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Tripura High Court · body

2022 DIGILAW 240 (TRI)

National Insurance Company Limited v. Sujit Das

2022-05-19

T.AMARNATH GOUD

body2022
JUDGMENT 1. This is an appeal under Section 173 of the Motor Vehicles Act, 1988, as amended till date, against the award dated 02.03.2020 passed by the Ld. Member, Motor Accident Claims Tribunal, South Tripura, Belonia, in case No.T.S. (MAC) 44 of 2017 whereby the appellant National Insurance Co. Ltd has been directed to pay an awarded amount of Rs.2,26,000/- (Rupees two lakhs twenty-six thousand) with 7 % interest from 18.11.2017 till payment is made. 2. For the sake of brevity the parties are referred to as in the cause title of T.S.(MAC) 44 of 2017. The case of the petitioner, as revealed from the claim petition, in short, is that on 14.04.2016 at about 6.40 p.m. the petitioner Sri Sujit Das along with seven persons were proceeding towards Udaipur, Matarbari from Rajnagar by boarding the vehicle bearing No. TR-01BC-0666 (Scorpio), but when the vehicle reached at Garjee, Natin Tilla suddenly the vehicle was capsized on the National Highway and dashed with a tree. As a result of the accident, the petitioner along with others sustained injuries on their persons and they were shifted to Gomati District Hospital, Udaipur by the local people. During treatment one passenger namely Kartik Malakar succumbed to the injuries and the petitioner along with others were referred to ILS Hospital, Agartala wherein the petitioner was treated upto 22.04.2016. It is also stated that the petitioner is a cultivator by profession and due to the said accident he could not perform his normal works and also could not earn a single farthing. The petitioner also stated that the accident occurred due to rash and negligent driving by the driver of the vehicle bearing No.TR-01BC-0666 (Scorpio). Thus, he has claimed a compensation of Rs. 31,88,630/- before the tribunal. 3. The claimant-petitioner preferred the petition u/s 166 of the M.V. Act on 18.11.2017. Accordingly, the instant case was registered and notices were issued upon the Opposite Parties. O.P. No.1 & 2, the driver and owner of the offending vehicle bearing No.TR-01BC-0666 (Scorpio) jointly filed their written statement admitting the accident, but denied any rashness and negligence. 3. The claimant-petitioner preferred the petition u/s 166 of the M.V. Act on 18.11.2017. Accordingly, the instant case was registered and notices were issued upon the Opposite Parties. O.P. No.1 & 2, the driver and owner of the offending vehicle bearing No.TR-01BC-0666 (Scorpio) jointly filed their written statement admitting the accident, but denied any rashness and negligence. It is also pleaded by O.P. No.1 & 2 that in the event of passing any award, the liability may be fixed on the insurer of the vehicle as on the date of alleged accident the vehicle was insured with the O.P.-insurance company and had all valid documents and O.P. No.1 was driving the vehicle holding a valid driving licence. 4. The OP No. 3, the insurance company contested the suit by filing written statement wherein he denied all the allegations and averments made in the petition stating that the claim petition is not maintainable. He has stated that he is not liable to pay any compensation unless the claimant petitioner is able to prove the insurance policy and that the driver of the offending vehicle drove the vehicle with proper driving license and there was no violation of any terms and conditions of the insurance policy. 5. On the basis of the pleadings of both sides the following issues were framed by the tribunal:- (i) Whether the petitioner sustained injuries in motor vehicle accident on 14.04.2016 involving vehicle No. TR-01BC-0666? (ii) Whether the petitioner is entitled to any compensation? If so, to what extent? (iii) Who is liable to pay such compensation? 6. To prove the case the claimant-petitioner examined himself as PW-1 and during his examination PW-1 proved some documents in the following manner:- Certified copy of FIR as exhibit-1, certified copy of injury report as exhibit-2, certified copy of charge sheet as exhibit-3, discharge certificate issued from District Hospital, Udaipur as exhibit-4 and vouchers issued from ILS Hospital, Agartala as exhibit-5 series. 7. 7. O.P. No.2, Sri Soumitra Banerjee being the owner of the offending vehicle bearing No. TR-01BC-0666 (Scorpio) was examined as OPW-1 and also proved copy of registration smart card of the vehicle bearing No. TR-01BC-0666 as exhibit-A, copy of tax token as exhibit-B, copy of insurance policy certificate issued by the National Insurance Company Ltd. for the period from 11.08.2015 to 10.08.2016 as exhibit-C, copy of driving licence in the name of O.P. No.1, Raju Majumder as exhibit-D. All the aforesaid documents were exhibited after comparing with the original. OPW-1 also proved certified copy of the FIR form as exhibit- E, certified copy of ejahar as exhibit-E/a, certified copy of seizure list as exhibit-E/b, certified copy of order dated 09.02.17 and 08.05.17 passed by learned Sessions Judge, Gomati District in connection with Case No. ST-01 (GT/U) 17 are marked as exhibit-F and F/a. One Sri Dipankar Debnath was examined in this case as OPW-2 and he denied the averments made by the petitioner in his petition. 