Calcutta High Court (Appellete Side)
National Insurance Company Limited vs Shila Debi And Others on 7 December, 2018
Author: Harish Tandon
Bench: Harish Tandon
IN THE HIGH COURT AT CALCUTTA
CIVIL APPELLATE JURISDICTION
APPELLATE SIDE
Present:
The Hon'ble Justice Harish Tandon.
AND
The Hon'ble Justice Subhasis Dasgupta.
F.M.A.T. 193 of 2014
With
C.A.N. 10827 of 2015
National Insurance Company Limited
-Versus-
Shila Debi and Others.
For the Appellant : Mr. Rajesh Singh, Adv.
Mr. Sucharita Paul, Adv.
For the respondents : Mr. Ali Imam Shah, Adv.
Judgment on : 7th December, 2018 Subhasis Dasgupta, J. :-
This appeal emerges out of the judgment and order dated 3rd October, 2013 passed by the Motor Accident Claims Tribunal Durgapur awarding compensation to the extent of Rs. 26,37,980/- along with the interest at the rate of 8% per annum from the date of filing of the case till realisation.
Learned Tribunal Judge elaborately dealt with the factual circumstances leading to the death of the deceased victim by reason of the involvement of the offending vehicle due to its rash and negligent driving. Some crucial facts however, may be adhered to for the decision of this appeal. The deceased victim, a 36 years old man working as an employee of Durgapur Steel Plant having an income of Rs.20,932/- per month suffered death on 18.10.11 at Durgapur Mission Hospital, after being dashed by the offending vehicle on 17.10.11 from behind due to its rash negligent driving, while deceased victim was driving his bike along the left side of the road. The deceased victim suffered serious head injuries and was taken to DSP Hospital, Durgapur and ultimately to Durgapur Mission Hospital, where he succumbed to injuries.
The appellant/Insurance Company challenged the appeal raising points what had already been agitated before the Tribunal alleging that the deceased victim himself had struck road side tree, while driving his own motor bike negligently, and ultimately suffered death receiving head injuries. More so, admittedly, the offending vehicle, a Maruti Car having certificate of insurance for private purpose was given on hire at the relevant point of time, and thus, the owner of the vehicle had breached the condition of the policy requiring insurer not to indemnify the claimants. In other words, it was contended that the vehicle insured by the appellant was not at all involved in the accident. There was delay in lodging prosecution against the driver of the offending vehicle, which left room for concoction and embellishment in advancing a claim case for the desired purpose. Further challenge raised was that the Insurance Company could not be foisted with the liability to indemnify the claimants for the contravention of Section 134 of the Motor Vehicles Act, 1988, as neither the driver, nor the owner of the vehicle did necessary compliance with regard to Section 134 of the MV Act within the best possible opportunity soon after the accident was held.
The points simplicitor requiring determination in this appeal are thus extracted to three counts. The first one is the denial of involvement of the offending vehicle with a specific plea that the offending vehicle was given on hire making a complete breach of Section 149 (2)(a)(i)(a) of the MV Act. The second one is the alleged delay leaving sufficient space to manufacture a claim case and the last one being the contravention of Section 134 of the Motor Vehicles Act, 1988 so as to repudiate the claim for compensation.
Respondents/claimants opposed the appeal submitting that the death of the victim was an outcome of rash and negligent driving by reason of involvement of offending Maruti vehicle, and learned Tribunal Judge duly considered the factual aspects revealed from the evidence adduced and documents exhibited by either of the parties to the case in awarding the compensation. It was sought to be established by respondents that merely the delay, what had been successfully explained before the Tribunal, would not be sufficient enough to dispute an award already recorded by Tribunal. In repudiation of contravention of Section 134 of the MV Act, an endeavour was put to establish that contravention of Section 134, if any, would not absolve insurer appellant from paying the award.
The learned advocate Mr. Rajesh Singh for the appellant/Insurance Company drew our attention to a hospital document (Exhibit-A), produced by OPW1 furnishing intimation of accident to police station and adverting to the same controverted the award alleging that victim had struck road side tree while driving the offending Maruti car negligently and suffered death ultimately.
Further reference was drawn by the appellant to Exhibit-4, the certificate of insurance, and focusing on the same, argument was canvassed with emphasis that a Maruti car, in the category of private nature, not covered by such insurance, having manifestly committed breach of the insurance policy, could not be made liable to indemnify the claimants for the award.
The crucial point revealed from Exhibit-A, a hospital document furnishing intimation of accident to police station that neither the informant furnishing the intimation to Durgapur Mission Hospital about a road traffic accident could be examined, nor the employee of the hospital, who reproduced the version of the informant could be produced at the witness box, without which the veracity of the information furnished in hospital and that too recorded in the hospital document could be testified. According to appellants Exhibit-A together with Exhibit-4 were sufficient enough to doubt the claim case and for which appellant could not be foisted with a liability to pay the award to claimants.
