Calcutta High Court (Appellete Side)
The New India Assurance Company Limited vs Madhabi Ganguly & Ors on 11 February, 2020
Author: Protik Prakash Banerjee
Bench: Protik Prakash Banerjee
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11.02.2020
(PP)
FMA 302 of 2006
The New India Assurance Company Limited
Vs.
Madhabi Ganguly & Ors.
Mr. P. K. Pahari
.....for the appellant.
Mr. Saidur Rahaman
....for the respondent nos.1-3.
This appeal is directed against an award dated March 7, 2003 in M.A.C. Case No.415 of 1998 passed by the learned Judge, Motor Accident Claims Tribunal, Jalpaiguri.
By the said award, the learned Tribunal was pleased to pass the following:
"that the M.A.C. Case No.415 of 1998 under Section 163 A of the Motor Vehicle Act is allowed on contest with cost against both the O.Ps. Petitioners do get an award of Rs.2,56,000/- (Rupees two lacs fifty six thousand). Petitioner No.1 shall get Rs.1,50,000/- (Rupees one lac fifty thousand), petitioner No.2 shall get Rs.50,000/- (Rupees fifty thousand) and petitioner no.3 shall get Rs.56,000/-(Rupees fifty six thousand). O.Ps. are directed to pay the compensation by issuing three separate cheques, through this Tribunal, within one month from the date of this order failing which claimants should be entitled to get an interest at the rate of 9% (nine per cent) per annum till the date of realization. The cheque in respect of minor petitioner no.2 shall be deposited with any nationalised bank or Post Office in a fixed deposit scheme which will be payable to her on her attaining majority.
The O.P. No.1 is to be indemnified by O.P. No.2."
The Insurance Company has preferred an appeal principally on the following grounds:
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"(ii) For that the learned Tribunal having come to the finding that Uttam Ganguli, since deceased, was travelling in the involved Private Car No. WGX - 7569, at the time of accident, the Learned Tribunal ought to have held that the deceased was not covered by the Policy of insurance as required by the Motor Vehicles Act, 1988.
(iii) For that in absence of any finding by the Learned Tribunal that the deceased was a passenger carried for hire or reward in the involved car and the involved car was registered as a Public Service Vehicle, the Learned Tribunal erred in awarding compensation against the insurer who was not found by the Learned Tribunal to have assured wider risk of any passenger by the Policy of insurance for the use of the said vehicle in public place.
(v) For that the Learned Tribunal ought to have held as the policy of insurance of the offending vehicle was an Act only policy for private use only and insuring only one employee/driver, the victim as a passenger of the said vehicle was not covered by the said policy and the appellant insurer was also not liable to pay any compensation under the said Policy."
Such grounds were in the light of the following finding of the learned Tribunal:
"At the time of argument Ld. Advocate for O.P. No.2 submitted that the insurance policy did not cover the insurance of a guest who died due to the involvement of the offending vehicle. Admittedly, Uttam Ganguli was travelling in the vehicle as a guest. In my view, any person who travels in a car can either be a family member or be guest of the owner of the vehicle. So, by no stretch of imagination it can be said that if a guest dies due to the involvement of vehicle he will not get compensation through this Tribunal."3
Therefore, the decision in this appeal depends upon the finding on the question of whether the victim, was the guest of the owner or was a gratuitous passenger or even a passenger paying consideration for such travel though the car-in-question was a private car. This has become important as I had recorded in my order dated February 4, 2020, this was an act only policy for private car and not a carriage policy as the last page of the paper book shows. This is the exhibited policy certificate, which has not been disputed.
It is Mr. Pahari's submission that -
(a) The guest of the owner or the driver of a private vehicle is on the same footing as a gratuitous passenger.
(b) Alternatively, where nine people apart from the driver, are travelling in an Ambassador car in the rural areas in 1998 and there is no evidence that they are relatives or have relations with the owner, being the respondent no.4 herein and that they were going to negotiate a marriage, the conclusion ought to be drawn or at least the Court can reasonably make an inference that this vehicle though private by registration and subject to act only policy was nonetheless being utilised as contract carriage.
(c) Mr. Pahari also points out according to policy, the car had a sitting capacity of five. Therefore, any violation of this could automatically invalidate the policy.
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(d) Learned Tribunal never went into the question of relationship between Chhabi Sarkar and the Block Development Officer in whose quarter she stays and whether that would be germane to find out if the private Ambassador was being used clandestinely as a vehicle for hire in that rural areas in the name of the lady but actually for the benefit of the officer of the Government.