8. For the sake of convenience, clarity and brevity all the issues were taken up together for discussion and decision by the tribunal. Claimant-petitioner Sri Sujit Das in his examination-in-chief has stated in the same tune of his claim petition that, on 14.04.2016 at about 6.40 p.m. he along with seven persons were proceeding towards Udaipur, Matarbari from Rajnagar by boarding the vehicle bearing No. TR-01BC-0666 (Scorpio), but when the vehicle reached at Garjee, Natin Tilla suddenly the vehicle was capsized on the National Highway and dashed with a tree and as a result of the accident he along with others sustained injuries on their persons and they were shifted to Gomati District Hospital, Udaipur by the local people. During treatment one passenger namely Kartik Malakar succumbed to the injuries and he along with others were referred to ILS Hospital, Agartala wherein he was treated upto 22.04.2016. It is also stated that he is a cultivator by profession and due to the said accident he could not perform his normal works and also could not earn a single farthing. He also stated that the accident occurred due to rash and negligent driving by the driver of the vehicle bearing No. TR-01BC-0666 (Scorpio). 9. Evidence of the claimant-petitioner is supported by the documentary evidence. The claimant petitioner has proved certified copy of FIR of R.K. Pur P.S case no. He also stated that the accident occurred due to rash and negligent driving by the driver of the vehicle bearing No. TR-01BC-0666 (Scorpio). 9. Evidence of the claimant-petitioner is supported by the documentary evidence. The claimant petitioner has proved certified copy of FIR of R.K. Pur P.S case no. 38/16 as Exhibit-1 which shows that one Sri Tapan Malakar lodged an ejahar with the O/C, R.K. Pur PS to the effect that on 14.04.2016 at about 6.40 p.m. his son Kartik Malakar along with 6/7 persons were proceeding towards Udaipur, Matarbari from Rajnagar by boarding the vehicle bearing No. TR-01BC-0666 (Scorpio), but when the vehicle reached at Garjee, Natin Tilla suddenly the vehicle was capsized on the National Highway and dashed with a tree. As a result of the accident, his son along with other passengers of the said vehicle sustained injuries on their persons and they were shifted to Gomati District Hospital, Udaipur by the local people and during treatment his son Kartik Malakar succumbed to the injuries. It is also stated in the ejahar that the accident occurred due to rash and negligent driving by the driver of the vehicle bearing No.TR01BC-0666 (Scorpio). The I/O after completion of investigation of R.K. Pur P.S. case no. 38/16 submitted charge sheet (Exhibit-3) against the driver of the vehicle bearing No. TR-01BC-0666 under Sec. 279/337/338/304(ii) of IPC and section 177/184/185 of M.V. Act. So, the tribunal found that the oral evidence of the claimant-petitioner is duly supported by the documentary evidence as proved by him. O.P. No.2 by filing his examination-in-chief though admitted the fact of accident but denied any rashness or negligent on his part. The evidence of claimant-petitioner remains unrebutted and unshaken during cross examination. So, until contrary is proved, this Tribunal continued to believe the evidence adduced by the claimant-petitioner. 10. Upon perusal of the oral as well as documentary evidences, the tribunal was satisfied that the vehicle bearing No. TR-01BC-0666 (Scorpio) was involved in the alleged road traffic accident on 14-04-2016 at about 6.40 p.m. at Garjee, Natin tilla on National Highway due to rash and negligent driving of the vehicle and Sri Sujit Das received injuries in the said road traffic accident. The tribunal was also satisfied that the rash and negligent driving of vehicle no. TR-01BC-0666 by its driver was the proximate cause of the accident. The tribunal was also satisfied that the rash and negligent driving of vehicle no. TR-01BC-0666 by its driver was the proximate cause of the accident. According to the tribunal, the accident would not have taken place if the driver of the offending vehicle, would have been more cautious. 11. Since it is proved that the vehicle bearing No. TR-01C-1949 (Scorpio) was involved in the alleged road traffic accident on 14-04-2016 at 6.40 pm at Garjee, Natin Tilla on National Highway due to rash and negligent driving of the vehicle and Sri Sujit Das received injuries in the said road traffic accident, the claimant is certainly entitled to be compensated. Now it is to be worked out what should be the quantum of compensation. 