Calcutta High Court (Appellete Side)

Reliance General Insurance ... vs Ramdhan Besra on 9 June, 2023

09.06.2023               IN THE HIGH COURT AT CALCUTTA
Ct. no.654                 CIVIL APPELLATE JURISDICTION
Item no.8                         (Appellate Side)
   Sn,ab
                                   FMAT 986 of 2019
                           IA No.CAN/1/2019(Old CAN 10491 of 2019)
                                 CAN 2/2022 &CAN 3 of 2023

                         Reliance General Insurance Co.Ltd.
                                    Vs.
                              Ramdhan Besra

             Mrs. Gopa Das Mukherjee
                                              ...for the Appellant
             Mr. Jayanta Kumar Mondal
                                              ..for the respondent

This appeal is preferred against the judgment

and award dated 31st July, 2019 passed by the

learned Judge, Motor Accident Claims Tribunals, 1st

Court, Purulia in MAC case no.56 of 2012(171 of

2015) granting compensation of Rs.41,89,576/- in

favour of the claimant under Section 166 of the

Motor Vehicles Act, 1988.

The brief fact of the case is that on 8th June,

2012 while the victim Parimal Besra was proceeding

through Manbazar-Hatirampur pitch road along with

his wife Nibedita Besra by driving his motor cycle

bearing registration no. WB-56F/0951 and when

they reached near Katin More at about 1 p.m. the

offending vehicle bearing registration no. WB-

41E/9513 which was proceeding from Manbazar

towards Hatirampur side in high speed and in rash

and negligent manner dashed the said motor cycle.

As a result of such accident, both the victim and his

wife fell down and received grievous injuries on their

persons. The victim Parimal Besra succumbed to his

injuries at the spot and his wife was shifted to

Amjury BPHC. On account of sudden demise of the

victim, his parents filed an application for

compensation of Rs.46,00,000/- under Section 166

of the Motor Vehicles Act, 1988. During the pendency

of the claim application, the mother of the victim

Allahadi Besra expired and the claim application was

pursued by the claimant/respondent.

The claimant in order to establish the case

examined three witnesses and produced documents

which have been marked as Exhibits 1 to 9

respectively.

The appellant-insurance Company did not

adduce any evidence.

Upon considering the materials on record and

evidence adduced on behalf of the claimant, the

learned Tribunal granted compensation of

Rs.41,89,576/- in favour of the respondent-claimant

under Section 166 of the Motor Vehicles Act, 1988.

Being aggrieved by and dissatisfied with the

impugned judgment and award of the learned

Tribunal, the appellant-insurance company preferred

the present appeal.

Mrs. Gopa Das Mukherjee, learned advocate

for the appellant-insurance company submits that it

is the specific case of the insurance company that

the victim contributed to the accident. She further

submits that the evidence of PW-2, eyewitness to the

occurrence would suggest that there was head on

collision between the motor cycle driven by the

victim, Parimal Besra and the alleged offending truck

and such evidence of head on collision supports the

pleadings of the insurance company of contributory

negligence on the part of the victim in the said

accident. Since the victim contributed to the said

accident, the award needs to be scaled down

considering the aspect of contributory negligence of

the victim. She further submits that the victim on the

date of accident was holding the learner's license

which has also led to the negligence of the victim in

the said accident. In support of her contentions, she

relies on the decision of the Hon'ble Supreme Court

passed in Khenyei versus New India Assurance

Company Limited & Ors. reported in 2015(2)

T.A.C.677(S.C.). In light of her aforesaid

submissions, she prays for modification of the award

taking into account of contributory negligence of the

victim.

In reply to the contention raised on behalf of

the appellant-insurance company, Mr. Jayanta

Kumar Mondal, learned advocate for the claimant

submits that the insurance company though raised

defense plea of contributory negligence on the part of

the victim in the said accident in its written

statement but has failed to lead any independent

cogent evidence to establish its case. He further

submits that the sole eyewitness to the occurrence,

namely the PW-2, has categorically deposed of the

accident having been taken place due to rash and

negligent driving on the part of the driver of the

offending vehicle which has not been rebutted by any

contrary evidence. Furthermore, he submits that

after completion of the investigation, the investigating

agency submitted charge sheet against the driver of

the offending vehicle holding him primarily guilty of

rash and negligent act. Thus, in the absence of

cogent evidence of contributory negligence of the

victim, there cannot be any finding of the accident to

have taken place due to negligent act of the victim.

