Seeta Devi vs Navin Kumar Gupteshwar
2021 Latest Caselaw 3590 Jhar

                                    -1-

    IN THE HIGH COURT OF JHARKHAND AT RANCHI
                M.A. No.264 of 2010

    1.     Seeta Devi
    2.     Savan Kumar
    3.     Prity Kumari @ Pujja
    4.     Priynka Kumari @ Aarti                ......       Appellants

                             Versus
    1.     Navin Kumar Gupteshwar
    2.     Rajendra Kumar Pandey
    3.     Maruti Insurance, Radha Auto Trect Private
           Limited Netaji Subhash Chandra Bose Marg
           Bhagalpur (Bihar) Divisional Office National
           Insurance Company Limited, Sumrit Mandali
           Complex, Jail Road, Tilkamanjhi, P.O.- Bhagalpur,
           Distt. - Bhagalpur.
    4.     Siya Devi                     ..... Respondents
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CORAM: HON'BLE MR. JUSTICE RAJESH KUMAR

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For the Appellants : Mr. Manoj Sah, Advocate For the Resp. No.03 : Mr. Amaresh Kumar, Advocate

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The matter was taken up through Video Conferencing. Learned counsel for the parties had no objection with it and submitted that the audio and video qualities are good.

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               th
13/Dated: 24        September, 2021

1. The present miscellaneous appeal has been filed against

the order dated 08.03.2010, passed by the court of learned

District Judge -cum- M.A.C.T., Godda in M.A.C.T Case No.51

of 2008, whereby 20% amount of the compensation of the

claimants has been deducted on the ground of contributory

negligence on the part of the deceased.

2. The wife and children of the deceased have approached

for grant of compensation due to death of the deceased in

road accident involving offending Maruti Van bearing

registration No.BR-10E-7323 and the motorcycle driven by

the deceased. It has been alleged that Maruti Van was being

driven rashly and negligently and this was the cause of the

accident. The learned Tribunal has framed four issues at Para

- 5 of the impugned judgment, which is quoted herein

below :-

(i) Whether the petition as framed and filed is maintainable ?

(ii) Whether the death of Anirudh Kr. Thakur on 16.11.2007 was caused by rash and negligent driving of the driver of the Maruti Van bearing registration No.BR-10E-7323 ?

(iii) Whether the Driver of the Vehicle was having a valid and effective driving licence at the time of accident and whether the owner of Maruti Car No.BR-10E-7323 was having a valid and effective Insurance Policy ?

(iv) To what amount of compensation the claimants are entitled to and from whom ?

The objection has been raised regarding the issue No.

(iii) only and rest of the issues have not been raised before

this Court.

3. The learned Tribunal, after appreciating the evidence

and argument advanced by the respective parties, has

decided the issue No.(iii) partly in favour of the claimants/

appellants and partly against them, holding that the deceased

could not produce the driving licence and he was driving the

motorcycle without having the driving licence, and as such,

there is contributory negligence on his part, and accordingly

20% of the amount has been deducted from the assessed

compensation amount.

4. Learned counsel appearing on behalf of the appellants/

claimants, has relied upon the judgment of the Hon'ble Apex

Court in the case of Sudhir Kumar Rana Vs. Surinder

Singh & Ors. reported in 2008 (2) T.A.C 769 (SC), wherein

it has been held by the Hon'ble Supreme Court that if a

person drives vehicle without a licence, then he commits an

offence and this in itself cannot lead to a finding of

negligence qua the accident.

Further, upon relying on the judgment of the Hon'ble

Apex Court in the case of Minu Rout & Anr. Vs. Satya

Pradyumna Mohapatra & Ors., reported in 2013 (4) T.A.C

840 (S.C), it has been contended that in the absence of

rebuttal evidence regarding negligence or positive evidence

and without recording negligence, no findings can be

recorded.

5. It has been argued by the learned counsel that in the

present case oral evidence has been adduced by the

claimants that the accident had taken place on the left flank

of the road. The motorcycle was being driven by the deceased

cautiously on the left flank and the offending Maruti Van was

being driven rashly and negligently on the wrong side. There

is no rebuttal of the said evidence. Only on the ground of non-

production of the driving licence, the contributory negligence

has been attributed upon the deceased and accordingly 20%

of the compensation amount has been deducted by the

Tribunal. On the above facts, it has been submitted by the

learned counsel that the order of deduction of 20% amount of

the compensation, by the Tribunal, should be set aside.

6. On the other hand, learned counsel appearing on behalf

of the Insurance Company/ respondent No.3, has opposed the

prayer. Firstly, it has been submitted that in the prayer

portion of the present appeal it has been prayed that 20%

amount should be given to the claimants, but no modification

of the impugned order has been prayed for by the claimants.

Further, the learned Tribunal has relied upon the judgment of

the Hon'ble Jharkhand High Court, and as such, the Tribunal

has committed no error while passing the impugned

judgment.

7. Having heard learned counsel for the parties and on

perusal of the impugned order, it appears that the factum of

accident and the death of the deceased have not been

disputed. The quantum has also not been disputed. The only

issue raised regarding the contributory negligence and the

learned Tribunal has deducted 20% of the compensation

amount on account of contributory negligence on the ground

of non-production of the driving licence by the deceased, who

at the time of accident was driving the motorcycle. There is

no evidence in rebuttal or positive evidence suggesting any

negligence on the part of the deceased. On the other hand,

there is ample evidence, including the oral evidence,

suggesting the rash and negligent driving by the offending

Maruti Van. The Tribunal has also found negligence on the

part of the Maruti Van.

The mandate of the Apex Court is very loud and clear

that only the absence of the driving licence is not a ground

for holding the contributory negligence. It is also noted that

the F.I.R was lodged for the accident and the police after

investigation has lodged the case against the offending

Maruti Van only. Thus, negligence on the part of the Maruti

Van has been found by the police authority as well as by the

learned Tribunal.

8. In view of the above discussions, the impugned order

dated 08.03.2010, passed in M.A.C.T Case No.51 of 2008, is

hereby, modified to the extent that 20% of the amount

deducted towards contributory negligence is, hereby, set

aside. Consequently, the Insurance Company/ respondent

No.03, is directed to deposit Rs.1,56,910/- (Rupees one lakh

fifty six thousand nine hundred and ten only) with 6% simple

interest from the date of accident till the date of payment of

the ordered compensation amount (already paid as

submitted), as ordered by the Tribunal, in the court below,

within six weeks from the date of receipt / production of copy

of the order. The amount so deposited by the Insurance

Company shall be disbursed in favour of the claimants.

9. The miscellaneous appeal stands disposed of.

(Rajesh Kumar, J.) Chandan/-