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2019 DIGILAW 16 (CAL)

National Insurance Company Limited v. Pinki Bhuia

2019-01-07

HARISH TANDON, SUBHASIS DASGUPTA

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JUDGMENT : SUBHASIS DASGUPTA, J. 1. The judgment and order dated 24th March, 2017 passed by the Motor Accident Claim Tribunal Asansol granting compensation to respondents/claimants is the subject matter of challenge in the instant appeal. 2. Tribunal while awarding compensation of Rs. 37,59,500/- with interest at the rate of 6% per annum from the date of filing of this case, had elaborately dealt with the facts and circumstances leading to accidental death of deceased victim. Some crucial facts, however, may be adhered to for the decision of this appeal. A 26 years old young man working in ECL suffered death being a victim of road traffic accident after being dashed by offending car bearing No. WB:02J/5455 due to rash and negligent driving on 18.01.2013 at about 9.00 PM, while the victim, motorcyclist was driving his motorcycle taking two pillion riders and reached at Topsi Rail Gate on NH:60. The victim motorcyclist with two other pillion riders fell down on the road sustaining serious injuries. One of the pillion riders suffered death, while the other pillion rider received bodily injury. The victim motorcyclist for his serious fatal injuries was moved to SD Hospital, Asansol for securing his medical attention, and there from shifted to Mission Hospital, Durgapur where he ultimately succumbed to injuries on 28.01.2013. The claim case before the Tribunal was initiated by the mother, widow of deceased victim and minor son being dependent of deceased victim. 3. The insurance company/appellant challenged the award alleging non-involvement of the offending vehicle on the score that the inquest report, marked Exhibit-'A', did not contain anything revealing conspicuous involvement of the offending vehicle at the time of accident, and further that the deceased victim, motorcyclist having carried two pillion riders making contravention of Section 128 of Motor Vehicles Act, the insurance company could not be foisted with the liability to indemnify the claimants. 4. The claimants/respondents, however, being dissatisfied with the quantum of compensation filed cross-objection under Order 41 Rule 22 CPC being No. COT No. 129 of 2018 alleging that Tribunal erroneously decided quantum of compensation without considering the future prospect of the deceased victim, motorcyclist, who admittedly was an employee of ECL and the other components, necessarily to be observed on conventional heads of loss of estate, loss of consortium and funeral expenses keeping in view the recent pronouncement of the Apex Court. 5. 5. As regards the appeal under reference, the point thus crystallised are on two counts. One alleging non-involvement of the offending vehicle adverting to police inquest report, marked as Exhibit-'A', which simply recorded that the victim suffered death having fallen down from a motorcycle. The other point raised is that insurance company could not be made to indemnify the claimants, when admittedly victim, motorcyclist was driving his motorcycle with two pillion riders on his motorcycle making contravention of the statutory provision, enunciated under Section 128 of the M.V. Act. 6. The learned advocate for the appellant/insurance company drew our attention to Exhibit-'A', a police inquest report, marked Exhibit- 'A'. Adverting to Exhibit-'A', learned advocate for the insurance company argued with all emphasis that since the victim motorcyclist had fallen down from his motorcycle due to his own negligence without being caused by anything else, what was duly recorded in the police inquest report, the insurance company could not be fastened with the liability to indemnify the claimants. Thus, according to appellant, the involvement of the offending vehicle was a doubtful episode at the time of accident in the perspective of the statement recorded in the police inquest report prepared under Section 174 of the Cr. P.C. Learned advocate for the appellant/insurance company further contended that when admittedly the deceased victim motorcyclist had been driving his own motorcycle with two pillion riders making contravention of the statutory provision of Section 128 of the M.V. Act, which itself contributed to the cause of accident. 7. Learned advocate for the respondents/claimants with regard to the involvement of the alleged vehicle candidly submitted that the involvement of the offending vehicle had been sufficiently established by the FIR, Exhibit-'2', Charge-sheet, Exhibit-'3' and seizure list, Exhibit-'4' together with evidence of PW1 and PW2. Thus according to respondent, a solitary look on a particular column of a police inquest report, prepared under Section 174 of the Cr. P.C, would not be ipso facto sufficient enough to demolish the claim of the respondents. 