National Insurance Company Ltd vs Sri Raju Gope
2021 Latest Caselaw 915 Tri

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                               HIGH COURT OF TRIPURA
                                     AGARTALA

                               MAC App. No. 37 of 2020

     National Insurance Company Ltd.,
     Represented by the Divisional Manager, Office at-42, Akhaura Road,
     Agartala, P.S.-West Agartala, District-West Tripura.
     (Insurer of the offending vehicle bearing registration No. TR 01-Y-
     1583, Truck)

                                                             ----- Appellant(s)
                                      Versus


1.   Sri Raju Gope ,
     Son of Sri Mantu Gope, resident of Vill.-Joynagar, Jirania, P.S.-Jirania,
     West Tripura.
2.   Sri Satyajit Saha,
     Son of Late Raimohan Saha, resident of-Jagannathbari Road, Bidur
     Karta Chowmuhuni, Agartala, West Tripura.
     (Owner of the offending vehicle bearing registration No. TR 01-Y-1583,
     Truck)

                                                           -----Respondent(s)

For Appellant(s) : Ms. R. Purkayastha, Adv.

For Respondent(s) : Mr. B.N. Majumder, Sr. Adv.

Mr. S. Lodh, Adv.

Mr. R. Saha, Adv.

     Date of Hearing                  :     8th September, 2021.
     Date of Pronouncement            :     15th September, 2021.

     Whether fit for reporting        :     NO


                                    B_E_F_O_R_E_
               HON'BLE MR. JUSTICE S.G. CHATTOPADHYAY
                                 JUDGMENT & ORDER



     MAC App. No. 37 of 2020
                                         Page - 2 of 14

This appeal has been filed by the insurer of the offending

vehicle under section 173(1) of the Motor Vehicles Act, 1988

challenging the award dated 07.09.2019 passed by the Motor Accident

Claims Tribunal No.3, West Tripura, Agartala in T.S.(MAC) 238 of 2016

whereby and whereunder compensation of a sum of Rs.30,42,721/-

along with 9% annual interest from the date of presentation of the

claim till disbursement of the amount was awarded to the claimant

respondent No.1 for sustaining disability from a road traffic accident

which occurred on 15.09.2016 at Champaknagar in Teliamura Sub

Division.

[2] It would emerge from the Memo of Appeal submitted by

the appellant that the appeal has been filed mainly on the following

grounds:

(i) The tribunal failed to appreciate that no evidence was adduced

to establish negligence of the driver of the offending vehicle. Rather it

was established from the police report submitted under section 173

Cr.P.C that the accident occurred due to contributory negligence on the

part of the claimant respondent.

(ii) Tribunal erroneously saddled the appellant insurance company

with the liability of paying compensation to the injured without

MAC App. No. 37 of 2020 Page - 3 of 14

considering the fact that the offending vehicle carried the claimant as a

gratuitous passenger in breach of the terms of the insurance policy.

(iii) Tribunal did not appreciate the fact that claimant failed to prove

his age and income by adducing cogent evidence.

[3] Heard Ms. R. Purkayastha, learned advocate appearing

for the appellant insurance company. Also heard Mr. S. Lodh, learned

counsel appearing for the claimant respondent. Heard Mr. B.N.

Majumder, learned senior advocate appearing along with Mr. R. Saha,

advocate for the respondent owner of the offending vehicle. They have

made detailed submissions on behalf of the parties which will be

discussed later.

[4] The bare facts which are essential to appreciate the

challenge are as under:

On 15.09.2016 at about 11.30 am, claimant respondent

Raju Gope was standing at his left side of Champaknagar-Teliamura

road at Champaknagar bazar. At that time the speeding truck bearing

registration No. TR 01 Y 1583 knocked him down on its way to Agartala.

He was rescued and hospitalized by the local people. His right leg was

seriously injured. Initially doctors tried to save the leg by an operation

in AGMC & GBP hospital at Agartala but ultimately his right leg had to

MAC App. No. 37 of 2020 Page - 4 of 14

be amputed. The claimant who was a mason by occupation thus

suffered from 100% functional disability as a result of the accident.

After the matter was reported to police, Jirania PS case No. 30 of 2016

under sections 279 and 338, IPC and sections 184 and 187, MV Act was

registered against the driver of the offending vehicle and after

investigation charge sheet was also filed against him for the said

offences. By means of filing an application under section 166 MV Act at

the tribunal, claimant respondent claimed compensation of a sum of

Rs.30,95,000/- with 14% interest thereon.

