National Insurance Company ... vs Sri Sujit Das
2022 Latest Caselaw 523 Tri

                         HIGH COURT OF TRIPURA
                               AGARTALA

                               MAC App 36 of 2020

   National Insurance Company Limited.
   Represented by Its Senior Divisional Manager
   Agartala Division, 42, Akhaura Road,
   PO: H.P.O. Agartala, PS: West Agartala,
   Dist: West Tripura, PIN: 799001
   (Insurer of Vehicle No.TR-01BC-0666 Scorpio)
                                                              ---Appellant
                                  Versus
1. Sri Sujit Das
   Son of late Sudhan Das of Rajnagar, PS: P.R. Bari
   District: South Tripura
                                                ----(Claimant/Respondent)

2. Sri Raju Majumder Son of Harimohan Majumder of Goutam nagar (Rajnagar) PS: P.R. Bari, District: South Tripura (Driver of vehicle No.TR-01BC- 0666, Scorpio)

3. Sri Soumitra Banerjee Son of late Samir Banerjee of Madhyapara, Rajnagar, District: South Tripura (Owner of vehicle No. TR-01BC-0666, Scorpio)

----Respondent(s)/O.P's.

   For Appellant(s)                    : Mr. S. Kar Bhowmik, Sr. Adv.
                                         Mr. A. Bhattacharjee, Adv.
   For Respondent(s)                   : Mr. S. Lodh, Adv.
   Date of hearing                     :18.04.2022
   Date of pronouncement               :19.05.2022
   Whether fit for reporting           :No

               HON'BLE MR. JUSTICE T. AMARNATH GOUD

                               Judgment & Order

This is an appeal under Section 173 of the Motor Vehicles

Act, 1988, as amended till date, against the award dated 02.03.2020

passed by the Ld. Member, Motor Accident Claims Tribunal, South

Tripura, Belonia, in case No.T.S. (MAC) 44 of 2017 whereby the

appellant National Insurance Co. Ltd has been directed to pay an

awarded amount of Rs.2,26,000/- (Rupees two lakhs twenty-six

thousand) with 7 % interest from 18.11.2017 till payment is made.

[2] For the sake of brevity the parties are referred to as in the

cause title of T.S.(MAC) 44 of 2017. The case of the petitioner, as

revealed from the claim petition, in short, is that on 14.04.2016 at

about 6.40 p.m. the petitioner Sri Sujit Das along with seven persons

were proceeding towards Udaipur, Matarbari from Rajnagar by boarding

the vehicle bearing No. TR-01BC-0666 (Scorpio), but when the vehicle

reached at Garjee, Natin Tilla suddenly the vehicle was capsized on the

National Highway and dashed with a tree. As a result of the accident,

the petitioner along with others sustained injuries on their persons and

they were shifted to Gomati District Hospital, Udaipur by the local

people. During treatment one passenger namely Kartik Malakar

succumbed to the injuries and the petitioner along with others were

referred to ILS Hospital, Agartala wherein the petitioner was treated

upto 22.04.2016. It is also stated that the petitioner is a cultivator by

profession and due to the said accident he could not perform his normal

works and also could not earn a single farthing. The petitioner also

stated that the accident occurred due to rash and negligent driving by

the driver of the vehicle bearing No.TR-01BC-0666 (Scorpio). Thus, he

has claimed a compensation of Rs. 31,88,630/- before the tribunal.

[3] The claimant-petitioner preferred the petition u/s 166 of the

M.V. Act on 18.11.2017. Accordingly, the instant case was registered

and notices were issued upon the Opposite Parties. O.P. No.1 & 2, the

driver and owner of the offending vehicle bearing No.TR-01BC-0666

(Scorpio) jointly filed their written statement admitting the accident, but

denied any rashness and negligence. It is also pleaded by O.P. No.1 & 2

that in the event of passing any award, the liability may be fixed on the

insurer of the vehicle as on the date of alleged accident the vehicle was

insured with the O.P.-insurance company and had all valid documents

and O.P. No.1 was driving the vehicle holding a valid driving licence.

[4] The OP No. 3, the insurance company contested the suit by

filing written statement wherein he denied all the allegations and

averments made in the petition stating that the claim petition is not

maintainable. He has stated that he is not liable to pay any

compensation unless the claimant petitioner is able to prove the

insurance policy and that the driver of the offending vehicle drove the

vehicle with proper driving license and there was no violation of any

terms and conditions of the insurance policy.

