Jharkhand High Court
Oriental Insurance Company Limited vs Kanchan Devi on 18 October, 2022
Author: Anil Kumar Choudhary
Bench: Anil Kumar Choudhary
1 M.A. 380 of 2013
IN THE HIGH COURT OF JHARKHAND AT RANCHI
M.A. No. 380 of 2013
(Against the judgment and award dated 22.02.2013 passed by M.A.C.T,
Dumka, in Title Claim suit No. 44 of 2006)
Oriental Insurance Company Limited, Branch- Dumka, P.O. P.S. &
District- Dumka, represented through its legal cell, Circular Road, Ranchi,
P.O. & P.S.- Lalpur, District- Ranchi ...... Appellant/ Opp. Party
no. 4
Versus
1. Kanchan Devi, Wife of Late Rajendra Prasad
2. Rajiv Ranjan, Son of Late Rajendra Prasad
3. Ravi Ranjan, Son of Late Rajendra Prasad
4. Krishna Govind, son of Late Rajendra Prasad
Respondent no. 1 to 4 are residents of village- Rakhabani/ Baghnocha,
P.O.- Dumka, P.S.- Dumka (M), District- Dumka
5. Radha Ranjan, Daughter of Late Rajendra Prasad, wife of Santosh Kumar, resident of C- 295, Shalimar Garden Extension 2, Sahibabad, P.O. & P.S.- Sahibabad, District- Gaziabad(Uttar Pradesh)
6. Rashmi Ranjan, Daughter of Late Rajendra Prasad, wife of Mantu Kumar, resident of North Mandiri, Bansghat, P.O& P.S.- Digha, District-Patna(Bihar)
7. Malti Devi, wife of Late Tappan Mistry, mother of deceased, resident of village- Madhopur, P.O. & P.S.- Maner, District- Patna (Bihar)
8. Sharif Ansari, son of Md. Maniruddin Ansari, resident of village- Singa Tola, P.O. , P.S. & District- Deoghar
9. Niraj Kumar Agrawal, Son of Makhorilal Kothriwal, resident of village- Gilanpara, P.O.- Dumka, P.S.- Dumka (T), District- Dumka
10. New India Assurance Co. Limited, Dhanbad Branch, Katras Road, P.O., P.S. & District- Dhanbad
11. Smt. Gulabi Devi, wife of Naresh Mahto, resident of village- Pallo, P.O.- Taranani( Nawadih), P.S.- Nawadih, District- Bokaro ..... Respondent/ Respondents For the Appellant : Mr. Manish Kumar, Adv.
For the Respondents : Mr. Arjun N. Deo , Adv.
PRESENT
HON'BLE MR. JUSTICE ANIL KUMAR CHOUDHARY
By the Court:- Heard the parties.
2. This Miscellaneous Appeal has been preferred against the judgment and award dated 22.02.2013 passed by M.A.C.T, Dumka, in Title Claim suit No. 44 of 2006 by which, learned tribunal has awarded a compensation of Rs. 13,50,000/- to the claimants.
2 M.A. 380 of 2013
3. The brief facts of this case is that the claimants are the dependents of the deceased - Rajendra Prasad. On 30.04.2006, at about 9.00 AM, when the said Rajendra Prasad was travelling in a Bolero vehicle, the same was dashed by the offending dumper being rashly and negligently driven causing death of Rajendra Prasad on the spot due to the injuries sustained in the said accident and the driver of the Bolero vehicle namely Nand Kishore Mahto also died on the spot. The deceased was working as an Assistant Accounts Officer in the State Food Corporation at Giridih, Jharkhand and was aged about 52 years. His gross salary was Rs. 19,320/- per month. In their written statement, the owner of the offending vehicle besides challenging the maintainability of the claim petition, on various technical grounds pleaded that he has no definite knowledge regarding the accident and disputed the accident caused by the offending dumper. He further pleaded that the offending dumper was fully insured by the appellant-Oriental Insurance Company, hence, the appellant insurance company is liable to pay the compensation amount. The appellant insurance company in its written statement, besides challenging the maintainability of the claim petition on various technical grounds pleaded that the driver of the offending vehicle was not having a valid and effective driving licence, hence, the insurance company is not liable to pay the compensation amount. M/s New India Insurance Company, the insurer of the Bolero vehicle in its written statement, besides challenging the maintainability of the claim petition on various technical grounds pleaded that as from the FIR, it is clear that the driver of the offending dumper was negligent and was rashly and negligently driving the offending dumper which dashed the Bolero vehicle, hence, the entire liability is of the offending dumper.
