Rekha Gope Anr Ors vs The New India Assurance
2023 Latest Caselaw 4175 Cal

13.07.2023
Item No.5
gd/ssd/ab
                               FMAT/502/2020
                            REKHA GOPE ANR ORS.
                                     VS
                          THE NEW INDIA ASSURANCE
                              CO. LTD AND ANR.

                   Mr. Amit Kumar Roy
                           ..for the Petitioners.

                   Mr. Rajesh Singh
                            ..for the Respondents.

This appeal is preferred against the judgment

and award dated 24th July, 2019 passed by the learned

Additional District Judge-cum-Judge, Motor Accident

Claims Tribunal, 3rd Court, Asansol, Paschim

Bardhaman in MAC Case No.173 of 2013 granting

compensation of Rs.5,00,000/- together with interest in

favour of the claimants by moulding the application

under Section 166 of the Motor Vehicles Act, 1988 to

one under Section 163A of the Act.

The brief fact of the case is that on 1st

October, 2013 at about 7.30 p.m. while the victim was

returning to his residence at Chapui Khas Colliery from

Jubilee More under Asansol PS(N) by riding a

motorcycle bearing No.WB-42-S/8367 on National

Highway-II (bypass road) and when he reached near

Mahindra Showroom under PS Asansol (S) one Tata

Indica Car bearing Registration No.WB-38-K/3744

driven in a rash and negligent manner dashed the

victim from behind, as a result of which, he fell down

on the road and sustained injuries. Immediately the

local people shifted the victim to Sub-Divisional

Hospital at Asansol where the victim succumbed to his

injuries on the same day and died. On account of

sudden demise of the victim the claimants being the

widow, mother, minor son and minor daughter filed

application for compensation of Rs.17,00,000/- under

Section 166 of the Motor Vehicles Act.

The claimants in order to establish their case

examined three witnesses and produced documents

which have been marked as Exhibits-1 to 14/b

respectively.

The respondent no.1-insurance company did

not adduce any evidence.

By order dated 3rd January, 2023 service of

notice of appeal upon respondent no.2-owner of the

offending vehicle has been dispensed with since he did

not contest the claim application.

Upon considering the materials on record and

the evidence adduced on behalf of the claimants, the

learned tribunal moulded the application of the

claimants under Section 166 of the Motor Vehicles Act

to one under Section 163A of the Act on the ground

that rash and negligent driving on the part of the driver

of the offending vehicle is not proved, however, since

the involvement of the offending vehicle was

established, hence it granted compensation of Rs.

5,00,000/- together with interest in favour of the

claimants under Section 163A of the Act.

Being aggrieved by and dissatisfied with the

impugned judgment and award, the claimants have

preferred the present appeal.

Mr. Amit Ranjan Roy, learned advocate for the

appellants-claimants submits that the learned tribunal

erred in holding that the claimants have failed to prove

the rash and negligent act of the driver of the offending

vehicle without considering the evidence of PW-3, sole

eyewitness to the occurrence who has categorically

stated of such fact before the court. He further submits

that evidence of the sole eyewitness with regard to the

rash and negligent act has been well corroborated upon

filing of charge-sheet under the relevant provisions of

the Indian Penal Code against the driver of the

offending vehicle by the investigating agency. Thus, the

compensation should be quantified by applying

principles under Section 166 of the Motor Vehicles Act.

Referring to the evidence of PW-2, Income Tax Inspector

who produced the income tax returns of the deceased

for assessment years 2011-12, 2012-13 and 2013-14

marked as Exhibits-14, 14/a and 14/b respectively,

he submits that the annual income of the deceased

should be considered at Rs.2,12,200/-. Furthermore,

he submits that since at the time of the accident the

victim was 34 years of age and had jewellery business,

hence, following the observation of Hon'ble Supreme

Court passed in National Insurance Company

Limited versus Pranay Sethi and Others reported in

(2017) 16 SCC 680, the claimants are entitled to an

amount equivalent to 40% of the annual income of the

deceased towards future prospect and further, they are

also entitled to general damages under the conventional

heads. The deduction towards personal and living

expenses of the deceased should be 1/3rd of his annual

income. In light of the aforesaid submissions, he prays

for enhancement of the compensation amount.

