Tripura High Court
Smt. Priya Tripura vs Sri. Sitesh Choudhury (Now Dead) on 20 June, 2024
HIGH COURT OF TRIPURA
AGARTALA
MAC App No.35 of 2023
1. Smt. Priya Tripura
W/O- Lt. Kumar Sanu Tripura.
2. Smt. Deb Laxmi Tripura
W/O- Lt. Sukhan Tripura.
Both are resident of Village- Jolaibari,
P.S. Baikhora, Dist- South Tripura
......Claimant Appellants
Versus
1. Sri. Sitesh Choudhury (Now dead),
Substituted by
Smti Anamika Datta (Choudhury)
W/o Lt. Sitesh Choudhury
Of village Subash Colony, Santirbazar,
P.S. Santirbazar, Dist- South Tripura
(Owner of TRO1-3134-Commander jeep)
2. The Divisional Manager,
The National Insurance Company Ltd.,
42, Akhaura Road, Agartala
P.S. West Agartala
Dist- West Tripura.
(Insurer of TR01-3134- Commander jeep)
.......Respondents
For Appellant(s) : Mr. P. S. Roy, Adv,
For Respondent(s) : Ms. R. Purkayastha, Adv.
Date of Hearing : 22.05.2024
Date of delivery of
Judgment and Order : 20.06.2024
Whether fit for
Reporting : YES
HON‟BLE MR. JUSTICE BISWAJIT PALIT
Judgment & Order
This appeal is preferred challenging the judgment
and award dated 06.02.2023 passed by Learned Member,
Motor Accident Claims Tribunal, Court No.5, West Tripura,
Agartala in connection with T.S. (MAC) 187/2019.
02. Heard Learned Counsel, Mr. P.S. Roy representing
the claimant-appellants and also heard Ms. R. Purkayastha,
Learned Counsel for the respondent-Insurance Company.
03. In course of hearing of argument, Learned
Counsel for the claimant-appellant submitted that the
judgment/award of the Learned Tribunal below suffers from
infirmities because according to Learned Counsel, the
Learned Tribunal below came to an observation that there
was contributory negligence on the part of the deceased and
as such although the Learned Tribunal determined the
amount of compensation to the tune of Rs.31,34,000/- but
at the time of award fastened 50% liability upon the
Insurance Company and also observed that 50% deduction
of compensation is to be made for the contributory
negligence of the deceased which was perverse.
He also at the time of hearing of argument
referred the evidence of the claimant-appellant and the
witnesses and also the exhibited documents relied upon and
further submitted that if the appeal is not allowed then the
claimant-appellant shall suffer irreparable losses and urged
for allowing this appeal and relied upon few citations.
04. On the other hand, Learned Counsel Ms. R.
Purkayastha on behalf of the respondent-Insurance Company
submitted that in the relevant prosecution papers i.e. in the
connected police case, it revealed to the Investigating Officer
during investigation that the accident occurred due to the
contributory negligence of the deceased and furthermore,
the alleged motor bike bearing No.TR-08-A-8927 had no
valid insurance certificate and the rider had no valid driving
licence and the appellant also relied upon the same and
finally submitted that the Learned Tribunal below rightly
delivered the award, awarding 50% of compensation upon
the Insurance Company and there was no infirmity in the
judgment of the Learned Tribunal below and urged for
dismissal of this appeal with costs.
05. Now, before coming to the conclusion let us
discuss the subject matter of the claim-petition filed before
the Learned Tribunal. The claimant-appellant being the wife
and mother of the deceased filed an application under
Section 166 of M.V. Act which was numbered as T.S. (MAC)
187 of 2019. The gist of the claim filed by the claimant-
appellants was that on 25.05.2019 at about 06.30 p.m. to
7.00 p.m., deceased Kumar Sanu Tripura was proceeding
towards his residence from Manpathar Bazar at Birchandra
Manu by the left side on Agartala Subroom road by riding a
motor bike bearing registration No.TR-08-A-8927 and when
the vehicle reached near a pacca bridge at Kalkalia at about
6.30-7.00 pm, for natural call, the deceased victim stopped
his motor bike and was trying to get down from the motor
bike and that time one commander jeep bearing registration
No.TR-01-3134 came with high speed in rash and negligent
manner and dashed the deceased with his motor bike. As a
result of which the deceased sustained injury on his body
and shifted to Jolaibari Hospital from where he was referred
to AGMC and GBP Hospital at Agartala and at Agartala the
victim was declared as dead. It was further submitted that
the deceased used to earn Rs.15,000/- per month as a
mason by profession. Hence, the petitioners filed the claim-
petition. The claim-petition was contested by O.P. No.1
Sitesh Choudhury, the owner of the offending commander
jeep by filing written statement who denied the claim of the
claimant-petitioners and submitted that he himself was
driving the commander jeep on the date of accident and
there was no fault on his part to commit such accident and
he had all the valid documents. Thus, prayed for dismissal of
the claim-petition. The Insurance Company as O.P. No.2 also
filed written statement denying the plea of the claimants and
further submitted that the claim-petition is subjected to strict
proof.
