Calcutta High Court (Appellete Side)
Sri Srikrishna Kanta Singh vs Sri Parameswar Achutanan Nair & Ors on 4 May, 2018
Author: Protik Prakash Banerjee
Bench: Dipankar Datta, Protik Prakash Banerjee
IN THE HIGH COURT AT CALCUTTA
CONSTITUTIONAL WRIT JURISDICTION
APPELLATE SIDE
Present :
The Hon'ble Justice Dipankar Datta
and
The Hon'ble Justice Protik Prakash Banerjee
FMA No. 857 of 2012
With
FMAT No. 1415 of 2007
Sri Srikrishna Kanta Singh
Vs.
Sri Parameswar Achutanan Nair & Ors.
For the Claimant/Applicant : Mr. Krishanu Banik, Adv.
For the Respondent No. 3/
Insurer : Mr. Asimesh Goswami, Adv.
Heard on : 30.01.2018 & 01.02.2018
Judgment on : May 4, 2018
PROTIK PRAKASH BANERJEE, J.
1. Once upon a time, there was a Block Development Officer for Hura Block in the District of Purulia. He took a lift on the scooter of a man who resided within his block. He wanted to go to Lalpur College for an official function from Hura. While travelling to Lalpur from Hura, on the Purulia-Bankura Road, there was a collision between a trailer and the scooter. The trailer was travelling from Purulia side towards Hura. On the Purulia-Bankura road, which runs from West to East, Lalpur precedes Hura if one is travelling from Purulia. As a result, both the scooter driver and the Block Development Officer suffered injuries. However, the injuries suffered by the Block Development Officer were more serious and resulted in amputation of both his legs, one from below the knee and one from above the knee. As a consequence, he was permanently disabled and had to acquire prosthetics. He claimed compensation of Rs.16 lakhs under Section 166 of the Motor Vehicles Act, 1988apart from obtaining an amount of Rs.25,000/- from the Insurance Company which had insured the trailer under Section 140 of the Act of 1988.
2. This claim application was numbered as MAC Case No.89 of 2000 before the Learned Judge, Motor Accident Cases Tribunal, at Purulia. The Learned Tribunal passed an award dated July 26, 2005 for Rs.7,50,000/- in favour of the claimant, partially allowing his application. However, the Learned Tribunal by the award apportioned the liability between the company which insured the trailer and the owner-cum-driver of the scooter at Rs.4,50,000/- (less the amount of Rs.25,000/- already paid under Section 140 of the Act of 1988) and Rs.3,00,000/- respectively.
3. Being aggrieved the claimant has appealed from the said award. From the memorandum of appeal it appears that the parties to the appeal are the Owner of the Trailer, who is respondent No. 1 and was the opposite party No. 1 in the claim; the Owner-cum-driver of the scooter, who is respondent No. 2 and was the added opposite party No. 1A in the claim; and of course, the insurance company which insured the Trailer, being the respondent No. 3, who was the opposite party No. 2 in the claim.
4. Mr. Banik, Learned Advocate appearing for the Appellant, has challenged the award passed by the Learned Tribunal on the grounds which may be summarized as follows: -
(i) The Appellant was entitled to more compensation than was awarded, on the basis of the law settled for such injuries as he suffered.
(ii) The Appellant was entitled to interest on the award from the date he filed the claim application but the Learned Tribunal granted no interest at all.
(iii) The driver of the scooter did not contribute to the accident. He was not negligent. He ought not to have been made liable.
(iv) The Learned Tribunal was not entitled to apportion the award between the joint tort-feasors and direct that payment be made to the Appellant by the joint tort-feasors in the proportion directed by it.
5. Mr. Banik has impeached the following finding of the Learned Tribunal: -
"Considering the facts and circumstances and materials on record I am convinced to hold that the applicant has become crippled and permanent disabled for ever and his permanent disability is 100% and he has been leading his life with the help of his artificial limbs and it is also admitted position that he has lost control over his movement and requires an assistance of an attendant no doubt are involves a recurring expenditure and his pain and loss of two limbs cannot be described in words nor his sufferings, frustration etc. and no money can obviously compensate for all these but even the court must have to undertake the exercise in discharge of his duty if only to compensate him to the extent of payment of money and within the laid down framework it is the duty of the court to award compensation and accordingly, for artificial limbs already fixed and also for repairing and maintenance a sum of Rs.1,20,000/- may be awarded and for permanent disablement a sum of Rs.2,00,000/- (Rupees two lakhs) may be awarded and for pain and suffers a sum of Rs.2,00,00/- (Rupees Two Lakhs) may be awarded and for personal attendant a sum of Rs.1,20,000/- may be awarded and for his treatment and other purpose Rs.1,00,000/- (Rupees one lakh) may be awarded and Rs.10,000/- may be awarded for the travelling cost of the family members of the applicant. So at best Rs.7,50,000/- (Rupees Seven lakhs and fifty thousand) may be awarded in favour of the application for the loss of his two limbs which has been amputed due to the said accident. But, the question is who shall have to pay that amount. In this regard, the entire facts and circumstances and materials are considered and it is found that for the fault of the driver of the scooter the accident took place but on the road generally trailer covers greater portion of the pitch road. So, it is the duty of the driver of the trailer to pass through the pitch road very slowly but, at the same time it is fact that it is not possible for the driver at the relevant time of driving the trailer to keep watch about the tail end of the trailer at the time of proceeding to pitch road and in this case practically at the tail end of the trailer the scooter came into contact and two legs of the applicant was damaged but if actually the driver of the scooter was cautious in that case there was no chance of any accident. But, whatever it may be, considering the liability to some extent of the driver of the trailer the owner of the trailer and the O.P. Insurance company of the trailer are liable to pay some compensation for such accident and the owner of the scooter is also liable to pay some amount as would be awarded as compensation in favour of the applicant.
It is to be mentioned in this regard that determination of compensation in such cases would depend on the facts and circumstances of each and notwithstanding the element of sympathy involved with the accident victim and this court is also conscious of the fact that assessment of compensation in such cases had to be on objective standards and not based on any fanciful or whimsical calculations and practically there is no difficulty to make provision for recurring expenditure of attendance for which I am constrained to hold that applicant is entitled to a sum of Rs.7,50,000/- as estimated as per heads of loss of two limbs and both the owner of the trailer and O.P. Insurance Company of the trailer are bound to pay Rs.4,50,00/- and the balance amount would be paid by the owner of the scooter because the scooter was not insured at that time."
Thereafter, the Learned Tribunal made the deductions in respect of payment of the amount under Section 140 of the Act of 1988 and thus partially allowed the claim application for compensation.
6. No decision can be understood without considering the facts of the case and the course which the litigation has taken. The claim application and the somewhat contradictory evidence adduced by the Appellant himself show that the brief summary of the facts in paragraph 1 of this judgement is correct. The Appellant was a pillion rider on the motor cycle at the time when the collision occurred on November 2, 1999. He had claimed Rs.16 lakhs according to the schedule to his claim application and had also sought 12% interest and costs of the case.
7. However, initially the Appellant did not make any claim against the present respondent no. 2. The Appellant had initially made his claim only against the owner of the trailer and the trailer's insurer. The case as argued before the Learned Tribunal, on the basis of the initial pleadings, comprised the claim application where only the present respondent no. 1 and the present respondent no. 3 were parties as stated above, in the separate cause title just above the prescribed Form COMP A, the written statement of the insurer and the evidence adduced by those persons. On that basis, the matter came to judgement on September 29, 2004. On such date the learned Tribunal however declined to give judgement but held that necessary parties had not been arrayed and in the interests of justice, instead of dismissing the claim, by an order no. 52 granted liberty to add those persons as parties.
8. The contents of Order No.52, dated September 29, 2004, are set out hereinbelow: -
"Today is fixed for delivery of judgement. Argument was heard at length on 4.8.2004 but after that deficit Court was paid on 10.09.2004 and then today is fixed for delivery of judgment.
But after proper scrutiny of the application v/s- 166 of MV Act and the evidence of the PW 1 and 2 it is found that driver and owner of the scooter and insurance company of the scooter is not made parties and considering the entire evidence on record and also the copy of the FIR it is found that for proper adjudication of this case and to fix up liabilities of the parties regarding accident the owner and driver of the said scooter and its insurance company are necessary parties but any how they are not made parties by the applicant and not only that driver of the said scooter also did not depose in this case or is not cited by the applicant as witness and as such for proper and legal adjudication of the case and also for fixing up liability of the parties. The drivers of the both the vehicles and its owners and insurance companies, the owner, driver and insurance company of the scooter are necessary parties but they are not made parties and as such without passing judgment for the ends of justice applicant is given liability to add then as parties as they are necessary parties of this case to give them chance to contest and to determine nature of fault and liability of the drivers of both the vehicle owners and insurance companies of the vehicles. To 11.10.2004 for taking steps."
9. The Learned Tribunal, therefore, held that the joint tort-feasors were necessary parties for determination the fault and liability of both the vehicles involved in the accident. The Appellant did not challenge the order for such addition of party contemporaneously nor as a ground in the present memorandum of appeal. He allowed it to become final as between those parties. Instead, the Appellant took out an application on November 29, 2004 stated to be under Order 1 Rule 10 as also under Order 6 Rule 17 of the Code of Civil Procedure. By this, the Appellant sought to add only Samiran Mishra, the owner-cum-driver of the scooter, one of the persons held to be a necessary party by the Learned Tribunal, as a new opposite party to his claim application. This was allowed by an Order No.56 dated January 4, 2005 passed by the Learned Tribunal. As the Learned Tribunal has recorded in the impugned award, the scooter was not even insured as on the date of accident. Yet the respondent No. 2 herein drove it on a road, carrying a pillion rider. Therefore, the Appellant cannot now be heard to contend that the respondent No. 2 herein could not have been added as the opposite party No. 1A in the claim application. Consequently, he cannot now be heard to say that the Learned Tribunal cannot give logical effect to the addition of the owner- cum-driver of the scooter a party. The Appellant is estopped by judgement, records and his own conduct from contending otherwise. Such logical consequence could also involve reaching a finding that the respondent No. 2 was partially at fault for the accident. In fact, the Learned Tribunal so held.
10. The Learned Tribunal issued a notice to both the Respondent No.3 herein and to the added Respondent No.2 to show cause against the application claiming compensation, though as appears from the above history of the case, at different times. The respondent No. 3 sought and obtained leave under Section 170 of the Motor Vehicles Act, 1988. In its "written statement", the respondent No. 3, apart from the general denials, challenged the maintainability of the claim application as originally filed, for non-joinder of necessary parties, which was dealt with as stated above. However, in cause shown by the respondent No. 2 (the added opposite party No.1A), some very significant and material allegations were made, some of them, against the interest of the said respondent No. 2. These were verified as being true to the knowledge of the said respondent No. 2. Two of these paragraphs are extracted below:
-
"1. That at the relevant point of time the petitioner was the B.D.O. of the Hura Block Development Office.
