim petition filed by the appellant as claimant was dismissed. The brief facts of the case is that the present appellant as claimant had filed a claim petition claiming compensation for the death of her son F. Lalhriatpuia who died in the vehicular accident at Chanmari-III, Lunglei Mizoram on 16th February, 2012. The accident vehicle (Scooty Rodeo) bearing registration No. MZ-02/A-1862 was driven by the son of the appellant at the time of the accident. The said Scooty was registered in the name of the respondent No. 1 who is also the father of the deceased and the husband of the appellant. The said Scooty was insured with the Oriental Insurance Company Limited having validity from 5th January, 2012-4th January, 2013. The deceased i.e. F. Lalhriatpuia was having a driving licence with validity from 8th March, 2011-7th March, 2013 for non-transport vehicle at the time of accident. The claim petition was filed under Section 163A, of the Motor Vehicles Act, 1988. The learned MACT had framed two issues and examined four claimant witnesses. No witness was produced by the respondent No.2 i.e. M/s. Oriental Insurance Company Limited. After hearing the parties, the learned Tribunal had thereafter dismissed the claim petition on the ground that there was no eyewitness to the alleged accident and there was no evidence to show that the deceased died due to the accident and even if the deceased had died due to the accident, there was no other vehicle involved. 2. Mr. Zochhuana, learned Counsel appearing for the appellant submits that as the vehicle (Scooty Rodeo) was already insured, any person can use the vehicle with the consent of the owner and that anyone who had no interest in the subject matter of an insurance can also claim the benefit of the insurance. He, therefore, submits that the learned Tribunal has erred in coming to the finding that the Insurance Policy being a liability only policy does not cover the deceased who was the rider of the accident vehicle at the time of the accident. He, therefore, submits that the learned Tribunal has erred in coming to the finding that the Insurance Policy being a liability only policy does not cover the deceased who was the rider of the accident vehicle at the time of the accident. He, further submits that the finding of the learned Tribunal that the Insurance Policy being a liability only policy would not cover the deceased who was the rider of the Scooter and that as the respondent No. 1 being the father of the deceased and also the husband of the claimant, no claim can be made against each other and the same is contrary to the provision of the Motor Vehicles Act, 1988 is perverse. 3. Mr. Zochhuana, learned Counsel appearing for the appellant further submits that the learned Tribunal had erred in coming to the conclusion that there was no eye-witness to the alleged accident and that there was no evidence to show that the deceased died due to the accident. He submits that the claimant witness No. 2 who is an ASI had conducted the inquiry and visited the spot of the accident and had deposed before the learned Tribunal that on receiving a telephonic information at the Police Station on 16th February, 2012 at about 9.20 p.m., he had left for the accident site with one Constable. When he reached the accident spot, he found the Scooter lying on the road and the rider (deceased) was lying about 1 metre from the Scooter. 4. The learned Counsel for the appellant also submits that the claimant witness No. 2 had also deposed that he had gone to the accident spot and saw that the victim was lying on the black-topped portion of the road and the Scooter was also on the road. The victim was still breathing when they reached the spot of the accident and that the victim had suffered injury in the occipital region of his head and that the victim died 10 minutes after they reached the hospital and that there was no other vehicles at the place where the accident had occurred. The victim was still breathing when they reached the spot of the accident and that the victim had suffered injury in the occipital region of his head and that the victim died 10 minutes after they reached the hospital and that there was no other vehicles at the place where the accident had occurred. He, therefore, submits that this being the deposition of the claimant witness No. 2, the learned Tribunal could not under any circumstances, have come to the conclusion that there was no eye-witness to the accident and that there was no evidence to show that the deceased died due to the accident. He, therefore, submits that as the claim petition was dismissed on this fact, the present appeal should be allowed by awarding compensation to the appellant who is the mother of the deceased. He has placed his reliance in the cases of, (a) Rikhi Ram and Another Vs. Smt. Sukhrania and Others, (2003) 3 SCC 97 ; (b) United India Insurance Co. Ltd. Vs. H. Lalhmingliana and Another, (2006) 2 GLT 538 ; (c) National Insurance Co. Ltd. Vs. Swaran Singh and Others, (2004) 3 SCC 297 ; (d) National Insurance Company Ltd. Vs. Sinitha and Others, (2012) 2 SCC 356 , and (e) Santosh Devi Vs. National Insurance Company Ltd. and Others, (2012) 6 SCC 421 . 