Calcutta High Court (Appellete Side)
The New India Assurance Co. Ltd vs Sinjini Gupta & Ors on 18 November, 2009
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. Bhaskar Bhattacharya, Acting Chief Justice
And
The Hon'ble Mr. Justice Prasenjit Mandal
F.M.A.T. 1162 of 2009
The New India Assurance Co. Ltd.
Versus
Sinjini Gupta & Ors.
For the Appellant: Mr. P.K. Pahari.
For the Respondent: Mr. Krishanu Banik.
F.M.A.T. 2666 of 2007 The New India Assurance Co. Ltd.
Versus Sinjini Gupta & Ors.
For the Appellant: Mr. P.K. Pahari.
For the Respondent: Mr. Jayanta Kumar Mondal.
F.M.A. 1121 of 2007
With
C.O.T 16 of 2008
New India Assurance Co. Ltd.
Versus
Jaharlal Jash & Ors.
For the Appellant: Mr. P.K. Pahari.
For the Respondent: Mr. Jayanta Kumar Mondal.
Heard on: 30.10.2009.
Judgment on: 18th November, 2009.
Bhaskar Bhattacharya, ACJ.:
These three appeals under Section 173 of the Motor Vehicles Act along with a cross-objection filed by the respondent in the third one mentioned above were heard analogously as those arose out of proceedings for compensation for the deaths of three different victims who died of the same accident. In the first two matters the daughter of the two victims filed the application under Section 166 of the Act claiming compensation for the death of her parents while in the third matter, the parents and the son of one Manoj Kr. Jash, the victim, who was also a co-passenger of the selfsame vehicle filed the application for compensation.
Those proceedings gave rise to three different Motor Accident claim Cases under Section 166 of the Motor Vehicles Act and three different awards were passed separately on the basis of different sets of evidence adduced by the parties.
We, therefore, propose to deal with these appeals separately one after the other.
F.M.A.T. 1162 of 2009 The New India Assurance Co. Ltd.
Versus Sinjini Gupta & Ors.
This appeal is at the instance of the Insurance Company and is directed against an award dated 19th March, 2009, passed by the Motor Accident Claim Tribunal, Third Court, Burdwan in M.A.C. Case No.60 of 2006 thereby disposing of the said proceeding by awarding a sum of Rs.18,47,500/- as compensation with a direction upon the New India Assurance Company Ltd., the appellant before us, to pay the abovementioned amount within two months from the date of award along with 9% interest from the date of filing of the case till date of payment.
Being dissatisfied, the Insurance Company has come up with the present appeal.
The facts giving rise to filing of the application for compensation out of which the present appeal arises may be summed up thus:
On 25th March, 2005, at 9 P.M., the victim, the father of the applicant, who was the owner and also the driver of a Maruti Van, bearing No. WB /40E/9274 was proceeding from Budbud after crossing Burdwan towards Panagar on NH-2, when one truck bearing No. WB 39/1364 was parked on the wrong side of the said National Highway almost covering metal portion of the road near Pepsi gate without any light. While the Maruti Van was overtaking the said parked truck, one unknown truck, coming from the opposite direction, had dashed the said Maruti Van, as a result of which, the victim, the father of the claimant could not control his vehicle and had collided with the standing truck No. W.B. 39/1364 and due to rash and negligent parking of the said truck on the road, the accident occurred resulting in the death of the victim on the spot. In this proceeding, the owner of the stationary was made party along with its Insurance Company. The victim was aged 49 years at the time of death and basic pay of the victim was Rs.16,400/- along with other pecuniary benefits.
The owner of the stationary truck did not contest the proceeding but the appellant, the New India Assurance Company Ltd., contested the proceeding with the leave of the Court under Section 170 of the Act and filed the written statement denying the material allegations made in the application for compensation. According to the Insurance Company, there was no fault or negligence on the part of the driver of the truck being WB 39/1364 for the accident and as such, the appellant was not liable to pay any amount of compensation for the death of the owner and driver of the Maruti Van.
At the time of hearing, the claimant herself, one Mrinmoy Nandy, a co- employ of the victim, and one Rakesh Kr. Sharma, an alleged eyewitness of the accident, gave evidence on behalf of the claimant. Those witnesses were cross- examined by the Insurance Company but no independent evidence was adduced on behalf of the Insurance Company.
The learned Tribunal below by the award impugned herein has held that the death of the victim occurred due to rash and negligent driving of the driver of the truck No. WB 39/1364 and consequently, awarded a sum of Rs.18,76,500/- as compensation.
