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2019 DIGILAW 651 (GAU)

Oriental Insurance Co. Ltd. v. Minu Rani Paul

2019-05-24

NELSON SAILO

body2019
JUDGMENT : 1. Two (2) separate appeals have been filed against the same judgment dated 03.05.2012 passed by the learned Member, Motor Accident Claims Tribunal (the Tribunal) at Dibrugarh in MACT Case No. 36/2006. MAC Appeal No. 232/2012 is filed by the Oriental Insurance Company Ltd., while MAC Appeal No. 64/2013 is filed by the M/s New India Assurance Company Ltd. The appellants were arrayed as opposite party Nos. 2 and 5 respectively in the claim before the Tribunal. As such, the two appeals are taken up together for final disposal. 2. Heard Mr. SK Goswami, the learned counsel for the appellant in MAC Appeal No. 232/2012 and Ms. M. Choudhury, the learned counsel for the appellant in MAC Appeal No. 64/2013. I have also heard Mr. S. Chamaria, the learned counsel, who appears for the claimants/respondent Nos. 1 to 4 in both the appeals. Service of notice upon the respondent Nos. 5 and 6 in the two (2) appeals were deemed to be complete vide Order dated 08.08.2012 passed in MAC Appeal No. 232/2012. None appears for the respondent No. 7. 3. Brief facts of the case as projected by the claimants/respondents may be narrated at the outset. 4. The deceased, Sh. Sankar Paul was travelling in a Volvo Bus bearing registration No. AS-01/U-5585, which was travelling from Moran to Guwahati. While the bus reached near Nazirakhat on NH-37, another vehicle bearing registration No. AS-01/C- 7771 (Tata truck) came from the opposite direction and while crossing the Volvo Bus, it hit the bus just behind the seat of the driver of the bus and up to the rear seat smashing the windows of the bus causing injuries to many passengers. Due to the accident, 4 (four) passengers died on the spot. The deceased, who is the husband of the respondent No. 1, father of the respondent Nos. 2 and 3 and son of the respondent No. 4 sustained injuries and he was taken to Guwahati Medical College Hospital but he succumbed to his injuries on the same day. As a result, the respondent Nos. 1 to 4 filed the claim application before the Tribunal at Dibrugarh and the claim was registered as MACT Case No. 36/2006. 5. 2 and 3 and son of the respondent No. 4 sustained injuries and he was taken to Guwahati Medical College Hospital but he succumbed to his injuries on the same day. As a result, the respondent Nos. 1 to 4 filed the claim application before the Tribunal at Dibrugarh and the claim was registered as MACT Case No. 36/2006. 5. The Oriental Insurance Company Limited, who was the insurer of the Volvo Bus, was arrayed as opposite party No. 2 in the claim while the M/s New India Assurance Company Ltd., who was the insurer of the Tata Truck, was arrayed as opposite party No. 5. During the claim proceedings, the claimants examined 2 witnesses, while the opposite party No. 2/appellant in MAC Appeal No. 232/2012 examined 1 defence witness. After the pleadings were exchanged and evidence led as stated hereinabove, the Tribunal passed the impugned Judgment dated 03.05.2012, by coming to a finding that both the appellants, who were arrayed as opposite party Nos. 2 and 5 respectively were equally negligent. Therefore, the Tribunal directed the two respondents to pay compensation to the respondents/claimants in the ratio of 50:50 and the total amount awarded was Rs. 9,41,920/-, which should be paid within a period of 2 months from the date of judgment and failing which, interest @ 12% per annum will have to be paid. Aggrieved with the judgment, the appellants are before this Court. 6. Mr. SK Goswami, the learned counsel for the appellant in MAC Appeal No. 232/2012 submits that the Volvo Bus involved in the accident and which was insured with the appellant had the route permit to ply from Silapathar to Nibia via Meghalaya. The permit was valid up to 27.06.2008. However, the Volvo Bus on the date of accident i.e., 04.03.2006 was plying from Moran to Guwahati. In this connection, he refers to the police investigation report submitted under Form-54 of the Motor Vehicles Act, 1988 (MV Act), which was exhibited before the Tribunal as Exhibit-5. He further submits that this fact can be appreciated even from the claimant witness No. 2, Sh. Pradip Paul, who is the brother of the deceased. In this connection, he refers to the police investigation report submitted under Form-54 of the Motor Vehicles Act, 1988 (MV Act), which was exhibited before the Tribunal as Exhibit-5. He further submits that this fact can be appreciated even from the claimant witness No. 2, Sh. Pradip Paul, who is the brother of the deceased. The said witness in his examination-in-chief deposed that on 24.03.2006 at about 6:25 AM, the deceased was travelling in a Volvo Bus from Moran to Guwahati and on reaching Nazirakhat on National Highway 37 under Khetri Police Station, another vehicle bearing registration No. AS-01 C/7771 (Tata Truck) coming from the opposite side at a very high speed and driven in a rash and negligent manner hit the Volvo Bus from the back portion of the driver seat up to the rear seat of the bus smashing the windows of the bus and causing injuries to many passengers. 