National Insurance Co. Ltd vs Nurjahan Begum And 2 Ors
2021 Latest Caselaw 2901 Gua

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GAHC010008482010




                              THE GAUHATI HIGH COURT
   (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)

                                Case No. : MACApp./290/2010

            NATIONAL INSURANCE CO. LTD.,
            HAVING ITS REGD. OFFICE AT 3, MIDDLETON STREET, KOLKATTA AND
            ONE OF THE REGIONAL OFFICE AT G.S. ROAD, BHANGAGARH,
            GUWAHATI, ASSAM.



            VERSUS

            NURJAHAN BEGUM and 2 ORS,
            W/O ROZAUDDIN KHAN, R/O VILL. BATABARI, P.O. and P.S. BIJNI, DIST.
            CHIRANG, ASSAM.

            2:SRI RAVINDAR SINGH

            S/O RATAN SINGH R/O 13/2 KHANDOWA ROAD
            NEAR HARIKRISHNA SCHOOL P.O. and P.S. INDORE DIST. INDORE
            MADHYA PRADESH PIN 452001.

            3:SOLEMAN KHAN
             S/O MUNIR KHAN R/O VILL. PRADHAN NAGAR P.O. DARJEELING
             P.S. SILIGURI
             DIST. DARJEELING

Advocate for the Petitioner   : MR A SAIKIA

Advocate for the Respondent : MS.K M SARMA
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                                    BEFORE
                        HONOURABLE MR. JUSTICE NANI TAGIA

                                         ORDER

Date : 16.11.2021

This is an appeal filed under Section 173 of the Motor Vehicle Act, 1988 (as amended), against the judgment and award dated 30.07.2010, passed by the learned Member, MACT, Barpeta, in MAC Case No.226/2006, whereby Rs.3,50,000/-(Rupees Three Lakhs Fifty Thousand only) have been awarded as compensation to the claimant.

2. The facts leading to filing of the instant appeal, briefly stated, are as follows:

The respondent No1 as claimant had filed an application under Sections 166/140 of the M.V. Act, 1988 with a prayer for a compensation amount of Rs.21,00,000/-(Rupees Twenty One Lakhs only) on account of death of her husband, Rajauddin Khan in the motor vehicle accident. In the claim petition, it has been stated that on 21.01.2006, at about 9.20 PM, the deceased, Rajauddin Khan was going from Pathasala towards Barpeta road by truck, bearing registration No.AS-17/1551, driven by himself and at Itarvita under Barpeta Police Station on the 31 National Highway, another truck bearing registration No.MP-09-KD/0762(ten wheeler) coming from Barpeta road side in a very rash and negligent manner in high speed endangering human life and property and in breach of traffic rule dashed against the truck No.AS-17/1551. As a result thereof, the truck bearing registration No.AS-17/1551 got completely damaged and the driver of the said truck, Rajauddin Khan sustained grievous Page No.# 3/11

injury, who was then brought to Barpeta Civil Hospital, where he was declared dead.

3. The owner and the driver of the offending truck did not contest the case before the Tribunal. The opposite party No.3, the present appellant in whose Insurance Company the offending vehicle No.MP-09-KD/0762(ten wheeler) was insured, contested the claim petition by filing a written statement. In the written statement filed by the appellant, it was, inter alia, contended that there is no cause of action for the suit, the claim is not maintainable in its present from, that the case is bad for non-joinder and mis-joinder of necessary parties, and that the victim died due to his own rash and negligent driving and, as such, the claim ought to have been filed under Workmen's Compensation Act and hence, the claim petition is liable to be rejected. It was further contended in the written statement filed that the deceased drove the vehicle No.AS-17/1551, at the time of accident in a rash and negligent manner and dashed against the alleged offending truck No. MP-09-KD/0762(ten wheeler) coming from the opposite direction and hence, the case is bad for mis-joinder of the necessary parties.

4. On the rival pleadings filed by the claimant and the Insurance Company, the learned Tribunal had framed as many as 7(seven) Issues, which are as under:

"(1) Whether the claim is maintainable in its present form? (2) Whether the accident took place due to rash and negligent driving of the driver of the vehicle?