[5] In order to contest the case, insurance company filed

written statement of defence at the tribunal pleading that liability of the

insurance company would arise only in the event of proof of the facts

that the offending vehicle was duly insured with the appellant, the

accident occurred due to negligence of the driver of the vehicle and the

driver had a valid driving licence and all other documents of the vehicle

were in order. It was also pleaded by the insurance company that the

amount of compensation which was claimed by the claimant was

exorbitant and rate of interest claimed by him was also unreasonable

which in no case would exceed 6%.

[6] The owner of the vehicle in his written statement of

defence claimed that his vehicle was insured with the appellant and on

MAC App. No. 37 of 2020 Page - 5 of 14

the date of the accident the insurance policy was in operation.

Respondent owner denied the fact that the accident occurred as a result

of rash and negligent driving of the driver of his vehicle. The owner also

denied that claimant suffered from 100% functional disability from the

said accident.

[7] Tribunal framed the following issues to decide the matter:

(i) Whether claimant Raju Gope received injury from the alleged

accident and whether such accident occurred due to rash and negligent

driving of the offending vehicle.

(ii) Whether the claimant respondent was entitled to any

compensation for the loss and injury suffered by him and if so what

would be the fair amount of compensation.

[8] In the course of trial, the tribunal recorded the oral

evidence of the claimant as PW-1, one Badal Miah as PW-2 and Dr. Dipti

Bikash Roy as PW-3. Several documents including the disability

certificate were also adduced on behalf of the claimant.

[9] On behalf of the respondents, oral evidence of the owner

of the offending vehicle was recorded as OPW-1.

MAC App. No. 37 of 2020 Page - 6 of 14

[10] On appreciation of evidence, tribunal held that the

accident occurred due to rash and negligent driving of the driver of the

offending vehicle which resulted in the amputation of the right leg of the

claimant. As a result of the said accident, the claimant who was a

mason lost 100% earning capacity and on the basis of such findings

tribunal computed the compensation payable to the claimant under

various pecuniary and non pecuniary heads which are as under:

          Sl. No.                  Heads                Calculation

              1.       Loss of income                 Rs.27,21,600/-

              2.       Cost of medical treatment      Rs.91,121/-

              3.       For disfigurement of body      Rs.1,00,000/-

              4.       Pain and sufferings            Rs.1,00,000/-

              5.       Transportation charges         Rs.10,000/-

              6.       Cost of special diet           Rs.5,000/-

              7.       Attendant charge               Rs.15,000/-

                       Total                          Rs.30,42,721/-

Tribunal awarded 9% annual interest on the said amount

of compensation payable from the presentation of the claim petition at

the tribunal till disbursement.

MAC App. No. 37 of 2020 Page - 7 of 14

[11] Challenging the said award, Ms. R. Purkayastha, learned

counsel appearing for the appellant argues that tribunal erroneously

passed an award of compensation because as a gratuitous passenger in

the offending vehicle claimant was not at all entitled to any amount of

compensation in terms of the insurance policy. Counsel, contends that

after the police case was registered on the basis of a written FIR,

investigating agency had undertaken a complete investigation of the

case and submitted final report. According to Ms. Purkayastha, learned

counsel it would appear from the said final report that the claimant

boarded the truck as a gratuitous passenger even though the driver of

the vehicle was reluctant to allow the claimant to board his vehicle.

Counsel has, therefore, urged the court for setting aside the award of

the tribunal.

[12] Relying on the decision of this High Court in Rampati

Chakma Vs. Sunil Kumar Ram & Ors. reported in (2016) 2 TLR

975, Mr. S. Lodh, learned counsel of the claimant respondent submits

that a motor accident claim case is in the nature of a civil suit which has

to be decided on its own facts and evidence and therefore tribunal

cannot discard a motor accident claim relying on the police investigation

report particularly when the author of the document is not examined.

