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Tripura High Court · body

2016 DIGILAW 60 (TRI)

Padma Sadhan Jamatia v. Md. Mannan Miah Podder

2016-03-08

DEEPAK GUPTA

body2016
ORDER : 1. These two appeals are being disposed of by a common judgment since they both arise out of the award dated 25.01.2012 passed by the learned Motor Accident Claims Tribunal, South Tripura, Udaipur in TS (MAC) No. 109 of 2009. 2. The claimant filed a claim petition under section 166 of the Motor Vehicles Act, 1988 claiming compensation of Rs.5,00,000/-. In the claim petition it was alleged that the claimant was driving his own Maruti vehicle bearing registration No.TR-01-E-0760 on 10th March, 2009. He was going towards Udaipur town from his house at Atharabhola, near the police line the vehicle (Mini Truck) bearing registration No.TR-03-A-0253 owned by Md. Mannan Miah Poddar and driven by Md. Tinku Miah and insured with the ICICI Lombard General Insurance Co. Ltd. hit his vehicle and as a result of this he sustained injuries on his right leg, chest, neck and in the head. He was taken to the Tripura Sundari Hospital at Udaipura and remain admitted therefrom 10th March, 2009 to 12th March, 2009. Thereafter he was referred to the AGMC and G.B.P. Hospital, Agartala where he remained admitted from 12th March, 2009 to 4th April, 2009. On this basis the claim petition was filed. 3. The owner and driver of the vehicle did not deny the accident but according to them the accident had occurred due to the rash and negligent driving of the claimant-petitioner himself. The insurance company i.e. ICICI Lombard General Insurance Co. ltd. also took a similar stand. The learned Tribunal awarded Rs.45,000/- to the claimant, Rs.20,000/- on account of pain and suffering and Rs.25,000/- for cost of treatment and this award has been challenged by both sides. 4. The insurance company (ICICI Lombard General Insurance Co. Ltd.) in its appeal has urged that the finding of negligence recorded by the learned Tribunal is absolutely wrong. Mr. Deb appearing for the insurance company submits that in the FIR it was mentioned that the accident occurred due to the negligence of both the drivers and he also submits that the claimant himself has admitted in his cross-examination that finally a criminal case has been lodged against him and said criminal case was still pending when statement of claimant was recorded. He, therefore, submits that it is case of negligence of the claimant or at least it is a case of contributory negligence of both the drivers. 5. He, therefore, submits that it is case of negligence of the claimant or at least it is a case of contributory negligence of both the drivers. 5. On the other hand, on behalf of the claimant it is urged that there is no evidence of contributory negligence and it is further urged that the amount of compensation awarded is on the lower side and the same be suitably enhanced. 6. The issue of negligence has to be decided first of all. It is not disputed that an accident took place between the Maruti car and the mini truck. The claimant filed his own evidence by way of affidavit and in this affidavit he was stated that the mini truck was being driven by the driver of the mini truck in a rash and negligent manner at an excessive speed. The driver of the mini truck failed to control the vehicle and dashed against his private car. The claimant was cross examined. He, however, admitted that with regard to the same accident police had submitted charge sheet against him and the police had found him responsible for the accident. He stated that the case against him was still pending in the Court of the Judicial Magistrate, 2nd Class, Udaipur, South Tripura. 7. Claims under the Motor Vehicles Act have to be decided on the basis of evidence led in the claim petition. Both parties are entitled to lead evidence. The claimant led evidence and he made certain allegations. No doubt he cross-examined and in cross-examination he admitted that the police had filed a case again him but that will not discharge the burden which lay upon the opposite parties. Great reliance has been placed by Sri Deb on the FIR, Exbt.1 in which the maker of the FIR has stated as follows:- “The said incident was occurred owing to careless and reckless driving by the drivers of both the vehicles. This is my statement.” No doubt this FIR has been exhibited but this does not prove the contents of the FIR. This only proves that an FIR was recorded and a criminal case arising out of such FIR is pending in Court. The contents of the FIR had to be proved by summoning and examining the persons at whose instance the FIR was lodged. 8. This only proves that an FIR was recorded and a criminal case arising out of such FIR is pending in Court. The contents of the FIR had to be proved by summoning and examining the persons at whose instance the FIR was lodged. 