8. As regards the point raised by the appellant pertaining to Section 128 of the M.V. Act, the respondents/claimants endeavoured to establish that in the absence of penal consequences being prescribed in section 128 of the M.V. Act, which was nothing but a safety measures, the insurance company could not be made to escape from indemnifying the claimants. 9. 8. As regards the point raised by the appellant pertaining to Section 128 of the M.V. Act, the respondents/claimants endeavoured to establish that in the absence of penal consequences being prescribed in section 128 of the M.V. Act, which was nothing but a safety measures, the insurance company could not be made to escape from indemnifying the claimants. 9. Admittedly there was no challenge on the score that the offending vehicle had no coverage of insurance on the fateful day of accident. Evidently in this case, claimants examined as many as four (4) witnesses, out of which PW1, is the mother of the deceased victim, PW2 is eye witnesses to the accident, PW3, is senior executive of Durgapur Mission Hospital producing the duplicate copy of the final bill raised by the hospital, Exhibit-'13', and PW4 is a senior manager, personnel of ECL producing salary statement of deceased victim motorcyclist, Exhibit'14'. 10. Despite being favoured with the authority granted under Section 170 of the M.V Act, the appellant/insurance company preferred to examine one witness only on its behalf simply to produce the police inquest report marked Exhibit-'A' without examining the police officer, who actually prepared police inquest report after collection of his best information in search of his quest to reveal the apparent cause of death. 11. On a careful analysis of the evidence adduced by the parties to this case, it appears that the Tribunal proceeded to grant the award after holding offending vehicle bearing No. WB:02J/5455 to be responsible for the cause of accident due to its rash and negligent driving. In arriving at such inference, Tribunal placed its reliance upon the FIR, Exhibit- 2', seizure list, Exhibit-'4' and charge-sheet, Exhibit-'3'. The oral testimony of PW 1 and PW2 received ratification from such exhibited documents. Upon consideration of such evidenced, both oral and documentary, the Tribunal held the offending vehicle to be involved in the accident due to its rash and negligent driving. The oral testimony of PW 1 and PW2 received ratification from such exhibited documents. Upon consideration of such evidenced, both oral and documentary, the Tribunal held the offending vehicle to be involved in the accident due to its rash and negligent driving. Since the standard of proof required for proving a claim case under the Motor Vehicles Act is not that of beyond reasonable doubt, but the Tribunal should follow the principles of preponderance of probability and upon employing the principle with due exercise of discretion, the Tribunal held the offending vehicle to be involved in the accident irrespective of the minor discrepancy found in the police inquest report prepared under Section 174 of the Code of Criminal Procedure, which has got no bearing on the merits of the case. 12. Now the point surfaced with regard to discrepancy found in the police inquest report as to the involvement of the offending vehicle with reference to claims case, as focused by appellant, could be set at rest by the following discussion. 13. The objective purpose of preparing police inquest report is to mention the apparent cause of death of the deceased describing such wounds, fractures, bruises and other marks of inquiry, that may be found on the body and stating in what manner or by what weapon or instrument, if any, such marks appear to have been inflicted. Such police inquest report has to be necessarily prepared in presence of two responsible witness of the neighbourhood where such death of deceased was caused upon receiving a reasonable suspicion as to the death of the deceased. The sole object of police inquest report, prepared under Section 174 Cr. P.C. being to reveal the apparent cause of death, same cannot be used as substantive piece of evidence. As such, a statement would be within inhibition of Section 162 Cr. P.C. which provides, inter alia, in that no statement of any person, if required by police officer in the course of investigation shall be signed by the person making it. Thus, the statement under Section 174 Cr. P.C. can at best be used only as a previous statement to corroborate and contradict the person making it at the trial and none else. Thus, the statement under Section 174 Cr. P.C. can at best be used only as a previous statement to corroborate and contradict the person making it at the trial and none else. The statements contained in a inquest report is to the extent they relate to what the investigating