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2019 DIGILAW 877 (GAU)

Lalngaichami v. Rajkumar Mala Sinha

2019-08-06

NELSON SAILO

body2019
JUDGMENT : Nelson Sailo, J. Heard Mr. Lalchhanliana Khiangte, learned counsel for the appellant as well as Mr. Johny L. Tochhawng, learned counsel for the respondent No. 3 and Mr. Victor L. Ralte, learned Amicus Curiae for respondent No. 2. No one appears for the respondent No. 1 despite service. 2. This is an appeal against the Judgment and Award dated 14.12.2018 passed by the learned Motor Accident Claims Tribunal, Aizawl in MACT Case No. 18/2018, whereby the Tribunal dismissed the claim application. 3. Brief facts of the case is that on 24.04.2015 one Tata Tripper bearing registration No. AS-11/BC-3900 loaded with stone chips driven by the respondent No. 2, while proceeding towards Aizawl from Lailapur side dashed against one Sh. Lalthianghlima, S/o Sh. R. Vanlalchhuanga of Kawngthar Veng, Vairengte. As a result of the accident, he succumbed to his injuries on the way to the hospital. Hence, Vairengte P.S. Case No. 25/2015 dated 25.04.2015 under Section 279/304 'A' of the Indian Penal Code was registered. After the police conducted the investigation, a charge sheet was filed against the driver of the alleged offending vehicle. During the framing of charge under Section 279/304 IPC, the driver (respondent No. 2) pleaded guilty and accordingly, he was convicted under the aforesaid sections. On his conviction, the Trial Court sentenced him to the period already undergone and imposed a consolidated fine of Rs. 5000/- under the two sections mentioned hereinabove and with a default clause. 4. The appellant Nos. 1 and 2 are the mother and father of the deceased, while the appellant Nos. 3, 4 and 5 are the children of the deceased. They filed a claim petition before the Tribunal on 05.04.2018, claiming a sum of Rs. 55,92,500/- as compensation from the opposite parties arrayed in the claim application under Section 166 of the Motor Vehicles Act, 1988 (MV Act). 5. Opposite party No. 1 is the owner of the offending vehicle, while opposite party No. 2 is the driver of the offending vehicle and the Insurance Company, who had insured the offending vehicle is arrayed as opposite party No. 3. During the claim proceedings, the claimants examined as many as 4 witnesses. The claimant witness No. 1 is the mother of the deceased, while claimant witness No. 2 is the Police Officer, who conducted the investigation. During the claim proceedings, the claimants examined as many as 4 witnesses. The claimant witness No. 1 is the mother of the deceased, while claimant witness No. 2 is the Police Officer, who conducted the investigation. Claimant witness No. 3 is the employee of the deceased and claimant witness No. 4 is the Secretary of Mizoram Industries Association, Vairengte Sub-Division Headquarters. As for the opposite parties, they did not examine any witnesses and besides cross examining the claimant witnesses, they only filed their respective written statements. Consequently, the Tribunal vide Judgment and Award dated 14.12.2018 dismissed the claim application. Thus being aggrieved, the appellants are before this Court. 6. Mr. Lalchhanliana Khiangte, the learned counsel submits that the claim was filed on fault basis under Section 166 of the MV Act. While considering the claim application, the Tribunal framed as many as 3 issues i.e., on the maintainability of the claim application, the negligence on the part of the offending vehicle and the amount of compensation liable to be paid to the claimants. He submits that the Tribunal after considering the evidence led by the claimants, found the claim to be maintainable and at the same time, found negligence on the part of the driver and owner of the accident vehicle. However, despite such findings, the Tribunal declined to award any compensation to the claimants on the ground that no documentary evidence was produced by the claimants to prove the income of the deceased and as the claim was made on fault basis and not under Section 163-A of the MV Act, the Tribunal found the claimants to be not entitled to any compensation. The learned counsel submits that the Tribunal could not have come to such a conclusion, inasmuch as, the claimants were able to discharge the burden of proving that there was fault on the part of the offending vehicle, which resulted in the accident. Since the vehicle was validly insured with the Insurance Company concerned, the Insurance Company was only liable to indemnify the insured. As such, the impugned judgment and award being erroneous, the interference of this Court is called for. Accordingly, this Court may suitably interfere with the impugned judgment and award. 