Jharkhand High Court
Basanti Oraon vs Iffco Tokio General Insurance on 27 October, 2021
IN THE HIGH COURT OF JHARKHAND AT RANCHI
M.A. No. 494 of 2015
1. Basanti Oraon
2. Jagannath Oraon............ Appellants
Versus
IFFCO Tokio General Insurance
Company Limited & Ors............ Respondents
......
Coram: Hon'ble Mr. Justice Ananda Sen
......
For the Appellants : Mr. Atanu Banerjee, Advocate
Mr. Jayanta Sarangi, Advocate
For the Respondents : Mr. Ashutosh Anand, Advocate
......
4/27.10.2021 Perused the office note.
Since there is no violation of the policy alleged against the owner
of the vehicle nor the Award is against the owner and driver of the vehicle,
this Court feels that no useful purpose will be served to issue fresh notice
to Respondent Nos. 2 & 3.
The insurance company has already appeared through its counsel
Mr. Ashutosh Anand.
On the request of Mr. Atanu Banerjee, learned counsel for the
appellants and Mr. Ashutosh Anand, learned counsel for the insurance
company, this appeal is being disposed of at this stage itself.
Mr. Atanu Banerjee, learned counsel for the appellants takes a
very short point while challenging the judgment and award. He submits
that the Tribunal had come to a conclusion that the accident occurred due
to the contributory negligence of the deceased and the negligence is to the
extent of 70%. He submits that the Tribunal could not have decided that
there was contributory negligence on the part of the deceased to the extent
of 70% in absence of any issue which was not framed to the aforesaid
effect. He submits that it is well settled that the plea of contributory
negligence needs to be taken specifically and there has to be specific proof
of contributory negligence and only then the Tribunal could arrive at a
conclusion that there exists contributory negligence on the part of the
deceased. He further submits that it is apparent from the impugned award
itself at Para-10 that no issue in respect of contributory negligence was
framed. He submits that since no issue was framed, his clients did not
also produce necessary evidence in their defence to that effect. It can thus,
be said that the aforesaid finding is in fact, without giving any opportunity
to the claimants to lead evidence on the said point.
Mr. Ashutosh Anand, learned counsel appearing for the insurance
company submits that the Tribunal took into consideration the charge
sheet and several documents, which clearly suggest that the deceased was
equally liable for the accident. According to him, the Tribunal has rightly
decided that there was contributory negligence on the part of the deceased
to the extent of 70%, thus deducted 70% of the amount of compensation
so assessed.
After hearing the parties, I have gone through the impugned
judgment. The case arises out of an accident which had taken place on
29.05.2013. The offending vehicle is a Hywa having Registration No.
JH05K -5588. The deceased was riding a motorcycle and it is alleged that
the Hywa dashed the motorcycle while reversing, resulting in death of the
deceased. It is further alleged that while reversing, the Hywa vehicle did
not even blew the horn nor had given any indicator. The Tribunal, on the
basis of the evidence, came to the conclusion that the Hywa was parked at
a side of the road and the motorcycle dashed the stationary Hywa vehicle.
The Tribunal, thereafter, concluded that there is contributory negligence
on the point of the deceased and the negligence is to the extent of 70%.
The fact of contributory negligence has to be specifically proved.
To come to a conclusion as to whether there was contributory negligence
on the part of the deceased, specific issue has also to be framed so that
the parties get chance to lead evidence on the aforesaid issues.
In the present case, while I go through the impugned award, I find
that six issues were framed. The Tribunal did not frame any issue on the
point of contributory negligence. Issue No. 2 framed by the Tribunal is
whether deceased died due to rash and negligent driving of the Hywa
vehicle bearing Registration No. JH05K 5588. While deciding the aforesaid
issue, the Tribunal concluded that there was contributory negligence on
the part of the deceased. Further, the Tribunal held that the deceased was
negligent to the extent of 70%. On what basis the level of negligence was
assessed as 70%, is also not clear from the impugned award. Further, if
there was contributory negligence, the specific issue on that point, should
have been framed by the Court, which has not been framed. Without
framing the aforesaid issue, the Tribunal could not have decided the point
of contributory negligence. Thus, I find that the Tribunal committed error
in holding that there is contributory negligence to the extent of 70%, on
the part of the deceased, without framing an appropriate issue.
Therefore, on the aforesaid ground itself, I am setting aside the
finding of contributory negligence arrived at by the Tribunal and
remanding the matter back to the Tribunal to frame an appropriate issue
in relation to contributory negligence and decide the same. After
framing the aforesaid issue, liberty should be given to the parties to lead
evidence on the issue so framed, if they chose to do so. After deciding the
issue and on the basis of the finding on the said issue the final judgment
should be pronounced by the Tribunal.
This remand is a limited remand only in respect of the issue of
contributory negligence.
The finding in respect of other issues is not interfered with.
This appeal, accordingly, stands disposed of.
(Ananda Sen, J)
Mukund/-cp.2