Mr. Pahari, the learned advocate appearing on behalf of the appellant, has strenuously contended before us that the learned Tribunal below erred in law in passing direction upon his client to pay the compensation notwithstanding the fact that the stationary truck with whom the Maruti Van collided after being hit by an unknown truck had no role to play in the accident resulting in the death of the victim. Mr. Pahari submits that the death occurred due to the fact that the driver of the Maruti Van was recklessly overtaking the stationary vehicle when an unknown truck from the opposite direction ran into the Maruti Van and the said truck fled away. Mr. Pahari submits that at the time of hearing, P.W.3, the alleged eyewitness, has given narration of a new fact inconsistent with the pleading as if the truck insured by his client had been coming from the opposite direction and there was no existence of any unknown truck as pleaded in the claim-application, and thus, the learned Tribunal should not have believed such fact.
Mr. Banik, the learned advocate appearing on behalf of the claimant, has opposed the aforesaid contentions of Mr. Pahari and has contended that as the claimant was not an eyewitness there was some mistake in the statements of fact made in the application for compensation but the real fact was disclosed at the time of hearing by the eyewitness and thus, the learned Tribunal below rightly held that the death occurred due to negligence on the part of the driver of the insured truck. According to Mr. Banik, in a proceeding under the Motor Vehicles Act, the pleading of the claimant should not be strictly construed. He, therefore, prays for dismissal of the appeal.
Therefore, the first question that arises for determination in this appeal is whether the Tribunal below was justified in holding that the truck being WB 39/1364 was in anyway responsible for the death of the victim.
After going through the materials on record, we find that PW1 and PW2 had no knowledge about the accident and, therefore, in order to ascertain whether the driver of the truck being WB-39/1364 was responsible for the accident, we are required to scrutinize the evidence of PW3, the alleged eyewitness.
The PW3, in his examination-in-chief stated that the truck bearing No. WB 39/1364 was proceeding towards Burdwan in wrong side without any light and at that time, the Maruti Van was proceeding towards Panagar i.e. in the opposite direction. According to the said witness, the said truck dashed the said Maruti Van and the accident occurred due to rash and negligent driving by the driver of the said truck.
In the application for compensation, however, a different story has been given and the selfsame story is reflected from the first information report. According to such case, the Maruti Van being driven by the victim was proceeding towards Panagar from Budbud on NH-2 and when the said Maruti Van was overtaking a stationary truck being WB 39/1364 which stood on NH-2 on the wrong side covering metal portion of the road, an unknown truck coming from the opposite side dashed the Maruti Van, as a result, the victim could not control the Maruti Van and hit the standing truck which was stationed there.
PW3, however, has not referred to any unknown truck coming from opposite side and he has described the stationary car mentioned in the pleading as "the offending vehicle coming from the opposite side".
We, therefore, find substance in the contention of Mr. Pahari that the evidence of the sole of the eyewitness cannot be believed as he has totally deviated from the case made in the claim application.
Mr. Banik, at this stage, tried to convince us that in a proceeding under the Motor Vehicles Act, the pleading should not be construed rigorously like that of a civil litigation and the evidence may not be strictly in conformity with the pleading. According to Mr. Banik, it was the duty of the owner of the offending vehicle to bring the driver of the truck to the witness box who could disclose the correct picture. According to Mr. Banik, the owner of the vehicle having failed to appear in spite of being made a party to the proceedings, and having service of summons, we should draw adverse presumption against the owner and consequently, his insurer should be liable to pay the amount.