In reply to the contentions raised on behalf of

the appellants-claimants, Mr. Rajesh Singh, learned

advocate for respondent no.1-insurance company

submits that the claimants have failed to establish the

factum of rash and negligent driving on the part of the

offending vehicle by adducing the evidence of the sole

eyewitness whose evidence is full of glaring

discrepancies. Referring to the evidence of PW-3, sole

eyewitness, he submits that the witness in cross-

examination has contradicted the time of occurrence,

the model of the alleged offending vehicle, the colour of

the offending vehicle, the colour of the motorcycle

driven by the victim on the relevant date of accident

and the time of the admission of the victim to the

hospital. He further submits that in his cross-

examination PW-3 stated that he accompanied the

victim to the hospital and the victim died after 2/3 days

whereas the PM report shows date and time of death to

be 1st October, 2013 at 9.30 pm. For such reasons and

glaring discrepancies, the evidence of the sole

eyewitness is not acceptable. Apart from PW-3, there is

no substantive evidence in support of rash and

negligent act of the driver of the offending vehicle and,

therefore, the learned tribunal rightly held that the

claimants have failed to prove the rash and negligent

act of the driver of the offending vehicle. In an

application under Section 166 of the Motor Vehicles

Act, the proof of rash and negligent act of the driver of

the offending vehicle is a sine qua non and a mandatory

fact which has to be established before the court to

have entitlement of compensation under the said

provisions of the Act. In support of his aforesaid

contentions, he relies on the following decisions of

Hon'ble Supreme Court:

I) Deepal Girishbhai Soni and Ors. versus

United India Insurance Co. Ltd.,

Baroda reported in (2004) 5 SCC 385

II) Surender Kumar Arora and Ors. versus

Manoj Bisla and Ors. reported in (2012)

4 SCC 552

III) Reshma Kumari and Ors. versus

Madan Mohan and Anr. reported in

2013 (2) T.A.C. 369 (S.C.)

IV) Minu B. Mehta and Ors. versus

Balkrishna Ramchandra Nayan and

Ors. reported in (1977) 2 SCC 441

V) Lachoo Ram and Ors. versus Himachal

Road Transport Corpn. And Ors.

reported in (2014) 13 SCC 254

VI) Nishan Singh and Ors. versus Oriental

Insurance Company Ltd. and Ors.

reported in (2018) 6 SCC 765

He further submits that since the rash and

negligent act of the driver of the offending vehicle has

not been established, hence the claimants cannot claim

compensation under Section 166 of the Motor Vehicles

Act. However, since the tribunal has moulded the relief

and the insurance company pursuant to such order

has satisfied the award, hence, the claimants in this

appeal should not be worse off to have an order of

refund of the amount received.

Mr. Roy, learned advocate for the appellants-

claimants, per contra, submits that the insurance

company has not led any evidence of rebuttal despite

taking leave under Section 170 of the Act and,

therefore, since the insurance company has failed to

discharge its onus, the evidence led by the claimants

for establishing the fact of rash and negligent act of the

driver of the offending vehicle requires to be accepted

by the Court as those are not challenged. In support of

his contention, he relies on the following decisions:

I) Bimla Devi and Ors. versus Himachal

Road Transport Corporation and Ors.

reported in 2009 (2) T.A.C. 693 (S.C.)

II) Anita Sharma & Ors. versus The New

India Assurance Co. Ltd. & Anr.

reported in 2021 SAR (Civ) 1

III) The New India Assurance Co. Ltd.

versus Mita Samanta and Ors. reported

in 2010 ACJ 2212.

He further submits that this court has the

occasion to deal with the judgments rendered by

Hon'ble Supreme Court in Lachoo Ram (supra) and

Nishan Singh (supra), Reshma Kumari (supra) in FMA

467 of 2018 [The Oriental Insurance Co. Ltd. v.

Diana George (Chakraborty) & Ors.] wherein a

similar argument was advanced by the insurance

company and the Hon'ble Court observed that the ratio

of the aforesaid decisions of the Hon'ble Court is not

applicable. He further submits that once the

involvement of the vehicle is established, the tribunal is

duty bound to assess the quantum of compensation in

terms of Section 166 of the Motor Vehicles Act and in

support of his contention he relies on the following

decisions of Hon'ble Supreme Court:

I) Pushpabai Parshottam Udeshi and Ors.

versus M/s. Ranjit Ginning and

Pressing Co. Pvt. Ltd. and Anr. reported

in 1977 (2) SCC 745

II) Kaushnuma Begum and Ors. versus

New India Assurance Co. Ltd. Ors.

reported in 2001 (1) T.A.C. 649 (S.C.)

