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2017 DIGILAW 720 (GAU)

Junali Saikia Deka v. Mahesh Srivastava

2017-06-02

MIR ALFAZ ALI

body2017
JUDGMENT & ORDER : Mir Alfaz Ali, J. Heard Mr. A.K. Gupta, learned counsel for the appellant and Mr. B.K. Purkayastha, learned counsel for the respondents. 2. This is an appeal under section 173 of the Motor Vehicle Act, 1988 preferred by the appellants (claimants before the learned Tribunal) for enhancement of the award made by Motor Accident Claims Tribunal, Tinsukia in MAC Case No. 41/2011. 3. Brief facts of the case are that on 1.1.2011 the husband of the claimant No. 1, late Tapan Kr. Deka was proceeding from Dibrugarh towards Doomdooma by driving his own Maruti Car. Another vehicle bearing registration No. AS-23-F-6945 was coming from the opposite direction in a very high speed. Because of rash and negligent driving, the driver of the vehicle No. AS-2-6945 lost control and hit the vehicle of the deceased. As a result of the accident, late Tapan Kr. Deka sustained multiple injuries and in course of treatment, he died on the same day. The claimants being legal representatives of the deceased, filed an application before the Motor Accident Claims Tribunal, Tinsukia seeking compensation and the learned Tribunal made an award of Rs. 32,09,777/-However, the Tribunal fixing contributory negligence on the part of the deceased, deducted 50 % of the compensation amount calculated and directed the respondent, National Insurance Company Ltd to pay 50% of the award to the claimants. 4. Aggrieved, the claimants have preferred this appeal for enhancement of the award on the sole ground that the Tribunal erroneously deducted 50% of the award attributing contributory negligence on the part of the deceased. 5. Learned counsel for the appellants submits that police registered a case against the Driver of the vehicle No. AS-23-F-6945 and on completion of investigation submitted charge sheet against the driver, holding the driver of the vehicle No. AS-23-F-6945 solely responsible for the accident. Learned counsel further submits, that despite no evidence having been adduced by the Insurance Co. to prove contributory negligence, on the part of the victim, learned Tribunal by taking a presumption of contributory negligence merely on the fact, that the accident occurred due to head-on collision of two vehicles, deducted 50 % of the award, which was totally erroneous. In support of his submission learned counsel for the appellant placed reliance on the following decisions: 1. (2009) 13 SCC 654 (Raj Rani and others v. Oriental Insurance Co.Ltd.) 2. In support of his submission learned counsel for the appellant placed reliance on the following decisions: 1. (2009) 13 SCC 654 (Raj Rani and others v. Oriental Insurance Co.Ltd.) 2. AIR 2002 SC 2864 (Pramodkuma Rasikbhai Jhaveri v. Karmasey Kunvargi Tak and others) 3. 2013 1 GLR 133(Oriental Insurance Co. Ltd. v. Saharban Begum) 6. Refuting the submission of the appellant side, Mr. B.K. Purkayastha learned counsel for the respondent, relying on a decision of the Supreme Court in the case of Bijoy Kumar Dugar v. Bidya Dhar Dutta and others reported in (2006) 3 SCC 242 submits, that the accident having taken place due to the head-on collision of the vehicle driven by the deceased and the vehicle No. AS-23-F- 6945, learned Tribunal rightly held that the deceased also contributed to the accident . 7. This Court in Oriental Insurance Co. v. Saharban Begum (supra) while dealing with the question of contributory negligence, after considering various decisions of the Hon'ble Apex Court held in para 13 as under: "13. Since it has been held in Pramod Kumar Rasikbhai Jhaveri v. Karmasev Kunvargi Tak, (2002) 6 SCC 455 that unless it is found that there had been no use of reasonable care for the safety of either himself or for the property, so that he becomes blameworthy in part as an author of his own wrong, the other vehicle therefore cannot be stated to have contributory negligence. In Astley v. Austrust Ltd., (1999) 73 ALJR 403 the High Court of Australia has succinctly underlined the requirement for proving the contributory negligence. The duties and responsibilities of the defendant are several in determining whether contributory negligence existed and if so nature of the duty owned from a claim of contributory negligence and in another case the nature of the duty may reduce the plaintiff's share for the damage suffered. Therefore, all what is required is the definite proof to establish the contributory negligence, which is conspicuously absent in the case in hand." 8. The Apex Court in Pramodkuma Rasikbhai Jhaveri v. Karmasey Kunvargi Tak and others (supra) as under: "10. Therefore, all what is required is the definite proof to establish the contributory negligence, which is conspicuously absent in the case in hand." 8. The Apex Court in Pramodkuma Rasikbhai Jhaveri v. Karmasey Kunvargi Tak and others (supra) as under: "10. It has been accepted as a valid principle by various judicial authorities that where, by his negligence if one party places another in a situation of danger, which compels that other to act quickly in order to extricate himself, it does not amount to contributory negligence if that other acts in a way, which, with the benefit of hindsight, is shown not to have been the best way out of the difficulty. In Swadling v. Cooper (1931) A.C. 1 at page 11. Lord Hailsham said: "Mere failure to avoid the collision by taking some extraordinary precaution does not in itself constitute negligence: the plaintiff has no right to complain if in the agony of the collision the defendant fails to take some step which might have prevented a collision unless that step is one which a reasonably careful man would fairly be expected to take in the circumstances." 