It was further submitted that any breach of
conditions, specifically relating to driving licence and use of
the commander jeep may entitle the Insurance Company to
avoid liability. So, the Insurance Company by the WS prayed
for dismissal of the claim of the claimants.
06. Upon the pleadings of the parties, following issues
were framed:
(i) Whether the case is maintainable?
(ii) Whether deceased Kumar Sanu Tripura
died due to road traffic accident on
25.05.2019 at about 06.30-7 pm near
Kalkalia Bridge at Kalkalia on Agartala-
Sabroom Road under Baikhora PS due to
rash and negligent driving of the vehicle
No. TR-01-3134 (Commander Jeep)?
(iii) Whether claimants are entitled to get
compensation?
(iv) Who is liable to pay compensation?
07. To substantiate the issues, oral and documentary
evidences were adduced by the claimant-appellants and from
the side of the owner, one Smt. Anamika Datta Choudhury,
being the wife of the deceased-owner Sitesh Choudhury,
being substituted was examined and she also relied upon
some documentary evidence which were marked as exhibits
in the case:
APPENDIX
Witnesses of Claimant-Appellant:-
PW 1 - Smt Priya Tripura.
PW 2 - Sri Subal Tripura.
Exhibits of Claimant-appellant:-
Ext.1:- Certified copy of printed FIR. (2
sheets)
Ext.2:- Certified copy of FIR.
Ext.3:- Certified copy of postmortem report.
(4 sheets)
Ext. 4:- Certified copy of seizure list. (8
sheets)
Ext. 5:- Certified copy of Printer FIR. (2
sheets)
Ext. 6:- Certified copy of FIR. (2 sheets)
Ext. 7:- Certified copy of seizure list.
Ext. 8:- Photocopy of permanent residence
(PRC) certificate compared with the
original.
O.P. Witness:-
OPW.1 - Smt. Anamika Datta Choudhury.
Exhibits by Opposite Party No.1:-
Ext.A - Photocopy of registration certificate
of the offending vehicle compared with the
original.
Ext.B - Photocopy of driving licence
compared with the original.
Ext.C - Photocopy of road permit compared
with the original.
Ext.D - Photocopy of fitness certificate
compared with the original.
Ext.E - Photocopy of insurance certificate
compared with the original.
Ext.F - Photocopy of survival certificate
compared with the original.
Ext.G - Photocopy of death certificate
compared with the original.
08. Finally, the Learned Tribunal below by judgment
and order dated 06.02.2023 delivered the award/judgment.
The operative portion of the order/award of the Learned
Tribunal below runs as follows:
Order/Award
"The OP No.2, the National Insurance Co.
Ltd. is directed to deposit the awarded
compensation of Rs.15,67,000/- (Rupees
Fifteen lakh Sixty seven thousand) only
within 30 days from today with interest
thereon at the rate of 8% per annum with
effect from date of filing of the claim
application i.e., from 16.09.2019 to till
realization of the full.
Distribution of Compensation
Claimant No.1 and 2 are entitled to get
compensation equally.
Protection Awarded Compensation
Fifty percent (50%) of the amount of
compensation of claimant No.1 and 2 are to
be fixed deposited for five years and the
rest amount are to be released in their
favour in their bank account.
In case of necessity, the Tribunal can be
approached for withdrawal of fixed
deposited amount. On maturity of the fixed
deposits the Banker shall credit the
amounts to the sole SB Accounts of
claimants without any further order from
the Tribunal.
Furnish a copy of the award to both sides.
The case stands disposed of on contest.
Make necessary entry in the TR and CIS.
