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2018 DIGILAW 235 (ORI)

NATIONAL INSURANCE COMPANY LTD v. AHALYA SWAIN

2018-03-09

S.C.PARIJA

body2018
JUDGMENT : S.C. Parija, J. - Heard learned counsel for the parties. This appeal by the appellant-Insurance Company is directed against the judgment/award dated 16.3.2015, passed by the 1st Motor Accident Claims Tribunal, Cuttack, in MAC Case No.426 of 2011, awarding an amount of Rs. 28,59,184/- as compensation along with interest @ 7.5% per annum from the date of filing of the claim application i.e. 08.7.2011 and directing the appellant-Insurance Company to pay the same. 2. Learned counsel for the appellant-Insurance Company submits that as there was sufficient materials available on record to show that both the vehicles involved in the accident were rash and negligent in causing the accident, learned Tribunal erred in ignoring the same and saddling the entire liability on the present appellant, as the insurer of the Maruti Alto car no.OR14-V/6703. 3. It is submitted that as the claimants had impleaded the owner and insurer of both the vehicles involved in the accident as parties to the claim application and had specifically claimed that the drivers of both the vehicles were rash and negligent in causing the accident and had adduced oral evidence in support of the same, learned Tribunal was not justified in ignoring the same and proceeding to hold only the driver of the offending Maruti car to be rash and negligent, solely relying on the basis of the police papers and M.V.I. report. It is submitted that the claimants had examined the eye-witness to the accident as P.W.2, who in his evidence had categorically stated that both the Maruti car and the Truck bearing no.OR-09-K/3616 were being driven in a very high speed and in a rash and negligent manner, which resulted in a head-on collision, which fact has been overlooked by the learned Tribunal, while passing the impugned award. It is further submitted that as the accident was due to head-on collision between the Maruti car and the Truck, the contributory negligence of both the vehicles is to be implied, as has been observed by the Apex Court in Bijoy Kumar Dugar v. Bidya Dhar Dutta and others, (2006) 3 SCC 242 . 4. Learned counsel for the appellant-Insurance Company further submits that as the impugned award has been passed solely on the basis of the police papers, such as F.I.R.(Ext.2), Final Form (Ext.3) and the M.V.I. report (Ext.B), ignoring the oral evidence of the eye-witness (P.W.2), the same cannot be sustained. 4. Learned counsel for the appellant-Insurance Company further submits that as the impugned award has been passed solely on the basis of the police papers, such as F.I.R.(Ext.2), Final Form (Ext.3) and the M.V.I. report (Ext.B), ignoring the oral evidence of the eye-witness (P.W.2), the same cannot be sustained. In this regard, he has relied upon a decision of this Court in Mataji Bewa and others v. Hemanta Kumar Jena and another, (1994) ACJ 1303. 5. It is submitted that when there was clear, cogent and credible oral evidence of the eye witness was available on record to show that both the vehicles involved in the accident were being driven in a rash and negligent manner and the drivers of both the vehicles were responsible for the same, which resulted in a head-on collision, the findings of the learned Tribunal that only the driver of Maruti car was rash and negligent in causing the accident cannot be sustained. It is submitted that as the owner-insurer of the other vehicle i.e. Truck no.OR-09-K/3616 had been made parties to the claim application, it was incumbent on the part of the learned Tribunal to apportion the liability between the insurers of both the vehicles, proportionate to the extent of their respective negligence. 6. Learned counsel for the claimants does not dispute the factual position that the claimants had impleaded the owners and insurers of both the vehicles involved in the accident as parties to the claim application and it was the specific case of the claimants that the accident took place due to rash and negligent driving by the drivers of both the vehicles. It is submitted that the eye-witness (P.W.2), examined on behalf of the claimants had categorically stated that both the vehicles were being driven in a rash and negligent manner, which resulted in a head-on collision. Accordingly, it is submitted that the insurers of both the vehicles be directed to pay the compensation amount proportionately. 7. Learned counsel appearing for the Insurance Company (respondent no.6), who is the insurer of the Truck no.OR-09-K/3616 submits that as the F.I.R. (Ext.2) and the Final Form (Ext.3), clearly established that the driver of the offending Maruti car was rash and negligent in causing the accident and the M.V.I. report (Ext.B) supported such findings, the impugned award cannot be faulted. Learned counsel appearing for the Insurance Company (respondent no.6), who is the insurer of the Truck no.OR-09-K/3616 submits that as the F.I.R. (Ext.2) and the Final Form (Ext.3), clearly established that the driver of the offending Maruti car was rash and negligent in causing the accident and the M.V.I. report (Ext.B) supported such findings, the impugned award cannot be faulted. It is submitted that the eye-witness (P.W.2), in his crossexamination had admitted that the Maruti car was being driven in a high speed and went under the Truck after the head-on collision and therefore, learned Tribunal was fully justified in holding the driver of the offending Maruti car to be rash and negligent in causing the accident. It is further submitted that the F.I.R. and the Final Form having been filed by the claimants and admitted in evidence and marked as exhibits, the contents of the same cannot be disputed or considered in part. In this regard, he has relied upon two decisions of the Apex Court in Oriental Insurance Co. Ltd. v. Premlata Shukla & Ors., (2007) AIRSCW 3591 and Vijay Kumar Kulhar v. Rajasthan State Road Transport Corporation, (2009) 3 TAC 1003 (S.C.). Accordingly, it is submitted that the impugned award having been passed on the basis of the documentary evidence available on record, no interference is warranted. 