1. It is important to note that the respondents did not contend before the Tribunal that there was contributory negligence on the part of the appellant, the driver of the car. There was not even an allegation in the written statement filed by the respondents that the car driver was negligent and the accident occurred as result of partial negligence of the car driver. During the trial of the case, there was an attempt on the part of the respondents to contend that the driver of the car was trying to overtake a truck which was going ahead of the car. The appellant-car driver had also pleaded that the truck driven by the second respondent was trying to overtake another car, which was going ahead of the truck. But these circumstances are not proved by satisfactory evidence. One expert had also given evidence in this case but he had not seen the accident spot. His opinion was based on the observation of the damaged parts of the two vehicles. The total width of the tarred portion of the road was 22 feet and there were mud shoulders on either side having a width of three feet. One expert had also given evidence in this case but he had not seen the accident spot. His opinion was based on the observation of the damaged parts of the two vehicles. The total width of the tarred portion of the road was 22 feet and there were mud shoulders on either side having a width of three feet. It is proved by satisfactory evidence that the offending truck had come to the central portion of the road and there was only a three feet width of the road on the left side of the car driven by the appellant. In this factual situation, the High Court was not justified in holding that there was contributory negligence on the part of the appellant. It would, if at all, only prove that the appellant had not shown extraordinary precaution. The truck driven by the second respondent almost came to the centre of the road and the appellant must have been put in a dilemma and in the agony of that moment, the appellant's failure to swerve to the extreme left of the road did not amount to negligence. Thus, there was no contributory negligence on his part especially when the second respondent, the truck driver had no case that the appellant was negligent." 9. Supreme Court in Jiju Kuruvila and others v. Kunjujamma Mohan (2013) 9 SCC 166 while dealing with the question of contributory negligence in case of head on collision of two vehicles, held as under: "20.5. The mere position of the vehicles after accident, as shown in a scene mahazar, cannot give a substantial proof as to the rash and negligent driving on the part of one or the other. When two vehicles coming from opposite directions collide, the position of the vehicles and its direction, etc. depends on a number of factors like the speed of vehicles, intensity of collision, reason for collision, place at which one vehicle hit the other, etc. From the scene of the accident, one may suggest or presume the manner in which the accident was caused, but in the absence of any direct or corroborative evidence, no conclusion can be drawn as to whether there was negligence on the part of the driver. In absence of such direct or corroborative evidence, the Court cannot give any specific finding about negligence on the part of any individual. 21. In absence of such direct or corroborative evidence, the Court cannot give any specific finding about negligence on the part of any individual. 21. In view of the aforesaid, we, therefore, hold that the Tribunal and the High Court erred in concluding that the said accident occurred due to the negligence on the part of the deceased as well, as the said conclusion was not based on evidence but based on mere presumption and surmises." 10. Similar view as taken by the Supreme Court in Minu Rout and another v. Satya Pradyumna Mohapatra and others reported in (2013) 10 SCC 695 . In para 17 & 18 of the judgment, the Apex Court held as under: "17....... The Insurance Company, though claimed permission under section 170(b) of the Motor Vehicles Act, 1988 from the Tribunal to contest the proceedings by availing the defence of the owner of the offending vehicle, it did not choose to examine either the driver of the truck or any other independent eyewitness to prove the allegation of contributory negligence on the part of the deceased Susil Rout on account of which the accident took place as he was driving the car in a rash and negligent manner. In the absence of rebuttal evidence adduced on record by the Tribunal, the Tribunal should not have placed reliance on the charge-sheet, Ext.1 in which the deceased driver was mentioned as an accused and on his death his name was deleted from the Charge-sheet." The Tribunal has referred to certain stray answers elicited from the evidence of PW 2 and PW 3 in their cross-examination and placed reliance on them to record the finding on issue No. 1. 