officer said and found are admissible, but any statement made therein on the basis of what he heard from others would hit by Section 162 Cr. P.C.. 14. Though the appellant/insurance company was favoured with the authority to exercise its defence available to owner, but the insurance company simply preferred to produce the police inquest report by examining one ASI of police, who simply produced copy of police of inquest report. Admittedly he did not prepare the police inquest report and as such, he was not left with any opportunity to mention anything about the source from which he gathered such information to the effect that motorcyclist had suffered death having fallen down from the motorcycle on road. The deceased victim motorcyclist suffered death on 28.01.2013 being a victim of road traffic accident, caused by the offending vehicle on 18.01.2013. The place of accident evidently is different, than that of the place where the police inquest report was prepared on 29.01.2013. Presumably the persons in whose presence the accident was held, could not be enquired of so as to revel the apparent cause of death by the police. A solitary look on a particular column of police inquest report would not be sufficient enough to repudiate the claim case. The argument raised on this issue by the appellant/insurance company cannot be taken to be a good defence. The police inquest report has got nothing to do with the award granted under Section 168 of the M.V. Act. 15. As regards the point raised under Section 128 of the M.V. Act pertaining to carrying excessive pillion riders more than the permissible limit, our attention was drawn to a decision rendered by Coordinate Bench of this Court in the case of Menoka Mondal and Ors. Vs. Oriental Insurance Co. Ltd. And Anr. 15. As regards the point raised under Section 128 of the M.V. Act pertaining to carrying excessive pillion riders more than the permissible limit, our attention was drawn to a decision rendered by Coordinate Bench of this Court in the case of Menoka Mondal and Ors. Vs. Oriental Insurance Co. Ltd. And Anr. reported in, (2015) 3 TAC 621 (Cal.) and being emboldened by such decision, an honest effort was made by the Insurance Company in justification of the stand that insurance company cannot be foisted with the liability to pay the award to the claimants, when admittedly deceased victim, motorcyclist was driving his motorcycle with two pillion riders in contravention of Section 128 of M.V. Act. In the case referred above, the Tribunal dismissed the claim case, when deceased victim motorcyclist had solely contributed to the cause of accident by reason of carrying two pillion riders having had no protective head gear. An appeal was preferred before the High Court against the dismissal of the claim case, when it was held that since motorcyclist violated the provision contained in Section 128 of the M.V. Act, the Tribunal had rightly dismissed the claim petition because prayer for compensation would tantamount to ignoring statutory provision contained in Section 128 of M.V. Act, and at the same time would amount to approving an illegal act committed by the motorcyclist. The case referred hereinabove by the insurance company is conspicuously distinguishable by the following aspects. PW2 testified in his cross-examination, there had been two pillion riders at the time of accident, but could not say about the speed at which the motorcycle was being driven at the relevant point of time. There was no further cross-examination to transpire that it was the contribution, solely caused by the deceased motorcyclist, led to the accident as a result of which the deceased victim suffered his death for wrong doing. 16. There was no further cross-examination to transpire that it was the contribution, solely caused by the deceased motorcyclist, led to the accident as a result of which the deceased victim suffered his death for wrong doing. 16. Fair enough to mention that there had been contravention of statutory provisions contained in Section 128 of M.V. Act laying that "On driver of a two-wheeled motor cycle shall carry more than one person in addition to himself on the motor cycle and no such person shall be carried otherwise than sitting on a proper seat securely fixed to the motor cycle behind the driver's seat with appropriate safely measures." The safely measures incorporated in Chapter VIII of the Motor Vehicles Act, 1988 under the heading 'Control of traffic' are in the mature of some duties and obligations to be performed by a motorcyclist in course of its use on roads. Such safety measures, as mentioned in Section 128 of MV. Act is devoid of any specific penal consequences. Section 177 of M.V. Act has however, taken care of the situation with reference to the duties and obligations to be performed by the driver/the registered owner of the vehicle in course of the vehicle being