Pronounced in the open court."
09. For the sake of convenience, I would like to
discuss herein below the synopsis of the evidence on record
of the parties PW1 Smt. Priya Tripura, wife of Lt. Kumar
Sanu Tripura (deceased) filed examination-in-chief in
affidavit and in her examination-in-chief in affidavit, she
supported her version narrated in the claim-petition and also
relied upon exhibited documents.
10. In course of cross-examination by O.P. No.1
excepting denial nothing came out relevant and cross-
examination by O.P. No.2 i.e. the Insurance Company, she
submitted that deceased was her husband. She did not
submit survival certificate of her deceased husband and the
accident occurred on 25.05.2019 and at that time her
husband was riding a motor cycle. She also stated that she
did not submit any documents of the motor cycle including
the driving licence of her husband. She also could not say
whether due to accident one Shyamal Nama and Prasenjit
Nama were sustained any injury or not.
11. PW2 Subhal Kumar Tripura in his examination-in-
chief in affidavit supported the version of PW1. During cross-
examination by OP No.1 save and except denial nothing
came out relevant and during cross-examination by OP No.2
nothing came out relevant excepting denial.
12. The OPW 1 Smt. Anamika Datta Choudhury in her
examination-in-chief in affidavit supported the version made
by her husband in the written statement and relied upon
exhibited documents as already stated.
During cross-examination nothing also came out
relevant.
13. Now from the evidence on record, it appears that
on the alleged date and time of accident the deceased victim
was riding a motor bike and there was no dispute on that
fact and the claimant-appellant, Smt. Riya Tripura also could
not adduce any documents before the Learned Tribunal
including driving licence of her husband.
14. In course of hearing, Learned Counsel for the
claimant-appellants submitted that Learned Tribunal below
wrongly came to an observation that there was contributory
negligence on the part of the deceased. So, at the time of
delivery of the award/judgment Learned Tribunal below
wrongly decided to deduct 50% of compensation towards
contributory negligence.
15. The crux question in this appeal is to decide
whether the findings of Learned Tribunal below that there
was contributory negligence or not and thereby deduction of
50% amount from the total amount of compensation was
justified or not. In course of hearing, Learned Counsel for the
appellant submitted that the Tribunal below did not consider
the evidence of PW2, Subal Kumar Tripura, who according to
him was an eye witness of the alleged occurrence of offence.
According to him, on the alleged day when Kumar Sanu
Tripura was proceeding towards his residence by the left side
of Agartala Sabroom road by riding motor bike with
moderate speed and when he reached near Pacca Bridge at
kalkalia and for natural call when he stopped his motor bike
and was trying to get down from the motor bike then from
the opposite direction, another commander jeep bearing
registration No.TR-01-3134 was coming with high speed rash
and negligently dashed Kumar Sanu Tripura for which he fell
down on the road and thus serious accident took place. Now,
if we go through the final report laid by the I.O. in the
connected Baikhora PS Case No.2019/BKR/054 which was
marked as exhibit 4/11 relied upon by the claimant-
appellants, it appears that the accident occurred between
TR-01-3134 commander jeep, being driven by Sitesh
Chakraborty and the rider of the motor bike, namely Kumar
Sanu Tripura (since dead) i.e. face to face collision in
between both the vehicles. It is the settled position of law
that the findings of criminal court would not be relevant for
decision of a case under Section 166 of MV Act.
16. In course of hearing, Learned Counsel for the
appellant-petitioner relied upon one judgment of the Hon'ble
Supreme Court of India in Meera Devi & Anr. v. Himachal
Road Transport Corporation & Ors. in (2014) ACJ 1012
wherein in para No.10 and 11 observed as under:
"10. To prove the contributory negligence,
there must be cogent evidence. In the
instant case, there is no specific evidence
to prove that the accident has taken place
due to rash and negligent driving of the
deceased scooterist. In the absence of any
cogent evidence to prove the plea of
contributory negligence, the said doctrine
of common law cannot be applied in the
present case. We are, thus, of the view that
the reasoning given by the High Court has
no basis and the compensation awarded by
the Tribunal was just and reasonable in the
facts and circumstances of the case.
11. In view of above, we allow the appeal.
Accordingly, the impugned judgment of
the High Court dated 27.03.2006 is set
aside and the award of the Tribunal dated
01.07.2003 is upheld, with no orders as to
costs."