2. That, on the date of Accident i.e. 02-11-99 this Opp. Party was holding a Learner Licence in respect of a light motor vehicle and that he was on the road coming from Kashipur side towards Lalpur More, when the petitioner stop the vehicle of this opposite party and request for a lift to go to Lalpur More on the said vehicle. This Opp. Party requested the petitioner that he should not take lift with him on the vehicle, as the Opp. Party was still holding Learner Licence. But the petitioner did not listen the request of the Opp. Party and took his sit on the rear side, when under compulsion and also considering official status of the petitioner, the Opp. Party, the Opp. Party was proceeding with the scooter towards Lalpur More, and as such as the scooter reach the Junction point, Nimtala More, Hura, the Trailer all on a sudden with great force knock the rear portion of the scooter, resulting grievous injuries on both the legs of the petitioner. The Opp. Party also sustained grievous injuries and the scooter was also damaged badly, owing to the accident which had occurred, owing to the rash and negligent driving of the trailer."
11. It is the Appellant's case before this Court that the fact that the added opposite did not have a valid licence to carry a passenger on his scooter or that he only had a learner's licence, or indeed, anything alleged by him in the cause shown as referred to above, could not in law be held to have been established. The Appellant submitted this because, on the face of the records, the said Respondent No.2 had not been called as witness by the respondent No.3 or examined by the Learned Tribunal, and according to Mr. Banik, in the eye of law, there was no "evidence" in support of the allegations contained in the cause shown. He went on to argue, that the Learned Tribunal erred in law and wholly misconstrued the law applicable to a case where there are joint tort-feasors and composite liability is contended. The Appellant submitted that it was the absolute discretion of the Appellant (qua claimant) to determine from which of the joint tort feasors it would claim compensation, and once the tort was established, and circumstances were shown to exist on the face of the accident which made it a case of composite negligence, it was no longer open to the Learned Tribunal to force the Appellant to add anyone other than the owner and insurer of the offending vehicle as a party or to apportion the compensation between the insurer of the offending vehicle and the owner cum driver of the other vehicle involved in the accident, being the scooter on which the victim was a passenger, though the scooter was not driven by someone having a valid licence to carry a passenger, but only a learner's licence.
12. So far as the second aspect of the submissions are concerned, I am afraid that in view of the Appellant never having challenged Order No.52 dated September 29, 2004 and having, in fact, acted upon it as evinced from his own conduct, culminating in the passing of the Order No.56 dated January 4, 2005, and in view of what has been held in paragraphs 7, 8 and 9 of this Judgement, it is no longer open to the Appellant to contend that the Learned Tribunal acted erroneously in adding the opposite party No. 1A (the respondent No. 2 herein) as a party to the proceedings and thereafter proceeding to the consequence which to the Learned Tribunal, logically followed such act. The Appellant is estopped by judgement, the records of the case and his own conduct. Once the Appellant acted upon Order No.52 dated September 29, 2004 without even taking it as a ground for appeal before this Court, he cannot be heard to say that the respondent No. 2 was not a necessary party as joint tort-feasor. If indeed he was convinced that he had the right to claim compensation from any of the joint tort-feasors and he did not want to include an admitted wrong-doer or seek compensation from such person and run the risk of having such an award passed, he ought to have challenged Order No.52 dated September 29, 2004 instead of voluntarily acting to give effect to it.
13. The respondent No. 2 never appealed from the award nor in fact, did he thereafter come forward to contest the case. He accepted his liability as apportioned by the Learned Tribunal. Now, the Appellant has challenged the award but there too, the Appellant has been guilty of a level of mendaciousness which I can only describe as an attempt to reopen that which has achieved finality as against the respondent No. 2 in a manner unknown to law.
14. The Appellant by the rules of this Court and also the general principles of law relating to preferring a Memorandum of Appeal against an award passed in a case under Section 166 of the Act of 1988 was required to implead as parties everyone who was before the Learned Tribunal in the category of an opposite party. He so did, as described in paragraph 3 of this judgement. However, thereafter, as far back as on May 17, 2012 the Appellant abandoned his appeal as against the respondents No.1 and 2, and the appeal was dismissed as against them on May 17, 2012. By this strategy the Appellant hoped to ensure that the award could not be altered to their prejudice as against them nor sent back on remand.
15. However, all that this really ensured, is that the respondent No. 2 could not be heard to say anything against the proportion of the amount awarded against him and the fault for which he was held to be liable by the Learned Tribunal as between the parties hereto, without laying down a general principle of law.
16. If on the other hand, as prayed for by the Appellant, the award is modified, by making the respondent No. 3 solely liable for the accident then it would amount to modifying the award at the instance of a person who is not aggrieved by it - for after all, how could the victim be aggrieved with the finding the scooter and the trailer and their drivers were both at fault for the accident? Especially when, the owner-cum- driver of the scooter has accepted that he was partially at fault? After all, it is nobody's case that because of the fault of both these vehicles and their drivers, only part of the compensation awarded will be paid to the victim - all that has been done is apportionment of the liability inter se these two tort-feasors.
17. Any other interpretation will allow a person who has not challenged the award to the extent that it affects him, to ride piggy-back on the victim and get off scot free when he in law, would not be able to do so otherwise. It may be true that the victim/Appellant piggy-backed on the respondent No. 2's scooter, but that cannot allow the reverse to happen at the appellate stage when the respondent No. 3 has not preferred any appeal.
18. So, I hold that the Appellant cannot be heard to say that he is aggrieved by the apportionment of the fault and liability as between the two joint-feasors who were before the Learned Tribunal. To the extent of the finding of the Learned Tribunal as to the liability of the respondent No. 2, the appeal fails.
19. Now we come to the first part of the submissions of the Appellant as to whether there was any valid material before the Learned Tribunal regarding the Added opposite party (respondent No. 2) not having a valid license to carry a passenger on his scooter, which could be relied upon in a proceeding under Section 166 of the Act of 1988.
20. The submissions made on this count by Mr. Banik as summarized in paragraph 11 of this judgement are perhaps irrefutable if the proceedings from which this appeal arises were adversarial in nature. Adversarial action requires that a party be made to adhere to his pleadings, and any evidence adduced which is beyond his pleadings ought not to be looked into. The pleading must be specific and not general or evasive. There must be a general denial, a specific denial and an assertion of a fact which states the version of the adversary pleading in opposition to the claimant. It also requires that a party must adduce evidence to establish his pleadings in denial of the claimant's claim. Finally, it requires that the adversary must put so much of his case to the witness of the claimant or the claimant himself where he takes the stand, so as to give notice to the claimant or his witness to controvert it. All these are done so that the claimant, in the adversarial litigation, has sufficient chance to controvert the evidence led by his adversary and where the adversary has led evidence, to ensure that the claimant gets a chance to cross examine the witnesses of the adversary.
21. If any authority is required for the proposition that the adversary must put so much of his case to the claimant's witnesses by cross examination that he has actual notice of the positive case which is going to be led against him, and how a fact is held to be proved before a civil court in adversarial proceedings, I rely upon the cases of A.E.G. Carapiet--v--A.Y. Derderian reported in AIR 1961 Calcutta 359 at paragraph 10and Dr. N.G. Dastane--v--Mrs. S. Dastane reported in AIR 1975 SC 1534 at paragraphs 24 and 25.
22. However, that brings me to the overwhelming question. Is a proceeding under Section 166 of the Motor Vehicles Act, 1988 an adversarial proceeding? To answer this, I am afraid, I will have to take eternity by the hand and pause while the Court looks at the provisions of the Motor Vehicles Act, 1988, the West Bengal Motor Vehicles Rules, 1989 and some authoritative precedents.
23. The relevant provisions of the statute and the statutory rules, which are required for understanding the mode in which the learned Tribunal proceeds or is required to proceed in these cases, which are dealt with inquisitorially and not in the adversarial form, are set out hereinbelow: -
Section 166. Application for compensation. - (1) An application for compensation arising out of an accident of the nature specified in sub- section (1) of section 165 may be made-
By the person who has sustained the injury; or By the owner of the property; or Where death has resulted from the accident, by all or any of the legal representatives of the deceased; or By any agent duly authorized by the person injured or all or any of the legal representatives of the deceased, as the case may be:
Provided that where all the legal representatives of the deceased have not joined in any such application for compensation, the application shall be made on behalf of or for the benefit of all the legal representatives of the deceased and the legal representatives who have not so joined, shall be impleaded as respondents to the application.
[(2) Every application under sub-section (1) shall be made, at the option of the claimant, either to the Claims Tribunal having jurisdiction over the area in which the accident occurred or to the Claims Tribunal within the local limits of whose jurisdiction the claimant resides or carries on business or within the local limits of whose jurisdiction the defendant resides, and shall be in such form and contain such particulars as may be prescribed:
Provided that where no claim for compensation under section 140 is made in such application, the application shall contain a separate statement to that effect immediately before the signature of the applicant.] [(4) The Claims Tribunal shall treat any report of accidents forwarded to it under sub-section (6) of section 158 as an application for compensation under this Act.].
Section 168. Award of the Claims Tribunal.- (1) On receipt of an application for compensation made under section 166, the Claims Tribunal shall, after giving notice of the application to the insurer and after giving the parties (including the insurer) an opportunity of being heard, hold an inquiry into the claim or, as the case may be, each of the claims and, subject to the provisions of section 162 may make an award determining the amount of compensation which appears to it to be just and specifying the person or persons to whom compensation shall be paid and in making the award the Claims Tribunal shall specify the amount which shall be paid by the insurer or owner or driver of the vehicle involved in the accident or by all or any of them, as the case may be:
Provided that where such application makes a claim for compensation under section 140 in respect of the death or permanent disablement of any person, such claim and any other claim (whether made in such application or otherwise) for compensation in respect of such death or permanent disablement shall be disposed of in accordance with the provisions of Chapter X. (2) The claims Tribunal shall arrange to deliver copies of the award to the parties concerned expeditiously and in any case within a period of fifteen days from the date of the award.
(3) When an award is made under this section, the person who is required to pay any amount in terms of such award shall, within thirty days of the date of announcing the award by the Claims Tribunal, deposit the entire amount awarded in such manner as the Claims Tribunal may direct.
Section 169. Procedure and powers of Claims Tribunals.- (1) In holding any inquiry under section 168, the Claims Tribunal may, subject to any rules that may be made in this behalf, follow such summary procedure as it thinks fit.
(2) The Claims Tribunal shall be all the powers of a Civil Court for the purpose of taking evidence on oath and of enforcing the attendance of witnesses and of compelling the discovery and production of documents and material objects and for such other purposes as may be prescribed; and the Claims Tribunal shall be deemed to be a Civil Court for all the purposes of section 195 and Chapter XXVI of the Code of Criminal Procedure, 1973.
