PRESENT HON BLE MR. JUSTICE B D AGARWAL

Transcription

1 IN THE GAUHATI HIGH COURT (THE HIGH COURT OF ASSAM: NAGALAND: MEGHALAYA: MANIPUR: TRIPURA: MIZORAM AND ARUNACHAL PRADESH) AIZAWL BENCH MAC APPEAL NO. 6 OF 2009 The New India Assurance Company Ltd, (Represented by its Branch Manager, Aizawl Branch, Chandmary, Aizawl. -Versus- Appellant/Insurer 1. Smt Lawmi Hmar W/o Zoliankunga, R/o Sakawrdai, Aizawl District.. Respondent No.1/Claimant 2. Shri Subrata Barman, S/o Satish Chandra Barman (L), R/o Salganga, Cachar, Assam.. Respondent No.2/Insured Advocate for the appellant : Sri Lalfakawma Advocate for the respondent No.1: Sri S N Meitei, Sri Lalawmpui, Sri HT Lalmawizuala PRESENT HON BLE MR. JUSTICE B D AGARWAL Date of hearing : Date of Judgment : MAC Appeal No. 6 of 2009 Page 1 of 12

2 JUDGEMENT AND ORDER (CAV) This appeal is directed against the judgment and award dated , passed by the learned Member, MACT, Aizawl, Mizoram, in MAC Case No. 15 of By this impugned judgment, the Tribunal has awarded a sum of Rs. 8,32,172/- with 9% per annum to the claimant for sustaining injuries in motor vehicle accident. Being aggrieved with the impugned judgment the Insurance Company has preferred this appeal. 2. Heard Sri Lalfakawma, learned counsel for the appellant. Also heard Sri S N Meitei, learned counsel for the respondent No.1/claimant. The owner of the vehicle (respondent No. 2) has not appeared to contest the appeal. It may be mentioned herein that in the Tribunal M/s Gopinath Sumo Service, Silchar, was impleaded as the opposite party No. 1 as the claimant had allegedly purchased journey ticket from the said ticket counter. However, when the notice was sent to the Sumo Service it was handed over to the cabowner, namely, Sri Subrata Barman and the said person filed his written statement in the Tribunal. However, after filing of the written statement the owner did not turn up to contest the claim. 3. The claimant s case is that on , she undertook a journey from Silchar to Shillong in a taxi (Sumo Cab), bearing Registration No.AS-11-B She was accompanied by her son. On way to Shillong, the taxi met with an accident by way of hitting against the hillside wall and a number of MAC Appeal No. 6 of 2009 Page 2 of 12

3 passengers sustained injuries in the accident. However, her son fortunately escaped unhurt. Giving her oral evidence as CW-1, the claimant stated that after the accident she was shifted to a private hospital at Shillong, where she took treatment until and, even thereafter, she stayed at Shillong for treatment and could not return home for about two months. According to the claimant, she was engaged in trading ginger and chillies from Mizoram and in return she used to bring utensils and other stationery articles from Silchar, Assam and sell it in Mizoram and used to earn Rs. 8,000/- per month. According to the claimant, she had spent more than Rs. 1,00,000/- (Rupees One Lac) but she could produce vouchers of only Rs. 21,141/- in the Tribunal. 4. In support of her injuries and treatment at Woodland Hospital, Shillong, the claimant examined the doctor as CW- 2. The doctor has deposed that the claimant had suffered spinal injuries, which was 50% permanent in nature. However, in the cross-examination the doctor has admitted that the patient told him that she was living by sewing clothes, which is contradictory to the claimant s statement that she is earning by selling ginger, chillies, utensils and stationary items. Besides this, one Village Council President was examined as CW-3 to prove the income. On the basis of the income certificate issued by a civil authority (SDO) and taking into consideration the opinion of the doctor that the claimant had sustained 50% permanent disability the Tribunal has awarded the compensation, as mentioned in the judgment earlier. MAC Appeal No. 6 of 2009 Page 3 of 12