17. Similarly, the appellant also relied upon another
judgment of the Hon'ble Apex Court reported in (2013) 9
SCC 166 wherein in para No.20 to 28, Hon'ble the Apex
Court further observed as under:
"20. On hearing the parties and perusal of
record, the following facts emerge:-
20.1 The owner of the vehicle
Kunjujamma Mohan and the driver of
the bus P.C. Kurian who were the first
and third respondents before the
Tribunal and High Court, had not denied
the allegation that the accident
occurred due to rash and negligent
driving on the part of the bus driver.
20.2. PW 3, an independent eye witness
was accompanying the deceased during
the journey on the fateful day. He
stated that the bus coming from the
opposite direction hit the car driven by
the deceased and the accident occurred
due to rash and negligent driving of the
bus driver.
20.3. Ext. A-1, FIR registered by
Pampady Police against the bus
driver P.C. Kurian under Sections
279, 337 and 304-A IPC shows that the
accident occurred due to rash and
negligent driving on the part of the bus
driver. After investigation, the police
submitted a charge-sheet (Ext. A-4)
against the bus driver under Sections
279, 337 and 304-A IPC with specific
allegation that the bus driver caused
the death of Joy Kuruvila due to rash
and negligent driving of the bus on
16.04.1990 at 4.50 P.M. In view of
the direct evidence, the Tribunal and
the High Court held that the accident
occurred due to rash and negligent
driving on the part of the bus driver.
20.4. There is no evidence on record to
suggest any negligence on the part of
the deceased. Ext. B-2, "scene
mahazar" also does not suggest any
rash and negligent driving on the
part of the deceased.
20.5. The mere position of the vehicles
after accident, as shown in a scene
mahazar, cannot give a substantial
proof as to the rash and negligent
driving on the part of one or the other.
When two vehicles coming from
opposite directions collide, the position
of the vehicles and its direction, etc.
depends on a number of factors like
speed of vehicles, intensity of collision,
reason for collision, place at which one
vehicle hit the other, etc. From the
scene of the accident, one may suggest
or presume the manner in which the
accident was caused, but in the
absence of any direct or corroborative
evidence, no conclusion can be drawn
as to whether there was negligence on
the part of the driver. In absence of
such direct or corroborative evidence,
the Court cannot give any specific
finding about negligence on the part of
any individual.
20.6. The post-mortem report, Ext. A-5
shows the condition of the deceased at
the time of death. The said report
reflects that the deceased had already
taken meal as his stomach was half-full
and contained rice, vegetables and
meat pieces in a fluid with strong smell
of spirit. The aforesaid evidence, Ext.
A-5 clearly suggests that the deceased
had taken liquor but on the basis of the
same, no definite finding can be given
that the deceased was driving the car
rashly and negligently at the time of
accident. The mere suspicion based on
Ext. B-2, "scene mahazar" and the Ext.
A-5, post-mortem report cannot take
the place of evidence, particularly,
when the direct evidence like PW 3,
(independent eyewitness), Ext A-1
(FIR), Ext A-4 (charge-sheet) and Ext.
B-1 (FI statement) are on record.
21. In view of the aforesaid, we, therefore,
hold that the Tribunal and the High Court
erred in concluding that the said accident
occurred due to the negligence on the part
of the deceased as well, as the said
conclusion was not based on evidence but
based on mere presumption and surmises.
22. The last question relates to just and
proper compensation. Both the Tribunal
and the High Court have accepted that the
deceased was 45 years of age at the time of
accident; he was working as Manager,
Freeman Management Corporation, New
York Branch, USA and was getting a
monthly salary of 2500 US dollars. The High
Court accepted that the deceased, as per
conditions of service, could have continued
the employment up to the age of 65 years.
23. Ext. A-6, is a certificate issued by the
employer of deceased, i.e., Freeman
Management Corporation, USA dated
23.04.1990 which shows that his annual
salary was 30,000 US dollars. He was in
their employment for 9 years and had an
excellent standing and his employment was
of a permanent nature. The deceased would
have continued in service up to the age of
65 years. Ext. A-6 was attested by the
notary public and countersigned by the
Consulate General of India, New York, as
per Section 3 of the Diplomatic and
Consular Officers (Oaths and Fees) Act,
1948.
