Gauhati High Court
The Oriental Insurance Co. Ltd vs Shri Moatemsu & Ors on 25 May, 2017
Author: S.Serto
Bench: S.Serto
MAC Appeal No. 2 (K) of 2016
IN THE GAUHATI HIGH COURT
(THE HIGH COURT OF ASSAM, NAGALAND, MIZORAM & ARUNACHAL PRADESH)
KOHIMA BENCH
MAC Appeal No.2 (K) of 2016
The Oriental Insurance Co. Ltd. Having its registered and Head Office at
Oriental House A- 25/27, Asaf Ali Road, New Delhi-110002 and Regional
and Divisional Offices in several places, including a Regional Office at
Guwahati, Assam and a Divisional Office at Dimapur, in the State of
Nagaland.
.............Appellant
-Versus-
1. Shri Moatemsu,
Son of Talichuba,
R/o Tuliyong Ward, H.No. 158,
P.O & P.S Tuli,
District-Mokokchung,
Nagaland
2. Shri Sakutemjen,
Son of Late Lendatuba,
R/o Medical Ward,
Changtongya,
District - Mokokchung, Nagaland
(Owner of Vehicle No. NL-02/C 5622 (Maruti Car)
3. Shri Rongsenpokba,
Son of Akangtemjen,
R/o Longmisa Village,
H.No. 501,
Mokokchung, Nagaland,
(Driver of Vehicle No. NL-02/C 5622 (Maruti Car)
.............Respondents
BEFORE HON'BLE MR.JUSTICE S.SERTO For the Appellant : Mr. B. Devnath, Mr. M. Wabang, MAC Appeal No. 2 (K) of 2016 Page 1 of 8 MAC Appeal No. 2 (K) of 2016 Ms. Z. Swu, Mr. Vikramjeet Devnath, Ms. Priyanka Devnath, Advocates For the Respondent No.1 : Mr. Temjen, Mr. Tongpok Pongener, Mr. E.Thiba Phom, Mr. S.Reopi Sangtam, Advs.
Date of hearing : 25.05.2017
and Judgment
JUDGMENT & ORDER
(Oral)
This is an appeal under section 173 of the Motor Vehicle Act, 1988, directed against the judgment and order dated 15.02.2016, of the learned Member MACT, Mokokchung, passed in MAC Case No. 4/2015.
2. Heard Mr. B. Devnath, learned counsel for the appellant/Oriental Insurance Company Limited and also heard Mr. E. Thiba Phom, learned counsel for the respondent/claimant.
3. The undisputed facts leading to the institution of the MAC Case No. 4/2015 and this appeal are as follows;
On 04.09.2014, at about 5:30 A.M. while the respondent/claimant was riding a Motor cycle (Entizer) bearing Registration No. MN-01-M-7548 at Tuli N.H No.2 he was hit by a Maruti Car bearing Registration No. NL-02-C-5622 driven by Mr. Rongsenpokba, and as a result, the respondent/claimant sustained head injuries and was taken to Aditya Diagnostic & Hospital Dibrugarh, Assam where he was treated in the Neurosurgery department from 04.09.2014 to 18.10.2014. Thereafter, the respondent/claimant filed the MAC Case No.4/2015, before the learned Tribunal MACT, Mokokchung, under section 166 of Motor Vehicle Act, 1988, claiming compensation to the tune of Rs. 13,78,000/- for having suffered 50% permanent disability due to the accident. The respondent/claimant supported his claim by filing accidental information report prepared by the Officer-in-Charge of Tuli Police Station, in whose jurisdiction the accident is alleged to have occurred and also filed insurance certificate cum Policy of the Maruti Car (offending vehicle) to show that such accident is covered under MAC Appeal No. 2 (K) of 2016 Page 2 of 8 MAC Appeal No. 2 (K) of 2016 Insurance Policy, and his driving license and the driving license of the offending vehicle. He also filed a certificate for disability issued by the Doctor of Imkongliba Memorial District Hospital, Mokokchung, Trade Permit issued by the Tuli Town Council, seizure memo prepared by the Police for the offending vehicle, admit card for appearing in the HSLC issued by the NBSE for prove of Date of Birth.
The case was contested by the present appellant by filing written statement stating that the there was contributory negligence on the part of the respondent/claimant and that the respondent/claimant's claim of his monthly income should be put to strict prove. Two witnesses were examined by the respondent/claimant, one was himself and the other was Police Officer who investigated the accident. The appellant/respondent did not produce any witness however, the owner of the offending vehicle, Mr. Sukutemjen gave evidence as the lone DW.
3. After hearing the parties and taking their contentions into account, the learned Tribunal framed as many as 6 issues. The issues are given here in below;
"1. Whether the vehicle B/No. NL-02-C/5622 (M/Car) and Motor bike B/Reg. No. MN-01-M/7548 met accident? If so, whether the claimant was injured?