(3) Whether Razauddin Khan died in the motor accident caused by the vehicle No. MP-09-KD/0762 in connection with Barpeta P.S. case No.58/2006?

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(4) Whether the claim is bad for non-joinder and mis-joinder of necessary parties?

(5) Whether the claimant is entitled to claim compensation and if so, what should be the just amount of compensation?

(6) Whether the vehicle was duly insured with M/s National Insurance Company Ltd. vide Policy No.320400/31/05/6301176? (7) Whether the owner, the driver or the Insurer Company Ltd. Shall be liable to pay the compensation?"

5. Insofar as the Issue Nos.1 and 4 are concerned, which were taken-up for consideration together, the learned Tribunal decided the Issue Nos.1 and 4 against the Insurance Company and in favour of the claimant. Issue Nos.2 and 3 were also taken-up together for determination, which again was decided against the Insurance Company and in favour of the claimant. Finally, the Issue Nos.5, 6 and 7 were also decided in favour of the claimant and against the Insurance Company, thereby, awarding a total compensation amount of Rs.3,50,000/- under the following heads:

      (i)             Loss of dependency               Rs.3,21.000/-

      (ii)            Loss of consortium                Rs.20,000/-

      (iii)           Loss of estate                   Rs.10,000/-

      (iv)           Funeral expenses                   Rs.8,000/-
                                 Total               Rs.3,50,000/-

6. Mr. R. K. Bhatra, learned counsel for the appellant/Insurance Company and Mr. K. Sarma, learned counsel for the respondent No.1/claimant have been heard.

7. Assailing the correctness of the impugned judgment and award passed by the learned Tribunal, Mr. Bhatra, learned counsel for the appellant, by referring to the evidence of CW-3, who is the Investigating Page No.# 5/11

Officer of the Barpeta P.S. Case No.58/2006, under Sections 279/304(A)/427 of the IPC, which was registered in connection with the accident that took place on 22.01.2006, contends that the CW-3, the I.O had stated, in his deposition, that the accident occurred because of the head-on collision between the two vehicles and when the accident had occurred due to the head-on collision by the two vehicles, the liability of the Insurance Company should have been apportioned between the Insurance Company, where both the vehicles have been insured.

In support of his contention, Mr. Bhatra, learned counsel for the appellant has relied on the decision rendered in (2006) 3 SCC 242 (Bijoy Kumar Dugar Vs. Bidya Dhar Dutta & Ors.), wherein the Hon'ble Supreme Court in Paragraph No.12, has held as under:

"...12. Adverting to the next contention of the claimants, no doubt the High Court has not dealt with the point in issue. However, we have noticed the reasoning and finding of the MACT recorded under Issue No.2. It is the evidence of Rajesh Kumar Gupta-P.W.2 who was travelling in the Maruti car along with the deceased Raj Kumar Dugar on the day of the accident that he also suffered some injuries in the said accident. He stated that while coming from Digboi, the Maruti car being driven by the deceased met with an accident at a place near Kharjan Pol. Before the accident, Raj Kumar Dugar noticed a passenger bus coming from the opposite direction and the movement of the bus was not normal as it was coming in a zigzag manner. The Maruti car being driven by the deceased Raj Kumar Dugar and the offending bus had a head- on collision. The MACT has not accepted the evidence of P.W. 2 to prove that the driver of the offending bus was driving the vehicle in abnormal speed. If the bus was being driven by the driver abnormally in a zigzag manner, as P.W. 2 wanted to believe the Court, it was, but natural, as a prudent man for the deceased to have taken due care and precaution to avoid head-on collision when he had already seen the bus from a long distance coming from the opposite direction. It was head- on collision in which both the vehicles were damaged and unfortunately, Raj Kumar Dugar died on the spot. The MACT, in our view, has rightly observed that had it been the knocking on one side of the car, the negligence or rashness could have been wholly fastened or attributable Page No.# 6/11

to the driver of the bus, but when the vehicles had a head-on collision, the drivers of both the vehicles should be held responsible to have contributed equally to the accident. The finding on this issue is a finding of fact and we do not find any cogent and convincing reason to disagree with the well-reasoned order of the MACT on this point. The MACT has awarded interest at the rate of 10% per annum on the amount of compensation from the date of filing of the claim application till the date of payment. It is a discretionary relief granted by the MACT and, in our view, the discretion exercised by the MACT cannot be said to be inadequate and inappropriate..."