24. On the basis of the aforesaid annual
income and exchange rate of Rs 17.30 per
US dollar as applicable in April 1990 (Ext.
A-7), the annual income of the deceased if
converted into Indian currency will be
30,000 x 17.30 = 5,19,000 at the time of
death. The deceased was 45 years of age,
therefore, as per decision in Sarla Verma v.
DTC:(2009) 6 SCC 121, multiplier of 14
shall be applicable. But the High Court and
the Tribunal wrongly held that the
multiplier of 15 will be applicable. Thus, by
applying the multiplier of 14, the amount of
compensation will be Rs.5,19,000 x 14 =
Rs.72,66,000.
25. The family of the deceased consisted of
5 persons i.e. the deceased himself, wife,
two children and his mother. As per the
decision of this Court in Sarla
Verma (supra) there being four dependents
at the time of death, 1/4th of the total
income is to be deducted towards personal
and living expenses of the deceased. The
High Court has also noticed that out of
2,500 US dollars, the deceased used to
spend 500 US dollars i.e. 1/5th of his
income. Therefore, if 1/4th of the total
income i.e. Rs. 18,16,500 is deducted
towards personal and living expenses of
the deceased, the contribution to the family
will be (Rs. 72,66,000 - Rs. 18,16,500=)
Rs.54,49,500.
26. Besides the aforesaid compensation,
the claimants are entitled to get
Rs.1,00,000 each towards love and
affection for the two children i.e.
Rs.2,00,000 and a sum of Rs.1,00,000
towards loss of consortium to wife which
seems to be reasonable. Therefore, the
total amount comes to Rs.57,49,500.
27. The claimants are entitled to get the
said amount of compensation along with
interest @ 12% from the date of filing of
the petition till the date of realisation,
leaving rest of the conditions as mentioned
in the award intact.
28. We, accordingly, allow the appeals filed
by the claimants and partly allow the
appeals preferred by the Insurance
Company, so far as it relates to the
application of the multiplier is concerned.
The impugned judgment dated 12.04.2007
passed by the Division Bench, of the Kerala
High Court in Oriental Insurance Co. Ltd. v.
Chinnamma and the award passed by the
Tribunal are modified to the extent above.
The amount which has already been paid to
the claimants shall be adjusted and rest of
the amount with interest as ordered above
be paid within three months. There shall be
no separate order as to costs."
18. Learned Counsel for the appellants further
referred one judgment of our High Court in connection with
MAC APP. No.59 of 2015 dated 16.01.2017 wherein in
para No.5 and 6 this Court observed as under:
"5. Before proceeding further, I must hold
without any hesitation that the brothers
and sisters of the deceased are not entitled
to any compensation as there is no proof
that they were his dependants. I say this
on the authority of Sarla Verma v. Delhi
Transport Corporation, 2009 ACJ 1298. As
for contributory negligence, I have
carefully examined the depositions of the
claimant-appellant, who was examined as
PW-1, and PW2 produced by the appellant
and other materials on record. On perusing
the FIR as well as the charge sheet
submitted by the police against the driver
of the offending vehicle, there is absolutely
no evidence to support the findings of the
Tribunal that "due to collision of minibus
and motor bike the said incident took place
when two vehicle collided face to face, in
absence of any cogent evidence that a
particular vehicle was driven in a rash and
negligent manner, negligence of both the
vehicles should be inferred.......[S]ince the
rider of the bike has expired, after
investigation, police submitted only against
the driver of the bus as charge-sheet
cannot be submitted against a deceased
person. So, in the instance case, it appears
to me that the incident took place due to
rash and negligent driving of both the
vehicles involved. I am satisfied that the
deceased being rider of his own vehicle has
also contributed his action by driving his
bike in rash and negligent (sic)." To my
mind, the approach of the Tribunal is MAC
APP NO.59/2015 Page 4 of 5 wrong. The
police in the charge sheet did not say so.
