Calcutta High Court (Appellete Side)
Sri Subir Sikder vs New Indian Assurance Company Ltd. & Ors on 5 November, 2019
1 ML 39 ss 05.11.2019 F.M.A. 2969 of 2002 Sri Subir Sikder Vs. New Indian Assurance Company Ltd. & Ors.
Mr. Krishanu Banik ... ... for the appellant Mr. Rajesh Singh ... ... for the insurance company This is another of the utterly false claims that has been pursued even in an appeal.
The accident took place on May 22, 1996 near Pallashy Fulbagan in the district of Nadia. According to the appellant, he suffered serious injuries in course of the accident which required him to be initially admitted at the Berhampore Hospital and then at the SSKM Hospital in Kolkata. The claim sought was for compensation on account of the pain and suffering of the appellant.
The appellant examined four witnesses. The appellant was P.W.-1 and he did not even allege rash and negligent driving on the part of either vehicle though he referred to a head-on collision that resulted in the appellant allegedly suffering serious injuries. P.W. - 2 was a doctor at SSKM Hospital who was not a witness to the incident. P.W. - 3 claimed to be another fellow passenger who said that the appellant herein suffered injuries as a result of the relevant accident and that the appellant was taken to hospital. P.W. - 4 was not a witness to the accident.
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It is the appellant's version that he became unconscious immediately after the collision took place and gained consciousness some three days later. The appellant claimed before the tribunal that he was taken to Berhampore Hospital and was subsequently referred to the SSKM Hospital in Kolkata. The appellant called a doctor from SSKM Hospital and such doctor explained the nature of the injuries and that such injuries may be consistent with a road accident.
However, two key factors appear to have been completely missed out by the appellant. First, neither alleged eye-witnesses, the appellant himself and P.W. - 3, claimed that either vehicle was driven in a rash and negligent manner at the time of the accident. Secondly, nothing that the appellant herein produced before the tribunal or adduced by way of evidence linked the appellant herein to the accident that took place at Pallashy Fulbagan on May 22, 1996.
It is elementary that for a claim to be pursued under Section 166 of the Motor Vehicles Act, 1988, the claimant has to make out a case of rash and negligent driving. Since this was a case of a collision between two vehicles, it would have sufficed for the appellant if a case of rash and negligent driving had been made out in respect of either vehicle. In the oral evidence of the appellant as P.W. - 1, there is no reference to either vehicle being driven in a rash and negligent manner. In the evidence of P.W. - 3, such witness claimed that in order to save a girl, there was a head on collision. In fact, such evidence of P.W. - 3 completely demolishes the case of rash and negligent driving, which is the sine qua non for a claim under Section 166 of the Act to succeed. 3
The matter could have been arrested here since there would be no cause to probe further once it is found that rash and negligent driving is not established. However, there are other disturbing features to the present case that are symptomatic of the malaise that afflicts this area of practice and which needs to be noticed.
The appellant claimed that the appellant was taken to Berhampore Hospital immediately after the accident. If such was the case, the appellant would have been in possession of some document from the Berhampore Hospital that the appellant ought to have produced before the tribunal. Further, the appellant alleged that the appellant was referred to the SSKM Hospital in Kolkata by Berhampore Hospital. There ought to have been a referral note in writing that the appellant should have produced before the tribunal. The appellant did not have any paper or document from the Berhampore Hospital nor did the appellant make any attempt to have someone from Berhampore Hospital attend the tribunal to testify whether the appellant had been admitted to such hospital immediately after the accident.
Indeed, the appellant has concentrated on what happened at the SSKM Hospital and how the appellant was treated there and the expenses that the appellant incurred therefor. It is as if the appellant had made an attempt to obliterate the three days between the accident and the appellant's admission at SSKM Hospital, as if it would not matter in the least once the appellant could establish that the appellant was treated at the SSKM Hospital. 4
Unfortunately, if the appellant was entitled to any compensation as a consequence of the accident of May 22, 1996, it was incumbent on the appellant to establish that the appellant was present in one of the vehicles at the time of the accident. It is such basic fact that the appellant could not establish and the appellant attempted to put up a smokescreen and concentrated on how the appellant was treated at SSKM Hospital.
It is possible that the appellant may have been a victim of a road accident. However, such road accident may have happened anywhere in Kolkata or elsewhere and may not have been the particular road accident at Pallashy Fulbagan in Nadia on May 22, 1996. The claim with which the appellant approached the tribunal was such accident of May 22, 1996 and the appellant hopelessly failed to establish the appellant's presence at the spot at the time of the accident or the appellant being an occupant of either vehicle at the time of the accident.
For the reasons aforesaid and those indicated in the wholesome award of the tribunal rejecting the claim, the appeal fails and FMA 2969 of 2002 is dismissed with costs.
Urgent certified website copies of this order, if applied for, be made available to the parties upon compliance with the requisite formalities.
(Kausik Chanda, J.) (Sanjib Banerjee, J.)