Mr. Bhatra, learned counsel for the appellant has also relied on a decision of the Hon'ble Supreme Court, rendered in (2015) 9 SCC 273 (Khenyei Vs. New India Assurance Company Ltd. & Ors.) in Paragraph Nos.17 and 22.4, which are as under:

"...17. The question also arises as to the remedies available to one of the joint tort feasors from whom compensation has been recovered. When the other joint tort feasor has not been impleaded, obviously question of negligence of non-impleaded driver could not be decided apportionment of composite negligence cannot be made in the absence of impleadment of joint tort feasor. Thus, it would be open to the impleaded joint tort feasors after making payment of compensation, so as to sue the other joint tort feasor and to recover from him the contribution to the extent of his negligence. However, in case when both the tort feasors are before the court/tribunal, if evidence is sufficient, it may determine the extent of their negligence so that one joint tort feasor can recover the amount so determined from the other joint tort feasor in the execution proceedings, whereas the claimant has right to recover the compensation from both or any one of them.

22.4. It would not be appropriate for the court/tribunal to determine the extent of composite negligence of the drivers of two vehicles in the absence of impleadment of other joint tort feasors. In such a case, impleaded joint tort feasor should be left, in case he so desires, to sue the other joint tort feasor in independent proceedings after passing of the decree or award..."

8. Mr. Sarma, learned counsel for the respondent No.1/claimant, on the other hand, submits that there was no contributory negligence on the part of the deceased, which would be apparent from the statement of the CW- 3, the I.O. of the case that though, there was head-on collision between Page No.# 7/11

the two vehicles, during the investigation, it was found that the vehicle bearing registration No.AS-17/1551 was found to be more damaged and there was a slight damage in respect of the other offending truck No. MP- 09-KD/0762(ten wheeler), which would indicate that the head-on collision took place due to rash and negligent driving of the offending vehicle, the other truck No. MP-09-KD/0762(ten wheeler).

9. Rival submissions advanced by the learned counsels for the contesting parties have received due consideration of this Court.

10. There is no dispute about the fact that the accident took place on 21.01.2006, at about 9.20 PM, between the truck bearing registration No.AS-17/1551, driven by the deceased, Rajauudin Khan and another truck bearing registration No.MP-09-KD/0762(ten wheeler) at Itarvitha under Barpeta Police Station. As a result of which accident, the deceased, Rajauuding Khan succumbed to the injury on the same day at Barpeta Civil Hospital. It is also not in dispute that Barpeta P.S. Case No.58/2006, under Sections 279/304(A)/427 of the IPC was registered, and after completion of the investigation, a charge-sheet was submitted against the driver of the offending vehicle No.MP-09-KD/0762(ten Wheeler), which vehicle was insured with the appellant/Insurance Company.

11. In support of the claim petition, the claimant had examined herself as CW-1, who, in her evidence submitted by way of an affidavit had stated that at the time of death of the deceased, Rajauddin Khan, was a very healthy and young boy, who was the sole earning member of the family. CW-1 further stated in the evidence that the deceased left behind him the applicant/claimant, who is the wife; 3(three) minor daughters and a minor son.