7. Mr. Lalchhanliana Khiangte, the learned counsel also submits that the claimants examined claimant witness Nos. 1, 3 and 4 to prove the income of the deceased. As such, the impugned judgment and award being erroneous, the interference of this Court is called for. Accordingly, this Court may suitably interfere with the impugned judgment and award. 7. Mr. Lalchhanliana Khiangte, the learned counsel also submits that the claimants examined claimant witness Nos. 1, 3 and 4 to prove the income of the deceased. Claimant witness No. 3 was an employee of the deceased and he testified before the Tribunal that he was a Carpenter by profession and was employed by the deceased in his workshop under the name L.T. Furniture Works at Vairengte, Kawngthar Veng till the date of his accident at a daily wage of Rs. 600/-. He also deposed that the deceased himself was also a Carpenter and he used to work with other helpers. Likewise, the claimant witness No. 4 in his examination-in-chief deposed that he was a Tailor by profession and was the appointed Secretary of Mizoram Industries Association Vairengte Sub-Divisional Headquarters. According to him, the average monthly earning of the deceased person, who was having a Furniture Workshop at Vairengte was about Rs. 30,000/- to 40,000/-. 8. Mr. Lalchhanliana Khiangte, the learned counsel submits that the evidence of two claimant witnesses were neither falsified nor shaken during the cross examination by the opposite parties. Therefore, the Tribunal could not have rejected their evidence. He submits that it is a well settled position in law that un-rebutted evidence has to be accepted in a legal proceeding. In support of his submission, the learned counsel relies upon the following decisions:- (i) Smt. Lakhi Das and 6 Ors. Vs. Raju Sarmah and Anr.,2014 3 TAC 941 (Gau.) (ii) Syed Sadiq, etc. Vs. Divisional Manager, United India Insurance Co., (2014) 1 TAC 369 (S.C.) and (iii) Rokeya Bewa and Ors. Vs. Ranu Das and Ors., (2018) 3 GauLT 279 9. Mr. Johny L. Tochhawng, learned counsel appearing for the respondent No. 3 submits that since the appellants had filed a claim under Section 166 of the MV Act, a duty is cast upon them to prove the income of the deceased. The claimants did not produce any documentary evidence in support of the claim that the deceased was earning a sum of Rs. 30,000/- to Rs. 40,000/- per month. The claim witness No. 1 is the mother of the deceased, while the claimant witness No. 3 is only an employee of the deceased. The claimants did not produce any documentary evidence in support of the claim that the deceased was earning a sum of Rs. 30,000/- to Rs. 40,000/- per month. The claim witness No. 1 is the mother of the deceased, while the claimant witness No. 3 is only an employee of the deceased. As for the claimant witness No. 4, he is the Secretary of the Mizoram Industries Association and a Tailor by profession who cannot have any knowledge on the income of the deceased. Therefore, his contention that the deceased was earning a sum of Rs. 30,000/- to Rs. 40,000/- per month is without any basis and under the circumstances, the learned counsel submits that no interference is called for on the impugned judgment and the appeal may be dismissed. 10. Mr. Victor L. Ralte, the learned Amicus Curiae for the respondent No. 2 adopts the argument of Mr. Johny L. Tochhawng, the learned counsel. He submits that the respondent No. 2 was in possession of a valid driving license at the time of the accident and the vehicle being validly insured with the respondent No. 3 Insurance Company, the respondent No. 3 will therefore be liable to indemnify any liability of the owner and driver of the accident vehicle. 11. I have considered the submissions made by the learned counsels for the rival parties and I have perused the materials available on record including the Lower Court Records. 12. As may be noticed, the Tribunal framed 3 issues. The same may be reproduced below for ready perusal:- (i) Whether the claim application is maintainable in its present form and style? (ii) Whether there was fault/negligent on the part of the driver of the accident vehicle? (iii) Whether the claimant is entitled to get compensation, if so, who is liable to pay and to what extend? 13. With regard to issue No. 1, the Tribunal was of the view that there was nothing to show that the application was not maintainable in its form and style and therefore, found no necessity to discuss the issue and as such, decided the issue in favour of the claimants. 13. With regard to issue No. 1, the Tribunal was of the view that there was nothing to show that the application was not maintainable in its form and style and therefore, found no necessity to discuss the issue and as such, decided the issue in favour of the claimants. In respect of the second issue, the Tribunal upon considering the evidence led by the claimant witnesses was of the view that since a police case was registered against the driver of the offending vehicle in view of the alleged rash and negligent driving on his part and which ultimately led to his conviction vide Judgment and Order dated 16.03.2016 passed in Criminal Trial No. 26/2016, the Tribunal came to a finding that there was negligence and fault on the part of the driver in driving the accident vehicle. As such, the issue was also decided in favour of the claimants. 