The Reliance General Insurance Co ... vs Smti Swarnalata Das And 4 Ors
2022 Latest Caselaw 1307 Gua

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GAHC010016022015




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

                                Case No. : MACApp./137/2015

            THE RELIANCE GENERAL INSURANCE CO LTD
            HAVING ITS REGISTERED OFFICE and HEAD OFFICE AT RECTIFIER HOUSE
            570, NIGAM CROSS ROAD RD, WADALA, MUMBAI 400031 AND ITS
            BRANCH OFFICE AT ANIL PLAZA, ABC, G.S. ROAD, GUWAHATI 781005
            REPRESENTED BY THE MANAGER, GUWAHATI OFFICE, ANIL PLAZA, G.S.
            ROAD, GUWAHATI 781005


            VERSUS

            SMTI SWARNALATA DAS and 4 ORS
            W/O LATE LOKNATH DAS

            2:SRI PARTHA PRATIM DAS

             S/O LATE LOKNATH DAS

            3:CHAYANIKA DAS

             D/O LATE LOKNATH DAS
             ALL ARE R/O VILL. AMGAON
             TARIBAGAN
             P.S. PRAGJYOTISHPUR
             DIST. KAMRUP M
             ASSAM

Advocate for the Petitioner   : MR.I ALAM

Advocate for the Respondent : FOR CAVEATOR
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                                 BEFORE
                     HONOURABLE MR. JUSTICE NANI TAGIA

                                      ORDER

Date : 20.04.2022

Heard Mr. R. Goswami, learned counsel for the appellant/Insurance Company. Also heard Mr. S. Dutta, learned senior counsel for respondents No. 1, 2 & 3/claimants.

This appeal preferred by the appellant/Insurance Company u/s. 173 of the M.V. Act, 1988, is directed against the judgment and award, dated 25.11.2013, passed by the learned Member, MACT, Kamrup, Guwahati, in MAC Case No. 582/2010, whereby the respondents No. 1, 2 & 3/claimants have been awarded compensation, as under:

"Loss of dependency - 157480x11          : Rs. 17,32,280.00
Funeral expenses                         : Rs.   25,000.00
Loss of estate                           : Rs.     5,000.00
Loss of consortium                       : Rs. 1,00,000.00
Loss of care & guidance of minor
Children                                 : Rs. 1,00,000.00
                          Total            Rs. 19,62,280.00


           The amount is rounded off to Rs. 19,62,000/-"

The above quantum of compensation awarded, however, was corrected by another order, dated 16.01.2014, passed by the learned Member, MACT, Kamrup, Guwahati, in MAC Case No. 582/2010, whereby a compensation Page No.# 3/10

amount of Rs. 1,00,000/- awarded under the heading 'loss of care and guidance for minor children' was reduced to Rs. 20,000/-.

The facts leading to filing of the present appeal, briefly, stated, are as follows:

The respondents No. 1, 2 & 3/claimants filed a claim petition which was registered as MAC Case No. 582/2010, stating that on 31.12.2009, at about 6.40 p.m., when the deceased Loknath Das was coming towards his home by riding his motorcycle bearing Registration No. AS-01/B-8853, along with his daughter Chayanika Das, and when they reached near Amgaon Taribagan, suddenly, a truck bearing Registration No. AS-01/AC-2091, knocked the motorcycle of the deceased Loknath Das and as a result of which, he fell down and sustained grievance injuries. He was immediately shifted to GNRC Hospital at Guwahati where he succumbed to his injuries on the next day. At the time of his demise, the deceased was aged about 53 years and was working as a Manager, Production of Assam Roofing Ltd..

The claim petition was accordingly filed by the wife, son and the daughter of the deceased Loknath Das.

As the truck bearing Registration No. AS-01/AC-2091, was insured with the appellant/Insurance Company, the appellant/Insurance Company, as Opposite Party No. 3, therein; had contested the case by filing a written statement Page No.# 4/10

wherein the appellant/Insurance Company, inter-alia, declined to accept the liability if there was any violation of terms and conditions of the policy, or, if the driver did not possess valid and effective driving license to drive the vehicle.

The owner of the truck bearing Registration No. AS-01/AC-2091, who had been arrayed as Opposite Party No. 2, also contested the case by filing his written statement wherein, while disputing the averments made by the claimants in the claim petition, had stated that the offending vehicle was insured with the Insurance Company, in question, and if any liability arises, the Insurance Company would be liable to indemnify it.