Upon hearing the learned advocates for

respective parties, the preliminary issue that has fallen

from consideration at the very outset is whether in an

application under Section 166 of the Motor Vehicles Act

the claimants are to establish the fact of rash and

negligent act of the driver of the offending vehicle or

not.

The three Judges Bench in Deepal Girishbhai

Soni (supra) has observed as follows:

"18. A claim for damages owing to injuries suffered by reason of negligence on the part of the driver of a motor vehicle used to be governed only by the law of tort. The Indian Motor Vehicles Act, 1914 is the first enactment relating to motor vehicles. The Motor Vehicles Act, 1939 which replaced the 1914 Act consolidated and amended the law relating to motor vehicles in India. Under the 1939 Act as also the Fatal Accidents Act, 1855 compensation was solely based on law of tort. The civil courts had the jurisdiction to try a suit claiming compensation by plaintiffs for injuries or damages suffered by them from a

party whose action had inflicted the injury. In the year 1956, the Motor Accidents Claims Tribunals were established to deal with such claims purported to be for providing speedy trial.

However, proof of negligence was a condition precedent for grant of compensation under the 1939 Act.

19. The 85th Law Commission in its report submitted in May 1980, proposed two new measures i.e. (i) introduction of Section 92-A in the Motor Vehicles Act, 1939 by which the doctrine of liability without fault was to be introduced, and

(ii) the imposition of strict liability as regards death or bodily injury caused by an accident of the nature specified in Section 110(1) thereof. Recommendations were also made by the Law Commission to the effect that claim on fault basis should be barred but the same had not been accepted by Parliament.

20. While making the aforementioned recommendations, the Commission referred to the following observations made by this Court in Bishan Devi and Ors. v. Sirbaksh Singh and Anr. [(1980) 1 SCR 300] :

"The law as it stands requires that the claimant should prove that the driver of the vehicle was guilty of rash and negligent driving."

21. By reason of Sections 92-A, 92-B in the Motor Vehicles Act, 1939 inserted in the year 1982, a sum of Rs 15,000 was to be provided in case of death and a sum of Rs 75,000 in respect of permanent disablement by introducing the concept of "no-fault liability". The amount of compensation, however, had been revised from time to time.

22. The Law Commission furthermore recommended for laying of a scheme in terms whereof the victims of "hit-and-run accident" could claim compensation where the identity of

the vehicle involved in the accident was unknown. Yet again, the 199th Law Commission in its report submitted in 1987 stated the law as it stood then in the following terms:

"the law as it stands at present, save the provisions in Chapter VII-A inserted by the Motor Vehicles (Amendment) Act, 1982, enables the victim or the dependants of the victim in the event of death to recover compensation on proof of fault of the person liable to pay the compensation and which fault caused the harm"

41. Section 140 of the Act dealt with interim compensation but by inserting Section 163-A, Parliament intended to provide for the making of an award consisting of a predetermined sum without insisting on a long-drawn trial or without proof of negligence in causing the accident. The amendment was, thus, a deviation from the common law liability under the law of torts and was also in derogation of the provisions of the Fatal Accidents Act. The Act and the Rules framed by the State in no uncertain terms suggest that a new device was sought to be evolved so as to grant a quick and efficacious relief to the victims falling within the specified category. The heirs of the deceased or the victim in terms of the said provisions were assured of a speedy and effective remedy which was not available to the claimants under Section 166 of the Act.

52. It may be true that Section 163-B provides for an option to a claimant to either go for a claim under Section 140 or Section 163-A of the Act, as the case may be, but the same was inserted ex abundanti cautela so as to remove any misconception in the minds of the parties to the lis having regard to the fact that both relate to the claim on the basis of no-fault liability. Having regard to the fact that Section 166 of the Act provides for a complete machinery for laying a claim on fault liability, the question of giving an

option to the claimant to pursue their claims both under Section 163-A and Section 166 does not arise. If the submission of the learned counsel is accepted the same would lead to an incongruity.

