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2020 DIGILAW 175 (GAU)

Basanti Tanti v. Prashant Kumar Saikia

2020-02-11

S.HUKATO SWU

body2020
JUDGMENT 1. Heard Mr. G. N. Sahewalla, the learned counsel for the appellants in MAC App. No. 29/2012 and Ms. R. D. Mozumdar, learned counsel for the appellant in MAC App. No. 115/2011. Also heard Mr. M. Dutta, learned counsel for the respondents/claimants in MAC App. No. 29/2012. The matter arises out of the same claim petition, the former for enhancement and the latter on merits of the case. Both the appeals are being disposed of by this common judgment and order considering that they emanate from the same case. 2. These appeals are against the judgment and order passed by the learned Motor Accident Claims Tribunal, Jorhat dated 18.03.2011. The facts of the case is that, on 29.12.2007, the deceased Dilip Tanti, while proceeding towards Teok, the vehicle bearing Registration No. AS-03B/6866 (407 Truck) driven by the opposite party No. 2 knocked him down and he succumbed to the injuries. The said vehicle is insured with the United India Insurance Company, who is impleaded as opposite party No. 3 in the claim petition. The plea of the appellant is that the petitioners are not entitled to compensation from the company as the deceased was a gratuitous passenger. At the trial stage, the claimants examined 2 (two) eyewitnesses, PW-3 and PW-4. PW-4 was said to have been travelling in the truck involved in the accident on the day of the incidence. He was sitting in the front side near the driver. When the vehicle came upon a big pot-hole on the road and dashed the deceased who was riding a bicycle. 3. PW-3, Nasir Ahmed also claimed to have witnessed the incident. He was in the place of incidence and stated that the vehicle came over a big pot-hole and knocked down the deceased who was riding a bicycle. The vehicle capsized. 4. The opposite parties also examined 3 (three) witnesses who are the police officer in-charge of Teok Police Station who exhibited the G.D. entries in connection with the accident. 5. DW-1 and DW-3 are employees of the United India Insurance Company Ltd. who enquired upon the accident. The report given by DW-1, DW-2 and DW-3 is that there was an accident, however, FIR was not lodged as the parties came to an amicable settlement. 6. DW-2, who is the officer in-charge of Teok Police Station exhibited G.D. entries in connection with the said accident. The report given by DW-1, DW-2 and DW-3 is that there was an accident, however, FIR was not lodged as the parties came to an amicable settlement. 6. DW-2, who is the officer in-charge of Teok Police Station exhibited G.D. entries in connection with the said accident. He testified that there was an amicable settlement and he also stated that as per the G.D. entry, there was an accident and Kartik Kumar died due to injuries sustained in the said accident. 7. The learned counsel for the appellants in MAC App. 115/2012, Ms. R. D. Mozumdar, contends that the claim petition is based on the G.D. entry and the G.D. entry shows that the deceased was a gratuitous passenger, hence, the claim petition does not have any basis. She has argued that the claimants have already made settlement with the owner of the vehicle, and therefore there cannot be a second claim for the same cause of action. The owner of the vehicle has compensated the injured considering that they are liable. 8. Ms. R. D. Mozumdar, learned counsel for the appellant in MAC App. 115/2011 also argues that since the deceased was a gratuitous passenger and knowing that he was not entitled to compensation they had come into an amicable settlement and they refrained from filing the FIR. She has argued that the plea that the police has not discharged their duty is not tenable since that is a dereliction of duty which has to be answered by the State and not by the insurance company. Reliance is placed on our own High Court in the case of New India Insurance Company Ltd. vs. Hananya Rabha and others, reported in MAC App. No. 103/2013. The Court, in the above referred case, has ruled that in cases where there is dereliction of duty on the part of police officer, the claimant would be entitled to file a civil suit for recovery of such injury/damages from the State. In case of this nature, the Motor Accident Claims Tribunal as well as this Court acting as an Appellate Court has no power to fix liability upon the State. Therefore, if any liability could be arrived at for dereliction of duty by a police officer it should be claimed in the Civil Court against the State and the same is not justiciable in this Appellate Court. Therefore, if any liability could be arrived at for dereliction of duty by a police officer it should be claimed in the Civil Court against the State and the same is not justiciable in this Appellate Court. She has also placed reliance on New India Insurance Company Ltd. vs. Vetwati and others, reported in 2007 STPL(LE) 38013SC. In the above referred case, it was ruled that the legislative intent was to prohibit goods vehicle from carrying any passenger. The provision of the act do not enjoin any statutory liability on the owner of the vehicle to get his vehicle insured for any passenger travelling in a goods carriage and the insurer would have no liability therefore. Thus situated, she has argued that no liability can be fastened upon the insurance company since the victim was a gratuitous passenger. 