(3) Subject to any rules that may be made in this behalf, the Claims Tribunal may, for the purpose of adjudicating upon any claim for compensation, choose one or more persons possessing special knowledge of any matter relevant to the inquiry to assist it in holding the inquiry. Section 170. Impleading insurer in certain cases.- Where in the course of any inquiry, the Claims Tribunal is satisfied that- There is collusion between the person making the claim and the person against whom the claim is made, or The person against whom the claim is made has failed to contest the claim, it may, for reasons to be recorded in writing, direct that the insurer who may be liable in respect of such claim, shall be impleaded as a party to the proceeding and the insurer so impleaded shall thereupon have, without prejudice to the provisions contained in sub-section (2) of section 149, the right to contest the claim on all or any of the grounds that are available to the person against whom the claim has been made. Rule 329. Application for compensation.- (1) An application for compensation arising out of accident of the nature specified in sub- section (1) of section 165 of the Act, shall be made by a person specified in sub-section (1) of section 166 of the Act to the Claims Tribunal having jurisdiction over the area in which the accident occurred and such application shall be in Form COMP.A to these rules and shall contain the particulars specified in that Form.
(2) Every such application shall be sent to the Claims Tribunal or to the Chairman in case the Tribunal consists of more than one member, by registered post or may be presented to such member of the staff of the Tribunal as the Tribunal or, the Chairman, as the case may be, may authorize for the purpose and if so sent or presented, shall, unless the Tribunal or Chairman otherwise directs be made in duplicate and shall be signed by the applicant.
(3) There shall be appended to every such application the following documents, namely, (i) Medical certificate in Form COMP. B or Post- mortem Report, or Death Certificate; and (ii) First information Report in respect of the accident.
(4) Officer-in-charge of the police station shall, on demand by a person, who wishes to make an application for compensation and who is involved in an accident arising out of the use of a motor vehicle or the legal successor of the deceased shall furnish to him within such period as specified by the Central government under section 160 of the Act, particulars of the vehicle involved in accident.
Rule 330. Notwithstanding anything contained in rule 329 of these rules every application for a claim under section 140 of the Act, shall be filed before the Claims Tribunal in triplicate and shall be signed by the applicant and the following documents be appended to every such application-
a report containing description of the accident;
First Information Report;
Injury Certificate or in case of death, Post-mortem Report or Death Certificate; and A certificate regarding ownership and Insurance particulars of vehicle involved in the accident from the Regional Transport Officer in Form (COMP.C), issued free of charge.
Rule 334. Notice to the parties involved.- (1) If the application is not dismissed under rule 333 of these rules, the Claims Tribunal shall, on an application made to it by the applicant, send to the owner or the driver of the vehicle or from whom the applicant claims relief and to the insurer a copy of the application, together with the notice of the date on which it will dispose of the application and may call upon the parties to produce on that date any evidence which they wish to tender.
(2) Where the applicant makes a claim for compensation under section 140 of the Act, the Claims Tribunal shall give notice to the owner and Insurer if any, of the vehicle involved in the accident directing them to appear on the date not later than 10 (ten) days from the date of issue of such notice. The date so fixed for such appearance shall also be not later than fifteen days from the receipt of the claim application filed by the claimant. The Claims Tribunal shall state in such notice that in case they fail to appear on such appointed date, the Tribunal shall proceed ex parte on the presumption that they have no contention to make against the award of compensation.
Rule 335. Appearance and examination of parties.- (1) The opposite party may, and if so required by the Claims Tribunal, shall, at or before the first hearing or within such time as the Claims Tribunal may permit, file a written statement dealing with the claim raised in the application and any such written statement shall form part of the record. (2) If the opposite party contests the claim, the Claims Tribunal may, and if no written statement has been filed, shall proceed to examine him upon the claim and shall reduce the result of examination into writing. Rule 336. Summons to witness.- If an application is presented by any party to the proceeding for citation of witnesses, the Claims Tribunal shall, on payment of the expenses involved, if any, issue summons for the appearance of such witnesses, unless it considers that their appearance is not necessary for a just decision of the case. Rule 337. (1) Fees for process.--The fees to be taken for any process issued by the Claims Tribunal shall be in the scale as may be determined by the Tribunal from time to time, but shall not exceed those taken for a similar process by the City Civil Court in 117[Kolkata] and by the District Courts elsewhere.
(2) Appearance of legal practitioner.--The Claims Tribunal may, in its discretion, allows any party to appear before it through a legal practitioner.
(3) Local inspection.--
(a) The Claims Tribunal may, at any time during the course of an enquiry before it visit the site at which the accident occurred for the purpose of making a local inspection or examining any persons likely to be able to give information relevant to the proceeding.
(b) Any party or the representative of any party may accompany the Claims Tribunal for a local inspection.
(c) The Claims Tribunal after making a local inspection shall note briefly in a memorandum any facts observed, and such memorandum shall form part of the record of enquiry.
(d) The memorandum shall be made available to any party who desires to see the same, and shall supply any party with a copy thereof, if applied for and the fees therefore are paid.
(4) Power of summary examination.--(a) The Claims Tribunal, during a local inspection or at any other time, save at a formal hearing of a case pending before it, may examine summarily any person likely to be able to give information relating to such case, whether such person has been or it is to be called as a witness in the case or not, and whether any or all of the parties are present or not.
(b) No oath shall be administered to a person examined under clause (a). (5) Method of recording evidence.--The Claims Tribunal shall, as examination of witnesses proceeds, make a brief memorandum of the substance of the evidence of each witness and such memorandum shall be written and signed by the members of the Claims Tribunal and shall form part of the record :
Provided that if any member or the Chairman is prevented from making such memorandum, he shall record the reason of his inability to do so and shall cause such memorandum to be made in writing from his dictation and shall sign the same and such memorandum shall form part of the record :
Provided further that the evidence of any medical witness shall be taken down, as nearly as may be, word for word.
(6) Adjournment of hearing.--Normally the hearing of an application shall continue from day to day. If the Claims Tribunal finds that an application cannot be disposed of at one hearing, it shall record the reasons which necessitate the adjournment and also inform the parties present of the date of adjournment of hearing.
(7) Expert.--(a) The Claims Tribunal may, for the purpose of adjudicating upon any claim for compensation (other than claims under section 140 of the Act), choose not more than two persons having technical or special knowledge with respect to any matter before the Tribunal for the purpose of assisting the Tribunal in the holding of the enquiry.
(b) The expert shall perform such functions as the Tribunal may specify.
(c) The remuneration, if any, to be paid to the expert shall, in every case, be determined by the Tribunal.
(8) Framing of issues.--After considering any written statement, the evidence of the witnesses examined and the result of any local inspection, the Claims Tribunal shall proceed to frame issues upon which the right decision of the case appears to depend. (9) Determination of issues.--After framing the issues the Claims Tribunal shall proceed to record evidence thereon which each party may desire to produce.
(10) Diary.--The Claims Tribunal shall maintain a brief diary of the proceedings.
(11) Obtaining of information and documents necessary for awarding compensation under section 140 of the Act.--The Claims Tribunal shall obtain whatever supplementary information and documents, which may be found necessary, from the police, medical and other authorities and proceed to award the claim whether the parties who were given notice, appear or not on the appointed date.
The Form, COMP. A. to the Rules referred to above, is set out hereinbelow: -
"FORM COMP. A [See rule 329 of the West Bengal Motor Vehicles Rules, 1989] An Application for Compensation To The Motor Accidents Claims Tribunal ...........................
I................son/daughter/wife/widow of...............residing at...............having been injured in motor vehicle accident, hereby apply for the grant of compensation for the injury sustained. Necessary particulars in respect of the injury, vehicle, etc. are given below:
I............... son/daughter/wife/widow of ................residing at ............hereby apply, as a legal representative/agent, for the grant of compensation on account of death/injury sustained by Shri/Kumari/Shrimati.............who died/was injured in a motor vehicle accident.
Necessary particulars in respect of the deceased/injury, the vehicle, etc. are given below:
Name and father's name of the person injured/dead/(Husband's name in the case of married woman and widow)..................................... Full address of the person injured/dead....................... Age of the person injured/dead.............................. Occupation of the person injured/dead.................... Name and address of the Employer of the deceased, if any................. Monthly income of the person injured/dead.................................... Does the person in respect of which compensation is claimed, pay income tax? If so, state the amount of income-tax (to be supported by Documentary evidence)................
Place, date and time of accident................... Name and address of Police Station in whose jurisdiction the accident took place or was registered...................... Was the person in respect of whom compensation is claimed travelling by the vehicle involved in accident? If so, give the names of places of starting of journey and destination...............
Nature of injury/injuries sustained, and continuing effect, if any, of the injury/injuries.......
Name and address of the Medical Officer, if any, who attended on the injured/dead........
Period of treatment and expenditure, if any incurred thereon (to be supported by documentary evidence)................ Nature of the injury and whether it caused permanent disablement or not.................
Registration number and the type of the vehicle involved in accident.................
Name and address of the owner of the vehicle............................................. Name, Policy, Number insurance particulars and address of the Insurer of the vehicle................
Has any claim been lodged with the owner/insurer ? If so, with what result............................
Name and address of the applicant...........................
Relationship with the deceased............................................................... Title to the property of the deceased......................................................
Amount of the compensation claimed................................................................. Any other information that may be necessary or helpful in the disposal of the claim...........
I wish to claim compensation under section 140 of the motor Vehicles Act, 1988 only.
I wish to make a claim for compensation under the said Act and also in pursuance of the right on the principle of fault. I..................solemnly declare that the particulars given above are true and correct to the best of my knowledge and belief and that no claim in respect of the said accident has been filed or is pending before any other Court.
Signature or thumb-Impression of the applicant. [See section 213(3) of the Motor Vehicles Act, 1988] Dated.................."
24. Thus, we see that while the statute speaks of parties, the statutory form in which compensation is to be sought in cases under Section 166 of the Act of 1988, makes no provision for arraying anyone as a party. In fact, the statutory scheme treats the Learned Tribunal as an authority to hold an inquiry into what would be the just compensation, which would be payable, depending upon the nature of the case, by the Owner of the offending vehicle, or if there be more than one such owner and/or vehicle, the owners, the driver or drivers concerned, and the respective insurance companies. All that would be required to be stated are the particulars of those persons, as also the of the seeker of compensation, the nature of the injury (in case of injury), the treatment (including mitigation) and the facts of the case, and thereafter, the Learned Tribunal is not limited to examining those persons named in the said Form, COMP. A, but can examine any person likely to be able to give information relating to such case, regardless of whether he has been called as a witness or whether any or all of the parties are present or not.
25. The duty to "implead" the insurer, id est, to make it a party, only arises when for reasons to be recorded in writing, the Learned Tribunal records its satisfaction about either of the two clauses in Section 170, (a) or (b), and in such case the Learned Tribunal is required to direct that such insurer be made a party to the proceeding. It is the only person which is required to be "made" a party on such a direction being issued in such a manner. It does not become a party merely because he is named in the Form COMP. A. It becomes so on a specific direction by the Learned Tribunal.