Learned counsel refers to paragraphs 8, 9 & 10 of the said judgment of

this court wherein the High Court has held as follows:

MAC App. No. 37 of 2020 Page - 8 of 14

"8. The question as to how far the decision of a criminal case or the police report can influence the decision of a civil case was discussed by the Division Bench of Madhya Pradesh High Court in Mahila Dhanwanti and Others v. Kulwan and Others, AIR 1994 MP 44, and it was held therein:

"10. Coming to the other contention that the deceased was travelling as a passenger and, therefore, the Insurance Company was not liable to pay any compensation, it has also no merit. True, the F.I.R. (Ex. D/2-C) and the statement of the Investigating Officer gives a version which support the case of the Insurance Company, but even assuming that the F.I.R. is a public document, but it is the rule of law that it is not a substantive piece of evidence. It can be used only for the purposes of corroboration or contradiction of the maker only. The maker having not been examined by either side, the statement of A. S. Yadav carries no weight as he only investigated the occurrence. He is not an eyewitness to the occurrence. His testimony is of hearsay evidence, therefore, the conclusions which he drew after investigation cannot be taken into consideration unless supported by proper material, It is well settled proposition of law that evidence recorded in criminal Court and the findings arrived at thereon should not be used in claim cases. Such evidence, for the purposes of claim cases is inadmissible.-see Shabbir Ahmad v. M.P.S.R.T.C., Bhopal, AIR 1984 MP 173."

9. In R.P. Gautam v. R.N.M. Singh and Another, AIR 2008 MP 68, the Madhya Pradesh High Court lucidly summed up the proposition of law in the following manner:

"13. It is settled proposition of law that every civil case is decided on it's own facts and evidence without influencing the papers and decision of the criminal case. In such premises registration of the offence and police investigation is not a condition precedent for awarding the claim. Besides this due

MAC App. No. 37 of 2020 Page - 9 of 14

to one reason or another if the first information report of vehicular accident is not lodged with the police or the same was given at later stage and police neither registered the offence nor investigated the same, it does not mean that right of the victim for compensation who suffered the vehicular accident is washed away. The victim remains entitled for compensation on proving the facts and circumstances regarding such accident and factum of injuries sustained by him, he could not be deprived from such right, provided by the Motor Vehicles Act, although such compensation may be awarded only on proving all relevant facts with all probabilities."

10. Motor accident claim case is in the nature of a civil suit and certainly not a criminal case. Therefore, the Tribunal has grossly erred in law in relying on the contents of the ejahar and the Police investigation report to disbelieve and discard the case of the claimant. The claimant, on the contrary, is entitled to prove her case on the basis of the evidence adduced by her, which was corroborated in material particulars by the evidence of PW-2, who personally saw the accident resulting in the death of the deceased, in the course of trial. On my above findings, I have no hesitation in holding that the deceased was killed in the vehicular accident on 2- 4-2004 due to the rash and negligent driving of the driver of the respondent No. 1. Resultantly, the insurer, who admittedly insured the vehicle in question at the time of the accident, is vicariously liable to satisfy the award."

[13] Mr. Lodh, learned counsel further submits that police

investigation report cannot be relied upon without taking such

document into evidence through the maker of the document and

without affording an opportunity to the claimant respondent to cross

MAC App. No. 37 of 2020 Page - 10 of 14

examine the investigating officer of the criminal case who authored the

document. In support of his contention, Mr. Lodh, learned counsel has

referred to a decision of this High Court in Puspa Das & Ors. Vs.

Sankar Deb & Ors. reported in (2014) 2 TLR 14 wherein this High

Court vide paragraph 5 and 5A of the judgment held as follows:

"5. Though the Motor Accident Claims Tribunal is not a Court and is not required to conduct an enquiry in accordance to the strict rules of evidence, it must follow the basic principles of law and the basic rules of natural justice. Any procedure to be legal and valid must be a procedure which gives the effected party a right to put forth his or her own case. I have no doubt in my mind that evidence recorded in some other case or the statement recorded by the police or Magistrate cannot be used in Motor Accident Claims Tribunal proceedings unless it is proved that the person who made the statement is dead or for some other reason his presence cannot be procured in Court. Reference in this behalf may be made to Section 33 of the Evidence Act, which reads as follows :

"33. Relevancy of certain evidence for proving, in subsequent proceeding, the truth of facts therein stated.- Evidence given by a witness in a judicial proceeding, or before any person authorized by law to take it, is relevant for the purpose of proving, in a subsequent judicial proceeding or in a later stage of the same judicial proceeding, the truth of the facts which it states, when the witness is dead or cannot be found, or if his presence cannot be obtained without an amount of delay or expense which, under the circumstances of the case, the Court considers unreasonable:

Provided-

MAC App. No. 37 of 2020 Page - 11 of 14

that the proceeding was between the same parties or their representatives in interest;

that the adverse party in the first proceeding had the right and opportunity to cross examine;

that the questions in issue were substantially the same in the first as in the second proceeding.