14. Insofar as the third issue is concerned, the Tribunal was of the view that although the claimants examined their witnesses during the claim proceeding but however, they did not produce any documentary proof on the income of the deceased. Further, the witnesses examined were not managers of the workshop of the deceased and they cannot be said to have personal knowledge on his income. As the claim was filed under Section 166 of the MV Act, the Tribunal was of the view that proof of income of the deceased having not been established, the claimants were not entitled to any compensation. Accordingly, the Tribunal dismissed the claim application. 15. There is no dispute with regard to the fact that in a claim under Section 166 of the MV Act, a claimant has to establish negligence on the part of the offending vehicle and at the same time prove the income of the deceased or injured person. Insofar as negligence is concerned, it is seen that the Tribunal found the driver of the offending vehicle to be negligent particularly upon considering the criminal case, which ended in his conviction. The materials available on record therefore reveals fault on the part of the offending vehicle. In absence of any challenge to this finding, there cannot be any dispute at this stage. The materials available on record therefore reveals fault on the part of the offending vehicle. In absence of any challenge to this finding, there cannot be any dispute at this stage. Insofar as the determination of the amount of compensation that can be awarded to the claimants is concerned, it may be seen that out of the four witnesses examined by the claimants, claimant witness Nos. 1, 3 and 4 in their examination-in-chief clearly deposed that the deceased was a Carpenter and was having a Carpentry Workshop at Vairengte. He was earning about Rs. 30,000/- to Rs. 40,000/- in a month from his work. It may further be noticed that the deposition of these three witnesses were not discredited during their cross examination. Therefore, the Tribunal ought to have considered the evidence led by these witnesses. Further, even if the monthly income of the deceased as contended by the claimants was not acceptable to the Tribunal, the Tribunal could have taken a notional income of the deceased on the basis of the materials available on record and importantly from the evidence of the claimants. But the Tribunal declined to make any assessment by taking the view that the claim being filed under Section 166 of the MV Act and not under Section 163-A of the same Act, the claimants will not be entitled to any compensation. This finding in my considered view, is only misconceived and erroneous. As already pointed out in view of the findings with regard to issue Nos. 1 and 2, the Tribunal ought to have made some assessment on the basis of the materials available on record in respect of the monthly earnings of the deceased and even if there were hardly any materials, the Tribunal could have adopted the notional income of the deceased for computing the quantum of compensation. Such being the position, I find that the appellants have made out a case for interference by this Court. 16. In that view of the matter, the matter is remanded back to the Tribunal for consideration the matter afresh from the stage of arguments by the parties. It is made clear that this Court has not expressed anything on merit except on the finding that the Tribunal could not have dismissed the claim without awarding any compensation to the claimants. In that view of the matter, the matter is remanded back to the Tribunal for consideration the matter afresh from the stage of arguments by the parties. It is made clear that this Court has not expressed anything on merit except on the finding that the Tribunal could not have dismissed the claim without awarding any compensation to the claimants. In other words, the Tribunal will be at liberty to appreciate the evidences available on record and come to its own conclusion. Parties are directed to appear before the Tribunal on 22.08.2019, whereafter the Tribunal shall proceed to dispose of the claim in accordance with law as expeditiously as possible. In view of such finding, the authorities relied upon by the appellants is not being discussed. 17. The appeal accordingly stands disposed of. Registry to send back the LCR to the Tribunal immediately. 18. For the valuable assistance rendered by Mr. Victor L. Ralte, the learned Amicus Curiae, the Mizoram State Legal Services Authority shall pay him an honorarium of Rs. 7,500/-, on production of a copy of this order.