He further submits that even if a person drives the

vehicle without license at best can be treated to have

committed an offence and it cannot lead to finding of

negligence of the victim. In support of his contention,

he relies on the decision of the Hon'ble Supreme

Court passed in Sudhir Kumar Rana versus

Surinder Singh & Ors. reported in (2008) 2 SCC

436. In the light of his aforesaid contentions, he

submits that the appeal is liable to be dismissed.

By an order dated 2nd February, 2023, service

of notice of appeal upon the respondent nos. 2&3,

owner of the offending vehicle, has been dispensed

with.

Having heard the learned advocates for the

respective parties, the only issue which has fallen for

consideration in the present appeal is whether the

deceased victim was guilty of contributory negligence

in the said accident.

In order to establish and appreciate the

aforesaid issue, it would be profitable, at the outset,

to examine the pleadings of the appellant-insurance

company. In its written statement, the appellant-

insurance company has made specific assertion that

the accident occurred on account of negligence of the

deceased. Although such defense plea has been

taken by the appellant-insurance company but it has

failed to adduce any independent cogent evidence to

establish the said fact of the contributory negligence

of the victim. Mrs. Mukherjee, learned advocate for

the appellant-insurance company relying the

evidence of eyewitness PW-2, Sabhapati Tudu @

Senapati Tudu, tried to impress upon the Court that

since he has deposed that the accident was a head

on collision between two vehicles, hence there was

contributory negligence of the victim in the said

accident. It is a fact that PW-2, eyewitness to the

occurrence, has deposed in cross-examination that

the accident was a head on collision. However, he

went on to depose further that the offending vehicle

has dashed the victim by the right side. Be that as it

may, in the evidence in chief PW-2 has categorically

stated that the accident had taken place due to the

fault on the part of the driver of the offending truck.

Such evidence of PW-2, of negligence of the driver of

the offending vehicle has remain unchallenged in the

cross examination. Only that there was head on

collision of the vehicles in accident cannot lead to

general proposition that the victim contributed to the

said accident, in the absence of cogent evidence in

that regard. There are no contrary evidence adduced

from the side of the insurance company against the

evidence of the sole eyewitness P.W.2 of negligence of

driver.

Further, upon conclusion of investigation, the

investigating agency has submitted charge sheet

(Exhibit-4) against the driver of the offending vehicle

under Sections 279/304A/427 of the Indian Penal

Code. In the absence of any evidence to show any

wrongful act or omission on the part of the deceased

victim which have contributed either to the accident

or nature of injuries sustained, the victim cannot be

held guilty of contributory negligence (see

Mohammed Siddiquie & Anr. versus National

Insurance Co. Ltd. reported in Vol. 1(2022) ACC

345 (SC)).

The other ground raised in support of the

contributory negligence of the victim is that on the

date of incident, the victim was holding a learner

licence and hence was negligent. In this regard, it

would be profitable to reproduce Section 10(2) of the

Act hereunder:

"10. Form and contents of licences to drive.-- (1) x x x x x (2) A learner's licence or, as the case may be, driving licence shall also be expressed as entitling the holder to drive a motor vehicle of one or more of the following classes, namely:--

(a) motor cycle without gear;

(b) motor cycle with gear;

(c) x x x x x

(d) x x x x x

(i) x x x x x

(j) x x x x x."

Therefore, the victim on such ground cannot

be held to have contributed to the accident. I find

substance in the submissions of Mr. Mondal, learned

advocate for the claimant relying on Sudhir Kumar

Rana (supra) that even if a driver drives a vehicle

without licence, he commits an offence but it may

not lead to finding of negligence. In view of the above

discussions, it is found that the ground taken by the

appellant-insurance company is not sustainable.

Accordingly, the appeal is liable to be dismissed.

The decision rendered in Khenyei (supra) is on

the principle that in case of composite negligence the

claimant is entitled to sue both or any one of the

joint tort-feasors and to recover the entire

compensation as liability of joint tort-feasors is joint

and several. The consideration in this appeal is quite

dissimilar to the ratio as above.

In the light of the aforesaid discussions, the

appeal stands dismissed. The impugned judgement

and award of the learned Tribunal is affirmed. No

order as to costs.