No evidence was adduced by the insurer to
show that the deceased was driving the
bike in a rash and negligent manner. In my
opinion, the findings of the Tribunal on this
aspect of the matter are apparently based
on figment of its imagination and are,
therefore, perverse. Head-on collision does
not necessarily lead to the conclusion that
the accident occurred due to the negligence
of both the vehicle. In the absence of any
direct or corroborative evidence, no
inference can be drawn as to contributory
negligence on the part of the victim.─ See
Jiju Kuruvila v. Kunjujamma Mohan, (2013)
9 SCC 166. Consequently, I hold that there
is contributory negligence on the part of
the deceased in the vehicular accident. In
the absence of contributory negligence, the
Tribunal has, therefore, grossly erred in
deducting 50% of the compensation
payable to the appellant on the ground of
contributory negligence of the deceased. In
M. Mansoor v. United India Insurance Co.,
(2013) 15 SCC 603 and the decision of the
three-Judge Bench of the Apex Court in
Munna Lal Jain v. Vipin Kumar Sharma,
(2015) 6 SCC 347, it has been clearly held
that multiplier is to be used with reference
to the age of the deceased and not the age
of the parents. The appellant is, therefore,
entitled to loss of dependency to the extent
of ₹13,00,500/- without any deduction, to
which shall be added a sum ₹50,000/- for
loss of love and affection and another of
₹50,000/- for loss of estate. Another sum
of ₹25,000/- shall be added for his funeral
expenses plus a sum of ₹10,000/- for
transportation and medical expenses
incurred for his treatment before his death.
Therefore, the total amount of
compensation payable to the appellant will
come to ₹14,35,500/- with interest
calculated at the rate of 6% per annum
from the date of the claim petition."
"6. Resultantly, this appeal partly succeeds.
The Oriental Insurance Co. Ltd. is,
therefore, directed to deposit the afore-
mentioned awarded amount with interest
to this Registry within a period of two
months from the date of MAC APP
NO.59/2015 Page 5 of 5 receipt of this
judgment for payment to the appellant. As
and when the amount is deposited, the
same shall be released to the appellant
after observing the usual formalities
without further reference from this Court.
The impugned judgment stands modified in
the manner and to the extent indicated
above. Transmit the L.C. record forthwith."
19. Referring those citations, Learned Counsel for the
appellants submitted that although the Learned Tribunal
below came to an observation that there was contributory
negligence on the part of the driver/rider of the bike. In this
regard, according to Learned Counsel, there was no such
evidence like that. But the Learned Tribunal below came to
the said observation and thus, committed error in delivering
the judgment.
20. From the charge-sheet, as relied upon by the
appellant-petitioner, it appears that the I.O. after completion
of investigation, submitted charge-sheet against both the
driver of the commander jeep and the rider (since dead).
21. Now, here in this appeal, we are to see as to
whether the observation of Learned Tribunal there was
contributory negligence on the part of deceased is justified or
not. Admittedly, the I.O. gave charge-sheet against the
driver of the commander jeep and the rider of the motor
bike. In the claim petition, it was submitted that on
25.05.2019 Kumar Sanu Tripura was proceeding towards his
residence from Manpathar Bazar at Birchandra Manu by
riding a motor bike bearing No.TR-08-A-8927 and when he
reached near a pacca bridge at Kalkalia at about 6.30-7.00
pm that time for natural call he stopped the motor bike and
he was trying to get down from the motor bike, that time
from the opposite direction one commander jeep bearing
No.TR-01-3134 came with high speed rashly and negligently
dashed against said Kumar Sanu Tripura for which said
Kumar Sanu Tripura splashed upon the road and sustained
severe injury.
It was further submitted that the driver of the
commander jeep came from the wrong side and dashed the
rider and thereafter, he was shifted to hospital when he was
declared dead. But in the police investigation I.O. submitted
charge-sheet against both of them. It was further stated that
the motor bike rider had no valid driving licence and
Insurance Certificate. But from the charge-sheet, it could not
be conclusively ascertain as to how far there was
contributory negligence on the part of the deceased and how
he committed contributory negligence, Learned Tribunal
below also came to the observation that there was
contradictory negligence in respect of riding the motor bike.
22. PW2 Subal Kumar Tripura stated that the
deceased was in stationary condition but the appellant, Priya
Tripura during her cross-examination stated that her
husband was riding the motor bike. So, Learned Tribunal
below came to the finding that there was contradictory
evidence of PWs No.1 and 2 and in absence of driving licence
the Learned Tribunal decided that there was contributory
negligence and deducted 50% of compensation from the
claim. In normal parlance it is not expected that all the
witnesses would depose in the same tune or same language.
