Research › Search › Judgment

Manipur High Court · body

2016 DIGILAW 99 (MAN)

National Insurance Co. Ltd. v. Irom Khogen Singh

2016-07-14

SONGKHUPCHUNG SERTO

body2016
JUDGMENT : This is an appeal filed by the National Insurance Company Limited (defendant No. 3 in Motor Accident claim case No. 65 of 2012 before the Motor Accident Claim Tribunal (MACT), Imphal) under Section 173 of the Motor Vehicle Act, 1988 against the judgment and order dated 29.04.2013 of the Tribunal passed in the case mentioned above. The only point on which the appellant has challenged the impugned order is on the non-apportionment of the liability between the defendants. 2. The brief facts of the case leading to the institution of the case before the MACT is that on 16.02.2012 at about 05:30 A.M. a Tata Magic bearing registration No. MN 01W/4765 belonging to Mr. H. Boren Singh (defendant No. 1before MACT and respondent No. 2 in this case) which was driven by Shri Th. Paka Singh (defendant No. 2 in MACT and respondent No. 3 in this case), insured with the appellant company collided with another vehicle, Tata Truck bearing registration No. MN 01A/4907 (belonging to defendant No.4 in MACT and respondent No. 4 in this case) while it was driven by defendant/respondent No.5 in this case, and as a result, the passengers of the Tata Magic including the claimant, Shri Irom Khogen Singh (respondent No.1 in this case) were injured. For treatment, the claimant (respondent No. 1) was hospitalized for more than 16 (sixteen) days. For injuries suffered and the expenses made for treatment of the same and the disabilities suffered in consequence of the accident, the claimant filed a petition before the MACT praying for compensation. After considering all the evidence of the parties, the learned Tribunal awarded a sum of Rs. 2,99,500/- (Rupees two lakh ninety nine thousand and five hundred) only along with interest @ 6% from the date of filing of the case to the claimant (respondent No. 1). The learned Tribunal directed the appellant company to pay the same as the Tata Magic was insured with it. Being aggrieved by the said award the defendant No. 3 in MACT and appellant in this case has filed this appeal. The grounds on which the appellant has appealed against the impugned order are given here below in verbatim as stated in the appeal petition : “GROUNDS (i) For that, the Hon’ble Motor Accident Claims Tribunal, Manipur has erred in law as well as in fact in passing the Judgment and order dated 29.04.2013. The grounds on which the appellant has appealed against the impugned order are given here below in verbatim as stated in the appeal petition : “GROUNDS (i) For that, the Hon’ble Motor Accident Claims Tribunal, Manipur has erred in law as well as in fact in passing the Judgment and order dated 29.04.2013. (ii) For that, when the alleged accident happened when the insured vehicle bearing Regd. No. MN - 01W/4765 collided with another vehicle i.e. a Tata Truck bearing Regd. No. MN - 01A/4907 which was not insured at the time of the accident causing injuries to the claimant/respondent No. 1. As such the liability to pay compensation has to be apportioned between the two vehicles. (iii) For that, two vehicles were involved in the accident but the Hon’ble Court fixed the liability only against the insured vehicle without giving any reason whatsoever. (iv) For that, the accident happened due to collision of two vehicles and any liability has to be shared between the two vehicles in equal proportion. The accident happened due to composite negligence of both the vehicles as such any compensation has to be shared between the two vehicles. (v) For that, the F.I.R. is very clear the accident happened due to the negligence of both the driver of the vehicles which without doubt shows the reason of the accident. (vi) For that, the driver of the Truck, respondent No. 5 failed to appear as D.W. to defend the case as such adverse inference can be taken against the truck driver being the larger vehicle as more responsible of the accident. (vii) For that, the Hon’ble Tribunal has passed the impugned judgment and order dated 29.04.2013 in M.A.C. Case No. 65 of 2012, most mechanically without application of mind and is liable to set aside and quashed.” 3. It is submitted by the learned counsel representing the appellant that the accident occurred due to contributory negligence of the driver of the Truck with which the Tata Magic collided head on; therefore, the liability ought to have been shared by the owner and driver of the Truck on equal measure with the Insurance Company (appellant). It is submitted by the learned counsel representing the appellant that the accident occurred due to contributory negligence of the driver of the Truck with which the Tata Magic collided head on; therefore, the liability ought to have been shared by the owner and driver of the Truck on equal measure with the Insurance Company (appellant). The learned counsel further submitted that in head on collision kind of accident, there is always contributory negligence of both