The driver of the offending vehicle/truck bearing Registration No. AS- 01/AC-2091, who had been arrayed as Opposite Party No. 1, did not contest the case and the case proceeded ex-parte against him.

Upon the rival pleadings of the parties; the learned Tribunal had framed 2(two) issues, to be determined, which are as under:

(i) Whether victim, (Late) Loknath Das, died in a road accident occurred on 31-12-09 caused by the vehicle No. AS-01/AC-2091(Truck) and whether the said accident took place due to rash and negligent driving of the offending vehicle?

(ii) Whether the claimants are entitled to get any compensation and if so, to what extent and who amongst the opposite parties, shall be liable to pay compensation?

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Before the learned Tribunal; the claimant No. 1, Smt. Swarnalata Das, wife of the deceased Loknath Das; the claimant No. 2, Shri Partha Pratim Das, son of the deceased Loknath Das; and the claimant No. 3, Smt. Chayanika Das;

daughter of the deceased Loknath Das; were examined as PWs No. 1, 2 and 3, respectively.

The contesting Opposite Parties did not examine any witness on their behalf.

On consideration of the evidence of PW-1, PW-2 and PW-3, the learned Tribunal had recorded the following finding:

"It is in the evidence of PW-1 that on the day of accident her deceased husband was coming to his home in his motorcycle with his daughter, Chayanika Das, the offending truck which was driven at an excessive speed knocked the motorcycle at Amgaon Taribagan, as a result of which, he sustained grievous injuries and died on the next day. Her son, Partha Pratim Das, also filed evidence on affidavit, supporting his mother but he was not an eye-witness to the accident. It is PW-3, Chayanika Das, who was the pillion rider of the motorcycle, an eye-witness to the accident. Her evidence is that the truck hit the motorcycle of her father, as a result of which he sustained grievous injuries and died on the next day. Since she was a pillion rider, she could not say whether the truck knocked the right, left or middle portion of the motorcycle, but she affirmed that it hit from the front side of the motorcycle and she was thrown out from the motorcycle. She sustained simple injuries. They have deposed that the accident took place due to rash and negligent driving by the driver of the truck. The claimant in support of their evidence produced the accident information report as Ex-1, where the truck has been shown to be involved in the accident and Pragjyotishpur PS registered a case vide PS Case No. 03/10 u/s 279/304-A IPC against the driver of the truck. After completing the investigation, police submitted charge-sheet against the driver of the truck. Filing of the charge-sheet which is not disputed is also Page No.# 6/10

prima facie evidence of negligence in the case u/s 166 of the MV Act. The PM Report also reveals that the deceased died due to the injuries sustained by him. Both PW-1 & PW-3 categorically stated that the accident took place due to rash and negligent driving by the driver of the offending truck. In cross-examination, nothing could be brought out to prove that there was contributory negligence or any other cause of accident. The oral evidence of the claimant as well as evidence of PW-3, who was the pillion rider of the motorcycle, coupled with the documents produced by her, established that the accident took place due to sole negligence of the driver of the offending vehicle bearing no. AS-01/AC- 2091. There is no dispute that the offending vehicle was duly insured win the Reliance General Insurance Co. Ltd."

On the finding recorded, as above, that the accident had occurred due to the sole negligence of the offending vehicle/Truck bearing Registration No. AS- 01/AC-2091; the learned Tribunal had awarded the compensation, as indicated above, to be paid to the claimants by the Insurance Company.

Mr. Goswami, learned counsel for the appellant/ Insurance Company; while not denying the correctness of the quantum of compensation assessed; has argued that the accident had occurred due to the head-on collision between the motorcycle, the deceased Loknath Das was riding, and the offending vehicle/Truck bearing Registration No. AS-01/AC-2091; and thus, there was a contributory negligence on the part of the deceased Loknath Das and accordingly, to that extent, the compensation awarded ought to be reduced.

On the other hand, Mr. Dutta, learned senior counsel appearing on behalf of respondents No. 1, 2 & 3/claimants; has argued that the evidence of PW-1 and PW-3 would clearly indicate that the accident had occurred due to the sole Page No.# 7/10

negligence of the driver of the offending vehicle/Truck bearing Registration No. AS-01/AC-2091 and there was no question of contributory negligence on the part of the deceased Loknath Das.

