Calcutta High Court (Appellete Side)
( Smt. Usha Ghosh & Ors vs The New India Assurance Co. Ltd. & Anr. ) on 6 April, 2010
Author: Bhaskar Bhattacharya
Bench: Bhaskar Bhattacharya
ah (71) 06.04.2010 F. M. A. No. 1447 of 2007
with
C. A. N. 774 of 2009
( Smt. Usha Ghosh & Ors. -vs- The New India Assurance Co. Ltd. & Anr. )
Mr. Krishanu Banik
... for the claimants-appellants.
Mr. Animesh Das
... for the Ins. Co.-respondent.
Instead of disposal of the application, we propose to hear out appeal itself by treating it as on day's list with the consent of the learned Advocates for the parties. This appeal is at the instance of the claimants in a proceeding under Section 166 of the Motor Vehicles Act and is directed against an award dated 17th May, 2007 passed by the learned Judge, Motor Accident Claims Tribunal, 4th Court, Paschim Medinipur, in M. A. C. Case No. 809 of 2005 thereby disposing of the said proceeding by awarding a sum of Rs. 2,00,000/- as lump sum amount of compensation, out of which a sum of Rs. 50,000/- has already been received by the claimants in an earlier proceeding under Section 140 of the Act. It appears from record that the victim, a professional driver having driving licence of light motor vehicles, was proceeding by a motorcycle owned by somebody else and met in head-on-collision with a truck coming from the opposite direction resulting in his death. In the claim- application, it was asserted that the victim was aged 37 years at the time of accident and that as a truck driver, he used to earn Rs. 6,000/- a month.
2In the claim-application, the owner of the offending truck and its insurer were made parties, but the owner of the motorcycle by which the victim was travelling or its insurer was not made party.
There is no dispute that in an earlier proceeding under Section 140 of the Motor Vehicles Act, the Tribunal awarded a sum of Rs. 50,000/- in favour of the claimants. The owner of the offending truck did not contest the proceeding but the Insurance Company by taking leave under Section 170 of the Act opposed the application although did not lead any evidence of its own. The learned Tribunal below found fault of the victim in driving somebody else's motorcycle without producing any document as to whether the said motorcycle was at all insured. According to the learned Tribunal below, such act on the part of the victim was not proper and he was illegally driving somebody else's motorcycle which was not even insured as it would appear from the fact that he did not make the owner of the motorcycle or its insurer a party.
Secondly, the learned Tribunal found that since it is a case of head-on-collision, the negligence of the victim cannot be overlooked; in other words, according to the Tribunal, the accident being one of head-on-collision, in such a case, the victim must have some contributory negligence.
3Ultimately, the learned Tribunal held that the driver of the truck cannot also escape his liability and in such circumstances, it was a fit case for grant of compensation of a lump sum of Rs.2,00,000/- as indicated in the award impugned. The learned Tribunal disbelieved the version of the alleged employer of the victim that the victim used to get Rs.6,000/- a month as a driver. According to the learned Tribunal, the said P.W.4 even could not produce any document showing that he was the owner of any truck.
After hearing the learned Counsel for the parties and after going through the aforesaid materials, we are unable to approve some of the findings recorded by the learned Tribunal. We are unable to accept, as a general proposition, that whenever there is a head-on-collision, both the parties must be held to be responsible. If a motorcycle driver by keeping left is involved in head-on- collision due to rash and negligent driving of the truck coming from the other direction, he cannot be blamed simply because it is a head-on-collision. In this case, there is no evidence to show that the victim was driving the motorcycle by violating any rules of traffic. In the case before us, the owner of the offending vehicle was made party and in spite of such fact, he did not care to appear although it has been established that the driver has been charge-sheeted. The said driver is the best person available to say who was really responsible, 4 but he is afraid of facing cross-examination of the claimants. In our view, the Tribunal should take adverse presumption for his non-appearance and there is no justification of blaming the victim for the accident. We, therefore, do not approve the finding of the learned Tribunal below that the victim is to some extent responsible for the accident which is based on no evidence.
It appears from the driving licence marked exhibit 5 that the victim was a professional driver of light motor vehicles and his date of birth was 15th July, 1968. In such circumstances, it has been established that at the time of accident, he was 37 years old. The victim being a professional driver having light motor vehicles licence, he was not competent to be a driver of truck, and thus, we are also not inclined to accept the evidence of P.W.4 that he was a truck driver.
However, having regard to the fact that the victim was a professional driver having a light motor vehicles licence, we approve the finding of the learned Tribunal that the monthly income of the victim was Rs. 3,000/- a month. We, therefore, assess the total amount of compensation by application of multiplier of 16 on the basis of monthly income of Rs.3,000/- a month and after deduction of one-third, the amount comes to Rs. 3,84,000/-, out of which a sum of Rs. 50,000/- has 5 already been paid in a proceeding under Section 140 of the Act.
Therefore, in this proceeding under Section 166 of the Motor Vehicles Act, the Insurance Company is liable to pay the balance amount of Rs. 3,34,000/- with interest at the rate of 8% per annum from the date of filing of the application (11th May, 2005) till the actual payment. It is needless to mention that running of interest will stop running from the date of deposit of such amount before the Tribunal.
The Insurance Company is directed to deposit the balance amount within a month from today before the Tribunal.
The appeal is, thus, allowed to the extent as indicated above and the same is disposed of.
In view of disposal of the appeal itself, the connected application being CAN 774 of 2009 has become infructuous and the same is disposed of accordingly. Xerox certified copies of this order, if applied for, be given to the parties within a week from the date of making of such application upon compliance of all requisite formalities.
( Bhaskar Bhattacharya, J. ) ( Prasenjit Mandal, J. ) 6