59. The question may be considered from different angles. As for example, if in the proceedings under Section 166 of the Act, after obtaining compensation under Section 163-A, the awardee fails to prove that the accident took place owing to negligence on the part of the driver or if it is found as of fact that the deceased or the victim himself was responsible therefor as a consequence whereto the Tribunal refuses to grant any compensation; would it be within its jurisdiction to direct refund either in whole or in part of the amount of compensation already paid on the basis of structured formula? Furthermore, if in a case the Tribunal upon considering the relevant materials comes to the conclusion that no case has been made out for awarding the compensation under Section 166 of the Act, would it be at liberty to award compensation in terms of Section 163-A thereof.

60. The answer to both the aforementioned questions must be rendered in the negative. In other words, the question of adjustment or refund will invariably arise in the event if it is held that the amount of compensation paid in the proceedings under Section 163-A of the Act is interim in nature.

61. It is, therefore, evident that whenever Parliament intended to provide for adjustment or refund of the compensation payable on the basis of no-fault liability, as for example, Sections 140 and 161 in case of hit-and-run motor accident, from the amount of compensation payable under the award on the basis of fault liability under Section 166 of the Act, the same has expressly been provided for and having regard to the fact

that no such procedure for refund or adjustment of compensation has been provided for in relation to the proceedings under Section 163-A of the Act, it must be held that the scheme of the provisions under Sections 163-A and 166 are distinct and separate in nature.

66. We may notice that Section 167 of the Act provides that where death of, or bodily injury to, any person gives rise to claim of compensation under the Act and also under the Workmen's Compensation Act, 1923, he cannot claim compensation under both the Acts. The Motor Vehicles Act contains different expressions as, for example, "under the provision of the Act", "provisions of this Act", "under any other provisions of this Act" or "any other law or otherwise". In Section 163-A, the expression "notwithstanding anything contained in this Act or in any other law for the time being in force" has been used, which goes to show that Parliament intended to insert a non obstante clause of wide nature which would mean that the provisions of Section 163-A would apply despite the contrary provisions existing in the said Act or any other law for the time being in force. Section 163-A of the Act covers cases where even negligence is on the part of the victim. It is by way of an exception to Section 166 and the concept of social justice has been duly taken care of."

In Surender Kumar Arora (supra) has observed

as follows:

"8. Admittedly, the petition filed by the claimants was under Section 166 of the Act and not under Section 163A of the Act. This is not in dispute. Therefore, it was the entire responsibility of the parents of the deceased to have established that Respondent No. 1 drove the vehicle in a rash and

negligent manner which resulted in the fatal accident. Maybe, in order to help Respondent No. 1, the claimants had not taken up that plea before the Tribunal. Therefore, High Court was justified in sustaining the judgment and order passed by the Tribunal. We make it clear that if for any reason, the claimants had filed the petition under Section 163A of the Act, then the dicta of this Court in the case of Kaushnuma Begum, MANU/SC/0002/2001: 2001 ACJ 428 (SC), would have come to the assistance of the claimants."

In Reshma Kumari (supra) has observed as

follows:

"2. We are concerned with the above reference. Before we refer to the provisions contained in Sections 163A and 166 of the 1988 Act, it is of some relevance to notice the background in which the Parliament considered it necessary to bring in the provisions of no fault liability on the statute. It so happened that in Minu B. Mehta and Anr. v. Balkrishna Ramchandra Nayan and Anr.[9] , a three-Judge Bench of this Court while considering the question whether the fact of injury resulting from the accident involving the use of a vehicle on the public road is the basis of a liability and that it is not necessary to prove any negligence on the part of the driver, held that the liability of the owner of the car to compensate the victim in a car accident due to the negligent driving of his servant is based on the law of tort and before the master could be made liable it is necessary to prove that the servant was acting during the course of his employment and that he was negligent. This Court held that the concept of owner's liability without any negligence is opposed to the basic principles of law. The mere

fact that a person died or a party received an injury arising out of the use of a vehicle in a public place cannot justify fastening liability on the owner. This Court noticed a judgment of Madras High Court in M/s Ruby Insurance Co. v. Govindaraj, (A.A.O. Nos. 607 of 1973 and 296 of 1974) decided on December 13, 1976 wherein the necessity of having social insurance to provide cover for the claimants irrespective of proof of negligence to a limited extent was suggested. This Court said "unless these ideas are accepted by the legislature and embodied in appropriate enactments Courts are bound to administer and give effect to the law as it exists today. We conclude by stating that the view of the learned Judges of the High Court has no support in law and hold that proof of negligence is necessary before the owner or the insurance company could be held to be liable for the payment of compensation in a motor accident claim case".