Here in the case, there is no dispute on record that prior to
accident the deceased was riding the motor bike. PW1 and
PW2 during their examination-in-chief in affidavit stated that
just prior to accident the deceased rider of motor bike
stopped the vehicle for natural call. But during cross-
examination, PW1 stated that at the time of accident, the
deceased was running the motor bike. This language is to be
understood as to how and in what manner the witness made
the deposition before the Tribunal because the deceased was
driving the motor bike, there was no dispute in this regard
on record. PW1 also was not present to the place of
occurrence at the time of accident. More so, maturity of
understanding varies from person to person.
The Insurance Company in their WS did not deny
this fact, nor did they adduce any witness to counter the said
fact. Police submitted charge-sheet that both the vehicles
came face to face and the accident occurred. From the
prosecution charge-sheet, it cannot be conclusively inferred
as to how far the deceased was responsible for the act
conducted as alleged. More so, in the claim petition as well
as in the affidavit both the witnesses of the appellants
specifically stated that on the alleged day the accident took
place due to high speed, rash and negligent driving of the
driver of the commander jeep bearing registration No.TR-01-
3134.
23. It was further submitted that the said commander
jeep was not only coming with high speed but also came
absolutely from the wrong side and dashed against the
victim deceased. There was no contrary evidence on record
from the side of the Insurance Company or the owner also.
Meaning thereby, the contesting respondent admitted the
fact of driving the vehicle in the wrong side of the alleged
commander jeep. By mere filing of a charge-sheet, it cannot
be conclusively said that there was contributory negligence
on the part of the deceased i.e. the rider of the motor bike.
The Learned Tribunal below came to the observation that
there was contributory negligence and also there was no
driving licence of the deceased on that relevant point of
time.
24. Here, I would like to refer one citation of the
Hon'ble Supreme Court of India in Usha Rajkhowa and
Ors. v. Paramount Industries and Ors. dated 17.02.2009
reported in (2009) 14 SCC 71 wherein in para No.20, 21,
Hon'ble the Apex Court has discussed contributory
negligence:
"20. The question of contributory
negligence on the part of the driver in case
of collision was considered by this Court in
Pramodkumar Rasikbhai Jhaveri v.
Karmasey Kunvargi Tak: (2002) 6 SCC 455.
That was also a case of collision between a
car and a truck. It was covered in SCCp.
458, para 8:
8. ... The question of contributory
negligence arises when there has been
some act or omission on the claimant‟s
part, which has materially contributed
to the damage caused, and is of such a
nature that it may properly be
described as „negligence‟.
Negligence ordinarily means breach of
a legal duty to care, but when used in
the expression „contributory
negligence‟ it does not mean breach of
any duty. It only means the failure by a
person to use reasonable care for the
safety of either himself or his property,
so that he becomes blameworthy in
part as an „author of his own wrong‟.
"21. This Court further relied on an
observation of the High Court of Australia
in Astley v. Austrust Ltd.: (1999) 73 ALJR
403 to the following effect:
"A finding of contributory negligence
turns on a factual investigation
whether the plaintiff contributed to his
or her own loss by failing to take
reasonable care of his or her person or
property. What is reasonable care
depends on the circumstances of the
case. In many cases, it may be proper
for a plaintiff to rely on the defendant
to perform its duty. But there is no
absolute rule. The duties and
responsibilities of the defendant are a
variable factor in determining whether
contributory negligence exists and, if
so, to what degree. In some cases, the
nature of the duty owed may exculpate
the plaintiff from a claim of
contributory negligence; in other cases,
the nature of the duty may reduce the
plaintiff‟s share of responsibility for the
damage suffered; and in yet other
cases, the nature of the duty may not
prevent a finding that the plaintiff
failed to take reasonable care for the
safety of his or her person plaintiff. The
duty owed by the defendant, although
relevant, is one only of many factors
that must be weighed in determining
whether the plaintiff has so conducted
itself that it failed to take reasonable
care for the safety of its person or
property."
25. Further in Sudhir Kumar Rana vs. Surinder
Singh and Ors. reported in (2008) 12 SCC 436, Hon'ble
the Apex Court in para Nos.6 to 11 observed as under:
"6. A contributory negligence may be
defined as negligence in not avoiding the
consequences arising from the negligence
of some other person, when means and
opportunity are afforded to do so. The
question of contributory negligence would
arise only when both parties are found to
be negligent.