[5] On the basis of the pleadings of both sides the following

issues were framed by the tribunal:-

(i) Whether the petitioner sustained injuries in motor vehicle accident on 14.04.2016 involving vehicle No. TR- 01BC-0666?

(ii) Whether the petitioner is entitled to any compensation? If so, to what extent?

(iii) Who is liable to pay such compensation?

[6] To prove the case the claimant-petitioner examined himself

as PW-1 and during his examination PW-1 proved some documents in

the following manner:-

Certified copy of FIR as exhibit-1, certified copy of injury report as exhibit-2, certified copy of charge sheet as exhibit-3, discharge certificate issued from District

Hospital, Udaipur as exhibit-4 and vouchers issued from ILS Hospital, Agartala as exhibit-5 series.

[7] O.P. No.2, Sri Soumitra Banerjee being the owner of the

offending vehicle bearing No. TR-01BC-0666 (Scorpio) was examined as

OPW-1 and also proved copy of registration smart card of the vehicle

bearing No. TR-01BC-0666 as exhibit-A, copy of tax token as exhibit-B,

copy of insurance policy certificate issued by the National Insurance

Company Ltd. for the period from 11.08.2015 to 10.08.2016 as exhibit-

C, copy of driving licence in the name of O.P. No.1, Raju Majumder as

exhibit-D. All the aforesaid documents were exhibited after comparing

with the original. OPW-1 also proved certified copy of the FIR form as

exhibit- E, certified copy of ejahar as exhibit-E/a, certified copy of

seizure list as exhibit-E/b, certified copy of order dated 09.02.17 and

08.05.17 passed by learned Sessions Judge, Gomati District in

connection with Case No. ST-01 (GT/U) 17 are marked as exhibit-F and

F/a. One Sri Dipankar Debnath was examined in this case as OPW-2

and he denied the averments made by the petitioner in his petition.

[8] For the sake of convenience, clarity and brevity all the

issues were taken up together for discussion and decision by the

tribunal. Claimant-petitioner Sri Sujit Das in his examination-in-chief

has stated in the same tune of his claim petition that, on 14.04.2016 at

about 6.40 p.m. he along with seven persons were proceeding towards

Udaipur, Matarbari from Rajnagar by boarding the vehicle bearing No.

TR-01BC-0666 (Scorpio), but when the vehicle reached at Garjee, Natin

Tilla suddenly the vehicle was capsized on the National Highway and

dashed with a tree and as a result of the accident he along with others

sustained injuries on their persons and they were shifted to Gomati

District Hospital, Udaipur by the local people. During treatment one

passenger namely Kartik Malakar succumbed to the injuries and he

along with others were referred to ILS Hospital, Agartala wherein he

was treated upto 22.04.2016. It is also stated that he is a cultivator by

profession and due to the said accident he could not perform his normal

works and also could not earn a single farthing. He also stated that the

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

vehicle bearing No. TR-01BC-0666 (Scorpio).

[9] Evidence of the claimant-petitioner is supported by the

documentary evidence. The claimant petitioner has proved certified

copy of FIR of R.K. Pur P.S case no. 38/16 as Exhibit-1 which shows

that one Sri Tapan Malakar lodged an ejahar with the O/C, R.K. Pur PS

to the effect that on 14.04.2016 at about 6.40 p.m. his son Kartik

Malakar along with 6/7 persons were proceeding towards Udaipur,

Matarbari from Rajnagar by boarding the vehicle bearing No. TR-01BC-

0666 (Scorpio), but when the vehicle reached at Garjee, Natin Tilla

suddenly the vehicle was capsized on the National Highway and dashed

with a tree. As a result of the accident, his son along with other

passengers of the said vehicle sustained injuries on their persons and

they were shifted to Gomati District Hospital, Udaipur by the local

people and during treatment his son Kartik Malakar succumbed to the

injuries. It is also stated in the ejahar that the accident occurred due to

rash and negligent driving by the driver of the vehicle bearing

No.TR01BC-0666 (Scorpio). The I/O after completion of investigation of

R.K. Pur P.S. case no. 38/16 submitted charge sheet (Exhibit-3) against

the driver of the vehicle bearing No. TR-01BC-0666 under Sec.

279/337/338/304(ii) of IPC and section 177/184/185 of M.V. Act. So,

the tribunal found that the oral evidence of the claimant-petitioner is

duly supported by the documentary evidence as proved by him. O.P.