11. On the other hand, by making an application for compensation arising out of an accident under Section 166 it is necessary for a claimant to prove negligence on the part of the driver or owner of the vehicle. The burden is on the claimant to establish the negligence on the part of the driver or owner of the vehicle and on proof thereof, the claimant is entitled to compensation. We are confronted with the question, whether while considering an application for compensation made under Section 166, the multiplier specified in the Second Schedule can be taken to be guide for determination of amount of the compensation."

In Minu B. Mehta (supra) has observed as

follows:

"27. Section 110(1) of the Act empowers the State Government to constitute, one or more Motor

Accidents Claims Tribunals for such area as may be specified for the purpose of adjudicating upon claims for compensation in respect of accidents involving the death or bodily injury to persons. The power is optional and the State Government may not constitute a Claims Tribunal for certain areas. When a claim includes a claim for compensation the claimant has an option to make his claim before the Civil Court. Regarding claims for compensation therefore in certain eases Civil Courts also have jurisdiction. If the contention put forward is accepted so far as the Civil Court is concerned it would have to determine the liability of the owner on the basis of common law or torts while the Claims Tribunal can award compensation without reference to common law or torts and without coming to the conclusion that the owner is liable. The concept of owner's liability without any negligence is opposed to the basic principles of law. The mere fact that a party received an injury arising out of the use of a vehicle in a public place, cannot justify fastening liability on the owner. It may be that a person bent upon committing suicide may jump before a car in motion and thus get himself killed. We cannot perceive by what reasoning the owner of the car could be made liable. The proof of negligence remains the lynch pin to recover compensation. The various enactments have attempted to mitigate a possible injury to the claimant by providing for payment of the claims by insurance."

In Lachoo Ram (supra) has observed as

follows:

"10. But simply the involvement of the bus in the accident cannot make the Respondent liable to pay compensation unless it can be held on the

basis of materials on record that the accident was caused by rash and negligent act of the driver- Respondent No. 2. On this issue, on comparing the reasons given by the Tribunal while discussing the issue No. 1 and those given by the High Court on pages 10 and 11 of the paper book, we find the reasons given by the High Court to be much more cogent and acceptable in coming to the conclusion noted above. Since the bus was standing at the red light and on being asked, soon after starting from the traffic signal it stopped within 100 to 150 yards, it has rightly been reasoned that the bus could not have started on a high speed. The road at the place of the accident was admittedly very narrow and PW.2, who has been found reliable by the Tribunal as well as by the High Court and was present on the spot, has not claimed that the bus driver had given a signal to the deceased motor cyclist to overtake him. This witness could not see the actual accident because at that time the motorcyclist, in an effort to overtake the bus had gone on its right side and was not visible and therefore he could only hear the sound of crash. It is not the case of any witnesses that the bus driver took any sudden turn while proceeding forward from the traffic signal or that he swerved the bus to the right side."

In Nishan Singh (supra) has observed as

follows:

"11. The Tribunal also noted that there was no evidence on record to indicate that the driver of the truck suddenly applied his brake in the middle of the road. Further, the finding on issue No. 1 recorded by the Tribunal is that there was no evidence regarding exact place of occurrence of accident and having taken survey. Therefore, the

issue under consideration was answered against the Appellants (claimants), namely, that the subject truck was not driven rashly and negligently by the truck driver nor had he brought the truck in the centre of the road at right side or applied sudden brake as being the cause of the accident. Being a concurrent finding of fact and a possible view, needs no interference.

13. However, even in such a case, the Tribunal could have been well advised to invoke Section 140 of the Motor Vehicles Act, 1988, (for short "the Act") providing for liability of the owner of the vehicle (subject truck) involved in the accident. It is a well settled position that fastening liability Under Section 140 of the Act on the owner of the vehicle is regardless of the fact that the subject vehicle was not driven rashly and negligently. We may usefully refer to the decisions in Indra Devi and Ors. v. Bagada Ram and Anr.

MANU/SC/0613/2010 : (2010) 13 SCC 249 and Eshwarappa alias Maheshwarappa and Anr. v.

C.S. Gurushanthappa and Anr.

MANU/SC/0612/2010 : (2010) 8 SCC 620, which are directly on the point.

