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2020 DIGILAW 113 (GAU)

National Insurance Company Limited v. Puspa Devi

2020-02-03

S.HUKATO SWU

body2020
JUDGMENT 1. The present appeal under Section 173 of the Motor Vehicles Act, 1988 (the M.V. Act) is preferred against the judgment and order dated 25.02.2015, passed by the Motor Accident Claims Tribunal, Golaghat (Tribunal). 2. Briefly the facts of the case is that on 23.10.2011. deceased Bablu Gupta was driving motor vehicle bearing registration No. AS-05-D-6780 from Golaghat towards Jorhat alongwith his brother, Mahabir Gupta, who was a pillion rider. On reaching Panichokuwa, under Pulibor Police Station, district-Jorhat, one offending vehicle bearing registration No. AS-03-9985 (407 Truck) going from the opposite direction dashed against the motor cyclist, thereby, the driver of the motor cycle, Bablu Gupta died out of the injuries and the pillion rider, brother of the deceased, Mahabir sustained injuries. The claim petition under Section 166 & 140 of the M.V. Act was filed by the mother Smti. Puspa Devi claiming that the deceased was earning Rs. 20,000/- per month by doing wholesale business in pan and supari. Alongwith the claim petition, the claimant filed an FIR exhibited as Exhibit-2 and charge-sheet was exhibited as Exhibit- 6. The claimant examined herself as CW-1 and the injured Mahabir was examined as CW-2. The charge-sheet suggests that the accident was caused due to the rash and negligent driving of the offending truck bearing registration No. AS-03-9985. During the course of enquiry, the learned Tribunal framed 3 (three) issues :- (1) whether the accident took place on 23.10.2011 at Panichokuwa under Pulibor Police Station and whether the accident was caused due to the rash and negligent driving of the truck bearing registration No. AS-03-9985 (407 Truck). Whether the victim Bablu Gupta sustained serious injuries and died on the spot; (2) whether the claimant is entitled to get compensation, if so what is the quantum and from whom; (3) any other relief? 3. The learned Tribunal found that the factum of the accident was established as per the FIR and charge-sheet and also the fact that the deceased, Bablu Gupta sustained injuries and died out of the accident was proved. On issue No. 2, the learned Tribunal on examination of documents found that the National Insurance Company Limited who were impleaded as opposite party No. 3 were the insurer of the offending truck. On issue No. 2, the learned Tribunal on examination of documents found that the National Insurance Company Limited who were impleaded as opposite party No. 3 were the insurer of the offending truck. The above being the facts of the case, the learned Tribunal came to the conclusion that the deceased victim died out of the rash and negligent driving of the offending truck who was insured with the National Insurance Company and the claimants were entitled to compensation under such circumstances. The learned Tribunal, on examining the claim petition awarded an amount of Rs. 15,15,754,/- to the claimants, Rs. 20,000/- was considered as per the salary of the deceased and on deduction of the income tax, Rs. 14,012/-was assessed as his monthly income. The deceased being a bachelor, 15% of the income was deducted for his personal expenses and his annual income after deduction of the tax was put at Rs. 1,67,306/-. His monthly contribution to the family was taken as Rs. 83,683/-. The age of the deceased was taken as 24 years 15 days as proven by the Pan Card submitted by the claimants, hence, in consonance with the multiplier laid out in the Sarla Vermas case, 18 was considered as the multiplier. Funeral expenses of Rs. 5,000/- and Rs. 5,000/- for transportation of dead body of the deceased was added to the amount of Rs. 15,05,574/- which is the amount considered as the amount of contribution to the family. Aggrieved with the decision of the learned Tribunal, the National Insurance Company Limited, who appears as opposite party No. 3 are in appeal against this impugned judgment and order dated 25.02.2015. The grounds initially taken by the appellants is that:- (1) multiplier is misconceived; (2) there is admitted statement in the cross-examination of CW-1 that the deceased was not holding a valid driving license at the relevant point of time when the accident occurred. 4. On the first issue, the learned counsel for the appellant, Mr. R. K. Bhatra has withdrawn his contention by stating that the position has now changed with recent rulings and he has no objection if the multiplier as rendered by the learned Tribunal is accepted. 4. On the first issue, the learned counsel for the appellant, Mr. R. K. Bhatra has withdrawn his contention by stating that the position has now changed with recent rulings and he has no objection if the multiplier as rendered by the learned Tribunal is accepted. On the second issue that is raised in contention, the learned counsel for the appellant has argued that it has been conclusively proved that the deceased was driving the motor cycle without possessing valid driving license and hence, some portion of the negligence is attributable to the motor cyclist. He has accordingly argued that the award of the learned Tribunal coming to the conclusion that the appellant will be 100% liable must be reconsidered. 5. Learned counsel for the claimants, Ms. S. Khanikar argues that the entire documents has shown that the offending truck bearing registration No. AS-03-9985 (407 Truck) was solely responsible for the occurrence of the accident and there is no issue of apportionment of liability to the motor cyclist since records has shown that he is factually driving the motorbike with caution. 6. On examining the records and on hearing the parties, the record is clear that the offending truck is responsible for the accident. However, there is some force in the argument of the learned counsel for the appellant. An unlicensed driver is, by the facts of the case, an offender himself, which is attributable negligence under the M.V. Act. Infact, the M.V. Act, under Section 3 makes driving any motor vehicle without driving license an offence. Section 181 of the M.V. Act provides punishment for 3 (three) months imprisonment with a fine of Rs. 5,000/-. 7. It would be illegal on the part of the Court not to attribute some portion of negligence on the offending person under the M.V. Act and to award full compensation as it would be an assumption that the Tribunal is in recognition of illegal act under the M.V. Act. Hence, this Court is of the opinion that some portion of the negligence should be made attributable to the offender who is involved in an accident without a driving license as observed in the instant case. There is the presumption that an unlicensed driver does not possess the ability to drive a motorbike or a motor vehicle, thus, accident may be caused due to his lack of proficiency in driving. There is the presumption that an unlicensed driver does not possess the ability to drive a motorbike or a motor vehicle, thus, accident may be caused due to his lack of proficiency in driving. To be fair, this Court is of the view that 15% of the negligence should be attributed to the driver of the motor cycle who has committed the offence of driving without a license. Under the said facts and circumstances, none of the assessment given by the learned Tribunal is disturbed or interfered with. 15% of the awarded amount, i.e. Rs. 2,27,363/- shall be deducted from Rs. 15,15,760/- which is Rs. 12,88,396/-. National Insurance Company to pay Rs. 12,88,396/- to the claimants after deduction of statutory amount of Rs. 6 lakhs. The 6% interest per annum shall be paid from the date of filing the claim petition until realization of the awarded amount with interest thereon. Appeal is allowed to the extend indicated above. 8. Let the LCR be sent back.