7. The learned counsel further submits that the appellant as opposite party No. 2 in the claim application also examined Sh. Harkishan Bhattacharjee as its defence witness. The said person was a Senior Assistant in the Divisional Office of the Oriental Insurance Company Ltd. In his examination-in-chief before the Tribunal filed by way of an affidavit, he deposed that the Volvo Bus was duly covered by the Insurance Policy at the relevant time. However, the bus was plying from Moran to Guwahati on the date of the accident though the route permit was from Silapathar to Nibia via Meghalaya. Therefore, there being a breach of the terms and conditions of the Insurance Company as per the provisions of Section 147 of the MV Act, the appellants/opposite party No. 2 was not liable to compensate the claimants. 8. Mr. SK Goswami, the learned counsel further submits that the income of the deceased was claimed to be a sum of Rs. 9,500/- per month by the claimants by doing business. However, his income was not proved although the claimants submitted income tax returns documents (Saral). The Tribunal in order to ascertain the genuineness of the income tax assessment documents submitted by the claimants called for a report from the Income Tax Department. In response thereof, the Income Tax Department informed the Tribunal that no assessee as per the description of the deceased given by the Tribunal was found. However despite this, the Tribunal accepted Rs. The Tribunal in order to ascertain the genuineness of the income tax assessment documents submitted by the claimants called for a report from the Income Tax Department. In response thereof, the Income Tax Department informed the Tribunal that no assessee as per the description of the deceased given by the Tribunal was found. However despite this, the Tribunal accepted Rs. 7,731/- as the monthly income of the deceased without any basis. In such circumstance, Mr. SK Goswami submits that the Tribunal ought to have taken the notional income and which on the facts of the instant case cannot be more than Rs. 5,000/-. He therefore submits that the impugned judgment of the Tribunal being perverse, the same is liable to be set aside and quashed. In support of his submission, the learned counsel Mr. SK Goswami relies upon the following authorities:- 1. India New Assurance Company Limited Vs. Rina Kumal & Anr. 2015 ACJ 274 paragraph No. 5 & 6. 2. Rani & Others Vs. National Insurance Company Limited & Ors., (2018) 8 SCC 492 paragraph Nos. 14 & 15. 3. Santosh Devi & Ors. Vs. Mahaveer Singh & Ors., (2018) 9 SCC 146 paragraph No. 5. 4. Maitri Koley & Another Vs. New India Assurance Company Limited & Ors., (2004) 1 ACJ 46 paragraph No. 4. 5. Raj Rani & Ors Vs. Oriental Insurance Company Limited & Ors., (2009) 13 SCC 654 paragraph No. 17 & 18. 9. Ms. M. Choudhury, the learned counsel for the appellant in MAC App. No. 64/2013 and also for the respondent No. 8 in the other appeal submits that from a perusal of the accident information report, which was exhibited as Exhibit-5, there is no mention about the involvement of the insurer of the Tata Truck. In fact, the driver of the Volvo Bus alone was implicated in the accident for being negligent. The certificate issued by the Officer-in-Charge of Sonapur Outpost, which was exhibited as Exhibit-6 also do not implicate the Tata Truck to have been at fault in any manner. Since there is no evidence to show the negligence and fault of the Tata Truck, there is no question of the appellant being responsible for contributory negligence. The finding of the Tribunal is only perverse and liable to be set aside. 10. Since there is no evidence to show the negligence and fault of the Tata Truck, there is no question of the appellant being responsible for contributory negligence. The finding of the Tribunal is only perverse and liable to be set aside. 