the drivers of the vehicles involved, therefore, both the drivers of the vehicles should be made to share the compensation awarded to the claimant. But in this case the Ld. Tribunal has ignored such fact and Law. Therefore, the judgment and order of the learned Tribunal deserves to be quashed or set aside. In support of his submission, the learned counsel for the appellant cited the Judgment of the Supreme Court of India in the Case of “Bijoy Kumar Dugar VS. Bidyadhar Dutta and Others” in Civil Appeal Nos. 3731-3732 of 2002; 2006 (1) T.A.C. 969 (S.C.). The relevant para relied upon is para 12 of the Judgment, and the same is given here below:- “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-PW 2 who was travelling in 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 the PW 2 to prove that the driver of the offending bus was driving the vehicle in an abnormal speed. 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 the PW 2 to prove that the driver of the offending bus was driving the vehicle in an abnormal speed. If the bus was being driven by the driver abnormally in a zigzag manner, as PW 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. 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.” 4. Learned counsel for the respondent No. 1, Mr. Syeda Nazira submitted that when a plea of contributory negligence is taken, the same must be proved with evidence. In this case, no evidence was adduced on the matter, therefore, contributory negligence cannot be attributed to the driver and the owner of the Tata Truck. Learned counsel, in support of his submission cited the case of“United India Insurance Co. Syeda Nazira submitted that when a plea of contributory negligence is taken, the same must be proved with evidence. In this case, no evidence was adduced on the matter, therefore, contributory negligence cannot be attributed to the driver and the owner of the Tata Truck. Learned counsel, in support of his submission cited the case of“United India Insurance Co. Ltd. V. Kankanti Sathaiah and others in the High Court of Andhra Pradesh at Hyderabad.” The relevant portion of para 12 of the Judgment on which the learned counsel lays the reliance is given below:- “The mother of the deceased, PW 1, stated how her son died in the accident while going on the scooter. PW 1 is not an eyewitness to the accident but, however, Exh. A1, certified copy of the F.I.R. and certified copy of the charge-sheet, Exh. A2 were marked. However, to prove the manner in which the accident occurred, an eyewitness, PW 2, was examined, who deposed that he saw two persons were going in front of his auto on the scooter and they dashed against the DCM van which was parked in the middle of the road. The evidence of PWs 1 and 2 was appreciated in detail and findings had been recorded. Exh. A4 is the certified copy of the PME report, Exh. A5 is the certified copy of the MVI report, Exh. A6 is the certified copy of the scene of the offence Panchnama and Exh. A7 is the certified copy of the rough sketch. It is needless to say that Exh. B1 is the certified copy of insurance policy. Though stand had been taken that the deceased being a Field Officer in Sapthagiri Real Estate was earning Rs. 5,000 per month and his age was about 19 years, the income of the deceased was taken as Rs. 3000 per month and since the deceased died as bachelor, the age of the mother had been taken into consideration and multiplier ‘16’ was applied and thus , the loss of income was arrived at Rs. 3,84,000. Further, the claimants were awarded an amount of Rs. 10,000 for loss to estate and Rs. 5,000 for funeral and other expenses. Thus, a quantum of Rs. 3,99,000 had been awarded with future interest at 9 per cent per annum from the date of filing of the petition till the date of realization with certain further directions. 3,84,000. Further, the claimants were awarded an amount of Rs. 10,000 for loss to estate and Rs. 5,000 for funeral and other expenses. Thus, a quantum of Rs. 3,99,000 had been awarded with future interest at 9 per cent per annum from the date of filing of the petition till the date of realization with certain further directions. Strong reliance was placed on the decision of the Division Bench in Anuradha Kaushik’s case, 2007 ACJ 2877 (MP), wherein the Division Bench referred to Oriental Insurance Co. Ltd. V. Inderjit Kaur, 1998 ACJ 123 (SC); and New India Assurance Co. Ltd. V. Rula, 2000 ACJ 630 (SC) and came to the conclusion that where the tanker was parked negligently in the middle of the road, no red signal given to indicate parking and the van dashed with tanker from behind, drivers of both the vehicles held to be liable in the light of the same, the same being contributory negligence, Tribunal rightly apportioned liability between the parties as 50:50 and no case made out for reversing the same. The counsel for contesting respondents-claimants placed strong reliance on Karri Nagapadma Sridevi v. Oriental Fire & Genl. Ins. Co. Ltd., 2003 ACJ 671 (AP), wherein the Division Bench while referring to General Manager, Kerala