We are, however, unable to accept the aforesaid contention of Mr. Banik. Although the proceeding under Section 166 of the Act is of the summary nature, the claim application should be treated as pleading and evidence is to be given to substantiate the case made out in the claim application. If after ascertaining the real fact, the claimant finds that statement made in the claim application was not correct, it was her duty to amend the claim application. Without amending the claim application, she could not come out with a new case which is totally inconsistent with the case made in the application for compensation. We have already pointed in the original claim application, an unknown truck coming from opposite direction was described as a real culprit who dashed with the Maruti Van as a result the said Maruti Van had hit the standing truck and the death really occurred for the negligent driving of the unknown truck which sped away. If this is the pleading of the claimant, the owner of the stationary car mentioned in the claim-application might have decided not to contest the proceeding because on the basis of the averments made in the claim-application it was apparent that his driver had no role to play in the accident. Although Mr. Banik tried to convince us that the vehicle was kept on the wrong side without any light, we find that for not keeping any light on the standing vehicle the accident did not occur because according to pleading, the Maruti Van was overtaking the standing vehicle. There is also no evidence to indicate that the vehicle was parked at a place which was a "no parking zone". Mere parking of a car at a place of the National Highway which is not a "no parking zone" cannot be either any offence or a negligent act with when it is apparent that the accident and death occurred not for that parking but due to rash and negligent driving of an unknown truck coming from opposite side. In this case, the PW3 has made a different story by saying that the truck mentioned in the claim-application as a stationary vehicle was coming from the opposite direction. On consideration of the entire material on record, we, therefore, find that the truck insured by the appellant was not at all responsible for the death or accident which occurred due to rash and negligent driving of the unknown car coming from the other side and, therefore, the learned Trial Judge erred in law holding that the appellant was liable to pay compensation.
In a proceeding under Section 166 of the Motor Vehicles Act unless it is established that due to rash and negligent act on the part of the owner or driver of a vehicle the death occurred, no compensation should be payable at the instance of the owner of the said vehicle. In this case the unknown truck was the offending vehicle and not the parked car upon which the Maruti Van had fallen after being hit by the Truck from opposite side.
We, thus, find no substance in the claim-application against the appellant.
F.M.A.T. 2666 of 2007 The New India Assurance Co. Ltd.
Versus Sinjini Gupta & Ors.
In this case, the claimant is the same person as indicated above and the death arose out of the same accident with this difference that the mother of the claimant is, in this case, the victim, instead of father, who was a passenger of the Maruti Van. In this case PW1 is the claimant, PW2 is the selfsame Rakesh Sharma, the alleged eyewitness, who was PW3 in the earlier case and the PW3 in this case is a co-employee of the victim who proved the income of the victim.
The Insurance Company has challenged the award dated 28th June, 2007 passed by the Motor Accident Claim Tribunal, Fifth Court, Burdwan in M.A.C. Case No.21 of 2006 by which the Tribunal held that the owner of the truck being WB 39/1364 was responsible for the death. While allowing the application, the learned Tribunal opined that it was immaterial whether the truck was stationary or in moving condition when the fact reveals that the Maruti had hit against the said truck and as such, the involvement of the truck being WB 39/1364 has been established. According to learned Tribunal, it is a case of application of the principles of res ipsa loquitur and as such, rash and negligent act on the part of the truck was not required to be proved. We are afraid, the learned Tribunal below was totally wrong in applying the said principle to the facts of the present case.
As pointed out by the Supreme Court in the case of Syad Akbar vs. State of Karnataka reported in AIR 1979 SC 1848, the principles of res ipsa loquitur can be made applicable in the circumstances indicated below:
"As a rule, mere proof that an event has happened or an accident has occurred, the cause of which is unknown, is not evidence of negligence. But the peculiar circumstances constituting the event or accident, in a particular case, may themselves proclaim in concordant, clear and unambiguous voices the negligence of somebody as the cause of the event or accident. It is to such cases that the maxim res ipsa loquitur may apply, if the cause of the accident is unknown and no reasonable explanation as to the cause is coming forth from the defendant. To emphasise the point, it may be reiterated that in such cases, the event or accident must be of a kind which does not happen in the ordinary course of things if those who have the management and control use due care. But, according to some decisions, satisfaction of this condition alone is not sufficient for res ipsa to come into play and it has to be further satisfied that the event which caused the accident was within the defendant's control. The reason for this second requirement is that where the defendant has control of the thing which caused the injury, he is in a better position than the plaintiff to explain how the accident occurred. Instances of such special kind of accidents which "tell their own story" of being offsprings of negligence, are furnished by cases, such as where a motor vehicle mounts or projects over a pavement and hurts somebody there or travelling in the vehicle; one car ramming another from behind, or even a head- on-collision on the wrong side of the road. (See per Lord Normand in Barkway v. South Wales Transport Co. (1950) 1 All ER 392 at p. 399 Cream v. Smith (1961) 8 All ER 349 Richley v. Faull (1965) 1 WLR 1454. Thus, for the application of the maxim res ipsa loquitur no less important a requirement is that the res must not only bespeak negligence, but pin it on the defendant."