5. Mr. A.H. Barbhuiya, learned Counsel appearing for the respondent No. 2 i.e. M/s. Oriental Insurance Co. Ltd. submits that as the deceased was riding the Scooty of his father i.e. respondent No. 1 and the Scooty being insured in the name of respondent No. 1, there was no third party involved and, therefore, the claim compensation does not arise. He also submits that the deceased was not self-employed nor was it mentioned in the claim petition about what profession the deceased had taken prior to his death. Further submission has been made that the annual income of the deceased which was issued by the SDC, Lunglei showing the annual income of the deceased as Rs. 40,000 is also not acceptable. He also submits that the said vehicle met with an accident due to the negligence of the driver and that no other vehicle was involved. Therefore, the claimant at best can get the net admissible amount of compensation not beyond Rs. 1 lakh. 40,000 is also not acceptable. He also submits that the said vehicle met with an accident due to the negligence of the driver and that no other vehicle was involved. Therefore, the claimant at best can get the net admissible amount of compensation not beyond Rs. 1 lakh. He has placed his reliance in the cases of (a) Raj Kumari Chaurasia and Others Vs. New India Assurance Co. Ltd., (2014) ACJ 252 ; (b) National Insurance Company Limited v. Sinitha and Others (supra); (c) Oriental Insurance Company Ltd. v. Smt. Kentpamani and Another, reported in I (2005) ACC 585 (DB). He, therefore, submits that there is no merit in the present appeal in view of the rulings of the Hon'ble Supreme Court as well as the Division Bench of the Allahabad High Court and Karnataka High Court and, therefore, the present appeal should be dismissed. 6. I have considered the rival submissions made by the learned Counsel appearing for the parties. 7. In the present case in hand, there is no dispute that the Scooty was insured in the name of the respondent No. 1 i.e. the father of the deceased. 8. From a perusal of the record, it is seen that the claimant witness No. 2 had clearly deposed that he had gone to the place of accident along with one Constable and when he reached the spot, he found the deceased lying on the road and the Scooter was also on the road. CW2 further deposed that victim was still breathing when they reached the spot of the accident and that the victim had died 10 minutes after they reached the Hospital. From the deposition of the present witness of CW2, there can be no doubt that there was an accident and that the victim had died due to that accident. That being the position, this Court is of the considered opinion that the learned Tribunal was not correct in coming to the conclusion that there was no eyewitness to the alleged accident and that there was no evidence to show that the deceased had died due to the accident. 9. In the case of Sinitha (supra), the Hon'ble Supreme Court has held at paragraphs 41-43 as under: "41. 9. In the case of Sinitha (supra), the Hon'ble Supreme Court has held at paragraphs 41-43 as under: "41. The second contention advanced at the hands of the learned Counsel for the petitioner was that Shijo being the rider of the motorcycle, cannot be treated as a third party. It was pointed out that the claim under Section 163A can only be raised at the behest of a third party. It seems that the instant determination raised at the hands of the learned Counsel for the petitioner is based on the determination rendered by this Court in Oriental Insurance Co. Ltd. v. Jhuma Saha, wherein this Court held as under: (SCC p. 265, para 10). "10. The deceased was the owner of the vehicle. For the reasons stated in the claim petition or otherwise, he himself was to be blamed for the accident. The accident did not involve motor vehicle other than the one which he was driving. The question which arises for consideration is that the deceased himself being negligent, the claim petition under Section 166 of the Motor Vehicles Act, 1988 would be maintainable." According to the learned Counsel for the petitioner, since the rider of the vehicle involved in the accident was Shijo himself, he would stand in the