No.2 by filing his examination-in-chief though admitted the fact of

accident but denied any rashness or negligent on his part. The evidence

of claimant-petitioner remains unrebutted and unshaken during cross

examination. So, until contrary is proved, this Tribunal continued to

believe the evidence adduced by the claimant-petitioner.

[10] Upon perusal of the oral as well as documentary evidences,

the tribunal was satisfied that the vehicle bearing No. TR-01BC-0666

(Scorpio) was involved in the alleged road traffic accident on 14-04-

2016 at about 6.40 p.m. at Garjee, Natin tilla on National Highway due

to rash and negligent driving of the vehicle and Sri Sujit Das received

injuries in the said road traffic accident. The tribunal was also satisfied

that the rash and negligent driving of vehicle no. TR-01BC-0666 by its

driver was the proximate cause of the accident. According to the

tribunal, the accident would not have taken place if the driver of the

offending vehicle, would have been more cautious.

[11] Since it is proved that the vehicle bearing No. TR-01C-1949

(Scorpio) was involved in the alleged road traffic accident on 14-04-

2016 at 6.40 pm at Garjee, Natin Tilla on National Highway due to rash

and negligent driving of the vehicle and Sri Sujit Das received injuries in

the said road traffic accident, the claimant is certainly entitled to be

compensated. Now it is to be worked out what should be the quantum

of compensation.

[12] Claimant has proved the cash memos. From the exhibited

cash memos/vouchers it appears that the petitioner spent an amount of

Rs.1,75,000/- for his medical treatment i.e. for purchasing of

medicines, dressing, payment of various examination etc. for which he

is entitled for the said amount. Accordingly, Rs.1,75,000/- is awarded

for the medical expenses. Considering all these expenditures and also

considering loss of income of the petitioner, loss of amenities and

conveyance, the tribunal awarded a lump sum of Rs.15,000/- to the

claimant-petitioner.

[13] The claimant-petitioner has stated in his claim petition that

he used to earn Rs. 9,000/- per month as a cultivator, but he failed to

prove any document regarding his monthly income. As there is no

cogent documentary evidence regarding the income of the claimant-

petitioner, the tribunal assessed his income as Rs.6,000/- per month for

the purpose of this claim case. It is on record that the claimant-

petitioner received injury on 14-04- 2016 and he took treatment upto

22-04-2016. The tribunal believed that immediate after release from

Hospital he could not work. Definitely he required some rest for another

three weeks. So it appears to this tribunal that he was prevented for

works at least for one month, if not more. So his loss of income for

those period is assessed at Rs 6000 x 1 = Rs 6,000/-. Thus, under the

Head loss of income the tribunal awarded him Rs. 6,000/-.

[14] It is evident on record that the claimant-petitioner Sri Sujit

Das suffered physical and mental pain due to injuries as a result of the

incident of accident. He was treated in various hospitals of the State.

Though this tribunal cannot assess the actual physical pain of the

claimant. Considering the suffering of the claimant the tribunal awarded

a sum of Rs.30,000/- to the claimant-petitioner under the head of pain

and sufferings.

[15] So, in total, the tribunal awarded (Rs.1,75,000/- +

Rs.15,000/- + Rs.6,000/- + Rs. 30,000/-) = Rs.2,26,000/- (Rupees two

lakhs twenty-six thousand) only in favour of the claimant-petitioner.

[16] Now, it is to be determined who shall be held liable to pay

the compensation so awarded. It is already pointed out that the driver

of the offending vehicle bearing No. TR-01BC-0666 (Scorpio) was

responsible for the cause of accident. Thus, definitely the claimant is

entitled to be compensated by the registered owner of the vehicle

bearing No. TR-01BC0666 (Scorpio).

[17] Learned counsel of the insurance company before the

tribunal preferred a written argument and it is specifically stated that

the petitioner in the cross-examination has admitted that he along with

passengers were traveling through a hired vehicle and the registration

number of the hired vehicle was TR-01BC-0666. He argued that if the

insurance policy of the vehicle in its limitation column it was

categorically mentioned as to the use of the policy how the said policy

would cover liability and the policy should cover use of the vehicle for

any other purpose other than hire or reward and the wake of such

situation insurer of the vehicle i.e. O.P. No.3 have got no liability to pay

compensation. It is further contended that the driver of the vehicle

drove the vehicle in a state of intoxication. Thus, the driver also violated

terms and condition of the insurance policy. Hence, liability of any kind

of compensation arising out of road traffic accident would cast upon the

owner of the vehicle for violation of the terms and condition.

