Jharkhand High Court
Pashupati Singh vs Gunjan Jain on 12 July, 2022
IN THE HIGH COURT OF JHARKHAND AT RANCHI
M.A. No. 576 of 2016
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Pashupati Singh... Appellant(s)
-Versus-
1. Gunjan Jain
2. The New India Assurance Co. Ltd., Hazaribag.... Respondent(s)
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CORAM : HON'BLE MR. JUSTICE ANANDA SEN.
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For the appellant(s): Mr. Vijay Kr. Sharma, Advocate.
For the Insurance Co.: Mr. Manish Kumar, Advocate.
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07/12.07.2022: Heard the learned counsel for the parties.
2. In this appeal, the appellant has challenged the award dated
15.9.2016 passed by the District Judge-V-cum-Motor Accident Claims Tribunal,
Chatra in Claim Case No. 38/2012.
3. The claimant, who is the driver of bus bearing registration No. WB
41C 1591 has preferred this appeal. The claimant was in employment under the
owner of the vehicle Gunjan Jain. It is the case of the claimant that on 31.5.2011,
while he was driving the bus to West Bengal, with passengers, at 3:00 hours, on
NH2, the bus met with an accident, due to some mechanical fault. As a result of
the said accident, the claimant, who was driving the bus, sustained injury along
with several other passengers. The claimant was treated in different hospitals
and thereafter he was discharged. As he sustained injury in a motor vehicle
accident, he preferred a claim application under Section 166 of the Motor
Vehicles Act, 1988, praying to grant of compensation to the tune of
Rs.6,00,000/-.
4. The owner of the vehicle appeared and submitted that the vehicle
was duly insured with the New India Assurance Co. Ltd and and the policy was
valid on the date of the accident. He further submitted that an FIR was also
registered at Galshi Police Station (West Bengal). The Insurance Company
appeared and opposed the claim of the claimant stating that the driver/claimant
of the offending vehicle was solely responsible and contributed towards the
accident, thus, the claimant is not entitled to receive any benefit. The manner, in
which the accident had occurred, clearly suggests that the driver was negligent.
Since the driver was negligent, he cannot get any benefit for his own negligence.
5. The Tribunal has framed three issues. Issue No. 3 reads as under:
Whether the claimant is entitled for compensation or for
any further relief and if so, what will be the quantum of
compensation?
6. The Tribunal considering the evidence on record as well as the
documents, came to the conclusion that the claim made by the appellant, that
there was mechanical defect in the bus, is not correct and the accident had
occurred because of rash and negligent act on the part of the driver himself, who
is the claimant, herein. The Tribunal dismissed the claim application on the
ground that since the claimant himself was at fault and the accident had
occurred due to his own negligence and also he has concealed the true fact of
the accident, he is not entitled for any compensation. The claim application was
dismissed by the Tribunal.
7. Counsel for the appellant-claimant submits that there was
mechanical fault, which resulted in the accident and this aspect has not been
considered by the Tribunal. It is his contention that since the mechanical fault
was beyond the control of the claimant, which resulted in the accident, the
claimant is entitled to receive compensation for the injury which he has
sustained.
8. Counsel appearing on behalf of the Insurance Company submits that
there is no evidence to suggest that there was any mechanical defect in the
vehicle and the fact as to how the accident occurred has not been disclosed,
which suggests that it was caused solely due to rash and negligent act of the
driver of the vehicle, who is claimant, herein. He further submits that since the
driver had contributed towards the accident to the extent of 100%, he is not
entitled to receive any benefit under Section 166 of the Motor Vehicle Act. In
support of his contention, he relies upon the judgment of the Hon'ble Supreme
Court in the case of A. Sridhar Vs. United India Insurance Co. Ltd. and Anr.
reported in (2011) 14 SCC 719.
9. The claimant has filed the claim application claiming compensation
as he sustained injury while he was driving the bus. It is the case of the claimant
that there was mechanical defect, which caused the said accident. To verify this
fact, I have perused the lower court records and especially the evidence adduced
in this case.
10. Claimant Witness No. 1 is the claimant himself, who was driving the
bus, which met with accident on 31.5.2011 at 3:00 a.m, as a result of which, he
sustained injury. In his examination-in-chief, he has not whispered as to how the
accident has occurred. He only stated that an accident had occurred, as a result
of which, he sustained injury. Being the driver of the vehicle, which met with
accident, he was the best person to disclose as to how the accident had
occurred, but by not disclosing as to how the accident had occurred, he has
suppressed material facts. There are no other witnesses on the manner how the
accident occurred.