26. So far as those persons who are put on notice under Rule 334, if they are treated as "Opposite parties" they may be required by the Tribunal to file a written statement, and when they are so required, they "shall" file a written statement, which will at once form a part of the record. When such a person files a written statement and contests the claim, there is no mandate on the Learned Tribunal to examine him. It is entirely the discretion of the Learned Tribunal whether to examine such person who has filed a written statement on being required to do so, contesting the claim, pursuant to a notice, or whether not to so examine him. Either way, the written statement contesting the claim shall form a part of the record of the Learned Tribunal, and the scheme of the statute and the rules make it imperative for the Learned Tribunal to nonetheless inquire into the question of what is "just compensation" and who or who all of the persons involved, is/are required to pay it and even in what proportion. This is the only way to read the Rules of 1989 harmonizing the rules with the provisions of the statute.
27. It is only when the opposite party does not file a written statement, that the Learned Tribunal has a duty to examine him - denoted by the word "shall" - and this makes the power and jurisdiction exercised by the Learned Tribunal something more than adversarial. I notice with great emphasis the words "may" and "Shall" used to distinguish the nature of the Learned Tribunal's duty depending upon whether written statement has been filed or not, in this connection. In any adversarial litigation, where a person contesting a claim does not file a written statement, or a counter to the claim, he cannot adduce evidence in support of any case not made out in the claim. Neither can he deny anything written in the claim. This is the basis of the argument of Mr. Banik which required this lengthy analysis of the provisions of the statute and the statutory rules to find out the legislative intention and the statutory scheme of the inquiry. However, as shall appear from what is determined hereinafter, the powers of the special tribunal under the Act of 1988 is not limited to only recording denials.
28. The fact that the tribunals established under Section 165 of the Act of 1988 are manned by the members of the subordinate judiciary does not change it into a Court rather than a statutory tribunal discharging statutory functions of holding an inquiry into just compensation and who is required to pay it. Similarly, the provisions in Rule 342 and Rule 343 making certain provisions of the Code of Civil Procedure directly applicable to the proceedings before the Learned Tribunal, and where there is no provision made for a certain thing in either the Act or the Rules, making the provisions of the Code applicable thereto, will not change the Learned Tribunal into a civil court.
29. This becomes clearer when the provisions of Section 169 of the Act of 1988 are considered. Sub-section (2) makes it amply clear that the Tribunal shall have all the powers of a civil court for specified and other purposes as may be prescribed and shall only be "deemed to be a civil court for all the purposes of Section 195 and Chapter XXVI of the Code of Criminal Procedure", but not a "court" for the purposes of the Code of Civil Procedure. That is why it was required to specify the provisions under the Code of Civil Procedure which apply to proceedings before such Tribunal even while constituting it as a special tribunal. The specified and other purposes, are clearly the determination of just compensation and who shall be liable to pay it.
30. Therefore, it is evident that a "Claims Tribunal" established under Section 165 of the Motor Vehicles Act, 1988 is not a civil court though it has many of the powers of a civil court and many of the provisions of the Code of Civil Procedure apply to it and this Court holds accordingly.
31. Once the statutory scheme read with the rules made to give effect to that scheme are considered, in the light of my above finding it is evident that the mode of proceeding before this special tribunal whose function is to inquire into and "adjudicate claims for compensation in respect of accidents involving the death of, or bodily injury to, persons arising out of the use of motor vehicles, or damages to any property of a third party so arising, or both", is actually to hold an inquiry into the claim and make an award determining the amount of compensation which appears to it to be just and specify the person or persons to whom compensation shall be paid by the insurer or owner or driver of the vehicle involved in the accident or by all or any of them, as the case may be.
32. Once this conclusion is reached, it is irresistible that strict rules of adversarial action, with which the Learned Members of such a Tribunal are very familiar, due to the qualifications prescribed in Section 165(3) of the Act of 1988, would not apply to such a Tribunal and it has been empowered to act inquisitorially unless expressly forbidden. Once it is accepted that the scheme of the statute and the rules, for the purposes of determining compensation, fixation of liability, and determining who is to pay what to whom, envisages an inquisitorial procedure, the requirements of adversarial proceedings take a back-seat, in the interests of the quest for truth.
33. Therefore, the Learned Tribunal examining an opposite party who has filed his written statement, is not limited under Rule 335(2) of the Rules of 1989 to recording denials by such an opposite party. On the other hand, if he has not filed a written statement, where adversarial litigation would have allowed only the recording of his statements without there being any power to rely upon them in the absence of pleadings, the duty encompasses taking into note what he has said. The phrase "proceed to examine him upon the claim" when considered with the phrase "reduce the result of the examination into writing" in the context of the Motor Vehicles Act, 1988, indicate that whatever such an opposite party says as a result of the examination becomes part of the record, and thus is required to be considered by the Learned Tribunal. Similarly, whatever the opposite party has said in the written statement, and has verified as being true to his knowledge, when it goes against his own interest, can be treated as an admission so far as he is concerned, without there being any necessity for the said opposite party to be examined, so long as the claimant is not denied compensation from the said opposite party without giving the claimant an opportunity to cross examine the said opposite party.
34. I draw confidence from the Judgement of Mayur Arora--v--Amit @Pange and Others, reported in (2011) 1 TAC 78 where the Hon'ble High Court of Delhi, while interpreting the above statutory provisions and the corresponding and substantially in pari materia provisions of the Motor Vehicles Rules of Delhi, in the light of the judgment of the Hon'ble Supreme Court in the case of Jai Prakash--v--National Insurance Company reported in (2010) 2 SCC 607 has been pleased to hold as follows: -
"The aforesaid directions to the Tribunals are without prejudice to the discretion of each Tribunal to follow such summary procedure as it deems fit as provided under Section 169 of the Act. Many Tribunals instead of holding an inquiry into the claim by following suitable summary procedure, as mandated by Sections 168 and 169 of the Act, tend to conduct motor accident cases like regular civil suits. This should be avoided. The Tribunal shall take an active role in deciding and expeditious disposal of the applications for compensation and make effective use of Section 165 of the Evidence Act, 1872, to determine the just compensation."
35. However, it should be noted that the said portion of the judgement in the case of Mayur Arora (supra) was a direct quotation from the case of Jai Prakash (supra) where the Hon'ble Supreme Court was concerned with accidents in respect of which proceedings were started under Sections 158(6) and 166(4) of the Act of 1988 and the directions issued to the Learned Tribunals were in respect of proceedings thereunder, which were stated to be without prejudice to the duty of the Learned Tribunal in other cases, where too the duty to hold an inquiry instead of proceeding as if it was a regular civil suit, was mandated by the Hon'ble Supreme Court.
36. Again, one of the propositions of law laid down by the Hon'ble Supreme Court in the case of United India Insurance Co. Ltd--v--Shila Datta, reported in 2011 ACJ 2729 (SC) is that "Though the Tribunal adjudicates a claim and determines the compensation it does not do so as in an adversarial litigation". (emphasis supplied).
These findings are of immense importance to the case at hand, as shall appear from the records of the case brought before this Court, and the facts apparent therefrom and the submissions made.
37. In the instant case, the claimant being the Appellant has not been denied any part of the total compensation awarded to him on the ground of any admission made by the opposite party No. 1A who has not been examined by the Learned Tribunal, nor cross-examined by the Appellant. The respondent No. 2 (opposite party No. 1A) has also not disputed his liability for the accident.
38. Therefore, in the light of the provisions of the statute and the statutory rules and their analysis and the discussion considering the interpretation of these provisions to arrive at the true statutory scheme intended by the legislature, as apparent from paragraphs 22 to 37 of this judgement, it is clear that on receipt of a notice to show cause, not just the owner of the offending vehicle and its insurer, but any opposite party in the case before the Learned Tribunal, if so required by the Learned Tribunal shall file a written statement under Rule 335(1) of the said Rules of 1989 which shall form a part of the record. Again, under Rule 335(2) where written statement has been filed, examination of the party is not mandatory but discretionary.
39. Once I have held, as I have done in paragraphs 22 to 36 above, that the procedure before the Learned Tribunal, according to the statutory scheme, is inquisitorial and not adversarial, and when admittedly the Learned Tribunal held the added opposite party No. 1A to be a necessary party and accepting the said position, the Appellant applied for addition of the opposite party No. 1A as a party which was allowed, it is no longer open to the Appellant to contend that the filing of the written statement by the opposite party No. 1A (respondent No. 2 herein) was without jurisdiction. Once the written statement is held to have been accepted by the Learned Tribunal within its jurisdiction, it has become part of the records of the case, even without examination by the Learned Tribunal or without the opposite party No. 1A deposing or adducing evidence and without cross-examination by the Appellant.
40. Once the proceedings have been held, in such circumstances, to be inquisitorial the Learned Tribunal cannot be prohibited from looking into that which has become part of the records under statutory rules. This power to hold inquiry would allow the Learned Tribunal to hold anyone whosoever, on the basis of the materials on record before it at any time before the award is passed, as liable, provided such person is first given an opportunity of being heard. The opposite party No. 1A was given an opportunity of being heard and his verified statement was accepted as true. When exercising inquisitorial power, the Learned Tribunal can take the entirety of the factual circumstances before it into account and so long as it does not take a view which is not a reasonable one in the circumstances, this Court, even in appeal, will be reluctant to interfere.
41. There is nothing in the law relating to procedure, whether inquisitorial or adversarial, which prevents the Learned Tribunal from accepting and proceeding to hold a person who has admitted his fault in carrying a pillion rider in such circumstances as set out above, to be liable for the accident, at least partially, and from proceeding against such an opposite party on the basis of an admission made by him against his own interest. The apportionment would not affect the joint and several liability of the joint tort-feasors towards the Appellant. It does not affect the award in favour of the Appellant. It only prejudices the opposite party No. 1A since the respondent No. 3 would be entitled to recover whatever proportion of the amount the opposite party No. 1A is held liable to pay. He had a chance to contest the proceedings by adducing evidence, after filing what I can only hold to be a written statement in the light of the above discussion including paragraphs 22 to 40 hereinabove, and he chose not to do so or explain his admission. He has not preferred any appeal from the said award. Therefore, it is an established fact on the basis of such admission that the opposite party No. 1A (respondent No. 2) was driving a scooter with only a learner's licence, while carrying a pillion rider (passenger) who did not have any valid licence to drive a scooter, to the knowledge of the opposite party No. 1A. Therefore, he was partially liable for the accident and to the extent of his liability as apportioned by the Learned Tribunal, the insurance company (respondent No. 3) would have the right to recover the amount paid by it from the respondent No. 2.
42. Thus, the first set of submissions of the Appellant as in paragraph 11, on the count of admissibility of the verified statement made by the respondent No. 2 are answered accordingly by holding them admissible and capable of being relied upon, in the circumstances aforesaid, as against the respondent No. 2, in the proceedings which have been held to be inquisitorial.