4. In support of their case, the claimants examined three witnesses being the CW1 who is the one of the claimants , CW2 is the eye witness to the accident and CW3 is the informant of the accident to police basing upon which Shikaripara P.S. case no. 44 of 2006 was registered for the offences punishable under Sections 279, 337, 338 and 304A of the Indian Penal Code. Besides the oral testimony, the claimants also proved the documents, which have been marked as Exhibit 1 to 7 and X to X/5.
3 M.A. 380 of 2013
5. On the basis of the rival pleadings, the learned tribunal settled the following six issues:-
1. Is the claim petition maintainable as framed ?
2. Have the claimants got any cause of action for the present claim?
3. Alleged accident involving the death of Rajendra Prasad was occurred due to rash and negligent driving of the driver of the vehicle no. BR- 12A7280 ?
4. Whether the aforesaid vehicle was insured with the insurance co. vide policy no. 2006/1925 on the date of the accident ?
5. Whether the applicants are entitled to get compensation as claimed/ if so, to what extent and against whom?
6. To what relief or reliefs the applicants are entitled ?
6. Learned tribunal first took up issue no. 3 and after considering the evidence in the record, came to the conclusion that Rajendra Prasad died in a motor vehicle accident, occurred due to rash and negligent driving of the driver of the offending dumper. Learned tribunal next took up issue no. 4 and after the considering the evidence in the record came to the conclusion that the offending dumper was insured with the appellant insurance company. Learned tribunal next took up issue no. 5 and after considering the fact that though there was head on collision but the FIR was registered against the driver of the offending dumper and after conclusion of the investigation, the Investigating Officer submitted the charge sheet only against the driver of the dumper and the evidence in the record, that has come through the deposition of the witnesses, established that the offending dumper dashed the Bolero vehicle and taking into account the testimony of the eye witness of the occurrence, came to the conclusion that only the driver of the offending dumper was at fault and this is not a case of contributory negligence on the part of the Bolero vehicle and thereafter, the tribunal took up issue no. 1 and 2 together and concluded that the claim petition is maintainable and there is a valid cause of action for the present claim application and lastly the tribunal took up issue no. 6 and awarded a total compensation of Rs. 13,50,000/-to the claimants.
4 M.A. 380 of 2013
7. Mr. Manish Kumar, learned counsel for the appellant submits that learned tribunal failed to appreciate the evidence in the record in its proper perspective and though the appellant has taken several grounds but while abandoning other grounds, it confines its argument to the only ground that since there was a head-on collision between the Bolero and offending dumper and the Bolero vehicle was also insured by the insurance company under a valid insurance policy, so the quantum of compensation ought to have been apportioned between two insurance companies.
8. Learned counsels for the respondents on the other hand, defended the impugned judgment and award and submits that as the appellant insurance company did not adduce any evidence whatsoever in support of its claim that the Bolero vehicle had also contributory negligence in the accident and as the charge sheet submitted after due investigation by police, shows that the offending dumper was solely responsible for the accident and neither in the FIR nor in the charge sheet submitted in the case, there is any allegation of any contributory negligence on the part of the driver of the Bolero vehicle, hence, the learned tribunal has rightly come to conclusion that the offending dumper was solely responsible for the accident and saddled the liability of paying the compensation amount solely upon the appellant insurance company.
9. Having heard the submissions made at the Bar and after going through the materials available in the record, the only point for determination that crop up in this appeal is that "Whether the learned tribunal erred by not apportioning the compensation amount between the appellant insurance company and the New India Insurance Company which was the insurer of the Bolero vehicle, involved in the accident ?"