9. The respondents/claimants argued that the claimants have clearly established by the deposition of PW-3 and PW-4 that the deceased was hit by the offending truck while he was riding a bicycle and therefore, when the eyewitness states that he has seen the incidence, the G.D. entry should not be relied upon. The G.D. entry talks about Kartik Kumar who died and also two other occupants in the vehicle. It does not talk about the deceased who is now the claimant. Therefore, he was not a gratuitous passenger as presented by the appellants. The deceased in the present petition is Dilip Tanti, who was seen by one of the occupants of the truck. Therefore, there is no need to search for other evidence when the person involved in the accident has testified that he has seen the truck hitting the victim who was travelling in the bicycle. The case of the claimant is therefore, proved and the finding of the Tribunal should be upheld. 10. G.D. entry which is reproduced in ditto is as follows:- 'Now Besahari Gaon Rakshi reporter Nagen Kand via phone informed that in the evening around 3:30 P.M. the supporters of East Luhing uncontested Panchayat candidate Shri Pabitra Gogoi - turning a 407M/Truck Mamsesu Gaon field suddenly tootle down for which Kartik Kumar and two other boys sustained injuries. For which Kartik Kumar died on the way to Jorhat Civil Hospital. The injuries of the other two was grievous and they were taken to Dibrugarh Medical. Kartik Kumar S/. For which Kartik Kumar died on the way to Jorhat Civil Hospital. The injuries of the other two was grievous and they were taken to Dibrugarh Medical. Kartik Kumar S/. Late Mekhi Kanta Kumar R/o Dalim Basti was informed to SP. Addl SP HQ 3 D S P H Q sir. It came to be known that the name of one injured is Dilip Dutta.' 11. Both the claimants as well as the appellants are placing reliance on the G.D. entry, as reflected above, for establishing their case. The G.D. entry does not reflect that the deceased was travelling in the vehicle involved in the accident. Neither does the G.D. entry speak about the injury that is caused upon the deceased. 12. On hearing the arguments of the parties, this Court has come to the conclusion that the main issue in the instant case rests upon the underlying question:- 1. whether the deceased claimant was a gratuitous passenger? 2. whether the G.D. entry which is relied upon by both the appellant and the respondents suggests that the victim was a gratuitous passenger? The answers to the above two questions would give result of the outcome of the present claim petition. 13. On literal reading of the extract copy of the translated G.D. entry No. 696, dated 29.12.2007, Teok Police Station case, this Court is of the view that the G.D. entry does not support the case of the appellant nor does it support the case of the claimant/respondent. The reason for this conclusion being that:- 1. It does not mention that the deceased was a passenger in the truck which met with the accident. This evidence goes against the appellant who are unable to prove that the deceased was a gratuitous passenger. 2. The G.D. entry does not show that the victim was dashed upon by the offending truck. This fact goes against the case of the claimant/respondent. Thus situated, the documents which is the basis of the claimant and also the respondent is not in support of either party. Conclusion can be drawn in favour of either side. Under such circumstances, the Motor Vehicles Act, 1988, being a benevolent legislation, it must be interpreted in favour of the claimant. Thus situated, the documents which is the basis of the claimant and also the respondent is not in support of either party. Conclusion can be drawn in favour of either side. Under such circumstances, the Motor Vehicles Act, 1988, being a benevolent legislation, it must be interpreted in favour of the claimant. This Court is of the view that the eyewitnesses of the claimants, i.e. PW-3 and PW-4 should be taken into account considering that their credibility has not been shaken in their cross-examination. This Court takes the view as the G.D. entry is cryptic and the best evidence available on record should be relied upon for a decision. For reasons recorded above, this Court comes to the conclusion that the claimants are entitled to compensation. 14. The only issue that has been raised in MAC App. No. 29/2012 is with respect to the enhancement of the award which is to be rectified. The respondent in the appeal has conceded that the multiplier has been erroneously recorded. Appeal to that extent may be allowed. Hence, the multiplier with respect to age shall be 13 and not 11 as computed in the impugned order. The compensation will be as computed hereunder on allowing the appeal for rectification: 1. Treatment expenditure Rs. 10,000/- 2. Funeral expenses Rs. 2,000/- 3. Loss of estate Rs. 2,500 4. Loss of consortium Rs. 5,000/- 5. Salary and multiplier Rs. 18,868/- x 13 = Rs. 2,45,284/- Total Rs. 2,64,784/- @9% interest 15. The respondents, United India Insurance Company Ltd. is directed to pay an amount of Rs. 2,64,784/- within a period of 30 days from the date of passing of this order and 9% interest shall be added from the date of filing till realization. 16. Statutory deposit also be refunded to the insurance company. 17. LCR be sent back.