11. The First Information Report (FIR) is marked as Ext.-1 by the Tribunal.
FIR is scripted in Bengali language. Since I am well conversant with the said
language, I am not insisting for translating the same. After going through the FIR,
which was registered on the Fardbeyan of Binod Kumar Jain, I find that said
Binod Kumar Jain received information from Khalasi (cleaner) of the bus, who
informed him the accident occurred. As per the FIR, at about 3:00 a.m in the
morning, when the bus was being driven by the claimant, the claimant dashed
the bus in the rear side of a Trailer bearing registration No. NL 01G 3691, which
was parked at the side of NH2. This fact clearly suggests that the driver of the
bus dashed against the trailer, which was parked on the side of the road, thus the
driver of the bus i.e. the claimant was solely responsible for the said accident.
Knowing very well, as to how the accident occurred, the claimant has
suppressed the entire facts and filed the claim application by giving a colour that
the accident had occurred due to mechanical fault in the bus.
12. Chargesheet has also been filed and the same has been marked as Ext.-
2. From the chargesheet, I find that the Investigating Officer got both the vehicles
mechanically examined by a Motor Mechanic expert. In the chargesheet, nothing
has been mentioned as to whether there was any mechanical fault or not. If there
existed any mechanical defect is in the bus, the same would have been narrated
in the chargesheet. Further, the chargesheet was submitted against the claimant
as he was found responsible for the accident. These facts clearly suggest that
the claimant approached the Tribunal by suppressing materially facts only for the
purpose of claiming compensation. There is no report or document to suggest
that there was mechanical fault in the vehicle.
13. The claim application was filed under Section 166 of the Motor
Vehicle Act, 1988. The Hon'ble Supreme Court in the case of Oriental
Insurance Company Ltd. Vs. Premlata Shukla and Others, reported in (2007)
13 SCC 476 in para 10 has held that proof of rashness and negligence on the
part of the driver of the vehicle is sine qua non for maintaining an applicaiotn
under Section 166 of the M.V. Act. This principle was applied in a case where
third party is claiming compensation against the driver, owner and insurer of the
offending vehicle. In the instant case, it is the claimant, who was the driver of the
offending vehicle and is claiming compensation. The Hon'ble Supreme Court in
the case of Eshwarappa @ Maheshwarappa and Anor. Vs. C.S.
Gurushanthappa and Anr. reported in (2010) 8 SCC 620 has dealt with more or
less similar situation wherein the driver of the vehicle, who was negligent for
causing the accident and he is claiming compensation. In the said case, the
Hon'ble Supreme Court in paragraph 8 has held that no exception can be
taken to the view taken by the Tribunal wherein compensation under Section 166
M.V. Act was not granted. The Hon'ble Supreme Court held that since the
accident had occurred due to rash and negligent Act of the driver himself, the
claimants who are the legal heirs of the driver are not entitled for relief under
Section 166 of the M.A. Act, 1988. Supreme Court further held that only relief can
be granted to the claimant is in terms of Section 140 of the M.V. Act, 1988. In
the case of Indra Devi and Others Vs. Bagada Ram and Anr., reported in
(2010) 13 SCC 249, the Hon'ble Supreme Court reiterated the aforesaid principle
and has held that the deceased, who is solely and is at fault and the neligence
on his part is to the tune of 100%, he is not entitled for any benefit under Section
166 M.V. Act. The only benefit which has been granted is the interim
compensation in terms of Section 140 M.V. Act. The case, which has been cited
by the learned counsel for the Insurance Company also follows the same
principle.
14. Thus, considering the judgments of the Hon'ble Supreme Court and
the facts of this case as the accident occurred solely because of rash and
negligent act of the claimant, who was the driver of the offending vehicle, I hold
that the Tribunal has rightly dismissed the claim application filed under Section
166 of the Motor Vehicles Act, 1988. The claimant is only entitled to receive the
benefit in terms of Section 140 of the M.V. Act, 1988.
15. Since from the first paragraph of the impugned judgment, I find that
the compensation under Section 140 M.V. Act has not been paid to the claimant,
I direct the Insurance Company to pay a sum of Rs.25,000/- to the claimant in
terms of Section 140 M.V. Act, 1988.
16. With the aforesaid observation and direction, this appeal is
dismissed.
Anu/-C.P.2. (ANANDA SEN, J.)