Mr. Dutta, learned senior counsel, has further argued that in order to indicate that there was any contributory negligence on the part of the deceased, named-above; the appellant/Insurance Company did not lead any evidence before the learned Tribunal and in the absence of any evidence led by the appellant/Insurance Company to indicate the manner of contributory negligence on the part of the deceased, contributory negligence cannot be attributed on the part of the decased Loknath Das, and hence, no interference is called for to the impugned judgment & award, dated 25.11.2013, passed by the learned Member, MACT, Kamrup, Guwahati, in MAC Case No. 582/2010.

Rival contentions advanced by the parties have been considered by the Court and the materials placed on record have been duly perused.

On perusal of the impugned judgment & award, dated 25.11.2013, passed by the learned Member, MACT, Kamrup, Guwahati, in MAC Case No. 582/2010, as well as the record; it appears that there is no dispute that the deceased Loknath Das had died on 01.01.2010 as a result of an accident that took place on 31.12.2009, at about 6.40 p.m., while the deceased along with his daughter Smt. Chayanika Das(PW-3) met with the accident at Amgaon Taribagan because of the offending vehicle/Truck bearing Registration No. AS-01/AC-2091, which hit the motorcycle bearing Registration No. AS-01/B-8853, on which the Page No.# 8/10

deceased Loknath Das and his daughter, was riding.

Regarding the accident, it also appears that Pragjyotishpur P.S. Case No. 03/2010 u/ss. 279/304-A of the IPC, was also registered, and a charge-sheet submitted against the driver of the vehicle/Truck bearing Registration No. AS- 01/AC-2091.

PW-1 and PW-3, wife and daughter of the deceased Loknath Das, respectively, had testified, supporting the accident that took-place on 31.12.2009. PW-2, son of the deceased Loknath Das, had also filed evidence on affidavit, supporting the accident that took place. Amongst the PW-1, PW-2 and PW-3, what is noteworthy is the evidence of PW-3, who is the daughter of the deceased Loknath Das, who had travelled with the deceased father on the fateful day, as a pillion rider, and accordingly, she is an eye-witness of the accident.

Perusal of the evidence of PW-3, categorically indicates that the accident took place due to the rash and negligent driving by the driver of the offending vehicle/Truck bearing Registration No. AS-01/AC-2091, as she had stated in her evidence that the offending vehicle hit the front side of the motorcycle bearing Registration No. AS-01/B-8853.

From the impugned judgment & award, dated 25.11.2013, passed by the learned Member, MACT, Kamrup, Guwahati, in MAC Case No. 582/2010, as well Page No.# 9/10

as from the materials made available on record, there is no material to indicate that the appellant/Insurance Company did led any evidence before the learned Tribunal to prove that there was a contributory negligence on the part of the deceased Loknath Das as is sought to be argued before this Court.

In the absence of any evidence led before the Tribunal by the appellant/Insurance Company to bring home the fact that there was a contributory negligence on the part of the deceased Loknath Das, it cannot be held, at this stage, that there was any contributory negligence on the part of the deceased Loknath Das, as such, as is sought to be argued by Mr. Goswami, learned counsel for the appellant/Insurance Company.

Since no other grounds have been urged by the appellant/Insurance Company, in the considered view of the Court; no interference is called for to the impugned judgment & award, dated 25.11.2013, passed by the learned Member, MACT, Kamrup, Guwahati, in MAC Case No. 582/2010.

The appeal, accordingly, fails and the same stands dismissed.

In that view of the matter; the amount which had been deposited by the appellant/Insurance Company before the Registry, pursuant to the order of this Court, dated 23.06.2015, passed in M.C. 1353/2015, shall be adjusted while making the final payment of the compensation amount, in question, to the respondents No. 1, 2 & 3/claimants, which shall be deposited by the Page No.# 10/10

appellant/Insurance Company within a period of 6(six) weeks from today before the Registry of this Court.

From the compensation awarded by the learned Tribunal, it is hereby provided that an amount of Rs. 5,00,000/- be kept as a Fixed Deposit for a period of 1(one) year in any nationalized Bank in favour of respondent No. 1/claimant viz. Smt. Swarnalata Das, wife of the deceased Loknath Das.

Registry shall refund the statutory deposit of Rs. 25,000/-, to the appellant/Insurance Company.

JUDGE

Comparing Assistant