12. Claimant has proved the cash memos. From the exhibited cash memos/vouchers it appears that the petitioner spent an amount of Rs.1,75,000/- for his medical treatment i.e. for purchasing of medicines, dressing, payment of various examination etc. for which he is entitled for the said amount. Accordingly, Rs.1,75,000/- is awarded for the medical expenses. Considering all these expenditures and also considering loss of income of the petitioner, loss of amenities and conveyance, the tribunal awarded a lump sum of Rs.15,000/- to the claimant-petitioner. 13. The claimant-petitioner has stated in his claim petition that he used to earn Rs. 9,000/- per month as a cultivator, but he failed to prove any document regarding his monthly income. As there is no cogent documentary evidence regarding the income of the claimant-petitioner, the tribunal assessed his income as Rs.6,000/- per month for the purpose of this claim case. It is on record that the claimant-petitioner received injury on 14-04- 2016 and he took treatment upto 22-04-2016. The tribunal believed that immediate after release from Hospital he could not work. Definitely he required some rest for another three weeks. So it appears to this tribunal that he was prevented for works at least for one month, if not more. So his loss of income for those period is assessed at Rs 6000 x 1 = Rs 6,000/-. Thus, under the Head loss of income the tribunal awarded him Rs. 6,000/-. 14. It is evident on record that the claimant-petitioner Sri Sujit Das suffered physical and mental pain due to injuries as a result of the incident of accident. He was treated in various hospitals of the State. Thus, under the Head loss of income the tribunal awarded him Rs. 6,000/-. 14. It is evident on record that the claimant-petitioner Sri Sujit Das suffered physical and mental pain due to injuries as a result of the incident of accident. He was treated in various hospitals of the State. Though this tribunal cannot assess the actual physical pain of the claimant. Considering the suffering of the claimant the tribunal awarded a sum of Rs.30,000/- to the claimant-petitioner under the head of pain and sufferings. 15. So, in total, the tribunal awarded (Rs.1,75,000/- + Rs.15,000/- + Rs.6,000/- + Rs. 30,000/-) = Rs.2,26,000/- (Rupees two lakhs twenty-six thousand) only in favour of the claimant-petitioner. 16. Now, it is to be determined who shall be held liable to pay the compensation so awarded. It is already pointed out that the driver of the offending vehicle bearing No. TR-01BC-0666 (Scorpio) was responsible for the cause of accident. Thus, definitely the claimant is entitled to be compensated by the registered owner of the vehicle bearing No. TR-01BC0666 (Scorpio). 17. Learned counsel of the insurance company before the tribunal preferred a written argument and it is specifically stated that the petitioner in the cross-examination has admitted that he along with passengers were traveling through a hired vehicle and the registration number of the hired vehicle was TR-01BC-0666. He argued that if the insurance policy of the vehicle in its limitation column it was categorically mentioned as to the use of the policy how the said policy would cover liability and the policy should cover use of the vehicle for any other purpose other than hire or reward and the wake of such situation insurer of the vehicle i.e. O.P. No.3 have got no liability to pay compensation. It is further contended that the driver of the vehicle drove the vehicle in a state of intoxication. Thus, the driver also violated terms and condition of the insurance policy. Hence, liability of any kind of compensation arising out of road traffic accident would cast upon the owner of the vehicle for violation of the terms and condition. 18. It is further contended that the driver of the vehicle drove the vehicle in a state of intoxication. Thus, the driver also violated terms and condition of the insurance policy. Hence, liability of any kind of compensation arising out of road traffic accident would cast upon the owner of the vehicle for violation of the terms and condition. 18. On the other hand, learned counsel of the claimant-petitioner submitted that the owner examined himself as OPW-1 and he also submitted examination-in-chief wherein he stated that on 14.04.2016 driver Sri Raju Majumder along with his friends and neighbours namely Utpal Debnath, Palash Debnath, Rupam Saha, Kartik Malakar and Nirmal Das were proceeding towards Matarbari boarding the vehicle owned by him as non-fare traveler with a view to perform 'Yatra' of the vehicle at Matarbari on the occasion of Bengali New Year and on way they met with Sujit Das, his neighbourer and he also gave lift to that person. He further argued that, during cross-examination he denied the suggestion that he actually gave the vehicle on hire on rent to the claimant. He argued that, owner did not get any rent. The petitioner also did not state to whom he paid money. So, that statement of the claimant-petitioner cannot be used against him. He argued that, the owner had not violated the condition of insurance policy. Driver also did not receive the money. It is not known to the informant who actually received money. It may be any of the passenger or any other-persons. So, he submitted that insurance company cannot evade the responsibility for making payment. 