This matter was something which the learned Tribunal should have gone into since it is not merely an umpire signaling wide or no ball to two opposing sides. While exercising inquisitorial jurisdiction as we have held in Shrikrishna Kanta Singh--v--Parameswar Achutanan Nair and Others, reported in (2018) 3 WBLR (Cal) 322, the learned Tribunal has a duty to get to the truth and the moment a question was put or suggestion was made to P.W.1 that whether it was not a fact that the husband of the P.W. 1 was travelling in the car as a passenger, the Learned Tribunal should have gone into the entire matter including the nature of the relationship between the victim and the P.W.2, who was accompanying him; the owner, being the respondent no.4 and other seven occupants of the vehicle who were travelling with them and how they were connected to the respondent no.4, owner. Therefore, the forensic examination to decide the distinction between a gratuitous passenger and a guest should have been made before coming to the conclusion that since the victim was a 5 guest of the owner, she was entitled to be covered by the third party policy. In fact, Mr. Pahari has also relied upon a judgment in the case of National Insurance Company Limited--v-- Balakrishnan and Another, reported in 2013 (1) T.A.C. 1 (S.C.) to show that if it is an act only policy instead of package policy, no one but the owner and the driver are covered.
Mr. Saidur Rahaman appearing on behalf of the respondent nos. 1, 2 and 3 submits that these questions, which have come to the mind of the appellate court, were never placed before the learned Tribunal nor such a case put to the plaintiffs witnesses P.W.1 and P.W.2 and, therefore, since this Court relies upon the judgment in the case of A.E.G. Carapiet--v--A.Y. Derderian, reported in AIR 1961 Cal 359. Mr. Rahaman says it to be consistent since this case was never put to his client's witnesses, the insurer appellant cannot take advantage of the same. He also submits that once a person is held to be a guest of the owner then his guest is entitled to every facility from the owner and if the guest dies in an accident, the insurer of the owner's vehicle was liable to indemnify such victim and was liable to under third party policy.
All these arguments are of substantial nature. However, one must be alive to the practical situation in rural Bengal, specially in 1998, when an Ambassador car registered as a private vehicle, is 6 travelling over a bridge without railing at high speed with more than its carrying capacity passengers, and it is being driven at a great speed, it loses control and falls into the river. Most people are dunk into the water but do not die, yet one person dies. There is evidence to show that they were going to negotiate a marriage. But there is no evidence to show that this was at the behest or for the purpose of the owner. One person may well be the guest of the owner but nine persons? Why was no evidence given as to the identity of the other seven persons travelling in the Ambassador car or even an assertion that they too were guests? Where is the forensic examination of the distinction between a gratuitous passenger and a guest? When a person is travelling in another person's vehicle and there is nothing to show that how the owner is connected with the occupant, the widow of the victim merely alleging that the occupant is guest will not do, it was the duty of the claimant to call the respondent no.4 as witness to prove the allegations that the victim was the owner's guest. This was not done by the claimants. In fact, the owner has filed a written statement where she has denied the manner in which the accident was alleged to have taken place and also denied the propriety of the said claim. However, the owner was not cross-examined by the respondents/claimants. Neither did the learned Tribunal think it important to examine the respondent no.4/owner before coming 7 to the finding that the victim was a guest of the respondent no.4. In fact, I will go so far as to say that the learned Tribunal was very facile in coming to the conclusion, which was suspiciously like taking a leap of faith when even the evidence available on record did not justify such an exercise.
In such view of the matter, particularly considering the inquisitorial role of the learned Tribunal as held by an Hon'ble Division Bench in Shrikrishna Kanta Singh (supra), the learned Tribunal failed to discharge its duty.
Thus, it does not matter that the insurer did not take this point: it was the duty of the claimants/respondents to adduce the best evidence to show that the victim was the guest of the owner and the best evidence could come only from the owner/ respondent no.4, which is absent. There is at the risk of repeating myself, I once again point out that there is no discussion as to how a guest of the owner differs from a gratuitous passenger.
For all these reasons, I am unable to sustain the award passed by the learned Tribunal and the award dated March 7, 2003, is set aside.
It is sent back on open remand to the learned Tribunal for a fresh decision keeping in mind the above questions and in the light of this judgment.
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The M.A.C. Case No.415 of 1998 thus revives and is restored to file and its original form and number before the learned Judge, Motor Accident Claims Tribunal, Jalpaiguri.
It is expected that the matter will be decided as expeditiously as possible but not later than one year from the date of communication of this order by the appellant to its learned advocate-on-record who shall place it before the learned Tribunal by way of an application.
The statutory amount of Rs.25,000/- deposited by the appellant with any acquisition thereto shall be returned and the records of the case shall be sent back to the learned Tribunal within a period of one month from date. The refund of the statutory amount directed earlier shall be made within seven days from the presentation of the server copy of this order to the registry, who shall act on it without insisting on a certified copy of the said order. The bank, in which the amount has been invested, shall carry on and ensure that the deadline is adhered to.
FMA 302 of 2006 is disposed of.
There shall be no order as to costs.
(Protik Prakash Banerjee, J.)