Calcutta High Court (Appellete Side)
New India Assurance Company Ltd vs Smt. Putul Nazir on 9 July, 2008
Author: Bhaskar Bhattacharya
Bench: Bhaskar Bhattacharya
Form No. J(2)
IN THE HIGH COURT AT CALCUTTA
Appellate/Revisional/Civil Jurisdiction
Present:
The Hon'ble Mr. Justice Bhaskar Bhattacharya
And
The Hon'ble Mr. Justice Partha Sakha Datta
F.M.A. No. 635 of 2003
New India Assurance Company Ltd.
Versus
Smt. Putul Nazir
For the Appellant/Petitioner: Mr Samindra Kumar Das,
Mr Sandip Kumar Das.
For the Respondent/Opposite Party: Mr Krishanu Banik.
Heard on: 30.06.2008.
Judgment on: 9th July, 2008.
Bhaskar Bhattacharya, J.:
This appeal under Section 173 of the Motor Vehicles Act is at the instance of the Insurance Company and is directed against an award dated 20th October, 2001 passed by the Additional District Judge, Eleventh Court, Alipore and the Motor Accident Claims Tribunal, District - 24-Parganas (South), in M.A.C. Case No.24 of 2000 thereby disposing of an application under Section 166 of the Act by directing the Insurance Company to pay Rs.5,49,316/- as compensation for the death of the husband of the applicant no.1.
Being dissatisfied, the Insurance Company has come up with the present appeal.
The learned advocate appearing on behalf of the appellant has drawn our attention to the evidence given by the widow of the victim as P.W.-1 wherein in cross-examination, she admitted that at the time of accident, the vehicle was being driven by her husband himself. She has further stated that her husband had a driving licence.
By referring to the aforesaid statement made by the P.W.-1, the learned advocate appearing for the appellant submits that the heirs of the driver of the vehicle cannot take advantage on the fault of the driver himself. According to him, the Tribunal itself arrived at the conclusion that the accident occurred due to rash and negligent act of the driver of the said Ambassador vehicle of which both, the victim and the P.W.-1, were the passengers. According to him, once it has been established that the driver alleged in the claim application was not the real driver at the time of accident but the victim himself was the driver, the Insurer of the said vehicle cannot be held liable.
Mr Banik, the learned advocate appearing on behalf of the respondent- claimant, however, has submitted before us that the P.W.-1 being a village-lady, became perplexed at the time of cross-examination and therefore, such statement was made. According to him, we should ignore such perplexed statement made in the cross-examination and rely upon her statement made in the examination-in- chief where she stated that the vehicle was driven by the other occupant of the vehicle.
After hearing the learned counsel for the parties and after going through the cross-examination of P.W.-1, we find that she in unambiguous term stated that at the relevant time of accident, her husband was driving the vehicle. She has further confirmed that her husband had a driving licence. After such admission in cross-examination, we are unable to ignore the said statement as "a confused statement of a perplexed witness". It appears to us that the truth has come out in cross-examination of the P.W.-1 and, therefore, the heirs and legal representatives of the "rash and negligent driver" cannot get compensation for the negligent act of their predecessor.
Apart from the aforesaid fact, we further find from the copy of the Insurance Certificate itself that the Ambassador car, which was the offending vehicle, was a private car and not a taxi as would appear from the registration number of the vehicle, viz. WMC-1069. It appears that the owner of the said Ambassador car has been made party. We further find that the vehicle was insured under the "third party insurance coverage". Such being the position, the victim was a gratuitous passenger of a private Ambassador car covered by a third party insurance and in such a case, no other vehicle being involved in the accident, for the negligent act of a driver of such vehicle, the heirs of a gratuitous passenger cannot get compensation from the Insurance Company, even if we assume for the sake of argument that the victim was not driving the car.
On that ground also the appeal is liable to be allowed.
We, thus, set aside the award passed by the Tribunal below on the aforesaid two grounds and hold that the Insurance Company is not liable to pay any amount of compensation in the present proceeding under Section 166 of the Act.
During the pendency of this appeal, another Division Bench of this Court permitted the claimants to withdraw a portion of the awarded amount. Now that we have set aside the award, the claimants/respondents are directed to pay back the said amount to the Insurance Company within two months from today. In default, the Insurance Company will be free to realise the amount from the claimants. In view of our specific finding that the gratuitous passenger of a private vehicle was actually driving the car at the time of accident and that for his own rash and negligent driving, the gratuitous passenger died, the owner of the vehicle should be held responsible for the compensation only to the extent of Rs.50,000/- as provided in Section 140 of the Act. Since the Insurance Company has not preferred any appeal against the order passed in the proceedings under Section 140 of the Act, there is no scope of giving any liberty to the Insurance Company to recover that amount from the owner in this appeal preferred against an award passed in the proceedings under Section 166 of the Act.
The appeal, thus, is allowed and the award impugned is set aside to the extent indicated above. In the facts and circumstances, there will be, however, no order as to costs.
( Bhaskar Bhattacharya, J. ) I agree.
( Partha Sakha Datta, J. )