8. On a perusal of the impugned award, it is seen that the leaned Tribunal has taken into consideration the police papers, such as F.I.R. (Ext.2), Final Form (Ext.3) and the M.V.I. report (Ext.B), in coming to hold that the driver of the offending Maruti car was rash and negligent in causing the accident. Though the learned Tribunal has considered the evidence of the eye-witness (P.W.2) examined on behalf of the claimants, it appears that learned Tribunal has been swayed by the statement of the said witness made in the cross-examination that the Maruti car was running at a high speed and went under the Truck after the mishap and has accordingly come to the conclusion that the driver of the Maruti car was rash and negligent in causing the accident. 9. There is no dispute that the claimants in their claim application had specifically averred that the drivers of both the Maruti car and the Truck were rash and negligent in causing the accident, which resulted in the death of Nagen Kumar Swain. 9. There is no dispute that the claimants in their claim application had specifically averred that the drivers of both the Maruti car and the Truck were rash and negligent in causing the accident, which resulted in the death of Nagen Kumar Swain. The evidence in-chief of the eye-witness (P.W.2), examined on behalf of the claimants clearly goes to show that both the vehicles were driven in a high speed and also in a rash and negligent manner and dashed head-on. In the cross-examination, the said witness has reiterated that both the vehicles were being driven in a rash and negligent manner and that the Maruti car went under the Truck after the mishap. 10. This statement of P.W.2, made in his cross-examination, itself cannot be the basis to conclude that the driver of the Maruti car was alone responsible for the accident. As the accident took place due to head-on collision and the Maruti car is admittedly a very small vehicle, it is but natural that the momentum and impact had taken the car under the front portion of the Truck.Being head-on collision, the negligent of both the vehicles involved in the accident can be implied in such a case unless, one of the vehicles had dashed on the side or rear of the other vehicle. There being cogent and credible evidence of the eye-witness (P.W.2), which clearly goes to show that the drivers of both the vehicles were rash and negligent in causing the accident, learned Tribunal was not justified in ignoring the same and relying upon the police papers, such as F.I.R. (Ext.2), Final Form (Ext.3) and the M.V.I. report (Ext.B), in holding that the driver of the Maruti car alone was responsible for the accident. Such police papers cannot be the sole basis for determining the extent of contributory negligence of the two drivers involved in the accident. The factum of accident and the involvement of the vehicles may be established by such police papers but not the extent of contributory negligence of the drivers with regard to their rash and negligent driving, which can only be determined by cogent and credible oral evidence, especially of the eye-witnesses to the occurrence. 11. The factum of accident and the involvement of the vehicles may be established by such police papers but not the extent of contributory negligence of the drivers with regard to their rash and negligent driving, which can only be determined by cogent and credible oral evidence, especially of the eye-witnesses to the occurrence. 11. So far as the M.V.I. report (Ext.B) in concerned, the same being a report drawn on inspection of the vehicle much after the accident, which merely gives an opinion as to whether the accident is due to mechanical failure of the vehicle or due to the negligence or lapses on the part of the drivers, the same cannot be the basis for determining the extent of contributory negligence of the drivers of the two vehicles involved in the accident, especially in a case of head-on collision. 12. For the reasons as aforestated, I am of the considered view that it is a case of contributory negligence. However, keeping in view the evidence of the eye-witness (P.W.2), it would be just and proper to hold that the drivers of the Maruti Alto car and Truck contributed to the accident in the ratio of 70:30 respectively. Accordingly, the liability to pay the compensation amount to the claimants is apportioned in the said ratio of 70:30 between the appellant and respondent no.6. The impugned award is modified to the said extent. 13. The appellant and respondent no.6 are directed to deposit their respective share of the compensation amount in the ratio of 70:30 along with the awarded interest with the learned Tribunal within six weeks hence. On deposit of the amount, the same shall be disbursed to the claimants proportionately, as per the direction of the learned Tribunal given in the impugned award. 14. The statutory amount deposited in the Registry of this Court along with the accrued interest thereon shall be refunded to the appellant-Insurance Company, on production of receipt showing deposit of its share of the compensation amount and interest with the Tribunal. MACA is accordingly disposed of. Issue urgent certified copy as per rules. Final Result : Disposed