(Emphasis supplied by us) In the case before us, there is admission in the pleadings that an unknown car is the offending vehicle but for whom the accident would not occur. Moreover, the requirements of application of the aforesaid principles as indicated by the Apex Court are absent because the cause of accident is the overtaking of the stationary truck by the Maruti Van and the negligence on the part of an unknown truck in not stopping the said vehicle when the Maruti Van was seen overtaking a stationary van.
In the case of P.P. Udeshi and others vs. M/s. Ranjit Ginning and Pressing Co. Ltd reported in AIR 1977 SC 1735 relied upon by Mr. Mondal, the learned Advocate appearing on behalf of the claimant, from the description of the accident given by plaintiff which stood unchallenged, the car had proceeded to the right extremity of the road which was the wrong side and dashed against a tree uprooting it about 9 inches from the ground. The car was broken on the front side and the vehicle struck the tree so heavily that the engine of the car was displaced from its original position one foot on the back and the steering wheel and the engine of the car had receded back on the driver's side. In such a fact, the Apex Court held that the Tribunal was justified in applying the doctrine of res ipsa loquitur and that it was for the defendant to prove that the incident did not take place due to their negligence. In the case before us, it is the pleading of the claimant that her father while overtaking a stationary vehicle collided with an unknown truck coming from the opposite direction and thus, the aforesaid principle cannot have any application to the facts of the present case and consequently, the said decision is of no avail to Mr. Mondal's client.
Similarly, in the case of The Krishna Bus service Ltd. vs. Sm. Manali and others reported in AIR 1976 SC 700, another decision relied upon by Mr. Mondal, the accident relating to death occurred due to overturning of a bus. In such a situation, the Apex Court was of the opinion that in the absence of the explanation by the driver as regards the cause of overturning, the doctrine of res ipsa loquitur was applicable. We fail to appreciate how the said decision can be of any assistance to the claimant in a case where the driver of the Maruti Van or that of the unknown truck was the responsible as has been found from the materials on record.
In the case of Samir Chanda vs. Managing Director reported in 1998 WBLR (SC) 386 death of a passenger occurred due to explosion of a bomb within a bus but no precautionary measure was taken. In such circumstances, the Supreme Court was of the view that the claimants were entitled to get compensation as negligence of the respondent in not taking adequate measures for the safety of the passenger was proved. The said decision does not help the respondent in this case.
The case of Kaushnuma Begum vs. the new India Assurance Company Ltd reported in 2001 WBLR (SC) 207 is one under Section 163A of the Act where the involvement of the vehicle is sufficient to get an order of compensation without proof of negligence. Thus, the principles laid down in that decision cannot have any application to a proceeding under Section 166 of the Act.
In the case of Basthi Kashim Saheb vs. Mysore State Road Transport Corporation (1991 ACJ 380), a bus driven at a fast speed while crossing a bullock cart left stationary on the left flank of the road went on to the kacha flank of the right side and its wheel sank in the soil and the vehicle toppled on its right side causing injuries to its passengers. In such circumstances, the Apex Court applied the doctrine of res ipsa loquitur on the ground that the driver should have been aware of the fact that in the rainy season when it was actually raining, the unmetalled portion of the road used to be rendered slushy and muddy and as such, he should be held negligent for bringing the bus with fast speed to that portion of the road. The said decision thus factually is inapplicable to the facts of the present case.
In the case of Usha Rajkhowa and others vs. Paramount Industries (2009(2) T.A.C 11(SC)), the negligence of the truck in the accident was proved and hit of the truck was found to be so powerful that the two persons seated in the car died immediately and the other was seriously injured. In such a situation, the Apex Court applied the principles of res ipsa loquitur as there was no negligence of the driver of the Maruti Van. In the case before us, the victim and the driver of the unknown truck having been found to be negligent from the evidence on records, the said principles cannot have any application against the owner of the stationary truck.
We thus find that the decisions cited by Mr. Mondal do not benefit his client in anyway.
We have already pointed out in the earlier case, that in a proceeding under Section 166 of the Act, the mere involvement of the vehicle is not sufficient but it must be established that due to the negligence on the part of the driver of the offending car the accident occurred. If a Maruti Van while overtaking a stationary car at a parking zone collides with an unknown truck coming from the opposite side, the stationary car cannot have any role to play in the accident. The owner of a car has every right to park his car provided the place whether the car is parked is not a "no parking zone". Here, the evidence is otherwise, as if, the parked car was the vehicle coming from opposite side, which we have already indicated, could not be put forward in evidence as a new case. Unless the pleading is amended and notice of amended pleading is given to the owner of the said vehicle, the claimant should not be permitted to make out such a new case at the time of trial without the knowledge of the owner of the said stationary truck. If in the original pleading the said vehicle was described as a vehicle coming from opposite direction, the owner could have contested proceedings.