19. After carefully perusing the evidence of the parties the tribunal was of the view that, it is not proved beyond doubt that the owner of the vehicle had received any fare for transportation of the claimant-petitioner, so violation of the terms of insurance policy by the owner cannot be accepted. It is clear that the vehicle was properly insured. The further claim of the insurance company that the vehicle was driven by the driver in a state of intoxication. It is clear that the vehicle was properly insured. The further claim of the insurance company that the vehicle was driven by the driver in a state of intoxication. Learned counsel of the owner before the tribunal submitted that the owner did not authorize the driver to consume liquor and if the driver consume liquor at the back of the owner it may be considered as a negligent act on the part of the driver and that is not a violation of condition of insurance policy by the owner. This being the position, since the vehicle was found properly insured having valid registration by a driver with valid driving licence, so liability of the owner to pay compensation definitely shall shift to the insurance company, O.P. No.3. 20. The OP No.2 being owner of vehicle no. TR-01BC-0666 has proved copy of the insurance policy no. 203000/31/15/6100006195 valid w.e.f 11-08-2015 to 10-08-2016 as exhibit-C, certificate of registration of the vehicle bearing No. TR-01BC-0666 as exhibit-A and copy of tax token as exhibit-B. The OP No.1 being the driver of the vehicle No. TR-01BC0666 has proved copy of his driving licence as exhibit-D. 21. It is already proved that the said incident of accident has taken place due to rash and negligent driving of the vehicle bearing No. TR01BC-0666 (Scorpio). Thus, it is the liability of the owner of the vehicle to pay the compensation. The documents of the vehicle bearing No. TR01BC-0666 as proved indicates that on the date of the incident i.e. on 14- 04-2016 the said vehicle bearing No. TR-01BC-0666 was properly registered in the name of the OP No.2 and on that date the vehicle was driven by the OP No.1 having a valid driving license and the vehicle was properly insured under OP No.3 namely the National Insurance Co. Ltd. which was valid from 11-08-2015 to 10-08-2016 covering the date of the accident. Thus, the liability of the owner to pay the award would shift upon the OP No.3 being the insurer of the said vehicle no. TR-01BC-0666. 22. Finally by the order dated 02.03.2020, the tribunal has observed in the following manner: In the result, the petition filed under section 166 of the Motor Vehicles Act filed by the claimant-petitioner is hereby allowed. TR-01BC-0666. 22. Finally by the order dated 02.03.2020, the tribunal has observed in the following manner: In the result, the petition filed under section 166 of the Motor Vehicles Act filed by the claimant-petitioner is hereby allowed. It is ordered that the claimant petitioner is entitled to get an award amounting to Rs.2,26,000/- (Rupees two lakhs twenty-six thousand) only as compensation and the OP No.3 being the insurer of the vehicle is liable to pay the award to the claimant petitioner. The OP No.3, National Insurance Co. Ltd. is directed to make payment of the award of the compensation to the claimant-petitioner within 30 days from this day of award along with interest @ 7 % per annum from the date of presentation of the claim petition before this tribunal on 18.11.2017 till the date of actual payment. 23. Aggrieved by the said order dated 02.03.2020, the OP No.3, (the appellant herein) has approached this court seeking relief. 24. Heard counsel for the parties. 25. It is contended by Mr. S. Kar Bhowmik, learned senior counsel for the appellant that there is no independent witness or eye witness who proved the accident/vis a vis rash and negligent driving of the driver of the vehicle for which the appellant insurance company is not liable to pay the compensation. It is further submitted by Mr. Bhowmik, learned senior counsel that during cross by the appellant Insurance Company PW-1, the claimant respondent stated 'The owner of the vehicle is neither my relative nor my family member. It is a private vehicle and we took the vehicle on hire. Either the owner or any of his family member, was not in the vehicle at the time of accident.' That as such as per terms of Insurance Policy which was proved by OPW-1 Sri Soumitra Banerjee and marked as Ext.C the Insurance Company is not liable to indemnify the respondent claimant. 