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12. CW-2 is one Md. Afjal Kazi, who, in his evidence submitted by way of an affidavit had stated that he knew the deceased Rajauddin Khan and on 22.01.2006, at about 9.20 PM, the deceased was coming from the Guwahat side by a truck bearing registration No.AS-17/1551, in a Barpeta road and another truck bearing registration No.MP-09-KD/0762(ten wheeler) coming from Barpeta road side to Pathasala road side in a high speed dashed against the truck driven by the deceased. As a result of which, the deceased sustained grievous injury and succumbed to his injury. CW-2, however, has not stated that he was the eye-witness of the accident nor there was any eye-witness to the accident. However, CW-3, who is the Investigating Officer of the Barpeta P.S. Case No.58/2006, which was registered in respect of the accident that took place, in his deposition stated that on 22.01.2006, he was attached to Howly Out-Post as ASI and on that day, a motor accident took place on Itervitha at around 9.20 PM, when he got the information over telephone, he made G.D Entry No.509 dated 22.01.2006 at Howly Out-post under Barpeta Police Station and immediately rushed to the spot and found that there was a head-on collision between the two vehicles bearing registration No.MP-09- KD/0762(ten wheeler) and AS-17/1551. Both the vehicles were trucks and the driver of vehicle No.AS-17/1551 had sustained grievous injury and was moved to Barpeta Civil Hospital and after some time, the said driver died. Subsequently, a regular case was registered as Barpeta P.S. Case No.58/2006, under Sections 279/304(A)/427 of the IPC, and a charge- sheet against the driver of the offending vehicle No.MP-09-KD/0762(ten wheeler) was submitted. The documents of both the vehicles were seized, such as Insurance policy, Driving License, which were found to be in order.

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13. In the cross-examination, CW-3 had stated that there was a head-on collision between the two vehicles. During the investigation, he found that the vehicle No.AS-17/1551 was more damaged and, slight damage was done to the other truck.

14. From the examination of the deposition of the witnesses, more particularly, the CW-3, it is noticed that though the accident had occurred due to the head-on collision of the two vehicles, in question, but it cannot be ascertained from the evidence of the CW-3 that because of the head- on collision between the two vehicles; there was a contributory negligence on the part of the deceased as well. Rather What is found from the deposition of CW-3 is that in the head-on collision between the two trucks, more damage was caused to the vehicle driven by the deceased and; less and slight damage to the vehicle insured with the appellant/Insurance Company, which could be an indicative of the fact that it was the vehicle insured with the appellant/Insurance Company which had dashed into the vehicle driven by the deceased, resulting in head on-collision.

15. In the case of Bijoy Kumar Dugar(supra), relied on by the learned counsel for the appellant Mr. Bhatra, where the drivers of both the vehicles were held responsible was on the basis of the evidence of PW-2 available on record, who was travelling with the deceased in the Maruti car at the time of the accident; and who had stated that the deceased who was driving the Maruti car could see from a long distance that a passenger bus was coming from the opposite direction and the movement of the bus was not normal as it was coming in a zig-zag manner but despite the fact that the deceased could see it from a long distance, the deceased did not take due care and precaution to avoid head-on collision.

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16. Such is not the case in the instant case, as the Insurance Company has not adduced any such evidence. Rather what can be noticed from the evidence of the CW-3 is that there was a head-on collision between the two vehicles and it is not ascertainable from the evidence of the CW-3 that the head-on collision took place on the middle of the road, which may be a factor indicative of the negligent driving of both the vehicles, but instead, in the cross-examination part of the CW-3, it has been stated that in a collision that took place between the two vehicles, more damage was caused to the vehicle driven by the deceased, which could be an indication of the fact that the offending vehicle No.MP-09-KD/0762(ten wheeler) was driven in a more rash and negligent manner.

17. In view of the above, I am of the view that the principle of contributory negligence laid down in Bijoy Kumar Dugar(supra), in the case of head-on collision may not be applicable in the present facts and circumstances of the case. Since there is no challenge to the quantum of the compensation awarded by the learned Tribunal, the arguments advanced by the learned counsel for the appellant being only on the principle of contributory negligence, this appeal fails for the reasons indicated hereinabove.

18. It has been submitted that an amount of Rs.87,500/-(Rupees Eighty Seven Thousand Five Hundred only) have already been deposited before the Registry of this Court in connection with the present appeal. The appellant/Insurance Company shall now deposit the balance amount of judgment and award dated 30.07.2010, passed by the learned Tribunal, MACT, Barpeta in MAC Case No.226/2006, along with the interest of 5% per annum of the awarded amount from the date of filing of the claim Page No.# 11/11

petition before the Registry of this Court, within 6(six) weeks from today. The statutory deposit of Rs.25,000/- shall be adjusted in the deposit to be now made by the appellant/Insurance Company.

The appeal stands disposed of, in terms above.

JUDGE

Comparing Assistant