Admittedly a criminal prosecution was initiated under Section 279/304 IPC against the driver of the offending vehicle, which ultimately ended in the charge-sheet after due police investigation. Such criminal prosecution, not only corroborated the claim case, but also offered support to unearth the truth of claim case.
Relying upon a decision reported in 2011 SAR (Civil) 129, Supreme Court, in the case of Saroj & Ors. Vs. Het Lal & Ors, the learned advocate for the claimants most ardently submitted that, when the owner of the vehicle admitted that his vehicle had been engaged in the accident, the award of the Tribunal could not be made a subject of challenge. In such decision of the Hon'ble Apex Court, the Tribunal dismissed the claim case holding that it was case of hit and run, and the High Court confirmed the findings, arrived at by the Tribunal, which was disturbed in appeal in the Apex Court, wherein it was held that the admission by the owner was sufficient to hold that the vehicle was involved in the accident, and accordingly the case was remanded back to the Tribunal to decide the question of liability for compensation.
The appellant/Insurance Company had nothing to challenge such settled position by furnishing recent decision of the Apex Court repealing the same. The principle of judgment, referred above, would thus be squarely applicable over the facts and circumstances of the case.
The appellant/Insurance Company simply to make out its defence examined three witnesses, out which OPW-1 was the producer of hospital documents including Exhibit-'A', OPW-2 was the private investigator, appointed by insurer and OPW-3 was the registered owner of vehicle. The most pertinent question, that feel for consideration being of highest significance, was whether the Exhibit-'A' and Exhibit-4 together would render the claim case unbelievable ignoring the oral testimony of PW-1(the wife of deceased) and PW-2(the eye witness to the accident) together with Exhibit- 1(FIR) and Exhibit-2(Charge-sheet), or not? On careful analysis of the evidence adduced by the parties, the one and only irresistible conclusion likely to come up is that the deceased suffered death caused by the accident of vehicle belonging to insured and the claim case cannot be doubted merely because of an entry, recorded in the Durgapur Mission Hospital's document, contrary to the version of FIR and Charge-sheet on the ground that neither the informant furnishing the information of accident, nor the employee of the Durgapur Mission Hospital, who reproduced the alleged version of information in to writing having had the best opportunity to know about the accident, could be examined in this case, and further to establish the contradiction must successfully, the hospital document of Durgapur Steel Plant Hospital, where victim was first brought for securing medical attention soon after the accident, was ever sought to be produced. The involvement of the vehicle thus cannot be disputed simply by the recording of an entry in Durgapur Mission Hospital, where victim was subsequently conveyed, and such contradiction, attempted to be established by the appellant not being major in nature, would not render the claim case suspicious. The reasoning offered by Tribunal Judge to hold the offending vehicle involved in the accident, in our considered opinion, would remain unaltered.
In exercise of the authority granted to Insurance Company by the Tribunal under Section 170 of the MV Act, the registered owner was examined in this case(OPW-3), who admittedly, stated in his version that his vehicle, a Maruti car, had been given on hire at the relevant point of time. Referring to this piece of evidence, learned advocate for the appellant contended alleging that since there had been breach of the condition of the insurance policy under Section 149(2)(a)(i)(a), of M.V Act, the insurance company could be safely made to absolve its liability from paying the award, for the admitted breach of the condition of insurance policy.
In the present appeal we were made to answer if a car in the category of private nature, having certificate of insurance, obviously for private purpose to ply on road, could be made to indemnify the claimants for the award or not? According to appellant this could not be done for the admitted breach of the condition of insurance policy. To answer the issue we thought it prudent to take shelter of a decision of the Hon'ble Apex Court, delivered in the case of National Insurance Company Limited vs. Swaran Singh and others reported, in (2004) 3 SCC 197 wherein it was held that even in cases, where the insurance Company was able to put a good defence under Section 149(2) of the MV Act, it was upon the Insurance Company to first pay the claimants of the victim, and thereafter recover it from the owner of the offending vehicle. The ratio of decision leading to the proposition 'Pay and Recover" was enforced by Hon'ble Apex Court in a recent decision reported in (2018) 9 SCC 650 in the case of Shamanna and Another vs. Divisional Manager, Oriental Insurance Company Limited. The Hon'ble Apex Court in the case of Swaran Singh & Ors. (supra) categorically observed that even where the insurer was able to prove breach on the part of the insured concerning the policy condition regarding holding of a valid licence by the driver or his qualification to drive during the relevant period, it would not be proper to suggest that the Insurance Company would be able to avoid its liability towards the insured.