10. It is a settled principle of law that if the Insurance Company, claims permission under Section 170(b) of the Motor Vehicles Act, 1988 from the Tribunal to contest the proceedings by availing the defence of the owner of the offending vehicle, but did not examine either the driver of the truck or any other independent eye witness to prove the allegation of contributory negligence on the part of the deceased on account of 5 M.A. 380 of 2013 which the accident took place as he was driving the car in a rash and negligent manner, in the absence of rebuttal evidence adduced on record by the Insurance Company, the Tribunal should not place reliance on the charge-sheet, in which the deceased driver was mentioned as an accused and on his death; his name was deleted from the charge sheet, as has been held by Hon'ble Supreme Court of India in the case of Minu Rout and Anr. vs. Satya Pradyumna Mohapatra and Ors. reported in 2013 (0) AIR SCW 5375, Para 12 of which reads as under :
"12. P.W.3 was a betel shop owner, whose shop is situated near the spot of the accident. Though he was not examined by the Investigating Officer in the police case he is examined before the Tribunal whose evidence is required to be accepted for the reason that the same is not rebutted by the respondents. P.W.4 has stated in his cross examination that he saw the accident from a little distance from the market place, where about 10 to 20persons were present. He has further deposed that the truck was in a high speed and the people traveling in the car sustained injuries and the driver of the car Susil Rout suffered grievous injuries and succumbed to the same. He was conscious when he was taken to the Jajpur Hospital on a trekker.
The Tribunal, on appreciation of the oral and documentary evidence, has recorded the erroneous finding by placing strong reliance upon the charge- sheet-Exh.1 without considering the fact that the criminal case was abated against the deceased and further has made observation in the judgment that the appellants had not produced the FIR. Therefore, it has held that there was 50% contributory negligence on the part of the deceased driver in causing accident. The Tribunal ought to have seen that non production of FIR has no consequence for the reason that charge sheet was filed against the truck driver for the offences punishable under Sections 279 read with Section 302 of IPC read with the provisions of the M.V. Act.
The Insurance Company, though claimed permission under Section 170(b) of the Motor Vehicles Act, 1988 from the Tribunal to contest the proceedings by availing the defence of the owner of the offending vehicle, it did not choose to examine either the driver of the truck or any other independent eye witness to prove the allegation of contributory negligence on the part of the deceased Susil Rout on account of which the accident took place as he was driving the car in a rash and negligent manner. In the absence of rebuttal evidence adduced on record by the Tribunal, the Tribunal should not have placed reliance on the charge-sheet-Exh.1 in which the deceased driver was mentioned as an accused and on his death; his name was deleted from the charge sheet.
The Tribunal has referred to certain stray answers elicited from the evidence of P.W.2 and P.W.3 in their cross-examination and placed reliance on them to record the finding on issue no.1. For the aforesaid reasons, the findings and reasons recorded by the Tribunal on the contentious issue No.1 holding that there is contributory negligence on the part of the deceased driver in the absence of legal evidence adduced by the Insurance Company to prove the plea taken by it that accident did not take place on account of rash and negligent driving of the truck driver is erroneous in law.
The Tribunal has accepted the part of oral evidence of the eye witnesses regarding the scene of accident and it has erroneously placed reliance upon the charge-sheet-Exh.1, which was filed against the driver of the offending truck and deceased to hold there was contributory negligence on his part by
6 M.A. 380 of 2013 ignoring the fact that the criminal case against the deceased was abated. Therefore, we have to hold that the finding of fact recorded on issue No.1 by the Tribunal and affirmed by the High Court in the impugned judgment, is erroneous for want of proper consideration of pleadings and legal evidence by both of them. Accordingly, we have answered point No.1 in favour of the appellants in so far as the finding recorded by the Tribunal on the question of contributory negligence of 50%on the part of the deceased is concerned. Answer to point Nos. 2 and 3." (Emphasis supplied) In the case of Jiju Kuruvila and Ors. vs. Kunjujamma Mohan and Ors. reported in 2013 (9) SCC 166, it was held by the honourable Supreme Court of India that in the absence of any direct or corroborative evidence, no conclusion can be drawn as to whether there was negligence on the part of the driver and in absence of such direct or corroborative evidence, the Court cannot give any specific finding about negligence on the part of any individual, paragraphs 19 and 20.1 to 20.6 of which reads as under :-
"19. The High Court based on Ext. B-2 "scene mahazar" and Ext. A-5 post-mortem report held that there was also negligence on the part of the deceased as well.
20.1. The owner of the vehicle Kunjujamma Mohan and the driver of the bus P.C. Kurian who were the first and third respondents before the Tribunal and the High Court, had not denied the allegation that the accident occurred due to rash and negligent driving on the part of the bus driver.
20.2. PW 3, an independent eyewitness was accompanying the deceased during the journey on the fateful day. He stated that the bus coming from the opposite direction hit the car driven by the deceased and the accident occurred due to rash and negligent driving of the bus driver.