[18] On the other hand, learned counsel of the claimant-

petitioner submitted that the owner examined himself as OPW-1 and he

also submitted examination-in-chief wherein he stated that on

14.04.2016 driver Sri Raju Majumder along with his friends and

neighbours namely Utpal Debnath, Palash Debnath, Rupam Saha, Kartik

Malakar and Nirmal Das were proceeding towards Matarbari boarding

the vehicle owned by him as non-fare traveler with a view to perform

'Yatra' of the vehicle at Matarbari on the occasion of Bengali New Year

and on way they met with Sujit Das, his neighbourer and he also gave

lift to that person. He further argued that, during cross-examination he

denied the suggestion that he actually gave the vehicle on hire on rent

to the claimant. He argued that, owner did not get any rent. The

petitioner also did not state to whom he paid money. So, that

statement of the claimant-petitioner cannot be used against him. He

argued that, the owner had not violated the condition of insurance

policy. Driver also did not receive the money. It is not known to the

informant who actually received money. It may be any of the passenger

or any otherpersons. So, he submitted that insurance company cannot

evade the responsibility for making payment.

[19] After carefully perusing the evidence of the parties the

tribunal was of the view that, it is not proved beyond doubt that the

owner of the vehicle had received any fare for transportation of the

claimant-petitioner, so violation of the terms of insurance policy by the

owner cannot be accepted. It is clear that the vehicle was properly

insured. The further claim of the insurance company that the vehicle

was driven by the driver in a state of intoxication. Learned counsel of

the owner before the tribunal submitted that the owner did not

authorize the driver to consume liquor and if the driver consume liquor

at the back of the owner it may be considered as a negligent act on the

part of the driver and that is not a violation of condition of insurance

policy by the owner. This being the position, since the vehicle was found

properly insured having valid registration by a driver with valid driving

licence, so liability of the owner to pay compensation definitely shall

shift to the insurance company, O.P. No.3.

[20] The OP No.2 being owner of vehicle no. TR-01BC-0666 has

proved copy of the insurance policy no. 203000/31/15/6100006195

valid w.e.f 11-08-2015 to 10-08-2016 as exhibit-C, certificate of

registration of the vehicle bearing No. TR-01BC-0666 as exhibit-A and

copy of tax token as exhibit-B. The OP No.1 being the driver of the

vehicle No. TR-01BC0666 has proved copy of his driving licence as

exhibit-D.

[21] It is already proved that the said incident of accident has

taken place due to rash and negligent driving of the vehicle bearing No.

TR01BC-0666 (Scorpio). Thus, it is the liability of the owner of the

vehicle to pay the compensation. The documents of the vehicle bearing

No. TR01BC-0666 as proved indicates that on the date of the incident

i.e. on 14- 04-2016 the said vehicle bearing No. TR-01BC-0666 was

properly registered in the name of the OP No.2 and on that date the

vehicle was driven by the OP No.1 having a valid driving license and the

vehicle was properly insured under OP No.3 namely the National

Insurance Co. Ltd. which was valid from 11-08-2015 to 10-08-2016

covering the date of the accident. Thus, the liability of the owner to pay

the award would shift upon the OP No.3 being the insurer of the said

vehicle no. TR-01BC-0666.

[22] Finally by the order dated 02.03.2020, the tribunal has

observed in the following manner:

In the result, the petition filed under section 166 of the Motor Vehicles Act filed by the claimant-petitioner is hereby allowed. It is ordered that the claimant petitioner is entitled to get an award amounting to Rs.2,26,000/- (Rupees two lakhs twenty-six thousand) only as compensation and the OP No.3 being the insurer of the vehicle is liable to pay the award to the claimant petitioner.

The OP No.3, National Insurance Co. Ltd. is directed to make payment of the award of the compensation to the claimant-petitioner within 30 days from this day of award along with interest @ 7 % per annum from the date of presentation of the claim petition before this tribunal on 18.11.2017 till the date of actual payment.

[23] Aggrieved by the said order dated 02.03.2020, the OP No.3,

(the appellant herein) has approached this court seeking relief.

[24]        Heard counsel for the parties.