2. Whether the vehicle possessed were holding valid vehicular documents including driving licenses at the relevant time?
3. Whether the accident occurred due to rash and negligent driving? if so, which of the driver?
4. Whether the Claimant suffered permanent injury?
5. Whether the claimant income and profession can be proved?
6. Whether the claimants are entitled for compensation? If so, to what extend and who is liable?"
4. The learned Tribunal after considering the evidence produced by the parties awarded of Rs. 11,68,400/- to the respondent/claimant. Aggrieved by the judgment and award of the learned Tribunal, the appellant/insurance company has come to this Court on appeal under the provisions of Motor Vehicle Act, 1988.
The points of appeal as submitted by Mr. B. Devnath, leaned counsel for the appellant are limited to three only; the first one is that the learned Tribunal without MAC Appeal No. 2 (K) of 2016 Page 3 of 8 MAC Appeal No. 2 (K) of 2016 proof of negligence against the driver of the offending vehicle arrived at the conclusion that there was rash and negligent driving on the part of the driver. The second point of appeal raised is that the burden of the respondent/claimant to prove his income was not discharged properly. And the third is that the learned Tribunal accepted the claim made by the respondent/claimant without any evidence and based on that calculated the compensation amount, therefore, the impugned order deserves to be quashed and set aside. In view of the limited grounds of appeal, only the relevant portions of the judgment and award dated 15.02.2016, of the learned Tribunal are reproduced here in below;-
ISSUE No.3. Whether the accident occurred due to rash and negligent driving? if so, which of the driver?
The respondent claimed that the accident occurred in this Application due to contributory negligence. Whereas, the claimant relied the testimony of the Claimant that "I was hit from behind by the Maruti Car bearing No. NL-02-C- 5622 driven by its driver Rongsengpokba". Therefore, unless there was a circumstances or reason why the alleged Maruti Car hit from the back of the Claimant's riding the Motorbike, without any ground forthcoming negligence- a mere statement cannot be admitted to construe contributory negligence. Otherwise, hitting from backside speaks volume of uncontrolled speed of the vehicle or negligence of the driver who hit the claimant. Thus, this issue decided infavour of the claimant.
ISSUE No. 5. Whether the claimant income and profession can be proved?
Ext-P/5 is the Trade permit vide permit No.77/13 issued by the Administrative Tuli Town Council, Nagaland under the style of "variety Corner"
where the Claimant claims he deals in selling cloths like-paints, shirts, jackets, etc. and earns Rs. 500/- to Rs. 1000/- per day as regular income. Whereas, the respondents assailed that the nature of work involved is not permanent and cannot work regularly and is irregular job as no prove to establish the claim. Considering the above contention between the parties the claimant business and Trade Permit noted above is not denied by the respondents. Therefore, there is a monthly income of the claimant cannot be denied. However, the claimant income cannot be static as claim and this Tribunal is of the opinion that keeping in mind the business nature of the claimant hereby fix at Rs. 350/- per day for 25 days in a month which comes of Rs. 7500/- (Rupees seven thousand five hundred) only per month for the just compensation."
5. Mr. B. Devnath, learned counsel for the appellant submitted that when an application under section 166 of Motor Vehicle Act, 1988, is made it is incumbent upon the claimant to prove the rash and negligent driving on the part of the driver of the MAC Appeal No. 2 (K) of 2016 Page 4 of 8 MAC Appeal No. 2 (K) of 2016 offending vehicle. However, in this case, the claimant has failed to prove rash and negligent driving by the driver of the offending vehicle at that time of the accident, therefore, the case ought to have been dismissed.
The learned counsel cited two judgments of the Hon'ble Supreme Court in support of his submission;
(i) The case of Surender Kumar Arora and Another -versus- Manoj Bisla and Others reported in (2012) 4 SCC 552, particularly, paragraph-9. The contents of the paragraph is reproduced here in below;-
"9. Admittedly, the petition filed by the claimants was under Section 166 of the Act and not under Section 163-A of the Act. This is not in dispute. Therefore, it was the entire responsibility of the parents of the deceased to have established that respondent no.1 drew the vehicle in a rash and negligent manner which resulted in the fatal accident. Maybe, in order to help respondent no.1, the claimants had not taken up that plea before the Tribunal. Therefore, High Court was justified in sustaining the judgment and order passed by the Tribunal. We make it clear that if for any reason, the claimants had filed the petition under Section 163-A of the Act, then the dicta of this Court in the case of Kaushnuma Begum (Smt.) & Ors. (supra) would have come to the assistance of the claimants".
(ii) The case of Lachoo Ram and Others -versus- Himachal Road Transport Corporation reported in (2014) 13 SCC 254. The relevant paragraphs 10 & 11 the judgment are reproduced here in below;-
"10. But simply the involvement of the bus in the accident cannot make the respondent liable to pay compensation unless it can be held on the basis of materials on record that the accident was caused by rash and negligent act of the driver-respondent no.2. On this issue, on comparing the reasons given by the Tribunal while discussing the issue no.1 and those given by the High Court on pages 10 and 11 of the paper book, we find the reasons given by the High Court to be much more cogent and acceptable in coming to the conclusion noted above. Since the bus was standing at the red light and on being asked, soon after starting from the traffic signal it stopped within 100 to 150 yards, it has rightly been reasoned that the bus could not have started on a high speed. The road at the place of the accident was admittedly very narrow and PW.2, who has been found reliable by the Tribunal as well as by the High Court and was present on the spot, has not claimed that the bus driver had given a signal to the deceased motor cyclist to overtake him. This witness could not see the actual accident because at that time the motorcyclist, in an effort to overtake the bus had gone on its right side and was not visible and therefore he could only hear the sound of crash. It is not the case of any witnesses that the bus MAC Appeal No. 2 (K) of 2016 Page 5 of 8 MAC Appeal No. 2 (K) of 2016 driver took any sudden turn while proceeding forward from the traffic signal or that he swerved the bus to the right side.