shoes of the owner, and as such, no claim for compensation can be raised in an accident caused by him, under Section 163A of the Act. 42. To substantiate his second contention, it would be essential for the petitioner to establish that Shijo having occupied the shoes of the owner, cannot be treated as the third party. Only factual details brought on record through reliable evidence can discharge the aforesaid onus. During the course of hearing, despite our queries, the learned Counsel for the petitioner could not point out the relationship between Shijo and the owner of the motorcycle involved in the accident. Shijo is not shown to be an employee of the owner. He was not even shown as the representative of the owner. In order to establish the relationship between Shijo and the owner, the petitioner Insurance Company could have easily produced either the owner himself as a witness, or even the claimants themselves as witnesses. These or other witnesses who could have brought out the relationship between the owner and Shijo were not produced by the petitioner herein, before the Tribunal. In order to establish the relationship between Shijo and the owner, the petitioner Insurance Company could have easily produced either the owner himself as a witness, or even the claimants themselves as witnesses. These or other witnesses who could have brought out the relationship between the owner and Shijo were not produced by the petitioner herein, before the Tribunal. The petitioner has, therefore, not discharged the onus which rested on its shoulders. 43. Since the relationship between Shijo and the owner has not been established, nor the capacity in which he was riding the vehicle has been brought out, it is not possible for us to conclude that Shijo while riding the motorcycle on the fateful day was an agent, employee or representative of the owner. It was open to the petitioner to defeat the claim for compensation raised by the respondents by establishing that the rider Shijo represented the owner, and as such, was not a third party, in the terms of the judgment rendered by this Court in Oriental Insurance Co. Ltd. case. The petitioner failed to discharge the said onus. In view of the above, it is not possible for us to accede to the second contention advanced at the hands of the learned Counsel for the petitioner." 10. In the present case in hand, no evidence was laid by the respondent No.2. The respondent No.2 had also failed to examine the respondent No.1 i.e. the father of the deceased to show the relationships between the deceased and the owner. The respondent No.2 had also failed to impress upon the learned Tribunal as to whether consent of the respondent No.1 was taken by the deceased while driving the Scooty or under what capacity the deceased was riding the Scooty. There is no doubt that in the claim petition, the deceased has been declared as the son of the owner (father) of the Scooty. However, the respondent has miserably failed to bring on evidence whether permission was granted by the owner or under what circumstances the deceased was driving the Scooty. This Court is therefore of the considered opinion that the present case is squarely covered by the case of Sinitha (supra). 11. However, the respondent has miserably failed to bring on evidence whether permission was granted by the owner or under what circumstances the deceased was driving the Scooty. This Court is therefore of the considered opinion that the present case is squarely covered by the case of Sinitha (supra). 11. Another aspect of the matter is that the income certificate exhibited as Exhibit C-6 was allowed to be exhibited without any objection from the respondent nor was it questioned in the cross-examination of the claimant witness. This Court therefore cannot accept the contention of the respondent Insurance Company that the income certificate is not acceptable. 12. That being the position, this Court is of the opinion that the appellant is entitled to compensation. 13. Accordingly, the judgment and award dated 1st April, 2014 passed by the learned Motor Accident Claims Tribunal, Aizawl, Mizoram in MACT Case No.17/2013 is set aside and quashed. 14. The appellant/claimant shall be entitled to compensation as under: 15. The respondent No.2 i.e. M/s. Oriental Insurance Co. Ltd. shall pay the compensation award to the appellant/claimant The amount of Rs. 5,65,000 (Rupees five lakh sixty five thousand) only shall be paid to the appellant along with interest @ 9% per annum from the date of filing of the claim petition within a period of 3 (three) months from the date of receipt of a copy of judgment and order of this Court. Appeal is allowed. No cost.