4 5. The Insurance Company contested the claim application by way of filing written statement and also examining two witnesses. In the written statement, a specific plea was taken that the cab No. AS-11-B-0073 was not at all involved in any accident on and, as such, the claim petition was not maintainable. 6. To establish the aforesaid defence the Insurance Company examined two witnesses. DW-1 is the Administrative Officer of the Insurance Company. This witness has deposed that having received the notice from the Tribunal he wrote a letter to the owner of the vehicle to ascertain the details of the accident. In reply to his letter, the owner gave a written reply on , stating that his vehicle No. AS-11-B-0073 never met with any accident on However, the owner admitted that his vehicle was involved in an accident on DW-2 is none else but the owner of Sumo Cab No. AS- 11-B He has reiterated the information given to the Insurance Company in his letter dated that his cab/taxi never met with any accident on However, DW-2 has admitted that his vehicle met with an accident on at a different place known as Moowakhu. DW-2 has further deposed that tickets for his Sumo Cab were issued by Eastern Travels, Club Road, Silchar and M/s Gopinath Sumo Service was not authorized to issue tickets for his taxi. MAC Appeal No. 6 of 2009 Page 4 of 12

5 8. Despite a clear-cut averment by DW-2 that his Sumo Cab was not involved in any accident on the Tribunal has overruled the objection of the Insurance Company, relying upon the version of the claimant and the deposition of the doctor, as well as taking into consideration the certified copy of GD Entry dated During the pendency of the appeal, this Court directed the Tribunal to record additional evidence and render a finding as to whether vehicle No. AS-11-B-0073 (Sumo) met with an accident at Tonseng Village on , vide order dated Pursuant to the aforesaid direction, the Tribunal recorded the evidence of two more witnesses, who have been numbered as CWs- 4 and 5. On the basis of their evidence and the evidence which were already recorded earlier, the Presiding Officer of the Tribunal recorded its finding on , holding that the claimant had sustained injuries in a road accident on involving vehicle No. AS-11- B Sri Lalfakawma, learned counsel for the appellant submitted that the Presiding Officers of the Tribunal concentrated on the claimant s evidence only and did not give due weightage to the defence evidence, more particularly, the deposition of DW-2. The learned counsel also submitted that the Tribunal has totally overlooked the gross deficiencies in the claimant s case, viz. discrepancies in the name, sex etc. in the ticket; delay in lodging the FIR; non- MAC Appeal No. 6 of 2009 Page 5 of 12

6 examination of the claimant s son, driver of the vehicle, MVI, I.O. etc. The learned counsel submitted that the Tribunal should not have accepted the claim application solely on the basis of vague admissions made in the written statement of the owner instead of relying upon legal evidence given by the owner in the Court. The learned counsel has also challenged the quantum of the compensation on various grounds. 12. Per contra, Sri Meitei, learned counsel for the claimant submitted that while submitting the written statement, the owner did not specifically deny the accident on and, as such, the Tribunal did not commit any wrong in awarding compensation. The learned counsel also submitted that, in support of the averments made in the claim petition, necessary documents were also submitted in the Tribunal. 13. I have perused the written statement of the owner of the vehicle. It was neither supported by an affidavit nor did the owner give any deposition in the Court in favour of the claimant. However, he has given his oral evidence as DW-2 in favour of the Insurance Company. Be that as it may, in the written statement the owner nowhere specifically pleaded and admitted that his Sumo Cab No. AS-11-B-0073 met with any accident on Only as a matter of precaution, it has been stated in the written statement that his vehicle was duly covered under an insurance policy on and the accident that took place on fell within the validity period of policy (Paragraph-6 and 14). However, the usual pleadings made in the written statement have to be MAC Appeal No. 6 of 2009 Page 6 of 12