43. Once these submissions relating to holding the respondent No. 2 to be partially liable for the accident are held to be unassailable, which is the effect of the discussion and analysis so far, and as has been held at paragraph 18 of this Judgement, the questions of law and fact attempted to be raised by Mr. Banik become irrelevant and are not required to be decided, though for the sake of completeness, I shall refer to the precedents he has cited before concluding with the case and I shall refer to the questions of fact, raised very briefly by him now.
44. Mr. Banik essentially submitted that when there was evidence adduced by the Appellant through three eyewitnesses, all unshaken in cross examination, that the accident occurred due to the rash and negligent driving of the trailer, it was not open to the Learned Tribunal to hold that the accident was caused due to the fault or partly due to the fault of the respondent No. 2 herein.
45. As I will show, the evidence of the three, so-called eye-witnesses are not the same and they contradict each other. Let us take the evidence of each of these in turn.
46. On the point of how the accident occurred, the Appellant, being the victim, examined himself as PW 1. He had this to say: -
In the deposition, the Victim had alleged that "On that date about 11.30 am I was going to Lalpur to attend an official duty at Lalpur College riding on the pillion seat of scooter. We were proceeding towards Purulia and a trailer bearing No. WB-15-1605 and dashed as a result I sustained crashed injury of my both legs. My elbow bones also fractured, my finger ligaments who are also damaged. I also sustained injuries on my other parts on my body. After sustaining injury I was removed BPHC, Hura from there I was removed at Purulia Sadar Hospital, and thereafter I was shifted to Tata Main Hospital, Tata Nagar, Jamshedpur. My both legs were amputed (sic) there, one above knee, left leg and the right leg was amputed (sic) under the knee."
In the cross examination, the Victim as PW1 alleged, on the other hand, 'I was going in a scooter of one Mishra while the accident took place. Mr. Mishra was driving the scooter. In case of any on-rushing vehicle the pillion rider can see the same though he safe at the back of the driver. The place where the accident took place was the junction of three roads. The scooter was running on the left side of the road. The trailer in question was also running on the left side of the road. The road proceeds from Purulia to Hura side from west to east. Many persons of the locality saw the incident." (Emphasis supplied) So, it is the specific case of the PW 1 (victim himself) that the scooter and the trailer were both running on the left side of the road (from his point of view) which ran from West to East from Purulia to Hura
47. On the point of how the accident occurred, the PW 2 had this to say: -
This man claimed to be a sweetmeat shop owner at Hura Block More, which is also known as "Nimtala Ghat More" again within the jurisdiction of the victim who was the Block Development Officer, Hura. His case in the deposition is that "I know the petitioner of this case. He met with an accident on 2.11.99 at about 11.30 am on Purulia--Bankura Road at Nimtala More. I saw the incident on my own eyes. While the petitioner was travelling in a scooter and was proceeding from Hura to Lalpur side on the way he met with an accident. A trailer was proceeding from Lalpur to Hura dashed the scooter being the number WB15/1605. The trailer was running at a high speed. The trailer dashed the scooter on the right hand side of the road. Owing to such accident the driver of the scooter fell on the earth and pillion rider Krishnakanta sustained serious injuries due to such accident.". (emphasis supplied). In the cross examination, the said PW2 stated "I have come to court without receiving any summons from court. The petitioner himself asked me to depose in this case. Samiran Mishra was driving the scooter at that time. Nimtala More is the junction of four roads. My shop is situated on Hura-Kashipur Road, in a corner place. At the time of accident many customers were present in my shop. The scooter was proceeding from east to west. The Trailer was proceeding from western side to the eastern side. While I came out from my shop the petitioner was lying on the road in injured condition." (emphasis supplied)
48. The PW 3, one Ashok Kumar Kundu, had this to say about how the accident occurred, in his cross examination: -
"At the time of accident the petitioner was B.D.O. at Hura Block Office, and I got acquaintance with him since his joining as B.D.O. On the relevant date of accident I was at Neemtala More. I cannot name the person who was driving the scooter but he is a resident of Lalpur which is about 2 K.M.S away from Hura. At Neemtala More three roads meet. One road stretches to Kashipur and another road leading from Bankura to Hura. The scooter was approaching from Bankura to Purulia. I found the scooter when it just crossed the Neemtala More. The trailer was proceeding from Purulia to Bankura. Purulia - Bankura road stretches West-East direction. The scooter was on the left side of the road i.e. on the southern side of the road. The trailer was a big vehicle. The breadth of the Hura-Road is about 18' in width at the accident site. I found the trailer was approaching at a high speed and dashed against the scooter. The driver of the trailer moved the vehicle to the right side and finally dashed against the scooter i.e. on the southern side of the road the trailer dashed the scooter. Then the driver as well as the person who was on the pillion fell on the road. The trailer stopped about 15 feet away from the accident site, both of them removed to Hura P.H.C. I did not find any mark on the road for applying of brake by the driver of the trailer. I was about 40/50 cubits away from the accident site and about 50 cubit away from Neemtala More".
49. On the above basis, Mr. Banik contended that by the principles of res ipsa loquitur, it was clear that the accident on the basis of proven facts, was wholly the fault of the trailer and its driver.
50. However, Mr. Asimesh Goswami, appearing for the respondent No. 3, Relying inter alia upon the evidence adduced by the Appellant, through himself and his witnesses, and the cross examination, pointed out (as extracted in paragraphs 46, 47 and 48 above) that on the face of the said evidence there was a contradiction since while it was an admitted position that the road from Purulia to Hura runs from west to east, and the victim himself as PW1 admitted that both the scooter and the trailer were on the left side of the said road, and the trailer dashed the scooter while travelling thus, yet strangely the PW 2 and the PW 3 maintained that the driver of the trailer moved the trailer to the right and dashed the scooter, that is, on the southern side of the road. The road was from west to east. The left side could not therefore be the southern side. The trailer and the scooter were stated by the victim to be travelling on the same side of the road, whereas another alleged eyewitness made out a case that they were travelling towards each other from the opposite direction and thereafter the trailer moved to the right to cause an accident after it had crossed the scooter. All three allege that they are eyewitnesses. The versions of the said three witnesses differ materially from each other and more importantly, the evidence of the injured Appellant differs from that of the other two alleged eyewitnesses in respect of the material particulars and circumstances of how the "thing" happened. Mr. Goswami contends that when the Appellant has made out a case that "the thing speaks for itself", if the witnesses cannot agree how the thing happened, it cannot be said that the circumstances of the happening of the thing have been established. On this basis he submits that either the witnesses are to be held to be unworthy of credit, or it ought to be held by this Court that the manner in which the accident happened has not been established. Since the question of the liability of the owner of the trailer and thus, the indemnity through insurance given by the respondent No. 3, depend on the establishment of the manner of the accident, in a case where res ipsa loquitur has been urged by the Appellant, this ought to be case where the Court must hold that the thing, by itself, does not speak.
51. Even though this point cannot be reopened because of what I have held in respect of the submissions made by the Appellant in paragraph 11 at inter alia paragraphs 18 and 43 of this Judgement, so that the Appellant does not feel that his case on facts was not noticed by the Court, I proceed to note that since the geography of the place is very material, particularly due to the apparent contradiction between the testimony of so-called eye-witnesses, the Court sought a sketch map drawn to scale. Mr. Banik produced in Court such a sketch map which was not objected to by Mr. Goswami, showing the geographical location of the spot where the accident occurred and the relative positions of the roads and the directions marked on it, with the terminal points indicated in it. This sketch map was kept with the record. It clearly shows that on the road from Purulia to Bankura, from the Purulia side, Lalpur is before Hura. So, if the scooter was travelling from Hura to Lalpur and the trailer was travelling from Lalpur to Hura, they were travelling towards each other from opposite directions. On facts, thus, it is possible to harmonize all three versions of the eye-witnesses if it could be held that the scooter and the trailer were coming from opposite directions, and the scooter was on the left side of the road, and the trailer moved to the left side of the road, and passed the scooter and then the accident occurred, when the trailer - which is quite long - had partially or almost wholly passed the trailer, and if indeed the trailer had moved to the right from the perspective of the scooter. Yet in that case, the theory of head on collision while the trailer was approaching the scooter, as alleged by the PW 3, cannot be maintained. To that extent the evidence adduced on behalf of the Appellant has to be disbelieved in the interest of harmonizing the evidence of all three witnesses.
52. Continuing therefore, with the rather pointless analysis of the evidence (in view of the questions of law decided in paragraphs 18 and 43 and that the proceedings were inquisitorial in nature and that the finding of partial fault on the part of the respondent No. 2 is unassailable) I must also logically also record that once it is held that a huge and lumbering trailer is passing a scooter, on a pitch road, which finding about the nature of the road is undisputed, it is clear that the driver of the scooter had ample scope and in fact the best opportunity to see the trailer swerving, if indeed it had, and take precautions, since he had a smaller vehicle and could see the entire body of the trailer which was yet to pass him, or the trailer's tail end, in case the rest of the trailer had passed and which was in front and to his side, whereas the driver of the trailer in his driver's cab could not see behind except through the rear view mirror and particularly considering the nature of movement of a trailer. However, since the accident nonetheless occurred, the fault of the scooter on which the victim was alleged to be pillion-riding illegally, cannot be ruled out on the preponderance of the balance of probabilities. It is not the case of any party that the trailer was articulated at several points and each articulated section would move independently. Therefore, if the thing here at all speaks for itself, it would say, loud and clear that here is a case where both the driver of the trailer and the driver of the scooter are at fault. If such is the case, then both sets of owners and drivers and both sets of insurance companies would be tort- feasors. This rather self-referring analysis was necessitated by Mr. Banik's insistence on the point of res ipsa loquitur being considered and dealt with, though, on my deciding the questions of law relating to the impermissibility of the Appellant assailing the award on the ground that the Learned Tribunal found the respondent No. 2 to be partially liable for the accident, such point became academic and otiose.
53. Now we come to the question of whether the Learned Tribunal, while apportioning the fault and holding the respondent No. 2 to be partially liable for the accident - which finding, as I have held above, is unassailable as between these parties -could also have directed that a certain specified proportion be paid by the respondent No. 2 to the Appellant and another specified portion be paid by the respondent No. 3 to the Appellant.
54. Here, I find Mr. Banik on slightly surer ground. The locus classicus relating to this aspect of the matter can be found in the law laid down by the Apex Court itself, not very long ago. This is the Judgement in the case of Khenyei--v--New India Assurance Co. Ltd. reported in (2015) 9 SCC 273. The last part of the penultimate paragraph of the report is the locus classicus on the subject of composite negligence and the liability of joint tort-feasors: -
"(i) In the case of composite negligence, Plaintiff/claimant is entitled to sue both or any one of the joint tort feasors and to recover the entire compensation as liability of joint tort feasors is joint and several.
(ii) In the case of composite negligence, apportionment of compensation between two tort feasors vis-à-vis the Plaintiff/claimant is not permissible. He can recover at his option whole damages from any of them.