A Division Bench of this Court already settled the point pertaining to validity of licence of driver causing a road traffic accident, discrepancies of a driving licence together with disqualification of a driver possessing an inappropriate driving licence, by rendering a decision given in CAN 5777 of 2017 IN FMAT 542 OF 2017 in the case of National Insurance Company Limited vs. Smt. Dipannita Acharya & Ors., re-enforcing the decision of the Hon'ble Apex Court in Swaran Singh & Ors.(supra).
Relevant portions of paragraph 110 of judgment of the Hon'ble Apex Court rendered in Swaran Singh & Ors.(supra) may be adhered to in the interest of facilitating discussion for an inference to reach, which may be depicted as follows:
"110(i) Chapter XI of the Motor Vehicles Act, 1988 providing compulsory insurance of vehicles against third-party risks is a social welfare legislation to extend relief by compensation to victims of accidents caused by use of motor vehicles. The provisions of compulsory insurance coverage of all vehicles are with this paramount object and the provisions of the Act have to be so interpreted as to effectuate the said object.
(ii)......................................
(iii)....................................
(iv) Insurance companies, however, with a view to avoid their liability must not only establish the available defence(s) raised in the said proceedings but must also establish "breach" on the part of the owner of the vehicle; the burden of proof wherefor would be on them.
(v)..................................
(vi) Even where the insurer is able to prove breach on the part of the insured concerning the policy condition regarding holding of a valid licence by the driver or his qualification to drive during the relevant period, the insurer would not be allowed to avoid its liability towards the insured unless the said breach or breaches on the condition of driving licence is/are so fundamental as are found to have contributed to the cause of the accident. The Tribunals in interpreting the policy conditions would apply "the rule of main purpose" and the concept of "fundamental breach" to allow defences available to the insurer under Section 149(2) of the Act."
The ratio of the judgment enunciated hereinabove succinctly settled that in a particular case where insurer was able to prove a breach on the part of the insured pertaining to conditions of insurance policy, the insurer could not be made to escape its liability towards the insured, unless such breach or breaches were fundamental in nature having the effect of contribution to the case of the accident. In the instant appeal, there left nothing in the evidence that a Maruti brand private car having been given on hire, driven by a driver, employed by registered owner of the vehicle offered its contribution to the cause of the accident and it was so fundamental and patent in nature that it would operate as a good defence to repudiate the claim for award. The appellant/insurer in the given circumstances of the case is not remediless and the manner of resorting to remedy was specifically laid down there clarifying that to establish the proposition 'Pay and Recover', the money found due to the insurer could be recoverable on a certificate being issued by the Tribunal to the collector in the same process as required under Section 174 of the Act, as arrears of land revenue. The appellant/Insurance Company thus can be made to indemnify the claimant first irrespective of the nature vehicle being involved in accident, and then may take recourse to recovery from owner of vehicle.
The delay caused in lodging the FIR was another subject of challenge in this appeal. From the evidence it is revealed that the accident was held on 17.10.11 and the victim suffered his death on 18.10.11. The FIR was lodged on 27.10.11 casing a delay of 10 days, which according to appellant went unexplained and such unexplained delay would operate as a strong defence to doubt the claim case for compensation being concocted, fabricated, skilfully engineered one during the intervening period of delay.
Claimants/respondents taking recourse to decision, delivered by Division Bench of this Court in the case of National Insurance Company Limited vs. Pratima Barick and Another reported in 2017 (2) T.A.C. 466 (Cal) submitted that delay having been satisfactorily explained in the FIR itself could not be made to be a strong instrument to dispute the award. True it is that in the FIR itself, an explanation was offered that because of involvement in the treatment of the deceased by the family members of the deceased together with cremation of the dead body followed by observance of rituals, the delay was, thus caused. This point came up for consideration, when Division Bench of this Court held that in the absence of strong evidence being led, indicative of materials providing justification for fabrication, or embellishment or concoction in the version of claim case, mere delay would not be strong enough to dismiss a claim case. The Division Bench of this Court already had taken notice of the decision of Hon'ble Apex Court reported in (2011) 4 SCC 693:2011(1) T.A.C 867, in the case of Ravi v. Badrinaryan which significantly taken care of the behaverial pattern of people living in Indian society for a sudden death of road traffic accident.
Thus, the mere delay, as urged strongly, would not be strong enough to dismiss a claim case.
The contention raised by the appellant with regard to contravention of Section 134 of the MV. Act requiring decision now could be set at rest by the following discussion.