26. Mr. Bhowmik, extending his argument submitted that the claimant PW-1 in his evidence during examination in chief proved the charge sheet of the connected criminal case as Ext3 from which is transpires that the vehicle was used for hire and the driver at the time of accident was in a state of intoxication. As such as per terms and conditions of the policy, the appellant Insurance Company is not liable to pay the awarded amount. 27. Mr. As such as per terms and conditions of the policy, the appellant Insurance Company is not liable to pay the awarded amount. 27. Mr. Bhowmik, learned senior counsel for the appellant has placed his reliance on a judgment of apex court in Iffco Tokio General Insurance Company Limited v. Pearl Beverages Limited reported in (2021) 7 SCC 704 where the apex court has observed in the following manner. 110. This Court would not be remiss, if it takes into account the improbability of any traffic worth the name at the time of the accident. While we may be in agreement with the respondent that it would be for the insurer to make out a case, for pressing the Exclusion Clause, we cannot be oblivious to the fact that there is no material in the pleadings of the respondent or in the evidence tendered for explaining the accident. We can take judicial notice of the fact that the roads in the Capital City, particularly in the area, where the accident occurred, are sufficiently wide and the vehicle dashing against the footpath and turning turtle and catching fire, by itself, does point to, along with the fact that the alcohol which was consumed manifests contemporaneously in the breath of the driver, to conclude that alcohol did play the role, which, unfortunately, it is capable of producing. 111.6 There is no evidence as to the quantity of alcohol consumed. It is also true that there is no evidence other than the smell of alcohol being detected on both the driver and the co-passenger, of any other effects of consumption of alcohol. 111.7 The requirement under Section 185 of the Motor Vehicles Act is not to be conflated to what constitutes driving under the influence of alcohol under the policy of insurance in an Own Damage Claim. Such a claim must be considered on the basis of the nature of the accident, evidence as to drinking before or during the travel, the impact on the driver and the very case set up by the parties. 28. It appears to this court that Mr. Bhowmik, learned senior counsel has argued mainly on two points (1) the driver of the vehicle was drunk and (2) the vehicle being registered as private vehicle was used as a hire vehicle and thus it was the violation of policy condition. 28. It appears to this court that Mr. Bhowmik, learned senior counsel has argued mainly on two points (1) the driver of the vehicle was drunk and (2) the vehicle being registered as private vehicle was used as a hire vehicle and thus it was the violation of policy condition. The insurance company has not proven its case beyond reasonable doubt with regard to the state of drunkenness by the driver and no evidence has been placed on record by the insurance company that the vehicle used as hire vehicle. Though in the cross examination, it is stated that they paid Rs.15000/- to the driver. This court cannot draw conclusion that the said amount is paid to the owner for the purpose of hiring the vehicle. 29. On the other hand, Mr. S. Lodh, learned counsel appearing for the claimant-respondents submitted that the award dated 02.03.2020 passed by the Ld. Member, Motor Accident Claims Tribunal, South Tripura, Belonia, in case No.T.S. (MAC) 44 of 2017 is just and proper and needs no interference by this court. 30.This court is of the view that it is not in dispute that the crime vehicle is having valid insurance and such the liability has to be fastened on the Insurance company. In the event if there is any violation with regard to the registration is concerned, it is for the concerned RT authorities or to the Police (Traffic) for taking appropriate steps with regard to any violation for not having proper permit/registration certificate. But since the said vehicle is covered by valid insurance, the insurance company is liable to pay the compensation. 31. In view of the above discussion, the present appeal stands dismissed confirming the award dated 02.03.2020 passed by the Ld. Member, Motor Accident Claims Tribunal, South Tripura, Belonia, in case No.T.S. (MAC) 44 of 2017. 32. It is needless to mention that the appellant insurance is at liberty to withdraw as per procedure the statutory amount of Rs.25,000/- (Rupees Twenty Five thousand) only which has been deposited at the time of filing the appeal. Accordingly, the registry shall redeposit the same to the respective account.