Explanation- A criminal trial or inquiry shall be deemed to be a proceeding between the prosecutor and the accused within the meaning of this section."

5A. One of the pristine rules of our jurisprudence is that the witness examined by one party should be permitted to be cross examined by the other party. It is, therefore, obvious that a statement made before the police or a Magistrate or other judicial authority cannot be read in evidence against some other affected party without giving that affected party a right to cross examine the said witness. Therefore, the Tribunal was right in holding that without examining any of these witnesses, the petitioner could not prove the accident."

[14] It would emerge from the award of the tribunal that

tribunal relied on the judgment of the Apex Court in Bimla Devi & Ors.

Vs. Himachal Road Transport Corporation & Ors. reported in

(2009) 13 SCC 530 and held that standard of proof required in a

motor accident claim case was preponderance of probability. Having

applied the standard of preponderance of probability, tribunal held that

the accident occurred as a result of negligent driving of the offending

vehicle and on the basis of such finding tribunal granted compensation

to the claimant.

MAC App. No. 37 of 2020 Page - 12 of 14

[15] Nowhere in the police investigation report, the

investigating agency stated that the claimant was travelling in the

offending vehicle as a gratuitous passenger. It is stated in the said

investigation report that the claimant slipped while he was trying to

enter into the cabin of the offending vehicle. Police investigation

revealed that the accident occurred due to negligence of the driver of

the vehicle for which charge sheet was laid against the accused driver.

The witnesses adduced on behalf of the claimant has consistently

supported the claimant's case that the offending vehicle knocked down

the claimant while he was standing at his left side of the road at

Champaknagar bazar. In these circumstances, plea of the appellant that

the claimant was a gratuitous passenger in the offending vehicle is not

acceptable and the award of the tribunal cannot be discarded on this

ground.

[16] Dr. Dipti Bikash Roy [PW-3] deposed at the tribunal

during trial that as a result of the said accident the right leg of the

claimant had to be amputed. The PW stated that District Disability

Medical Board issued disability certificate [Exbt.2/1] to the claimant.

Disability of the claimant was assessed by the board at 85%. Tribunal

held that the claimant who was a mason who lost his total earning

capacity as a result of amputation of his right leg and therefore tribunal

MAC App. No. 37 of 2020 Page - 13 of 14

held that his functional disability was 100%. As per his birth certificate,

date of birth of the claimant is 25.01.1991. Therefore, tribunal rightly

held that he was 25 years of age on the date of accident on

15.09.2016. By applying the multiplier of 18 as per the judgment of the

Supreme Court in Sarla Verma (Smt) & Ors. Vs. Delhi Transport

Corporation & Anr. reported in (2009) 6 SCC 121 tribunal assessed

his loss of income. Since the claimant was a self employed person, an

addition of 40% was made to his income towards his future prospect in

terms of the judgment of the Supreme Court in National Insurance

Company Limited Vs. Pranay Sethi & Ors. reported in (2017) 16

SCC 680. Therefore, the award of the tribunal with regard to

determination of compensation towards loss of income of the claimant

cannot be faulted with.

[17] Compensation for cost of treatment has been assessed by

the tribunal on the basis of documents submitted by the claimant.

Compensation granted by the tribunal under other heads also appears

to be reasonable. This apart neither side has raised any question with

regard to the determination of compensation.

[18] For the reasons stated above, there is no ground to

interfere with the award of the tribunal. Resultantly, the appeal stands

dismissed.

MAC App. No. 37 of 2020 Page - 14 of 14

[19] Appellant shall deposit the entire amount at the Tribunal

within 8(eight) weeks. Amount already paid, if any, shall be adjusted.

Since there is no challenge with regard to mode of payment determined

by the tribunal, amount of compensation shall be paid by the said

mode.

[20] In terms of the above, the case is disposed of. Pending

application(s), if any, shall also stand disposed of.

Send down the LCR.

JUDGE

Rudradeep

MAC App. No. 37 of 2020