We, therefore, find that in this case, for the selfsame reasons given in the earlier one, this appeal should be allowed as it has not been established that the driver of the Insured truck was in anyway responsible.
F.M.A.T. 1121 of 2007 The New India Assurance Co. Ltd.
Versus Jaharlal Jash & Ors.
This appeal also arises out of a proceeding for compensation where the victim is one Manoj Kr. Jash who was an occupant of the selfsame Maruti Van involved in the above two cases. In this case, however, the eyewitnesses are two different persons, namely, one Kapil Deo Burnwal and the other is the son of the victim. According to Kapil Deo, the truck bearing WB 39/1364 was proceeding towards Budbud through the wrong side without light and the Maruti Van was proceeding towards Panagar. According to the said witness, although the Maruti Van was proceeding by complying with the traffic rules, due to the fact that the truck was coming on wrong side, the latter dashed the Maruti Van and according to him the driver of the truck was responsible. He has further stated that besides those two cars, no other vehicle was present at the spot and both the vehicles were in motion. According to him, he was standing on the southern road and the accident took place in front of him. He denied the suggestion that he did not witness accident and according to him he did not receive any summons.
In this case PW1, the son of the victim, has also claimed to be an eyewitness and according to him, he was travelling in another vehicle while following the Maruti Van from behind when the accident occurred. According to his statement, the accident took place on G.T. Road as the truck No. WB No.39/1364 was parked on the road by covering a large portion of the metal portion without any signal. According to him, the Maruti Van was at a distance of 100 ft. from his car and the said truck was also at a distance of 100 ft. at the time of accident. He, however, stated that one unknown truck coming from the opposite direction dashed the Maruti Van when the said Maruti Van was overtaking the stationary truck being WB 39/1364. Thus, the PW1 and the PW3 gave two complete different versions of the accident.
We, thus, find that, really, as stated in the application for compensation, the Maruti Van while overtaking a stationary truck had a head-on-collision with an unknown truck, which is the real offending vehicle and the cause of accident and the death, and thus, the stationary truck insured by the appellant could not have any liability in the accident. In a highway, if any car is found to have been parked at any place of the highway, while overtaking such a car, a driver was must be cautious. In this case, the driver of the Maruti Van ought to have stopped before overtaking the stationary truck when he found that the unknown truck was coming from opposite side. Similarly, the driver of the unknown truck when noticed that the Maruti Van was overtaking a stationary truck, ought to have stopped for preventing the accident. Therefore, it was fault on the part of the driver of either the Maruti Van or the unknown car. But we cannot blame the driver of the stationary truck merely because he parked the car. We have already pointed out that parking of a car at a place which is not a "no parking zone" is a no offence nor can such parking be said to be a negligent act of the driver.
On consideration of the entire materials on record, we, thus, find that in this case the learned Tribunal below erroneously passed an award with a direction upon the appellant to pay the amount. The learned Tribunal below, in this case, we have earlier pointed out, has wrongly applied the principles of res ipsa loquitor. The learned Tribunal in this case has also relied upon the charge sheet where the driver of the said truck was held responsible as if his car was coming from other direction. We have already pointed out that without amending claim application a new plea of this nature could not be taken which is inconsistent with a plea taken in the application where the insured vehicle has been described as stationary one. Moreover, the contents of the charge sheet without the evidence of the investigating officer and those of the witnesses on the basis of which the investigating officer formed his opinion is not admissible. All that has been proved by the said charge sheet is that such a charge sheet was given by the investigating officer.
We, thus, find that the award dated 20th December, 2006 passed by the Motor Accident Claim Tribunal in M.A.C. Case No.29 of 2006 should also be set aside on the ground that the stationary car had no role to play in the accident and as such, the insurer of such vehicle cannot, at any rate, be held liable. The cross-objection filed by the claimants in this appeal for enhancement of the compensation is accordingly dismissed in view of our finding that the claimants are not entitled to get any amount of compensation.
We, therefore, allow all these three appeals by setting aside the three awards passed against the appellant.
In the facts and circumstances, there will be, however, no order as to costs.
(Bhaskar Bhattacharya, ACJ.) I agree.
(Prasenjit Mandal, J.)