State Road Trans. Corpn, v. Susamma Thomas, 1994 ACJ 1 (SC) and U.P. State Road Trans. Corpn. V. Trilok Chandra, 1996 ACJ 831 (SC), observed at para 6 as hereunder:- “(6) It is a settled proposition that whoever alleges the act of rash and negligent driving on the part of the other, has to prove the same by adduction of satisfactory evidence. In the instant case, PWs 1 and 2 are not eyewitnesses and the minor child, who sustained injuries and who was being carried in arms by her late mother Syamala was only 5 months old and then we have got only the evidence of PW 3, who was proceeding on the same road on bicycle and in fact, he was overtaken by Luna moped being driven by late Karri Veera Reddy just before the accident. The evidence of PW 3, the lone eyewitness, was accepted by Motor Accidents Claims Tribunal. The evidence of PW 3, the lone eyewitness, was accepted by Motor Accidents Claims Tribunal. The said witness has clearly and categorically stated that he was going on his bicycle on the left side of the road-cum-raril bridge of Rajahmundry towards Kovvur and Luna moped being driven by late Veera Reddy with his wife late Syamala being the pillion rider, holding the minor child, Nagapadma Sridevi, has overtaken his bicycle and then proceeded in front of him on the left side of the road slowly and that the lorry came from the opposite direction from Kovvur side and was being driven in a rash and negligent manner and dashed against luna moped resulting in fatal injuries to late Veera Reddy and late Syamala, who died on the way to hospital and injuries to the minor child. There is no rebuttal to his evidence and it is surprising that the Motor Accidents Claims Tribunal has just assumed contributory negligence on the part of the deceased Karri Veera Reddy on the ground that ‘the collision could have been avoided if any of the two drivers of the vehicles were prudent and cautious. Therefore, I feel that the occurrence is due to contributory negligence of both drivers of the two motor vehicles and I find the issue No. 1 in all the O.Ps. accordingly’. This finding has been just affirmed by the learned single Judge of this Court in C.M.A. Nos. 974 and 1027 of 1986 as a matter of course without even probing into the evidence of PW. 3 PW 3’s evidence is so clear, consistent and cogent that there was absolutely no fault on the part of late K. Veera Reddy while driving Luna moped and that it was the lorry, which was coming in the opposite direction at a high speed and in a rash and negligent manner, dashed against Luna moped resulting in injuries to the child and the death of her parents. The assumption of contributory negligence is casual and baseless. There cannot be any assumption against the clear and cogent eyewitness account of PW 3 whose testimony was not at all doubted. In fact, contributory negligence has to be proved after the negligence of respondent No. 3 is proved and respondent No. 3, driver remained ex parte and there is no rebuttal evidence at all to come to the conclusion of contributory negligence. In fact, contributory negligence has to be proved after the negligence of respondent No. 3 is proved and respondent No. 3, driver remained ex parte and there is no rebuttal evidence at all to come to the conclusion of contributory negligence. Contributory negligence is a matter of proof and not an assumption. In view of the above, the finding of contributory negligence recorded by the Motor Accident Claims Tribunal and affirmed by the learned single Judge is set aside and it is held that the accident occurred due to rash and negligent driving of the lorry by the respondent No. 3 driver.” 5. Having recorded the submission of the learned counsel of both the parties, I considered it necessary to reproduce here the findings of the Tribunal on the relevant issue. Accordingly, the same is given here below: ISSUES 1. Whether the claimant Irom Khogen Singh, a passenger of the offended Tata Magic was seriously injured in a motor accident occurred on 16.02.2012 at 05:00 a.m. at Lilong Chaubok on N.H. No. - 39 when the said Tata Magic vehicle (bearing registration No. MN 01W/4765) coming from Wangjing side towards Imphal suddenly hit to a Tata Truck bearing registration No. MN01A/4907 which came from the Opposite direction? If so, was it caused due to rash and negligent driving of the offended Tata Magic by its driver/the respondent No. 2 or otherwise? ASSESSMENT OF EVIDENCE AND FINDINGS THEREOF 6. Issue No. 1 : The claimant as P.W. No. 1 and the three other PWs gave evidence to prove the claim and whereas, none gave evidence as D.W. to rebut the case of claimant. According to P.W. No. 1/the claimant; he was about to reach Imphal in the morning on 16.02.2012. So, he boarded the offended Tata Magic from Wangjing Bazar at about 05:00 a.m. on the said day and when the said vehicle reached Lilong Choubok Lamkhai area at about 05:40 a.m. it suddenly started crossing the midline of the road and dashed against the offended Tata Truck which came from the opposite direction and as a result of which, he