[25]        It is contended by Mr. S. Kar Bhowmik, learned senior

counsel for the appellant that there is no independent witness or eye

witness who proved the accident/vis a vis rash and negligent driving of

the driver of the vehicle for which the appellant insurance company is

not liable to pay the compensation. It is further submitted by Mr.

Bhowmik, learned senior counsel that during cross by the appellant

Insurance Company PW-1, the claimant respondent stated "The owner

of the vehicle is neither my relative nor my family member. It is a

private vehicle and we took the vehicle on hire. Either the owner or

any of his family member, was not in the vehicle at the time of

accident." That as such as per terms of Insurance Policy which was

proved by OPW-1 Sri Soumitra Banerjee and marked as Ext.C the

Insurance Company is not liable to indemnify the respondent claimant.

[26] Mr. Bhowmik, extending his argument submitted that the

claimant PW-1 in his evidence during examination in chief proved the

charge sheet of the connected criminal case as Ext3 from which is

transpires that the vehicle was used for hire and the driver at the time

of accident was in a state of intoxication. As such as per terms and

conditions of the policy, the appellant Insurance Company is not liable

to pay the awarded amount.

[27] Mr. Bhowmik, learned senior counsel for the appellant has

placed his reliance on a judgment of apex court in Iffco Tokio General

Insurance Company Limited vs. Pearl Beverages Limited reported in

(2021) 7 SCC 704 where the apex court has observed in the following

manner.

110. This Court would not be remiss, if it takes into account the improbability of any traffic worth the name at the time of the accident. While we may be in agreement with the respondent that it would be for the insurer to make out a case, for pressing the Exclusion Clause, we cannot be oblivious to the fact that there is no material in the pleadings of the respondent or in the evidence

tendered for explaining the accident. We can take judicial notice of the fact that the roads in the Capital City, particularly in the area, where the accident occurred, are sufficiently wide and the vehicle dashing against the footpath and turning turtle and catching fire, by itself, does point to, along with the fact that the alcohol which was consumed manifests contemporaneously in the breath of the driver, to conclude that alcohol did play the role, which, unfortunately, it is capable of producing.

111.6 There is no evidence as to the quantity of alcohol consumed. It is also true that there is no evidence other than the smell of alcohol being detected on both the driver and the co-passenger, of any other effects of consumption of alcohol.

111.7 The requirement under Section 185 of the Motor Vehicles Act is not to be conflated to what constitutes driving under the influence of alcohol under the policy of insurance in an Own Damage Claim. Such a claim must be considered on the basis of the nature of the accident, evidence as to drinking before or during the travel, the impact on the driver and the very case set up by the parties.

[28] It appears to this court that Mr. Bhowmik, learned senior

counsel has argued mainly on two points (1) the driver of the vehicle

was drunk and (2) the vehicle being registered as private vehicle was

used as a hire vehicle and thus it was the violation of policy condition.

The insurance company has not proven its case beyond reasonable

doubt with regard to the state of drunkenness by the driver and no

evidence has been placed on record by the insurance company that the

vehicle used as hire vehicle. Though in the cross examination, it is

stated that they paid Rs.15000/- to the driver. This court cannot draw

conclusion that the said amount is paid to the owner for the purpose of

hiring the vehicle.

[29] On the other hand, Mr. S. Lodh, learned counsel appearing

for the claimant-respondents submitted that the award dated

02.03.2020 passed by the Ld. Member, Motor Accident Claims Tribunal,

South Tripura, Belonia, in case No.T.S. (MAC) 44 of 2017 is just and

proper and needs no interference by this court.

[30] This court is of the view that it is not in dispute that the

crime vehicle is having valid insurance and such the liability has to be

fastened on the Insurance company. In the event if there is any

violation with regard to the registration is concerned, it is for the

concerned RT authorities or to the Police (Traffic) for taking appropriate

steps with regard to any violation for not having proper

permit/registration certificate. But since the said vehicle is covered by

valid insurance, the insurance company is liable to pay the

compensation.

[31] In view of the above discussion, the present appeal stands

dismissed confirming the award dated 02.03.2020 passed by the Ld.

Member, Motor Accident Claims Tribunal, South Tripura, Belonia, in case

No.T.S. (MAC) 44 of 2017.

[32] It is needless to mention that the appellant insurance is at

liberty to withdraw as per procedure the statutory amount of

Rs.25,000/- (Rupees Twenty Five thousand) only which has been

deposited at the time of filing the appeal. Accordingly, the registry shall

redeposit the same to the respective account.

JUDGE

Dipak