7 read in the light of the oral evidence of the owner wherein he has stated that the written statement was drafted by his lawyer and has disowned the alleged accident on Other usual defences that the claim petition is not maintainable in law; that the accident was not a result of rush and negligent driver; that the claim petition is vague and lacks material particulars were also taken. 14. Apparently and admittedly, the alleged accident took place on and the claim petition was filed sometime in the month of October 2005, i.e. after more than four months. Despite that the claimant did not make any endeavour to obtain an accident report from the concerned police station nor impleaded the driver of the Sumo Cab. Strangely, no attempt was also made by the claimant to summon and examine the driver of the taxi to establish the fact that vehicle No. AS-11-B-0073 was involved in the accident. Examination of the driver would have thrown sufficient light as to how the accident took place, how may passengers sustained injuries, what were the damages to the vehicle and where the taxi was repaired. 15. In the case of Oriental Insurance Company Ltd v- Meena Variyal; reported in (2007) 5 SCC 428 the Hon ble Supreme Court has deprecated the practice of deciding claim applications in perfunctory manner. Their Lordships have further held that impleadment of driver of offending vehicle is a legal requirement since it is the primary liability of the driver to pay compensation and the said liability subsequently shifts upon the owner and the Insurance MAC Appeal No. 6 of 2009 Page 7 of 12

8 Company. These legal principles have been laid down in the following words: 10. Before we proceed to consider the main aspect arising for decision in this Appeal, we would like to make certain general observations. It may be true that the Motor Vehicles Act, insofar as it relates to claims for compensation arising out of accidents, is a beneficent piece of legislation. It may also be true that subject to the rules made in that behalf, the Tribunal may follow a summary procedure in dealing with a claim. That does not mean that a Tribunal approached with a claim for compensation under the Act should ignore all basic principles of law in determining the claim for compensation. Ordinarily, a contract of insurance is a contract of indemnity. When a car belonging to an owner is insured with the insurance company and it is being driven by a driver employed by the insured, when it meets with an accident, the primary liability under law for payment of compensation is that of the driver. Once the driver is liable, the owner of the vehicle becomes vicariously liable for payment of compensation. It is this vicarious liability of the owner that is indemnified by the insurance company. A third party for whose benefit the insurance is taken, is therefore entitled to show, when he moves under Section 166 of the Motor Vehicles Act, that the driver was negligent in driving the vehicle resulting in the accident; that the owner was vicariously liable and that the insurance company was bound to indemnify the owner and consequently, satisfy the award made. Therefore, under general principles, one would expect the driver to be impleaded before an adjudication is claimed under Section 166 of the Act as to whether a claimant before the Tribunal is entitled to compensation for an accident that has occurred due to alleged negligence of the driver. Why should not a Tribunal insist on the driver of the vehicle being impleaded when a claim is being filed? 11. As we have noticed, the relevant provisions of the Act are not intended to jettison all principles of law relating to a claim for compensation which is still based on a tortious liability. The Tribunal ought to have, in the case on hand, directed the claimant to implead Mahmood Hasan who was allegedly driving the vehicle at the time of the accident. Here, there was also controversy whether it was Mahmood Hasan who was driving the vehicle or it was the deceased himself. Surely, such a question could have been decided only in the presence of Mahmood Hasan who would have been principally liable for any compensation that might be decreed in case he was driving the vehicle.. MAC Appeal No. 6 of 2009 Page 8 of 12

9 16. In view of the aforesaid authority of the Hon ble Supreme Court the impugned judgment is out and out unsustainable one inasmuch as neither the driver of the vehicle was impleaded in the claim petition nor he was examined as a witness in the Tribunal. The examination of the driver was very essential in this case in view of the specific plea taken by the Insurance Company that the Sumo Cab did not meet with any accident on Even when the Tribunal was directed to record additional evidence the claimant failed to examine the driver. 17. In the earlier round of evidence, the claimant did not examine any witness to support her version that she had sustained injuries in a road accident involving vehicle No. AS-11-B-0073 on In the second round, however, two witnesses were examined. After going through the findings of the Tribunal dated , it appears to me that both CWs-4 and 5 are unreliable witnesses to hold that vehicle No. AS-11-B-0073 met with an accident at Village Tonseng on CW-4 has admitted in the crossexamination that he is closely related to the claimant. This witness has also deposed that on the very next day of the incident he made a telephone call to Shillong to enquire whether the claimant and her son had safely reached Shillong and then he came to know about the accident. CW-4 has further deposed that before going to Shillong he had visited the Sumo Counter and ascertained the number of the vehicle and then police was informed about the accident. However, there is no explanation about inordinate delay in lodging the FIR. Besides this, it is difficult to believe that MAC Appeal No. 6 of 2009 Page 9 of 12