14. Accordingly, even though the appeal fails insofar as claim petition Under Section 166 of the Act, for the Appellants having failed to substantiate the factum of rash and negligent driving by the driver of the subject truck, the Appellants must succeed in this appeal to the limited extent of relief Under Section 140 of the Act. We have no hesitation in moulding the relief on that basis."

Thus, bearing in mind the aforesaid principles

of law laid down by the Hon'ble Apex Court, in an

application under Section 166 of the Motor Vehicles

Act, the claimants are required to establish the fact of

rash and negligent act of the driver of the offending

vehicle. Though the initial onus lies upon the claimants

to prove the rash and negligent driving of the offending

vehicle in an application under Section 166 of the

Motor Vehicles Act but the onus shifts when the

claimants by leading evidence discharges his initial

onus. It is trite law that the approach and role of the

Courts while examining the evidence in accident claim

cases ought not to be find fault with non-examination

of some best eyewitnesses, as may happen in a criminal

trial, but instead should be only to analyze the material

placed on record by the parties to ascertain whether the

claimant's version is more likely than not true. At this

stage, it is to be examined whether the claimants have

succeeded in discharging its initial onus. The

claimants in order to establish their case with regard to

rash and negligent act of the driver of the offending

vehicle examined one Jitendra Prasad as sole

eyewitness (PW-3) to the occurrence and also produced

certified copy of the charge-sheet marked as Exhibit-2.

In his evidence in chief, P.W. 3 deposed that

on 1st October, 2013 at about 7.30 p.m. while the

victim was going towards Kalipahari side from Jubli

More side by riding a motorcycle bearing registration

no. WB-42S/8367 at that time, one Tata Indica, the

offending vehicle bearing registration no. WB-38K/3744

in a rash and negligent manner dashed the motorcycle

of the victim near Mahindra Show Room under PS-

Asansol(S). He also deposed that he had seen the

accident. Though the witness stated in his

examination-in-chief that the accident has occurred on

the relevant date at 7.30 p.m. but in cross-

examination, he stated that the accident has occurred

at about 7.30 a.m.

Mr. Roy, learned advocate for the appellants-

claimants argued that out of inadvertence and slip of

tongue, the time of accident has been stated at 7.30

a.m instead of 7:30 p.m. To consider the aforesaid

contention, it would be proficient to examine the

deposition of P.W.3 in cross-examination further. On

further cross-examination, he stated that he along with

one Bikash Singh and one other shifted the victim to

the Sub-Divisional hospital at 8.10 a.m. by auto

rickshaw. Thus, it probabilises that this witness had

consciously stated that the accident to have taken place

at 7.30 a.m. and the victim was shifted to the hospital

at 8.10 a.m. It is found that this witness has

consistently stated that the occurrence has taken place

in the morning and as such, this witness has

contradicted the time of occurrence.

Further, the witness, P.W.3 in his

examination in chief has stated that the offending

vehicle was a Tata Indica Car whereas in his cross-

examination, he stated that the offending vehicle is an

Ambassador Car. The difference in structure of Tata

Indica Car and Ambassador Car is very much apparent

which can be distinguished even by a layman.

Moreover, the colour of the vehicle stated by

the witness in his cross-examination is contrary to the

colour of the offending vehicle seized to the extent that

he stated in the cross-examination that the colour of

the offending vehicle is white whereas the seizure list

shows that the colour of the offending vehicle to be

steel colour.

Furthermore, this witness has stated in his

cross-examination that at the relevant point of time, the

victim was driving a black colour motorcycle whereas

the seizure list shows that the colour of the motorcycle

seized is blue.

The other contradiction, which is noted in the

evidence of this witness, is that in his evidence-in-chief,

he stated that the victim died on the same night

whereas in cross-examination, he stated that the victim

died after 2/3 days. The PM report also shows that the

victim died on 1st October, 2013 (date of occurrence) at

9.30 p.m.

Such glaring discrepancies and contradictions

in the evidence of P.W. 3, sole eyewitness raises a

serious doubt as to the presence of the witness near the

scene of occurrence as well as his evidence with regard

to rash and negligent act of the driver of the offending

vehicle. Though the investigating agency has submitted

charge sheet against the driver of the offending vehicle

but that is not a substantive piece of evidence. There is

no other evidence of eyewitness adduced by the

claimants to establish the fact of rash and negligent act

of the driver of the offending vehicle.