8. In this case the FIR was lodged by Sri Hari Madhav Debnath and neither the insurance company nor the owner, nor the driver of the vehicle made any effort to summon the said person as a witness. The FIR at best is a statement of this person. If any reliance has to be placed on the statement of Shri Hari Madhav Debnath the claimant should have had an opportunity to cross-examine this witness. It is a trite rule of natural justice that no party can be condemned on the basis of the statement of a witness when the party has not been given any opportunity to cross examine such a witness. That is why, the law require, that the person at whose instance the FIR is recorded is examined to prove the FIR. No doubt, proceedings under the Motor Vehicles Act are not like a trial but are inquiry proceedings. However, even in inquiry proceedings the basic principles of natural justice must be followed even if the strict rules of evidence are not be followed. The rules of natural justice themselves require that a party should have an opportunity to cross examine the witnesses whose statement or evidence is sought to be used against that party. 9. Reliance has also placed by Mr. Deb on the admission of the claimant that the police finally filed the charge sheet against him. I am afraid that is not sufficient to prove negligence or contributory negligence on the part of the claimant. It was the duty of the opposite parties including the owner and driver of the mini truck and the insurance company to summon the Investigating Officer and/or the witnesses who had been examined by the Investigating Officer. In the present case, the best witness was the driver of the mini truck himself. Even the driver of the truck who was a party to the proceedings was not examined by the owner or the insurance company. Therefore, an adverse inference will have to be drawn that his evidence would not have suited them. 10. In the present case, the best witness was the driver of the mini truck himself. Even the driver of the truck who was a party to the proceedings was not examined by the owner or the insurance company. Therefore, an adverse inference will have to be drawn that his evidence would not have suited them. 10. In this view of the matter I have no hesitation in holding that the claimant cannot be held guilty of contributory negligence. 11. As far as the award of compensation is concerned, it has come on record that the claimant remained in hospital for 26 days. He required attendants round the clock and he would therefore be required two attendants. The accident took place in the year 2009 and the cost of one attendant in the year 2009 is assessed at Rs.200/- per day and the cost of two attendants at Rs.400/- and for 26 days the attendant charges works out to Rs.10,400/- which is rounded off to Rs.10,500/-. 12. The claimant has produced vouchers and cash memos for expenditure of Rs.18,446/- spent during his treatment. The claimant may have spent some other amounts for the treatment and may have also spent some small amount on conveyance etc. and therefore, the award of Rs.25,000/- under this head is just and reasonable. 13. The claimant remained in hospital for 26 days. The claimant was a Govt. servant but has not produced any record with regard to the leave which he took. He has also not proved what was his salary? Though the claimant was a school teacher he has not proved whether he was a permanent employee or a temporary employee and what was his salary. Be that as it may, I am of the opinion that even in the year 2009 a teacher would have earned at least Rs.15,000/- per month and therefore, I award him Rs.30,000/- towards loss of income for two months. 14. As far as pain and suffering is concerned, the amount of Rs.20,000/- has been awarded which is on the higher side and I reduce the same to Rs.10,000/-. 15. The total compensation is, therefore, assessed at Rs. (10,500/- + 25,000/- + 30,000/- + 10,000/-) = Rs.75,500/-. The claimant shall also be entitled to interest on the entire awarded amount @ 9% per annum from the date of filing of the claim petition till deposit of the amount. 15. The total compensation is, therefore, assessed at Rs. (10,500/- + 25,000/- + 30,000/- + 10,000/-) = Rs.75,500/-. The claimant shall also be entitled to interest on the entire awarded amount @ 9% per annum from the date of filing of the claim petition till deposit of the amount. It is made clear that the Oriental Insurance Company Ltd. with whom the Maruti Car was insured has no liability to pay any amount. Accordingly, the insurance company i.e. ICICI Lombard General Insurance Company Ltd. is directed to deposit the entire amount of compensation i.e. Rs.75,500/- along with proportionate interest thereupon in the Registry of this Court within four months from today. Obviously, the insurance company shall be entitled to adjust the amounts, if any, which it has already paid or deposited. 16. In view of the above discussion, the appeal (MAC Appeal No. 39 of 2012) filed by the claimant is allowed, however, the appeal (MAC Appeal No. 45 of 2012) filed by the insurance company i.e. ICICI Lombard General Insurance Company Ltd. is rejected. No order as to costs. Send down the lower Court records forthwith.