Section 134 of the MV Act has three components. The first component provides for the duty and obligation of the driver or the other person in-charge of the vehicle soon after the accident by conveying the injured immediately to nearest hospital for securing his medical attention and the corresponding duty of the Doctor of hospital. The second component deals with the duty of the driver to furnish information of accident to nearest police station within 24 hours stating the action, if any taken, or if no action is taken, explain the circumstances for not taking reasonable steps, as contemplated under the first component. The third component speaks about the duty/obligation of the driver including registered owner of the vehicle to furnish information of accident in writing to the insurer. The duty/obligation, contemplated to be performed under Section 134(a) of M.V Act does not go with any unfettered terms. It is qualified by the following terms "(a) unless it is not practicable to do so on account of mob fury or any other reason beyond his control,". In the instant case no evidence was adduced by the Insurance Company that there was no mob fury or any other convincing circumstances justifying the driver causing the accident to strictly follow the duties as contemplated under Section 134(a) of the said Act. The chance of reasonable apprehension of receiving physical assault by the driver out of fear soon after the accident thus could not be eliminated. There may be many circumstances beyond the control of the driver to occur for not adhering to duties spelt out in Section 134(a) of the said Act.
Practicable is something that can be reasonably done or put in to practice. The driver of the vehicle, or other person in-charge of the vehicle can be assumed to have had that capacity of performing such obligation, unless it is established manifestly that compelling circumstances were not there making the obligation impossibility of performance. Since Section 134(a) of the M.V Act is qualified by terms used therein, as discussed hereinabove, and such terms have been found place at the beginning Section 134(a) of the said Act, we are of considered view, that the legislative intent has been sufficiently demonstrated there that such duty and obligation, entrusted upon the person or persons, named therein, cannot be expected to be performed essentially and compulsorily without making any departure.
The evidence of OPW3 (registered owner) amply left materials to reveal that the registered owner informed the involvement of his vehicle in the accident to the insurance Company, but he could not furnish its details. Such evidence however remained undisturbed in cross-examination paving the way suggestive of furnishing information of accident to insurer. Therefore, it is not the case that the Insurance Company had no information about the incident. There is no time limit prescribed under Section 134(c) of the said Act within which a registered owner or his employed driver would be obliged to furnish the information of accident to the insurer. In the absence of any time limit being prescribed, at any time reasonably after the accident such information could be made available to the insurer so as to render compliance of Section 134(c) of the M.V Act, what was exactly done in the instant case when the insurance Company sent a notice upon the registered owner asking to know about the involvement of his vehicle in the accident (revealed from cross- examination OPW3).
In effect Section 134 of the MV Act is not with that magnitude, compulsorily to be applied in all cases. At best this can be described prescriptive in nature. More so this rule is devoid of any penal consequences for its contravention. Section 177 of the MV. Act has already taken care of such contravention by prescribing penalty of Rs.100/- for first offence, and Rs.300/- for any second and subsequent offence, which has nothing to do with the legitimate award, granted in a particular case.
The paramount consideration to construe a particular provision of the Statute to be imperative should be judged in the touchstone of the language used therein and the consequences provided for its breach to the detriment of the defaulting party. The Court always keep in mind the object of the Statute and avoid unnecessary technical impediments by virtue of interpretative process while considering the non compliance. It is to be kept in mind that such a requirement is designated to facilitate justice and further its aims and if the consequences of non compliance is not of such magnitude, which would nullify the entire action, it is always held to be directory.
After a critical appreciation of evidence adduced and exhibited documents produced, by the parties, we found no reason to take a view at variance with that of the learned Tribunal Judge. The reasoning contained in the judgment while granting the award by the Tribunal in the given circumstances of the case cannot be said to be perfunctory. Each of the circumstances relied upon by the Tribunal leading to the death of the deceased victim is germane to the ultimate conclusion that a false case was not set up for advancing a claim case for compensation, as sought to established by appellant. The loss of dependency determined and the multiplier so chosen by the Tribunal in granting the award was perfectly made after due consideration of the precedents governing the subject. As a result, the findings of the Tribunal would remain unaltered.
Accordingly the appeal and the connected application are dismissed without any costs.
Since the entire awarded sum together with interest was already deposited in terms of the order passed in the instant appeal dated 9th September, 2014 and the said sum was further invested in the interest earning scheme of the bank, liberty is given to respondents to approach the Registrar General of High Court for withdrawal of the amount upon furnishing bank account number of the claimants individually, and if such approach is made, the Registrar General will please take step for releasing the amount upon satisfaction of identity of claimant to the respondents from the bank within two(2) weeks from date the of such approach. The shortfall in the interest, however be deposited by appellant /Insurer at the prescribed rate by the Tribunal, to Registrar General by separate account payee cheques in the name of claimants individually within the date stipulated above for the period from the date of such deposit of sum already made on 31.10.2014 till disbursement of all dues.
Urgent certified copy of this order if applied for, be made available to the parties upon compliance with requisite formalities.
I agree.
(Harish Tandon, J.) (Subhasis Dasgupta, J.)