Mr. Roy, learned advocate for the appellants-

claimants relying on the decision of this Court in Mita

Samanta (supra) has strenuously argued that since the

insurance company has not led any evidence of

rebuttal, the evidence of the claimants is to be

accepted. In the case of Mita Samanta (supra), the

evidence of the eyewitness was accepted to be reliable.

The Hon'ble Court observed that the involvement of the

vehicle is to be accepted if contrary evidence is not led

from the side of the insurance company disputing the

involvement of the vehicle whereas in the case at hand,

in view of the aforesaid discrepancies, the evidence of

the sole eyewitness has become unreliable. Thus, the

ratio of Mita Samanta (supra) is not applicable to the

fact of the present case.

In Bimla Devi (supra), the respondents denied and

disputed the occurrence of the accident. It was

contended that the deceased died in the previous

evening and finding the dead body of a person wrapped

in a blanket lying at some distance from the bus; they

informed the police personnel, whereafter the driver

was falsely implicated. The Hon'ble Supreme Court held

that the learned Tribunal has rightly proceeded on the

basis that apparently there was no reason to falsely

implicate the respondent nos. 2 and 3 and further

observed that for the purpose of determining the said

issue, the Court was required to apply the principle

underlying burden of proof in terms of the provisions of

Section 106 of the Indian Evidence Act as to whether a

dead body wrapped in a blanket had been found at the

spot at such an early hour, which was required to be

proved by the respondent nos. 2 and 3. The facts

involved are distinguishable from the case at hand.

In Anita Sharma (supra), the evidence of the

witness was disbelieved by the High Court on the

premise that the deceased was brought to the hospital

by another person and not the witness. Such

observation of the High Court was set aside in appeal

before the Hon'ble Supreme Court. Further the

respondents in that case failed to cross-examine the

solitary eye-witness or confront him with their version

despite adequate opportunity and the Hon'ble Court

held that it must lead to an inference of tacit admission

of their part. Thus, the facts are distinguishable from

the case at hand.

So far as Kaushnuma Begum (supra) is

concerned, the said decision has been dealt with in

Surendra Kumar Arora (supra) wherein the Hon'ble

Supreme Court has observed that in an application

under Section 166 of the Motor Vehicles Act, the

parents of the deceased had to establish that

respondent no.1 drove the vehicle in a rash and

negligent manner.

The decision of this Court in Diana George

(Chakraborty) (supra) that the proposition of Lachoo

Ram (supra) and Nishan Singh (supra) was observed to

be not applicable since in that case, the act of rash and

negligent driving by the driver of the offending vehicle

was established whereas in the case at hand, the

aspect of rash and negligent has not been established

by cogent evidence as discussed in the forgoing

paragraphs. Therefore, the decision of this Court in

Diana George (Chakraborty) (supra) cannot come to the

aid of the appellants-claimants.

In Pushpabai Parshottam Udeshi (supra), cited on

behalf of the appellants-claimants, it is found that in

the said case the claimants did not lead any direct

evidence as to how the accident has occurred. No

eyewitness was examined. Whereas in the case at hand,

the appellants-claimants have adduced evidence of the

eyewitness, which upon examination is found to be

unacceptable. Thus, the facts are distinguishable.

As upon consideration and analysis of the

materials on record, namely the evidence of the sole

eyewitness to the occurrence, it is found that there are

glaring discrepancies in his evidence, hence the fact of

rash and negligent driving of the driver of the offending

vehicle on the basis of the evidence of P.W.3, sole

eyewitness falls short of acceptance and fails to support

such case of the claimants.

In the aforesaid conspectus of facts since the

rash and negligent act of the driver of the offending

vehicle on the relevant date of accident could not be

established by the claimants, hence the points of

arguments advanced on behalf of the claimants

regarding enhancement of compensation on the basis of

income, age, future prospect etc. by applying principles

as per provisions under Section 166 of the Motor

Vehicles Act, 1988 loses relevancy.

It is informed that the claimants have already

received the amount awarded by the learned Tribunal

together with interest.

In the aforesaid backdrop, the appeal stands

dismissed on contest. No order as to costs.

All the connected applications, if any, stand

disposed of.

Interim order, if any, stands vacated.

Urgent photostat copy of this order, if applied for,

be given to the parties upon compliance of necessary

legal formalities.

( Bivas Pattanayak, J.)