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2017 DIGILAW 947 (GAU)

United India Insurance Co. Ltd v. Renu Pawe

2017-07-19

MIR ALFAZ ALI

body2017
JUDGMENT : Heard Mr. S Dutta, learned senior counsel for the appellant. Also heard Mr. BK Purkayastha and RK Bhatra, learned counsel appearing for respondent No.3. None appeared for respondent Nos.1 and 2. 2. This appeal under Section 173 of the Motor Vehicle Act, 1988, has been filed challenging the judgment and award dated 21.01.2011 passed by learned Member, Motor Accident Claims Tribunal in MAC Case No.70/2009. 3. The undisputed facts which may be relevant for disposal of this appeal are that one Kamal Pawe died in a vehicular accident involving a truck and a motor cycle bearing registration Nos.AS-07-4817 and AS-07-5593 respectively. The offending vehicles were insured with the appellant and respondent No.3, respectively. The Legal representative of the deceased approached the MACT, Lakhimpur and the learned Tribunal after holding an enquiry and on appreciation of evidence, passed an award of Rs.3,13,500/-. The learned tribunal held, that the deceased also contributed to the accident and liability on the part of the deceased and other offending vehicle has been apportioned at 75%:25%. 4. Learned senior counsel Mr. Dutta submits that by drawing an inference from the mere fact that accident took place due to head on collision, learned Tribunal fixed responsibility on the deceased holding that he also contributed to the accident to the extent of 25%. Even if it is assumed, that the deceased has contributed to the accident, the appellant is under no liability as the deceased himself was the owner of the vehicle, submits Mr. Dutta. 5. Learned counsel Mr. BK Purkayastha relying on a decision of the Apex Court in Bijoy Kumar Dugar Vs. Bidya Dhar Dutta and Ors reported in (2006) 3 SCC 242 submits, that the Tribunal has rightly apportioned the extent of liabilities between the driver of the truck and the deceased, as the accident occurred due to head on collision of the two vehicles. 6. I have gone through the evidence on record. 7. The claimant examined two witnesses being the claimant himself and one Biman Morang, who claims to be eye witness of the occurrence. CW-1, Smti Renu Pawe (claimant) was not an eye witness of the occurrence and therefore, it is only the evidence of the CW-2, who was the eye witness, is material. CW-2 stated in his evidence that the deceased was proceeding by driving his motor cycle from Lakhimpur. CW-1, Smti Renu Pawe (claimant) was not an eye witness of the occurrence and therefore, it is only the evidence of the CW-2, who was the eye witness, is material. CW-2 stated in his evidence that the deceased was proceeding by driving his motor cycle from Lakhimpur. At that point of time, a truck bearing registration No.AS-07-5593 was coming from the opposite direction. The truck was driven recklessly in an excessive speed. Noticing the speed of the truck, which was driven recklessly, the deceased moved towards the side of the road and was proceeding slowly. Despite taking such precaution by the victim, the truck which was driven in a careless manner, dashed against the motor cycle, thus, leading to the accident. That the accident occurred due to head on collusion of both the vehicles, is not in dispute and the specific evidence of the claimants side is that in spite of taking precaution by the deceased, the truck which was driven in a careless manner hit the motor cycle. Though during cross examination a suggestion was put to CW-2 that the deceased was talking over mobile phone and the accident took place due to the negligence of the deceased, such suggestion was denied by the CW-2. Thus the evidence of CW-2 remained unshaken. No rebuttal evidence was adduced by the owner/driver/insurer to show that the victim contributed to the accident in any manner. 8. Inspite of the above evidence, the learned Tribunal drew the inference that the deceased also contributed to the accident merely on the facts that the accident took place due to head on collision of two vehicles. The law is by now well settled, that only because of the accident having taken place due to head on collision, there cannot be an automatic inference, that both the vehicles involved in the accident were responsible. When there is clear evidence adduced by the claimant, that it was due to rash and negligent driving on the part of the driver of the truck, the accident took place, and no evidence has been brought on record to controvert such evidence, there cannot be any automatic inference. The Apex Court in Oriental Insurance Co. Vs. Sahaban Begum reported in (2013) 1 GLR 133 held that for attributing contributory negligence to the victim, definite proof to establish contributory negligence is required. The Apex Court in Oriental Insurance Co. Vs. Sahaban Begum reported in (2013) 1 GLR 133 held that for attributing contributory negligence to the victim, definite proof to establish contributory negligence is required. On the factual matrix of this case, the decision of the Apex Court in Bijoy Kumar Dugar Vs. Bidya Dhar Dutta (supra) would be of no help to the respondent No.3. 9. As observed by the Apex Court in Khenyei Vs. New India Assurance Co. Ltd reported in (2015) 9 SCC 273 , there cannot be any automatic inference of contributory negligence by the deceased, only because the accident took place because of head on collision, in absence of any evidence to that effect. 10. What is abundantly clear from the evidence brought on record is that, there was absolutely no material to show, that the victim had anyway contributed to the accident. When no evidence was brought on record to show that the deceased also contributed to the accident and there was clear evidence from the side of the claimant, that the accident occurred solely due to rashness and negligence of the driver of the truck, insured with respondent No.3, there cannot be any automatic presumption, that victim also contributed to the accident. Therefore, in my considered view, the vehicle insured with the respondent No.3 was solely responsible for the accident and in the facts and circumstances of the case no liability can be attributed to the victim. 11. The award is accordingly modified to the effect that the entire award made by the Tribunal shall be satisfied by respondent No.3 being the insurer of the vehicle No.AS-07-5593. 12. With the above modification, the appeal is allowed. The amount if any, deposited by the appellant shall be refunded including the statutory deposit. The respondent No.3 shall satisfy the award fully within 6 (six) weeks. 13. 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