sustained bodily injuries on the head, left side chest, ear, forehead and lip etc. Immediately after the accident, he was taken to RIMS Hospital, Imphal but on a reference being made from there, he was admitted at Shija Hospital and Research Institute Langol on 16.02.2012. Immediately after the accident, he was taken to RIMS Hospital, Imphal but on a reference being made from there, he was admitted at Shija Hospital and Research Institute Langol on 16.02.2012. Through he was discharged from the said Hospital on 01.03.2012, he continued to attend O.P.D. of the said Hospital on the evidence of the concerned doctor but even after a Prolonged medical treatment, he could not recovered well and as per the opinion of the concerned physician, he has partial disability of 30 percent of the whole body, permanent in nature, P.W. No. 1 has also deposed that he used to live as a rural artisan. Before the said accident, he was employed in the Blooming Weaver Co-operative Society, Khangabok, as a mat maker against the payment of Rs. 6,000/- per month. 7. The witness has further exhibited the following documents in the course of his examination. Ex-A/1(A) is the copy of the FIR No. 14(2) Lilong P.S. U/S 279, 338, 427, 304-A IPC and Ext. A/1 (5) is the copy of the insurance Policy Certificate of the offended Tata Magic. The road permit of the said vehicle, driving license of the respondent No. 2, registration certificate of the said Tata Magic and its fitness certificate are at Exts. A/1(6), A/1(7), A/1(8) and A/1(9) respectively. Ext. A/1(10) is the claimant’s disability certificate issued by the P.W. No. 4 Dr. Supriya Chingtham and Ext. A/1(11) is another certificate issued by the concerned authority of Shija Hospital, Imphal Ext. A/1(12) is the audiogram prescription of the claimant and Ext. A/1(13) is the O.P.D. registration card, dated 16.02.2012 of RIMS, Hospital, Lamphel. The claimant’s C.T. scan report, audiogram report and medical prescription are at Exts. A/1(14), A/1(15) and A/1(16) respectively. Ext. A/1(17) is the original injury report and Ext. A/1(18) is the O.P.D. registration form of Shija Hospital. Ext. A/1(19) is the prescription issued by Dr. Vijyas, Neuro Surgeon of Shija Hospital and Ext. A/1(20) is the discharge summary and some other O.P.D. registration Cards are at Exts. A/1(21) to A/1(24). Exts A/1(25) to A/1(63) are cash memos and medical bills. Ext. A/1(64) is the salary certificate of the claimant. In the cross examination, the witness stated that seven passengers boarded the offended Tata Magic at the relevant time of the said accident but he cannot state the names of those others who also sustained injuries in the said accident. 8. Exts A/1(25) to A/1(63) are cash memos and medical bills. Ext. A/1(64) is the salary certificate of the claimant. In the cross examination, the witness stated that seven passengers boarded the offended Tata Magic at the relevant time of the said accident but he cannot state the names of those others who also sustained injuries in the said accident. 8. P.W. No. 2 Md. Nazir Khan is a resident of Phundrei Sabal Leikai, which situates some miles away from the place of accident. However, the witness deposed that he went to Lilong on 15.02.2012 at the house of a relative, stayed the night there and the next morning when he was walking on the road, he saw a Tata Magic vehicle loaded with passengers coming in a high speed at Lilong Choubok area and al of a sudden it dashed against a Tata Truck coming from the opposite direction. He along with some other persons who were already p resent there rushed to the place of accident as they saw some passengers inside the said Tata Magic sustained serious injuries due to the said accident. The witness came back to the house of his relative only after those injured persons left the said place as taken them for medical treatment in the Hospital. In his cross examination, P.W. No. 2 stated that he stayed the night on 15.02.2012 at the house of one Rahimuddin of Lilong Choubok. He saw the accident from a distance of about 200 yards and 5 persons including the claimant and driver of the said Tata Truck were seriously injured in the said accident. He reiterated to state that the said accident was caused when the offended Tata Magic had dashed against the Tata Truck which came from the opposite direction. 9. He saw the accident from a distance of about 200 yards and 5 persons including the claimant and driver of the said Tata Truck were seriously injured in the said accident. He reiterated to state that the said accident was caused when the offended Tata Magic had dashed against the Tata Truck which came from the opposite direction. 