20.3. Ext. A-1, FIR registered by Pampady Police against the bus driver P.C. Kurian under Sections 279, 337 and 304-A IPC shows that the accident occurred due to rash and negligent driving on the part of the bus driver. After investigation, the police submitted a charge-sheet (Ext. A-4) against the bus driver under Sections 279, 337 and 304-A IPC with specific allegation that the bus driver caused the death of Joy Kuruvila due to rash and negligent driving of the bus on 16-4-1990 at 4.50 p.m. In view of the direct evidence, the Tribunal and the High Court held that the accident occurred due to rash and negligent driving on the part of the bus driver.
20.4. There is no evidence on record to suggest any negligence on the part of the deceased. Ext. B-2 "scene mahazar" also does not suggest any rash and negligent driving on the part of the deceased.
20.5. The mere position of the vehicles after accident, as shown in a scene mahazar, cannot give a substantial proof as to the rash and negligent driving on the part of one or the other. When two vehicles coming from opposite directions collide, the position of the vehicles and its direction, etc. depends on a number of factors like the speed of vehicles, intensity of collision, reason for collision, place at which one vehicle hit the other, etc. From the scene of the accident, one may suggest or presume the manner in which the accident was caused, but in the absence of any direct or corroborative evidence, no conclusion can be drawn as to whether there was negligence on the part of the driver. In absence of such direct or corroborative evidence, the Court cannot give any specific finding about negligence on the part of any individual.
7 M.A. 380 of 2013 20.6. The post-mortem report, Ext. A-5 shows the condition of the deceased at the time of death. The said report reflects that the deceased had already taken meal as his stomach was half-full and contained rice, vegetables and meat pieces in a fluid with strong smell of spirit. The aforesaid evidence, Ext. A-5 clearly suggests that the deceased had taken liquor but on the basis of the same, no definite finding can be given that the deceased was driving the car rashly and negligently at the time of accident. The mere suspicion based on Ext. B-2 "scene mahazar" and Ext. A-5 post-mortem report cannot take the place of evidence, particularly, when the direct evidence like PW 3 (independent eyewitness), Ext. A-1 (FIR), Ext. A-4 (charge-sheet) and Ext. B- 1 (FI statement) are on record."
Thus it is crystal clear from the aforesaid settled principle of law that mere fact of head on collision between two vehicles or for that matter position of the vehicles after accident, cannot give a substantial proof as to the rash and negligent driving on the part of one or the other of the two vehicles involved in the accident. When two vehicles coming from opposite directions collide, the position of the vehicles and its direction, etc. depends upon a number of factors like the speed of vehicles, intensity of collision, reason for collision, place at which one vehicle hits the other, etc. So, in the absence of any direct or corroborative evidence, the Court cannot give any specific finding about negligence on the part of any individual vehicle.
11. Now coming to the facts of the case, as already indicated above that the FIR and the charge sheet submitted in criminal case vide Shikaripara P.S. case no. 44 of 2006, goes to show that the allegation of rash and negligent driving is only against the offending dumper insured by the appellant insurance company and after investigation, the police submitted charge sheet only against the driver of the offending dumper and there is no reference in the charge sheet that the driver of the Bolero vehicle had any contributory negligence in the said accident and as already indicated above, in this judgment itself, that the appellant insurance company not adduced any evidence whatsoever, in this case, thus the appellant insurance company has failed to bring any direct or corroborative evidence in the record before the tribunal to arrive at the conclusion by the tribunal that the driver of the Bolero vehicle was having contributory negligence in the said accident in any manner.
12. Under such circumstances and considering the evidence in the record, this Court is of the considered view that learned tribunal has not 8 M.A. 380 of 2013 committed any error by not apportioning compensation amount to be paid to the claimants between the appellant insurance company and the insurer of the Bolero vehicle being the New India Insurance Company Ltd. The sole point for determination is answered accordingly.
13. In view of the discussions made above, this Court is of the considered view that there is no merit in this appeal, accordingly, the same is dismissed on contest but under the circumstances without any costs.
14. Learned Registrar General is directed to remit the statutory amount of Rs. 25,000/- if any deposited by the appellant, to the tribunal concerned, forthwith.
15. Let the Lower Court Records be sent back to the Court concerned forthwith, along with a copy of this Judgment.
(Anil Kumar Choudhary, J.) High Court of Jharkhand, Ranchi Dated, the 18th October, 2022.
Smita /AFR