11. In the facts of the case it is not found possible to accept the contention on behalf of the appellants/claimants that the accident was on account of rash or negligent driving by the driver-the respondent No.2. In that view of the matter it is not found possible to give any relief to the appellants"
6. Mr. B. Devnath also submitted that in the evidence the claimant stated that he was hit by the offending vehicle driven by the driver from behind, therefore, the claimant could not have seen the driver of the offending vehicle driving the vehicle rashly and negligently.
The learned counsel further submitted that no final Police Station Report was available or no other witnesses also gave evidence stating that they saw the driver of the offending vehicle driving the same rashly and negligently at that point of time.
7. I have perused the deposition of the respondent/claimant. I have also gone through the evidence given by the Police Officer who investigated the accident. The claimant as PW No.1 stated in his examination-in-chief that he was hit from behind by the Maruti Car (offending vehicle) while he was riding his Motorcycle on N.H. No.2 at Tuli. In his cross examination he affirmed the same. The Police Officer also stated in his examination-in-chief that on hearing about the accident he and his team went to the place of accident and found the offending vehicle and the motorcycle of the claimant and after proper inquiry he found that the accident occurred due to rash and negligent driving of the driver of the offending vehicle. The Police Officer also stated that during his investigation he had ascertained that the Maruti Car (offending vehicle) bearing Registration No. NL-02-C-5622 hit the Motorcycle on which the claimant was riding from behind due to excessive speed. In the accident information report Exhibited as P-6 it is stated that the accident took placed due to rash and negligent driving of the vehicle. Mr. B. Devnath, learned counsel for the appellant submitted that this accidental information report does not show that the offending vehicle was driven rashly and negligently. I disagree with the learned counsel that the accidental information report does not show the offending vehicle was driven rashly and negligently. The information report given in the format clearly shows it was the offending vehicle that referred to in the report.
MAC Appeal No. 2 (K) of 2016 Page 6 of 8MAC Appeal No. 2 (K) of 2016 On careful scrutiny of the evidence given by the claimant as P.W No.1 and the evidence given by the Police Officer who investigated the accident. I am of the view that sufficient evidence is available for concluding that the accident occurred due the rash and negligent driving of the offending vehicle by the driver of the same. Moreover, the fact that the offending vehicle hit the claimant from behind, itself shows that there was rash and negligent on the part of the driver of the offending vehicle while driving the same.
In view of the above, this Court finds no reason to interfere on the findings of the learned Tribunal. However, I must record that though the learned Tribunal's findings on the issues was not so elaborate that does not meant that the findings were not supported by evidence.
On the issue of quantum of income of the respondent/claimant, the respondent/claimant gave in his evidence that he runs a shop where he sales garments, trousers, shirts, jackets etc. and he earned about Rs. 500 to 1000/- per day. He also exhibited a Trade License issued in the name of his father in support of his claim. There was no question ask in his cross-examination to discredit his statement given in the examination-in-chief. No rebuttal or evidence is also given by the appellant against the statement of the respondent/claimant. Therefore, I find no reason to disbelieve the claim of the respondent/claimant on the quantum of his income.
Trial under Motor Vehicle Act, 1988 is not like a criminal trial where strict rule of evidence is applied cases under the M.V. Act are decided on the basis of preponderance of probabilities. Therefore, the evidence available before the learned Tribunal was sufficient in drawing the conclusions that the claimant's income was Rs. 500 to Rs. 1000/- per day.
11. Mr. B. Devnath, learned counsel for the appellant submitted that though the Motor Vehicle Act is a piece of beneficial legislation it should not be construed in such a way that it becomes a source of profit making or wind full gain for some persons. The learned counsel further submitted that the amount of compensation has to be fair and reasonable by accepted legal standard.
While appreciating the submission of the learned counsel on the settled principles of law, I am unable to agree with him on the quantum of income of the MAC Appeal No. 2 (K) of 2016 Page 7 of 8 MAC Appeal No. 2 (K) of 2016 respondent/claimant which in my opinion has to be accepted as sufficiently proved in the given facts and circumstances of the case.
In view of what has been stated above, I find no room for interfering in the impugned judgment and award passed by the learned Member MACT, Mokokchung. Therefore, the appeal is dismissed. No order as to cost.
Send back the LCRs forthwith.
JUDGE kevi MAC Appeal No. 2 (K) of 2016 Page 8 of 8