used on road by prescribing penalty to the extent of Rs. 100/- for the first offence, and for any second or subsequent offence, with fine which may extend to Rs. 300/-. That being the position it would be quite preposterous to suggest that deceased victim, motorcyclist due to his sole contribution caused the accident and ultimately suffered death. In the absence of any fundamental materials, patent in nature being transpired in the evidence in justification of the stand surfacing alleged contributory negligence, mere contravention of Section 128 of M.V. Act simply by carrying more pillion riders, than the permissible limit, would not absolve the insurance company from indemnifying the claimants/respondents upon considering the sole admission of the claimants, that at the relevant point of time, the deceased victim, motorcyclist had two pillion riders with him. There was neither any pleading demonstrating materials constituting contributory negligence in the written statement filed by the appellant/insurance company, nor any evidence led to that effect. Onus of proof of contributory negligence lies on the shoulders of the person who alleges the same. In the instant case appellant/insurance company failed produce any satisfactory evidence to establish contributory negligence of deceased motorcyclist. Onus of proof of contributory negligence lies on the shoulders of the person who alleges the same. In the instant case appellant/insurance company failed produce any satisfactory evidence to establish contributory negligence of deceased motorcyclist. This discussions, relied upon the appellant/insurance company, will inevitably render the ratio of the judgment delivered in Menoka Mondal and Ors(supra) inapplicable in the given set of facts and circumstances of the case. 17. Regarding the cross-objection filed by the claimants, it appears that the Tribunal upon consideration of the variable income of the deceased victim serving in ECL proceed to accept a sum of Rs. 25000/- as a monthly income for calculating compensation upon due exercise of discretion based on documents taking a suitable multiplier of 18. After deduction 1/3 towards the head of personal expenses of the deceased victim, award was granted giving additional amount of Rs. 2000/-, as funeral expenses, Rs. 2500/- as loss of estate, but without allowing any consortium and future prospect. Argument was advanced by the claimants in support of the cross-objection that the Tribunal erroneously recorded the compensation without granting the reasonable figures of conventional heads namely loss of estate, loss of consortium and funeral expenses to the extent of Rs. 15,000/-, Rs. 40,000/- and Rs15,000/- respectively and, therefore, the future prospect of the deceased victim remained unevaluated or un-assessed in context with decision rendered in National Insurance Company Limited vs. Pranay Sethi and Ors. reported in, (2017) 16 SCC 680 . In the case of Pranay Sethi and Ors (supra) Apex Court had taken note of the ratio of judgment delivered in the case of Sarla Verma (Smt) and Ors. Vs. Delhi Transport Corporation and Anr. reported in, (2009) 6 SCC 121 . The relevant paragraph of such decision of Apex Court may be quoted herein below: 59.3. While determining the income, an addition of 50% of actual salary to the income of the deceased towards future prospects, where the deceased had a permanent job and was below the age of 40 years, should be made. The additional should be 30%, if the age of the deceased was between 40 to 50 years. In case the deceased was between the age of 50 to 60 years, the addition should be 15%. Actual salary should be read as actual salary less tax. 59.8. The additional should be 30%, if the age of the deceased was between 40 to 50 years. In case the deceased was between the age of 50 to 60 years, the addition should be 15%. Actual salary should be read as actual salary less tax. 59.8. Reasonable figures on conventional head, namely loss of estate, loss of consortium and funeral expenses should be Rs. 15,000, Rs. 40,000 and Rs. 15,000 respectively. The aforesaid amounts should be enhanced at the rate of 10% in every three years. 18. Admittedly, deceased victim, motorcyclist had a job in ECL and was at the age of 26 years, when he took his last breath meaning thereby he was below the age of 40 years. Tribunal Judge declined to record future prospect on the ground of any evidence being led on that score. A person working in ECL cannot be expected to remain at a static scale unless the contrary is proved by a rebuttable evidence. A quest for betterment is probably inherent to every severing personnel in course of his employment. The possibility of earning annual increment and having promotion thus cannot be eliminated completely. Upgradation in all respects is a social requirement, which cannot be inhibited for want of evidence adopting a hyper technical approach. The chance of earning prospect in future is thus perceptible when admittedly the deceased victim, motorcyclist was in course of employment of ECL at the time of his death. Taking into consideration the cumulative factors, namely passage of time, the changing society, escalation of price, the change in price index, the human attitude to follow a particular pattern of life etc., Apex Court in the case of Pranay Sethi and Ors.