(iii) In case all the joint tort feasors have been impleaded and evidence is sufficient, it is open to the court/tribunal to determine inter se extent of composite negligence of the drivers. However, determination of the extent of negligence between the joint tort feasors is only for the purpose of their inter se liability so that one may recover the sum from the other after making whole of payment to the Plaintiff/claimant to the extent it has satisfied the liability of the other. In case both of them have been impleaded and the apportionment/extent of their negligence has been determined by the court/tribunal, in main case one joint tort feasor can recover the amount from the other in the execution proceedings.
(iv) It would not be appropriate for the court/tribunal to determine the extent of composite negligence of the drivers of two vehicles in the absence of impleadment of other joint tort feasors. In such a case, impleaded joint tort feasor should be left, in case he so desires, to sue the other joint tort feasor in independent proceedings after passing of the decree or award."
55. In the light of the above precedent it is clear that while the Learned Tribunal was perfectly justified in the facts of the case to determine the extent of the composite negligence of the drivers, and even put a monetary value to it, it was not open to it after finding that the respondent No. 3 was also partly at fault, to direct that each of the joint tort-feasors pay a particular sum to the Claimant. The correct course ought to have been to make the award after determining the extent of composite negligence of the driver of the trailer and the driver of the scooter for their inter se liability, and then allow the tort-feasor who has satisfied his own liability and the liability of the other to recover the proportion of the liability of the other which he has satisfied, from such other in execution of the award in the main proceeding.
56. However, since the respondent No. 2 has not appealed against the award nor is the present appeal continued against him by reason of the Order dated May 17, 2012 (about five years after the claimant preferring the appeal), any increase in the award as prayed for by Mr. Banik would operate only against the respondent No. 3, which flies against the face of the law laid down by the Apex Court. Specious arguments made after trying to steal a march on the Court, the judicial process and one of the parties, by crafty strategies, cannot be allowed to defeat the purpose behind the law laid down by the Hon'ble Supreme Court or dilute an award determining the composite negligence of joint tort-feasors when such finding of negligence or the composite negligence itself cannot be reopened as held above. Perhaps the respondent No. 2 was not a party to the strategy of the Appellant and its Learned Advocate - still he cannot be allowed to benefit from such sharp practice.
57. Let me then see whether the Appellant is entitled to any increase in the quantum of the award. The amputation of both his legs - one from below the knee and one from above the knee - has not been disputed. However, he has, as appears from his cross examination, not suffered any loss of income thereby. He has admitted therein that his basic salary is still the same, but he is getting more than Rs.912/- with increase in dearness allowance. He has admitted that is not getting any increment not because of the accident because he could not pass the departmental examination.
58. I have to see whether under Section 166 of the Act of 1988, the conduct of the victim can at all be considered otherwise than by holding him guilty of contributory negligence. Had the Appellant not been riding pillion on the scooter, even if there had been an accident, he would not have lost his legs. This is the least I can say. The scooter's driver-cum- owner was also injured, but he did not lose his legs. Why was the Appellant present at the spot of the accident? Was he a bona fide passenger, going for urgent official work? No such case has been made out. Instead, on the basis of materials which I have held are admissible in the inquisitorial proceedings, it is clear that the Appellant knowing fully well that the scooter owner-cum-driver had only a learner's licence and was not lawfully competent to carry a passenger without a licence to drive a scooter nonetheless forced the scooter driver-cum-owner to give him a lift, abusing his authority as the Block Development Officer of the block within which the said scooter driver resided. Now here is a man who abused his authority and forced the commission of an illegal act. There was, unfortunately, an accident. He lost both his legs and was permanently partially disabled. Justice works in strange ways.
59. After that, he claimed compensation, completely suppressing his own illegal acts and forcing another to commit an illegal act. He claimed compensation only from the owner of the trailer and its insurer. His suppression of truth was found out and the driver-cum-owner of the scooter was arrayed and admitted his illegal conduct which he was forced by the Appellant to do and was found to be also partially liable for the accident. Compensation was awarded to the Appellant, which is not unreasonable considering the facts and circumstances of the case. Even then, he preferred an appeal on questions of law, and quietly and surreptitiously, wanting more money from the Insurance Company instead of contenting himself with seeking an increase in compensation which would be payable in the same proportion of composite negligence as found by the Learned Tribunal, had the appeal dismissed against the owners of both the vehicles. Why he did so is easy to understand - perhaps he knew that the amounts he wanted were beyond the reach of humble persons such as those whom he had in abuse of his authority, bent to his will. Therefore, the insurance company, the favourite sacrificial animal in such cases, was to pay for his bonanza. He could not even prove details of all the heads under which he had claimed compensation.
60. All that Mr. Banik could do was to show judgements where in cases of amputation higher amounts had been paid, and where negligence was not held to be contributory where a scooter was being driven by a father with his minor children riding pillion and where the Hon'ble Supreme Court expressly enjoined a sympathetic view because of that fact and since there was a presumption that a father would take sufficient care while driving his own children, and where the facts of the accident, uncontroverted and on the unshaken testimony of eye- witnesses showed that the accident occurred due to the fault of one rather than both the vehicles and their drivers. These facts were not found to be correct by the Learned Tribunal in the inquisitorial proceedings. The inquisitorial nature of the proceedings and such mode of proceeding by the Learned Tribunal were not challenged by the Appellant. It is as if he felt that merely throwing judgements at the Appellate Court, without considering whether they were applicable to the facts of the case, could take the place of facts established or deemed to be established at the stage of the proceedings before the first forum.
61. In the facts and circumstances of the case, therefore, I do not feel that a case has been made out for enhanced compensation by the Appellant, and the prayer for modification of the award by enhancing the compensation is therefore rejected.
62. We come now to the question of interest. Section 171 of the Act of 1988 provides as follows: -
"Award of interest where any claim is allowed-Where any Claims Tribunal allows a claim for compensation made under this Act, such Tribunal may direct that in addition to the amount of compensation simple interest shall also be paid at such rate and from such date not earlier than the date of making the claim as it may specify in this behalf."
63. After considering the reported and authoritative precedents, including the case of Puttamma and Others--v--K.L. Narayana Reddy and Another, reported in (2013) 15 SCC 45 and the various judgements referred to in it appears to me that the Hon'ble Supreme Court has not laid down any law making it mandatory for the Learned Tribunal to award interest. The language of the statute indicates that the Learned Tribunal has a discretion to award interest. The reported judgements, however, show that the Hon'ble Supreme Court has laid down the criteria for deciding the proper rate of interest and from when it would be payable.
64. The Appellant has relied upon the case of National Insurance Company Limited--v--Keshav Bahadur and Others reported in 2004 ACJ 648 (SC). This case relates to the jurisdiction of the Learned Tribunal to award interest at a higher rate on default. The Hon'ble Supreme Court held that such a course of action was prohibited and once the discretion to impose interest was exercised, then that would be the rate at which interest would be payable from the date of the claim application and not a higher rate if there was default in payment within the time stipulated by the Learned Tribunal. This case does not help me, since here the Learned Tribunal chose not to exercise its discretion to award interest.
65. The Learned Tribunal, in its wisdom, has not granted any interest to the Appellant though it has allowed the claim, but partially. Therefore, it has exercised its statutory discretion. As already held above, the power to award interest is a discretion, and therefore, the Learned Tribunal is within its jurisdiction to award or not to award interest. Not awarding interest is also an exercise of jurisdiction, by exercising the discretion not to award interest. It is not a case where it has failed to exercise its jurisdiction. It is a rare case when the Appellate Court interferes with an exercise of discretion. At any rate, if there is a discretion to be exercised by the first forum, then the Appellate Forum, in a proper case, where there are sufficient materials on record, can exercise such discretion itself, though I reiterate that it is a rare case that it will differ from the first forum by reversing the exercise of discretion. Very strong grounds need to be made out for it. For the sake of completeness, I will proceed to analyze whether such strong grounds have been made out.
66. Even though it is clear that the case was filed within reasonable time from the accident (in November, 1991) the case was prolonged only due to the fault of the Appellant in not impleading all parties considered necessary by the Learned Tribunal for deciding this case of composite negligence. It was wholly the Appellant's fault that the proceeded to the stage of judgement without a necessary party as held by the Learned Tribunal. The Appellant insisted on bringing the case to judgement on September 29, 2004 without a necessary party as held by the Learned Tribunal and thereby the proper course ought to have been, on such finding, to dismiss the claim application, on that ground alone. Since there is no question of limitation, and this would be dismissal for a technical ground, the Appellant could have made the claim again, curing the fatal defect. Instead, the Learned Tribunal, strained the quality of mercy and was compassionate enough not to dismiss the claim petition the ground of failure to implead a necessary party but gave a chance to the Appellant to cure the fatal defect by adding the necessary parties. The Appellant applied for the same on November 2004 - five years after the accident - and the order was passed for addition of party on January 4, 2005, and the proceedings thereafter were completed on July 26, 2005. Therefore, this is not a case where the proceedings were prolonged due to the act of the respondent No. 3, who is the sole respondent now. Further, the award was not satisfied because the Appellant challenged it on grounds which have ultimately not prevailed with this Court. Had he not challenged it he would have got the award money immediately or by execution without any question of stay, since the respondent No. 3 and/or the other respondents did not challenge the award and the award as passed became final as against them. Had he challenged it but had continued it against all the respondents, it would have shown his good faith. Neither the delay in satisfaction of the award nor the delay in deciding the appeal can be attributed to the respondent No. 3. I do not feel that the respondent No. 3 ought to be made to suffer for the fault of the Learned Tribunal or the Appellant. Therefore, I hold against Mr. Banik's client also on the question of interest, as contended by him and summarized by me in paragraph 4(ii) of this judgement.
67. Now it only remains to deal with the authorities relied upon by the Appellant, before proceeding to the order which logically must follow the process of reasoning outlined above, in paragraphs 1 to 66 of this judgement.
67.1. 2014 (4) TAC 684 (SC) Kumari Kiran through her father Hari Narayan--v--Sajjan Singh and Others: The Appellant relied upon this judgement for the proposition that that driver of the heavy vehicle was more responsible for the accident than the driver of the light vehicle. With respect to the Appellant the facts of the case which was cited before me and the facts of the present case are not the same. I cannot agree that the Hon'ble Supreme Court was pleased to lay down a general proposition that whenever there is an accident involving a heavy vehicle and a light vehicle or a two-wheeler, the fault must lie with the heavy vehicle and its driver, regardless of the facts established in each case. This was the case where a father was driving his minor children riding pillion on a motor cycle and the Hon'ble Supreme Court was pleased to categorically hold that at least this much could be assumed from such circumstance that he was taking sufficient care (since his own minor children were with him). This case would not apply in the present circumstances where a reasonable explanation has been given by the Learned Tribunal for holding the scooter and its driver to be partially liable. Besides the question of reopening the determination of inter se liability in view of what I have held in respect of the submissions at paragraph 11 of this judgement in paragraphs 18 and 43 hereof, would not arise.