10 having come to know about the accident on the very next day CW -4 should not have lodged any FIR till It is also not understood by me as to why the claimant did not examine CW-4 in the first round if he had actually visited Shillong to enquire about the accident and despite lodging the FIR of the accident. 18. The testimony of CW-5 also deserves outright rejection for inherent absurdity in his statements. This witness has deposed that the accident took place very near to his roadside hotel and the accident was within eye-sight distance. According to him, he visited the site of accident and learnt that two persons of his community were traveling in the vehicle and one of them had sustained serious injuries. Thereafter, the injured was admitted in the Woodland Hospital at Shillong. However, in the cross-examination, CW-5 has admitted that the place of accident was about one kilometer away from his hotel. Although the witness is a 68 years old person and despite giving deposition in the Court after more than six years the witness had been able to remember the last digit of the vehicle being 0073 as well as the date of the accident. Besides this, according to CW-5 though the vehicle had upturned and its undercarriage and tyres were facing the hillside there was hardly any damage to the vehicle. CW-5 has specifically claimed that no other person had sustained injuries. On the other hand, the claimant herself has admitted in the oral evidence that there was extensive damage to the body of the vehicle and many other passengers had also sustained injuries. MAC Appeal No. 6 of 2009 Page 10 of 12

11 19. In view of the aforesaid discussions of oral evidence, I hold that the statement of the claimant that the accident took place on , involving vehicle No. AS-11-B-0073 is not corroborated by any reliable witness. 20. Coming to the documentary evidence also I find innumerable discrepancies and deficiencies in the claimant s case. In the taxi-ticket, the name of the passenger is shown to be one Lime and his sex has been shown to be male. Besides this, the information of the accident was not given to the police immediately. The case was for the first time reported on under GD Entry No It is strange that the police officer, who had investigated the case, was also not examined by the claimant to prove that the vehicle No. AS- 11-B-0073 was actually involved in the accident on At least, the final report of the investigation also could have been produced in the Tribunal. But the claimant avoided examining the Investigating Officer of the case even in the second round of recording evidence. 21. In view of the documents of medical treatment and the doctor s testimony, the claimant s version that she had traveled to Shillong from Silchar on and her sustaining injuries in a motor vehicle accident cannot be totally disbelieved. However, non-examination of the driver and Investigating Officer of the police case coupled with negative testimony of the cab-owner raises a strong suspicion about the involvement of Cab No. AS-11-B There is every possibility that M/s Gopinath Sumo Service had initially issued the ticket against vehicle No. AS-11-B MAC Appeal No. 6 of 2009 Page 11 of 12

12 However, ultimately, the passengers were sent in a different vehicle. 22. For the foregoing discussions and reasons, I hold that the appeal has sufficient merit. Resultantly, the appeal stands allowed. The impugned judgment against the owner of vehicle No. AS-11-B-0073 is hereby set aside. However, liberty is given to the claimant to realize the balance amount of compensation from M/s Gopinath Sumo Service. Since the claimant has already been paid a sum of Rs. 2, 25,000/- by the Insurance Company they are also allowed to recover the said money from the aforesaid Sumo Service. It is made clear that in the recovery proceeding the Sumo Service shall be at liberty to ask the Tribunal for re-assessment of the compensation. 23. The appeal stands allowed without any cost. dtg JUDGE MAC Appeal No. 6 of 2009 Page 12 of 12