(supra) expounded that an addition of 50% of the established income of the deceased towards future prospects to the deceased being below 40 years, would be quite reasonable to grant just compensation. The decisions of the Apex Court is a judgment of the land in application of provision under Article 141 of the Constitution of India, which the courts of the country are bound to follow paying respect to it. This aspect obviously went unnoticed by the Tribunal, while granting the compensation. 19. The Tribunal instead of grating Rs. 3,00,000/- as medical expenses, proceeded to exercise its discretion granting Rs. 1,50,000/- as medical expenses for want of original medical bills being produced. 20. This aspect obviously went unnoticed by the Tribunal, while granting the compensation. 19. The Tribunal instead of grating Rs. 3,00,000/- as medical expenses, proceeded to exercise its discretion granting Rs. 1,50,000/- as medical expenses for want of original medical bills being produced. 20. From the cross-examination, PW3 it is evident that the final bill raised by the hospital was liquidated by doing necessary payment. When there left nothing due to be recovered by hospital authority from the dependents of the deceased motorcyclist and when specific evidence has been transpired in the cross-examination revealing payment to the satisfaction of the final bill raised by the hospital authority, it would not be proper and appropriate to deduct half of the medical bill for want of the final bill being produced. The First Appellate Court would seldom interfere with the order passed by the Tribunal recorded upon due exercise of its discretion judiciously. In the given set of facts, the denial of Rs. 1,50,000/- towards medical expenses for want of original medical bill being produced cannot be construed to be a product of due exercise of discretion judiciously. The denial of the amount on the head of medical expenses already incurred thus needs to be adequately compensated. A little modification of awarded sum will however subserve the purpose of justice. The cross-objection is thus allowed. 21. The award thus, stands modified to the extent as follows: (a) There will be additional amount of Rs. 1,50,000/-, being 50% of the established income of the deceased towards future prospect. (b) Future an addition of Rs. 1,50,000/- towards the medical expenses being the less amount already granted on account of medical expenses. (c) Also an addition of Rs. 65,500/- being the less amount given on account of reasonable figures on conventional heads namely, loss of estate, loss of consortium and funeral expenses as indicated hereinabove. 22. Such amount is in additional to the awarded sum of Tribunal. 23. The appeal and connected applications are dismissed accordingly. 24. Since the awarded sum together with interest was already deposited with Registrar General of this Court as per order of this Court together with statutory deposit of Rs. 25,000/- by the appellant which was lying invested in an interest earning scheme of the bank. 23. The appeal and connected applications are dismissed accordingly. 24. Since the awarded sum together with interest was already deposited with Registrar General of this Court as per order of this Court together with statutory deposit of Rs. 25,000/- by the appellant which was lying invested in an interest earning scheme of the bank. The respondents are at liberty to approach the Registrar General for withdrawal of the sum together with interest accrued thereon, and if any such approach is made, the Registrar General shall take steps for releasing the sum within two weeks from the date of approach. The shortfall amount on different components as indicated hereinabove, including the interest component for the deposit already made by the appellant with the Registrar General from the date of deposit till disbursement of all the dues however, be deposited by appellant/insurer to Registrar General with the date stipulated above, if necessary, after doing necessary adjustment with the statutory deposit Rs. 25000/-. The residual amount, if any left after adjustment, upon due satisfaction of such amount on all the components indicated hereinabove, however, be permitted to be released in favour of the appellant/insurance company. 25. Urgent certified copy of this order if applied for, be made available to the parties upon compliance with requisite formalities. I agree. - (Harish Tandon, J.)