67.2. 2014 ACJ 2161 (SC) Yerramma and Others--v--G. Krishnamurthy and Another:2014 ACJ 2161 Yerramma and other Vs. G. Krishnamurthy and Another: Here a corporation bus turned to enter its depot without giving indication such that a motorcyclist following close behind, crashed into it causing the accident. The situation is wholly different here, on facts. The case does not apply. Besides the question of reopening the determination of inter se liability in view of what I have held in respect of the submissions at paragraph 11 of this judgement in paragraphs 18 and 43 hereof, would not arise. 67.3. 2013 ACJ 2712 Dulcina Fernandes and others Vs. Joaquim Xavier Cruz and Another 67.4. (2014) 2 WBLR (SC) 19: 2013 ACJ 2544 (SC), Minu Routh and Another--v--Satya Pradyumna Mohapatra.
On facts these cases are not applicable to the present case. Besides the question of reopening the determination of inter se liability in view of what I have held in respect of the submissions at paragraph 11 of this judgement in paragraphs 18 and 43 hereof, would not arise. 67.5. 2009 ACJ 1314 (SC) : 2009 (2) TAC III (SC): Usha Rajkhowa-- v--Paramount Industries and Others. This has been relied upon to contend that the principle of res ipsa loquitur applies. However, as I have already held,the question of reopening the determination of inter se liability in view of what I have held in respect of the submissions at paragraph 11 of this judgement in paragraphs 18 and 43 hereof, would not arise. Besides, if the thing does speak for itself, as I have held in paragraphs 51 and 52 of this judgement, it speaks loud and clear that the driver of the scooter was at least partially at fault for the accident, and the owner-cum-driver of the scooter has not appealed against such finding of the Learned Tribunal.
67.6. 2013 (3) TAC 181 (SC) = 2013 ACJ 1767 New India Assurance Company Ltd.--v--Saheli Sarkar and Others was cited for the proposition that no evidence beyond pleadings can be considered by the Learned Court or tribunal. However, as I have held in paragraphs 22 to 43, the proceedings before the Learned Tribunal under the Motor Vehicles Act, 1988 not being adversarial but inquisitorial, this proposition is not attracted in the present case.
67.7. 2010 ACJ 2212 National Insurance Co. Ltd--v--Mita Samanta:
The Appellant cited this case once again in a futile attempt to ignore the observations of the Court that the finding of partial liability and fault against the respondent No. 2 had achieved finality. This case was on the basis of a contention by the insurer that in an accident when an unidentified truck struck a motor-cycle from behind and sped away, and where truck was found by police investigation and the insurance company pleaded that an investigator appointed by him stated that after inquiring from various witnesses he had concluded that the truck was not involved in the accident, but neither the owner nor the driver of the truck was examined, the tribunal held that the accident was caused by the rash and negligent driving of the truck. The finding was upheld in appeal. I quite fail to appreciate how on facts this case can at all apply to the present case, where the tribunal in an inquisitorial proceeding has recorded a finding that the driver of the scooter was partially at fault and liable and the scooter driver-cum-owner has not challenged the finding. 67.8. (2018) ACC 150 (SC) Dinesh Kumar J. @ Dinesh J.--v--National Insurance Co. Ltd. and Others was cited by the Appellant again to impeach the finding of contributory negligence on the part of the motor-
cyclist claimant where the claimant motor-cyclist had preferred an appeal against the finding of the Learned Tribunal affirmed by the Hon'ble High Court. Here, the Appellant is not the person against whom there is any finding of contributory negligence by the Learned Tribunal. The respondent No. 2 against whom there was such a finding has neither preferred any appeal nor is the appeal being continued against him. The case clearly does not apply.
67.9. On the question of composite negligence, the Appellant has relied upon two judgements for the proposition that the Claimant may claim the entire compensation from any one of the joint tort-feasors.
(i) A full Bench decision of the Hon'ble High Court of Madhya Pradesh being 2005 ACJ 831 Sushila Bhadoriya and Others--v--Madhya Pradesh State Road Corporation and Another.
(ii). The case of Khenyei--v--New India Assurance Co. Ltd. reported in (2015) 9 SCC 273 referred to in paragraphs 54 and 55 of this Judgement.
However, as has been demonstrated above, the facts of the present case are clearly different in the instant case. Here the Appellant impleaded the joint tort-feasors to avoid having the claim dismissed for non-joinder of a necessary party which finding became final as against the parties, did not challenge it, obtained an award for compensation on a finding of fault against both the joint tort-feasors whereby the Learned Tribunal also determined their inter se liability for the composite negligence, and none of the joint tort-feasors challenged this award. Therefore, while I respectfully will follow the precedent laid down by the Hon'ble Supreme Court, as I must, I have to give effect to the ratio of the judgement to its fullest, as applicable to the facts of this case. 67.10. The Appellant has relied upon the following judgements to contend that the application of the principle of res ipsa loquitur requires this Court to reverse the finding of composite negligence on the ground that allegedly the accident speaks for itself and that the trailer was being driven in a rash and negligent manner: -
(i) 1991 (1) TAC 715 Basthi Kasim Saheb (Dead) by Legal Reps--v--Mysore State Road Transport Corporation and Others,where the Hon'ble Supreme Court held that where the evidence on the case indicates that there was no unexpected development, it was for the driver to have explained how this happened and there is no such explanation forthcoming. In such a case, where the claimant could not prove the actual cause of the accident and on the face of it, it was so improbable that the accident could have happened without the negligence of the driver, the Court should presume such negligence without further evidence and the burden is on the defendant to show that the driver was not so negligent and the accident might more probably have happened in a manner which did not connote negligence on his part.
In the case at hand, the finding of fact which has achieved finality as against the respondent No. 2 is not merely that of contributory negligence, but also of composite negligence where he has been held to be partially at fault. He has not challenged it. The reasoning of the Learned Tribunal is not fanciful or based on no material on record. Therefore, there is on the face of it, nothing which makes it improbable that the accident could not have happened without the sole negligence of the driver of the trailer.
(ii) AIR 1979 SC 1862 Bishan Devi--v--Sirbak Singh the rejection of the claim petition on the ground that the Claimant had failed to prove the identity of the driver of the offending vehicle, on the basis of a pleading of the insurance company which was held to be palpably false, where the insurance company had alleged that the offending vehicle had been stolen by someone, but the owner of the offending vehicle who filed his written statement a month later, did not support the case of theft of his vehicle. Here, the owner of the scooter who was also driving the vehicle himself filed a cause admitting an illegal act against his interest and furthermore, on being found partially liable for the accident, neither challenged the proportion of composite negligence determined on his account, nor the award. The Appellant not being aggrieved by the finding of composite negligence on the part of the scooter-driver from whom too he was awarded compensation this decision, which is not applicable to the facts of the case, does not aid him.
(iii) 1976 ACJ 184 Krishna Bus Service Ltd.--v--Smt. Mangli and Others: This case too was decided on the basis of presumption of negligence and res ipsa loquitur. One of the findings of the Hon'ble Supreme Court was that the driver of the offending vehicle had a duty to take care where the accident was such that in the ordinary course of events it would not have happened if proper care was taken by that driver. The facts of the case, as I have been at some pains to demonstrate, are not those where in law I can draw such a presumption, first, for the respondent No.2, against whom there is a finding of partial liability has accepted it, second, because the Appellant is not aggrieved by it and third because the Learned Tribunal has recorded reasons which appear to be very probable on the preponderance of probabilities on the face of the materials on record in the inquisitorial proceeding, that there was composite negligence including the partial fault of the driver of the scooter on which the Appellant was riding pillion. Therefore, this decision will not be applicable in the facts of this case. 67.11. The Appellant has relied upon two decisions being IV (2006) ACC 845 (SC) National Insurance Company Ltd--v--Bhagwani and Others and also IV (2017) ACC 577 (P & H) National Insurance Company Ltd--v--Kailash Chand & Another both in turn relying upon National Insurance Co. Ltd.--v--Sawran Singh and Others reported in (2004) ACC 1 (SC), to contend that "Learner's Licence" is also a valid licence. However, the decisions do not stop at that. They are based on the case of Swaran Singh (supra) which clearly holds that it cannot be said that if a learner is driving a vehicle subject to the conditions mentioned in the (learner's) licence, he would not be a person who is not duly licensed. It has not been disputed from the Bar or on record in the instant case that the conditions of the learner's licence held by the respondent No. 2 at the material time did not allow him to carry any pillion rider/passenger who did not hold a valid licence to drive a light motor vehicle or scooter. Therefore, on the face of the records the respondent No. 2 was in violation of the terms and conditions of his learner's licence. These judgements therefore do not come to the aid of the Appellant especially when the respondent No. 2 has not challenged the award.
67.12. I notice two other decisions only to hold that they are not applicable to the facts of the present case and since the Appellant is estopped by judgement, his own conduct and the records of the case, as held by me in paragraph 12 of this judgement from contending that the driver of the scooter is not a necessary party. These are 2008 ACJ 1964 : 2008 (2) TAC 799 (SC) Machindranath Karmathi Kasar--v--D.S. Mylarappa and Others and 2006 (2) TAC 254 (Cal) Malati Alias Mala Alias Mita Goon--v--Union of India. These judgements hurt the Appellant more than they help him. For one thing, the judgement in the case decided by the Hon'ble Supreme Court was on the basis of the motor vehicles rules in Karnataka where the driver of an offending vehicle is usually not impleaded as recorded by the Hon'ble Supreme Court; for another, there the Hon'ble Supreme Court held that if in respect of a single accident, there is more than one claim and a finding is reached against a non-party of being liable for the accident, then that person, in another claim, even if filed by him, cannot have that finding varied unless he has challenged the finding against him in the first claim. Therefore, on facts this goes against the Appellant herein, who is actually trying to challenge the finding of composite negligence against the respondent No. 2 which the respondent No. 2 has not done. The Appellant is not so entitled. The Calcutta case envisaged a situation where the driver of the vehicle voluntarily offered a lift to the victim and as long as the employer of the driver was a party, necessity of the impleadment of the driver was not felt. Here, the respondent No. 2 is the owner-cum-driver of the scooter, and that is an admitted fact. He said in a verified statement that the victim/Appellant forced him to allow the Appellant to ride pillion on the scooter, knowing that the respondent No. 2 had only a learner's licence which did not allow him to do so. Therefore, it was not voluntary. On these different facts alone, the Calcutta case would not be applicable to the present case. I must reiterate here the salutary and legal principle hallowed by time and its application, that a judgement is an authority only for what it decides and not what can be logically deduced from it. A little difference in facts can and does make a lot of difference in the precedential value of the judgement. In the instant case, none of the judgements cited by the Appellant actually apply to the present case on facts. 67.13. The Appellant has cited 6 judgements for the proposition that the Motor Vehicles Act, 1988 is a beneficial legislation (for the victim and the claimant) and that it is not necessary in proceedings under the Act of 1988 to go by any rules of pleadings or evidence since it is the duty of the Learned Tribunal to arrive at a just compensation and that the Learned Tribunal is not bound by strict or technical rules of evidence. Not only did most of these cases cited arise out of an accident resulting in death, these judgements only lay down the settled law with which there can be no quarrel, but which at the same time, either do not apply on facts, or, as demonstrated by the discussions so far, harm the Appellant more than they help him, since he has been relying on strict rules of pleading and evidence to try and ensure that the Court does not look at the case which led the Learned Tribunal to find partial fault in a composite negligence against the respondent No. 2 and award compensation as against the joint tort-feasors in favour of the Appellant. Nonetheless so that the Appellant does not feel that the cases cited by him were not considered, these are set out hereinbelow: -
(i) IV(2009) ACC 910 (SC) Raj Rani & Others--v--Oriental Insurance Company Ltd. and Others.