18. For the aforesaid reasons, the findings and reasons recorded by the Tribunal on the contentious Issue 1 holding that there is contributory negligence on the part of the deceased driver in the absence of legal evidence adduced by the Insurance Company to prove the plea taken by it that accident did not take place on account of rash and negligent driving of the truck driver is erroneous in law. The Tribunal has accepted the part of oral evidence of the eyewitness regarding the scene of accident and it has erroneously placed reliance upon the charge-sheet, Ext.1 which was filed against the driver of the offending truck and the deceased to hold that there was contributory negligence on his part by ignoring the fact that the criminal case against the deceased was abated. Therefore, we have to hold that the finding of fact recorded on Issue 1 by the Tribunal and affirmed by the High Court in the impugned judgment, is erroneous for want of proper consideration of pleadings and legal evidence by both of them. Accordingly, we have answered Point 1 in favour of the appellants insofar as the finding recorded by the Tribunal on the question of contributory negligence of 50 % on the part of the deceased is concerned." 11. Hon'ble Madras High Court in New India Assurance Co. Ltd v. K. Udayakumar & ors reported in 2013 AAC 202 (MAD) held that : "The evidence adduced would show that the rider of Hero Honda bike came driving the bike in a rash and negligent manner. On the other hand, there is no contra evidence implicating the rider of the Yamaha bike. In the circumstances, merely on account of collision between the two bikes, negligence cannot be apportioned between the riders of both the bikes." 12. The common thread passing through all the above decisions is that, there cannot be a presumption of contributory negligence on the part of the victim merely on the fact, that two vehicles collided head-on, in absence of evidence. Contributory negligence on the part of the deceased or claimant has to be proved by adducing evidence. When claimant files petition seeking compensation against the respondent owner/insurer of a particular vehicle and brings on record some evidence and materials in support thereof, unless rebuttal evidence is given countering the evidence of the claimant or unless the parties alleging contributory negligence on the part of the victim, adduce evidence in support of such plea, no presumption of contributory negligence can be drawn merely on the fact that the two vehicles collided against each other. 13. Negligence in common parlance connotes want of due care and caution or failure to do something which, in a given situation is expected of any prudent person. 13. Negligence in common parlance connotes want of due care and caution or failure to do something which, in a given situation is expected of any prudent person. As per Oxford dictionary 'Negligence' means failure to take proper care of something or breach of a duty of care which results in damage. Apex Court in Pramodkuma Rasikbhai Jhaveri v. Karmasey Kunvargi Tak and others (supra) observed that when a person by his fault places another person in a situation of imminent danger; even if the person placed in a situation of danger, fails to take correct decision quickly to save himself, negligence may not be attributed to such person. Therefore, whether any act or omission is sufficient to attribute negligence to a person, would always depend on the facts and circumstances of the particular case and therefore, it would not be proper to say that when there is a collision between two vehicles, necessarily both the driver should be held liable. 14. In the case at hand, the claimants in support of their plea, that the accident occurred due to fault of the vehicle No. AS-23-F-6945, examined three witnesses being the claimant No1 herself as CW 1, Mahima Singh, CW 2 and Rajib Deka, CW 3. The CW 1 and CW 3 were not eye witness to the occurrence. The claimant also proved Ext.3, the certified copy of the charge sheet submitted against the driver of the Vehicle No. AS-23-F-6945, reports of Motor Vehicle Inspector, as Ext.6 & 7 and a sketch map attached to the charge sheet, Ext.8. CW 2 claiming himself to be eye witness, deposed that Maruti Car bearing registration No. AS-23-F-2084 driven by the deceased was proceeding from Dibrugarh towards Doomdooma and the Maruti Alto car bearing registration No. AS-23-F-6945 was coming from the opposite direction. He also deposed that the Maruti Alto car, which was in a very high speed and driven in rash and negligent manner, suddenly, lost control came to the wrong side and hit the Maruti Car. As result of the accident the victim sustained injuries. In his examination-in-chief he also deposed that while he was proceeding towards his home on foot he noticed the accident but during cross examination, he has stated that at the time of accident he was proceeding from Longsowal to Borhapjan by driving his Truck. As result of the accident the victim sustained injuries. In his examination-in-chief he also deposed that while he was proceeding towards his home on foot he noticed the accident but during cross examination, he has stated that at the time of accident he was proceeding from Longsowal to Borhapjan by driving his Truck. In view of the above contradiction in the evidence of CW 2 raising doubt about his claim of being an eye witness, learned Tribunal disbelieved his evidence. The evidence of CW 2 having held to be unworthy of credence, no evidence of any eye witness remained. 