10. The learned counsel further submits that an eye witness was examined before the Tribunal in another case i.e., MAC Case No. 46/2006 filed by Smt. Mamoni Baruah & Ors. Vs. Oriental Insurance Company Ltd. & Ors. The learned counsel submits that as per the deposition of the eye witness, the Volvo Bus was at fault. As such, the insurer of the Tata Truck cannot be held to be liable to pay the compensation either fully or in part as held by the Tribunal. Under the circumstance, she submits that the impugned Judgment & Award should be set aside and quashed by this Court. 11. Mr. S. Chamaria, the learned counsel for the respondent Nos. 1 to 4/claimants at the outset submits that the MV Act is a beneficial legislation which is meant for granting appropriate compensation to the victims of a motor accident. He submits that unlike a criminal case, the strict Rules of proof and evidence cannot be insisted upon in a claim for compensation under the MV Act. Referring to the deposition of the claimants witness No. 1, who is the wife of the deceased, the learned counsel submits that she had submitted all the documents which are under her power and possession to claim compensation from the opposite parties and her deposition in the examination-in-chief has not been falsified by the opposite parties. Moreover, the claimants witness No. 2, who is the brother of the deceased, had also deposed before the Tribunal reiterating the statements he had made with regard to the facts leading to the accident and also with regard to the income of the deceased. 12. Referring to the deposition of the defence witness Sh. Harkishan Bhattacharjee in his cross examination, the learned counsel submits that the said witness deposed that he was personally present at the time of the accident. He also stated that both the vehicles were involved in the accident and it was due to the negligence of the offending Truck. 12. Referring to the deposition of the defence witness Sh. Harkishan Bhattacharjee in his cross examination, the learned counsel submits that the said witness deposed that he was personally present at the time of the accident. He also stated that both the vehicles were involved in the accident and it was due to the negligence of the offending Truck. The learned counsel by also referring to the deposition of the said witness in his examination-in-chief submits that he stated that if there was any liability to pay compensation to the claimants for the death of the deceased Shankar Paul, the liability may be equally divided between the insurers of the 2 vehicles involved. He therefore submits that the same only goes to show that the Tribunal did not commit any error in passing the impugned judgment by portioning the liability equally upon the two appellants. 13. In so far as the monthly income of the deceased is concerned, there cannot be any manner of doubt, inasmuch as, the income tax returns documents exhibited by the claimants has not been either denied or disproved by the opposite parties. The amount of monthly income to the tune of Rs. 7,731/- as accepted by the Tribunal can by no means be said to be an excessive or exorbitant amount. The deceased being engaged in business actively would be easily earning Rs. 7,000/- to Rs. 8,000/- per month at the minimum. Therefore, the assessment of the Tribunal in this regard requires no interference. In support of his submission, Mr. S. Chamaria relies upon the decision of a Co-ordinate Bench of this Court in MAC App. No. 193/2010 (Mukhdeo Giri Vs. Pradip Pegu & Ors.) decided on 03.04.2018 and reported in MANU/GH/0295/2018. 14. I have heard the submissions made by the learned counsels for the rival parties and I have perused the materials available on record, including the record of the Tribunal. 15. Since the appellant in MAC Appeal No. 232/2012 has raised the issue that the accident vehicle i.e., the Volvo Bus at the relevant time was not plying in the route for which permit was given, the same may be examined first. Sh. Haro Kishore Bhattarcharya, Senior Assistant of Oriental Insurance Company on behalf of the Company was examined as a defence witness. Sh. Haro Kishore Bhattarcharya, Senior Assistant of Oriental Insurance Company on behalf of the Company was examined as a defence witness. In his examination-in-chief, filed in the form of an affidavit, he stated that the Volvo Bus under Registration No. AS-01/U-5585 on 24.03.2006 was plying from Dibrugarh to Guwahati though the route permit was from Silapathar to Nibia via Meghalaya. Therefore, there was a breach of the insurance policy as per the provision of Section 147 of the MV Act. Besides this, the Police Information Report under form 54 of the MV Act at Column No. 12 indicates that the route permit of the Volvo Bus was from Silapathar to Nibia via Meghalaya and the permit was valid up to 27.06.2008 and the Accident Information Report was exhibited as Exhibit-5 before the Tribunal. Likewise, Exhibit-6 which is a certificate issued by the Officer-in-charge of Sonapur Police Outpost reveals that on the date of the accident, the Volvo Bus was coming from Dibrugarh towards Guwahati on National Highway 37. Therefore, it is clear that there is a breach of the insurance policy. 