(ii) IV (2009) ACC 981 (SC) Oriental Insurance Company Ltd.--v--Md. Nasir & Another
(iii) 2011 (2) TAC 41 SC =1(2011) ACC 62 (SC) National Insurance Company Ltd. and Others--v--Anita Saha and Others
(iv) 1981 A.C.J. 507 Motor Owner's insurance Co. Ltd--v--Jadavjit Keshavjit and Others.
(v) 1987 ACJ 411 Skandia Insurance Co. Ltd.--v--Kokilaben Chandravadan and Others.
(vi) II(2004) ACC 37 (SC) New India Assurance Company ltd.--v--
Kiran Singh & Others.
67.14. So far as the enhancing the amount of compensation is concerned, the Appellant has by his own acts has made it impossible for this Court to reopen the determination of partial liability of the respondent No. 2 in the case of composite negligence while at the same time precluding the Court from enhancing the compensation as against the respondent No. 2 whose partial liability can neither be reopened in his absence nor prejudicially affected further by enhancement, as held in paragraphs 12 to 61 above. Therefore, none of the authorities cited by the Appellant, in the peculiar facts of this case, apply - in fact, the facts of those cases do not show such egregious wrong doing by the victim and such sharp practice by his lawyer to try and undo those things which have achieved finality, between the parties, as discussed above. These cases, being 2017 ACJ 2834 (SC) New India Assurance Co. Ltd--v-- Gajendra Yadav and Others; 2017 ACJ 979 (SC), 2011 ACJ 1 (SC), 2015 ACJ 729 (SC) equivalent to 2015 ACC 392 SC, New India Assurance Co. Ltd.--v--Dr. Sukanta Kumar Behera;2015 ACJ 484 Raman--v--Uttam Haryana Bijli Vitaran Nigam Ltd., 2014; ACJ 1441 (SC) Mekala--v-- Malathi and Others; 2014 ACJ 1375 (SC), M.K. Gopinathan--v--J. Krishna and Others; 2014 ACJ 1412 (SC), Dinesh Singh--v--Bajaj Allianz General Insurance Co. Ltd; 2012 ACJ 28 (SC) Govinda Yadav-- v--New India Assurance Co. Ltd.I have dealt with the cases cited by Mr. Banik as being factually inapposite in paragraph 60 and made my decision on this point clear in paragraph 61 for the reasons stated in the foregoing paragraphs of this judgement.
67.15. I have already made my decision on the question of interest clear in paragraphs 62 to 66 of this judgement.
68. In fact, at one stage of the hearing, considering my conclusions about the nature of the inquiry that the Learned Tribunal is required to hold, and in view of my findings about the accident, a proposal was made that the matter be sent back on open remand, with a direction on the respondent No. 3 to make payment of the entire amount awarded by the Learned Tribunal when a concession was made by Mr. Goswami that the respondent No. 3 would have no objection to such course of action provided that the respondent No. 3 was allowed to recover any amount found to be due after such enquiry by the Learned Tribunal on remand, from the respondent No. 2. However, this proposal was made since Mr. Banik had given the impression that the respondents No.1 and 2 were not contesting the appeal and had not preferred any cross-appeal against the award, without disclosing to this Court that in fact, Mr. Banik had already, as far back as on May 17, 2012 abandoned his appeal as against the respondents No.1 and 2, and the appeal was dismissed as against them on May 17, 2012 and therefore the award could not be altered to their prejudice as against them. This court has recorded the above less than fair conduct on the part of Mr. Banik, in its order dated February 1, 2018.
69. I would therefore, apply the rule laid down in the case of Khenyei (supra) and hold that the respondent No. 3 would be liable to pay the entire compensation awarded by the Learned Tribunal by the award impugned and instead of the respondent No. 2 paying to the Appellant the amount adjudicated to be his share, after satisfaction by the respondent No. 3 of the said amount held by the Learned Tribunal to be payable by the respondent No. 2 to the Appellant, the respondent No. 3 would be entitled to recover the said amount from the respondent No. 2 by way of execution of the award as modified by this Appellate Judgement and Order.The appeal, therefore, fails on all grounds, as discussed above, except to the extent that the award has been modified, as mentioned above.
70. The appeal therefore succeeds, partly, to the extent indicated above. Though I am unhappy with the sharp practice exhibited by the appellant apart from my disapproval, I say nothing about it. The parties will bear their own costs.
(PROTIK PRAKASH BANERJEE, J.) Dipankar Datta, J.:
71. By presenting this appeal under section 173 of the Motor Vehicles Act, 1988 (hereafter the Act), the appellant essentially seeks (1) enhancement of the compensation awarded to him by the relevant tribunal while disposing of his application under section 166 of the Act; and (2) fastening the liability to pay such compensation entirely on the insurer of the offending trailer, meaning thereby that the owner/driver of the scooter on which the appellant was riding pillion is not made liable to bear any part of the compensation to which the appellant is found to be entitled.
72. My learned brother in the draft of the proposed judgment has given adequate reasons why the appellant is not entitled to either of such relief. While I share the views of my learned brother, I wish to express my opinion (upon adverting to the version of the appellant himself once again) to decline him relief as claimed in the appeal.
73. The appellant alleged that a trailer being driven in a rash and negligent manner dashed the scooter, on which he was riding pillion, and as a direct consequence thereof he suffered the unfortunate amputation of his lower limbs.
74. I have tried in vain to find out from such version of the appellant as to what exactly led to the accident, or to be more precise, how the trailer dashed the scooter.
75. A trailer, according to section 2(46) of the Act, "means any vehicle other than a semi-trailer and a side-car, drawn or intended to be drawn by a motor vehicle". Section 2(39) of the Act defines a semi-trailer as "a vehicle not mechanically propelled (other than a trailer), which is intended to be connected to a motor vehicle and which is so constructed that a portion of it is super-imposed on, and a part of whose weight is borne by, that motor vehicle". It is common knowledge that a trailer drawn by a motor vehicle is commonly used for transport of goods and materials.
76. A trailer by its very definition in the Act, therefore, is an unpowered vehicle which has to be drawn or towed by a powered vehicle.
77. For the purpose of proper understanding of the basic issue that has arisen for decision, id est, whether the trailer was being driven in a rash and negligent manner leading to the unfortunate accident, I shall hereafter refer to the trailer spoken of by the appellant and his witnesses as the offending vehicle and also classify and describe it as the powered vehicle and the unpowered vehicle, whenever/wherever necessary.
78. Having understood what a trailer means, as defined in the Act, it would indeed be absurd to suggest that the unpowered vehicle and not the powered vehicle was being driven rashly and negligently and in the process the unpowered vehicle dashed the scooter. Sight cannot, however, be lost that a powered vehicle drawing or towing an unpowered vehicle in common parlance compositely is often described as a trailer. I shall assume, giving the appellant the benefit of incorrect description of the offending vehicle, that the appellant in fact intended to say that the powered vehicle, drawing or towing the unpowered vehicle, was being driven without proper care and diligence amounting to rash and negligent driving and not the unpowered vehicle, and that the accident in question was a fallout thereof. So far, so good.
79. Although the length of the offending vehicle has not been referred to by any of the witnesses supporting the claim, judicial notice can also be taken of the highways in our country on which long vehicles, id est, a powered vehicle drawing or towing an unpowered vehicle, ply and taken together the length of the powered and unpowered vehicles normally varies between 20 and 30 meters. If the offending vehicle were a long vehicle, or even if the same were not a long vehicle, either way, it was necessary for the appellant, who could adduce the best evidence, to depose which part of the offending vehicle dashed the scooter, ~ whether there was a head-on collision with the powered vehicle or the scooter was dashed by the unpowered vehicle, or otherwise. The appellant, who was riding pillion, must have been in a proper and clear position to visualize what was happening in front, unless of course he had dozed off. He did not say so. Apart from deposing that the offending vehicle dashed the scooter, no further/other version is forthcoming from the appellant's side of exactly how the scooter was dashed which could enable the tribunal to satisfactorily arrive at a finding that the accident in question was the obvious outcome of rash and negligent driving of the offending vehicle. What emerges from the version of the appellant is that the scooter was proceeding on the left side of the road and the offending vehicle was also travelling on the left side of the road, from the appellant's point of view. This version, if believed, would give rise to a likely situation of a head-on collision. The appellant by virtue of his intellect is supposed to comprehend the difference between a head-on collision and dashing. It is not his case that there was any head-on collision. That being the position, it would stand to reason that the scooter was dashed by the unpowered vehicle. The scooter having passed the powered vehicle which was drawing or towing the unpowered vehicle, the scooter could be dashed by the unpowered vehicle only if the powered vehicle had changed its trajectory leading to the unpowered vehicle swerving and in the process dashing the scooter. This version, unfortunately, is not there. The possibility of the unpowered vehicle dashing the scooter in case the scooter rammed into it, cannot be totally ruled out having regard to the cause shown by the owner thereof, who was on the front seat and driving it, on affidavit, that he had no driving license but only a learner's license. An individual having a learner's licence is not expected to have the same expertise as an individual having a regular driving license. That the owner/driver of the scooter may have contributed to the accident is a plausible conclusion on facts and in the circumstances, based on preponderance of probabilities. Had it not been a case of the insurer accepting the award by not impugning it either by an independent appeal or by filing a cross-objection, this is a case where it could fairly and reasonably be held that rash and negligent driving of the offending vehicle had not been proved at all. The appellant ought to thank his fortune that this finding is not required to be given here. Bearing in mind the elaborate discussion of the evidence that were adduced before the tribunal by my learned brother, the conclusion is inescapable that the tribunal did neither commit any error in holding that there was negligence on the side of both drivers and also that the compensation payable to the appellant requires to be apportioned in the shares as directed in the impugned award.
80. I also record my concurrence in regard to the direction for payment of the entire compensation to the appellant by the insurer, as awarded by the tribunal, and reserving liberty to the insurer to effect recovery of a part thereof from the owner of the scooter in the manner as proposed by my learned brother.
81. To avoid any inconvenience to the appellant, the insurance company is directed to transfer whatever is payable on account of compensation to the appellant by National Electronic Fund Transfer. Mr. Banik shall furnish the particulars of the bank account of the appellant to the learned advocate-on-record of the insurance company in course of a week from date; whereafter the insurance company shall act in compliance with this order within a further period of a month.
(DIPANKAR DATTA, J.)