15. Learned Tribunal while fixing 50% responsibility on the deceased for contributory negligence held in para 10 of the judgment as under: "The claimants have produced certified copy of sketch map (Ex.8) of the place of accident dawn by A.S.I Sri Prabhat Saikia in connection with Doom Dooma P.S. Case No. 37/11, under section 279/304(A)/427 IPC. The I.O., though failed to draw the sketch map in a proper way, yet it is not difficult to draw an opinion on verifying the same that the accident took place on the middle of the road. The claimants also produced certified copy of reports of Motor Vehicle Inspector. Exts.6 and 7 are those reports. Both the vehicles, as per report, got major damages on front side. Considering the above and as the parties have failed to prove the actual fact of the accident, so, under the facts and circumstances discussed above, I am of the opinion that the deceased was also negligent in diving his car and his contribution to the accident is apportioned as 50:50. The issue is decided accordingly." 16. What appears from the above observation of the learned Tribunal is that from the Ext.8, sketch map, learned Tribunal formed an opinion that accident took place on the middle of the road. From Ext. 8, sketch map prepared by the police officer during the investigation, it transpires that a straight line was drawn to show the road indicating a point on the said straight line as the place of accident. From Ext. 8, sketch map prepared by the police officer during the investigation, it transpires that a straight line was drawn to show the road indicating a point on the said straight line as the place of accident. There is absolutely nothing in the sketch map about the actual position, where the accident took place or the breadth of the road at the place of accident or position of the vehicle and therefore, from a straight line and the spot of accident shown on the straight line, it is difficult to understand, how the learned Tribunal formed the opinion that the accident took place in the middle of the road. Evidently no eye witness was left out after discarding the evidence of CW 2. On the basis of the opinion drawn by the learned Tribunal as indicated above, and in absence of any ocular evidence from either side as well as the fact of both the vehicles having been damaged on the front side, learned Tribunal drew a presumption that deceased also contributed to the accident. 17. The driver of the vehicle No. AS-23-F-6945 submitted written statement jointly with the owner attributing fault to the deceased. However, neither the driver nor the owner of the said vehicle adduced any evidence in support of their plea of fault on the part of the deceased. Insurance Company had also not adduced any evidence. Since the driver of the vehicle No. 6954 was an eye witness, Insurance Company could have examined him in support of its plea. 18. Specific case of the claimant was that accident occurred solely due to fault of the vehicle No. AS-23-F-6954.Though there was no eye witness some evidence has been brought on record by the claimant in the form of charge sheet Ext.3, which demonstrated that the accident occurred due to fault of the offending vehicle No. AS-23-F-6954, thus, supporting the case of the claimant that the accident took place due to fault of the driver of vehicle No. AS-23-F-6954. No doubt, the charge sheet may not be conclusive proof of the fact, stated there in, but when a statutory authority after investigation of the case submitted the charge sheet, it definitely carries weight particularly when such documentary evidence duly proved, remained unchallenged and uncontroverted, Court cannot brush aside such documentary evidence. 19. No doubt, the charge sheet may not be conclusive proof of the fact, stated there in, but when a statutory authority after investigation of the case submitted the charge sheet, it definitely carries weight particularly when such documentary evidence duly proved, remained unchallenged and uncontroverted, Court cannot brush aside such documentary evidence. 19. When the driver and the owner of the vehicle No. 6954 after filing written statement, failed to adduce any evidence. Insurance Company also chose not to adduce any evidence to rebut the evidence brought on record by the claimant side, there could not be any presumption of contributory negligence merely from the fact that the accident occurred due to head-on collision of the two vehicles. Therefore, in absence of any evidence, the findings of the learned Tribunal that the victim also contributed to the accident appears to be founded merely on surmise and conjecture. The contributory negligence on the part of the victim having not been proved, the learned Tribunal committed glaring error by deducting 50% of the awarded amount. 20. In view of the above discussion, the appeal is allowed. Respondent National Insurance Co. Ltd. shall pay the entire amount of award being Rs. 32,09,777/- alongwith interest awarded by the Tribunal by depositing the same with the Tribunal within two months of this order. 21. Send down the LCR.