16. Secondly, insofar as the monthly income of the deceased is concerned, the claimants witness Nos. 1 and 2 in their examination-in-chief deposed that the deceased was aged about 38 years at the time of his death and he was a laborious businessman, who used to undertake the construction of pandals at various functions including Bihu, Durga Puja, marriages etc. by providing tables, utensils etc. Therefore, irrespective of the fact that the Income Tax Return of the deceased not having been proved or otherwise the amount of Rs. 7,731/- arrived at by the Tribunal only appears to be reasonable and cannot be said to be on the higher side. 17. Insofar as the claim of the appellant in MAC Appeal No. 64/2013 with regard to the testimony of the eye witness examined in another case i.e., MAC Case No. 46/2006 filed by Sh. Mamoni Baruah & Ors. Vs. Oriental Insurance Company Ltd. & Ors., is concerned, the same cannot be the basis for absolving the appellant from its liability unless the said witness was also examined in the present case with an opportunity to the other side for cross examination. Mamoni Baruah & Ors. Vs. Oriental Insurance Company Ltd. & Ors., is concerned, the same cannot be the basis for absolving the appellant from its liability unless the said witness was also examined in the present case with an opportunity to the other side for cross examination. Further, non-mentioning of the involvement of the truck under Registration No. AS-01-C/7771 (Truck), which was insured with the appellant in the Accident Information Report exhibited as Exhibit-5 cannot be the reason for absolving the said appellant from its liability, inasmuch as, the certificate issued by the Officer-in-charge of Sonapur Outpost, which was exhibited as Exhibit-6 clearly mentioned that the Volvo Bus collided with the Tata truck. Likewise the evidence of CW-1, CW-2 and DW-1 in MAC Appeal No. 232/2012 corresponding to MAC Case No. 36/2006 clearly establishes that the Tata truck and the Volvo Bus collided and that the truck was being driven in a very high speed and in a rash and negligent manner. Therefore, the finding of the Tribunal that there was contributory negligence on the part of the two vehicles in my considered view requires no interference. 18. In the result, upon considering the case in its entirety, the impugned Judgment & Award of the Tribunal, insofar as the quantum and apportionment is concerned requires no interference. However, since there was a breach of the insurance policy by the owner of the Volvo Bus, the liability to compensate the claimant in respect of the share of the appellant in MAC Appeal No. 232/2012 will be on the owner of the Volvo Bus under registration No. AS-01/U-5585. However, the appellant Insurance Company in MAC Appeal No. 232/2012 shall pay the amount of compensation and recover the same from the owner of the bus after securing appropriate security through the Tribunal for release of the compensation to the claimant in terms of the Apex Court decision in Oriental Insurance Company Ltd. Vs. Sh. Nanjappan & Ors., reported in (2004) 13 SCC 224 and also as per Rina Kumal & Anr. (Supra). 19. The appellants in both the appeals are therefore directed to deposit the awarded amount before the Motor Accident Claims Tribunal, Dibrugarh within a period of 6 (six) weeks from the date of receipt of a certified copy of this order. Sh. Nanjappan & Ors., reported in (2004) 13 SCC 224 and also as per Rina Kumal & Anr. (Supra). 19. The appellants in both the appeals are therefore directed to deposit the awarded amount before the Motor Accident Claims Tribunal, Dibrugarh within a period of 6 (six) weeks from the date of receipt of a certified copy of this order. Any amount paid to the respondents/claimants in the meantime, shall be adjusted to the final amount to be paid to them including the interest. The appellant Insurance Company will also be at liberty to withdraw the statutory fee of Rs. 25,000/- deposited by them before the Registry of this Court at the time of filing the appeal. 20. With the above observations and directions, the appeal stands disposed of. 21. Registry shall send back the LCR to the Tribunal immediately.