9. Similar to the evidence considered above, P.W. No. 3 Shri Badri Singh stated in his evidence that as per investigation made by hi as the I.O. of the above mentioned FIR case, it was found that the offended Tata Magic headed across its right tract on the eastern side of the road at the place of the said accident and it led in causing the said accident which was occurred when the said Tata Magic dashed against the said Tata Truck coming from the opposite direction which meant to state that the accident was caused due to rash and negligent driving of the Tata Magic by its driver at the time of the said accident. Ext. B/1 is the injury report of the claimant and Ext. B/2 is the signature of the witness. The copy of the FIR at Ext. A/1(4) is shown to the witness and in which the witness stated that it bears the true account of the original FIR. 10. From my anxious consideration of the evidence mentioned above, it has decided that the claimant sustained serious bodily injuries in the said road traffic accident which was caused when the offended Tata Magic vehicle driven by the respondent No. 2 dashed against the above said Tata Truck due to the rash and negligent driving of the Tata Magic by the respondent No. 2. 6. The facts of the case on which judgment, learned counsel for the appellant relied upon and the facts of the present case are slightly different. Therein the first case, relied upon by the learned counsel, it would be noticed that the witness stated that while travelling in the Maruti Car being driven by the deceased at a place near Kharjan, he 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 Maruti car being driven by the deceased Raj Kumar Dugar and the offending bus had a head on collision. In that circumstances, the MACT observed and concluded that if the driver of the car saw the bus being driven abnormally in a zigzag manner, he should have taken due care as a prudent man. Having not done so, the head on collusion occurred, therefore, the drivers of both the vehicles should be held equally responsible for the accident as the accident occurred due to their contributory negligence. But in the present case, as it is seen from the findings of the MACT; PW 1 stated in his examination in chief that the Tata Magic in which he was travelling suddenly started crossing the middle of the road and dashed against the Tata Truck which came from the opposite direction. The witness was not cross-examined on that fact, therefore, it can be inferred that the appellant/defendant No. 3 accepted the version of the witness regarding the accident. The PW 2 also stated that he saw a Tata Magic vehicle loaded with passengers coming at a high speed at Lilong Choubok area and all of a sudden it dashed against the Tata Truck coming from the opposite direction. In his cross-examination, he reiterated his statement. The third PW 3 who is the I.O. of the F.I.R. case stated that in course of his investigation, he found that the offending Tata Magic headed across its right track at the eastern side of the road at the place of accident which led to the same dashing against the Tata Truck coming from the opposite direction. Crossing on the right trackhere would mean going on the wrong side of the road as the Tata Magic was travelling northward. The Learned Tribunal in view of the accident concluded that the accident happened due to rash and negligent driving of the Tata Magic by its driver at the time of the said accident. The Learned Tribunal’s conclusion that the accident occurred due to the rash and negligent driving of the Tata Magic, the offending vehicle which went across the middle of the road on the other side, meaning thereby, on the wrong side of the road is based on evidence and therefore cannot be faulted. Therefore, I find nothing wrong in the findings and conclusions drawn by the MACT. Therefore, I find nothing wrong in the findings and conclusions drawn by the MACT. Further, I have also seen and perused the F.I.R. copy, which was exhibited as Exhibit A/1(4). In the F.I.R, it is stated as follows: “Today i.e. 16.02.2012 at 6:00 a.m. received a reliable information that on the same day at 05:40 a.m. One Tata Truck B/Regn.MN 01A 4907 coming from Lilong towards Thoubal and one Tata Magic B/Regn. MN01W/4765 coming from Thoubal towards Imphal, collided each other at Chaobok Lamkhai on NH - 39 due to rash and negligent driving on the part of both drivers. As a result of which some occupants of both the vehicles sustained bleeding injuries on their persons and evacuated to RIMS/casuality. The Tata Magic and Tata Truck were also bodily damaged. So, a regular Case under FIR No. 14(2) 2012 LIL-PS. u/s 279/338/427 IPC has been registered on suo-motto for investigation. Sd/- Officer in-charge Lilong Police Station” From the evidence stated above, including the contents of the F.I.R., it can safely be concluded that the Learned Tribunal committed no fault in law by drawing the conclusion that the accident occurred due to rash and negligent driving of the Tata Magic bearing registration No. MN 01W/4765 (Offending Vehicle). As rightly pointed out by the learned counsel for the respondent No. 1 as already stated above, if a plea or contributory negligence is taken, it must be proved with evidence. However, in this case, the appellant/defendant has not done so. Therefore, I find no reason to interfere in the Judgment and order of the learned Tribunal. Therefore, the appeal is dismissed.