7. The question is, negligence for what? If
the complainant must be guilty of an act or
omission which materially contributed to
the accident and resulted in injury and
damage, the concept of contributory
negligence would apply. (See New India
Assurance Co. Ltd. v. Avinash: 1998 ACJ
322 (Raj).
8. In T.O. Anthony v. Kavarnan:(2008) 3
SCC 748 it was held: (SCC pp. 750-51,
paras 6-7)
"6. 'Composite negligence' refers to the
negligence on the part of two or more
persons. Where a person is injured as a
result of negligence on the part of two or
more wrongdoers, it is said that the person
was injured on account of the composite
negligence of those wrongdoers. In such a
case, each wrongdoer is jointly and
severally liable to the injured for payment
of the entire damages and the injured
person has the choice of proceeding against
all or any of them. In such a case, the
injured need not establish the extent of
responsibility of each wrongdoer
separately, nor is it necessary for the court
to determine the extent of liability of each
wrongdoer separately. On the other hand
where a person suffers injury, partly due to
the negligence on the part of another
person or persons, and partly as a result of
his own negligence, then the negligence on
the part of the injured which contributed to
the accident is referred to as his
contributory negligence. Where the injured
is guilty of some negligence, his claim for
damages is not defeated merely by reason
of the negligence on his part but the
damages recoverable by him in respect of
the injuries stand reduced in proportion to
his contributory negligence.
7. Therefore, when two vehicles are
involved in an accident, and one of the
drivers claims compensation from the other
driver alleging negligence, and the other
driver denies negligence or claims that the
injured claimant himself was negligent,
then it becomes necessary to consider
whether the injured claimant was negligent
and if so, whether he was solely or partly
responsible for the accident and the extent
of his responsibility, that is, his
contributory negligence. Therefore where
the injured is himself partly liable, the
principle of 'composite negligence' will not
apply nor can there be an automatic
inference that the negligence was 50:50 as
has been assumed in this case. The
Tribunal ought to have examined the extent
of contributory negligence of the appellant
and thereby avoided confusion between
composite negligence and contributory
negligence. The High Court has failed to
correct the said error.
9. If a person drives a vehicle without a
licence, he commits an offence. The same,
by itself, in our opinion, may not lead to a
finding of negligence as regards the
accident. It has been held by the courts
below that it was the driver of the mini
truck which was driving rashly and
negligently. It is one thing to say that the
appellant was not possessing any licence
but no finding of fact has been arrived at
that he was driving the two-wheeler rashly
and negligently. If he was not driving
rashly and negligently which contributed to
the accident, we fail to see as to how, only
because he was not having a licence, he
would be held to be guilty of contributory
negligence.
10. The matter might have been different if
by reason of his rash and negligent driving,
the accident had taken place.
11. We, therefore, are of the opinion that
the impugned judgment cannot be
sustained which is set aside accordingly.
The appellant is entitled to the said sum of
Rs. 30,000 by way of compensation with
interest at the rate of 7½% per annum
from the date of the award till making of
the payment. Even otherwise there is no
reason as to why in view of the nature of
the injuries he has suffered, he should be
deprived of even the petty sum of
Rs.30,000 by way of compensation. The
appeal is allowed with the aforementioned
direction. No costs."
26. Further in Dinesh Kumar J. Alias Dinesh J. vs.
National Insurance Company Limited and Ors. reported
in (2008) 1 SCC 750 Hon'ble Apex Court in para Nos.5 to
10 also observed as under:
"5. On behalf of the appellant, it has been
submitted that both the Tribunal and the
High Court were manifestly in error in
holding the appellant to be guilty of
contributory negligence to the extent of
forty per cent. It has been submitted that
the Tribunal as well as the High Court
proceeded on the erroneous premise that
since the appellant had failed to produce
the driving licence, an adverse inference on
the aspect of contributory negligence
would have to be drawn. Moreover, it was
submitted that the entire discussion on
contributory negligence is conjectural and
is not worthy of acceptance. In this regard,
reliance was placed on the judgment of this
Court in Sudhir Kumar Rana v Surinder
Singh:(2008) 12 SCC 436.
6. Both the Tribunal, and in appeal in the
High Court, have found fault with the
appellant for not having produced his
driving licence. The tribunal noted that the
appellant had admitted in the course of his
cross-examination that the road where the
accident took place was a two-way road
and that on each side, three vehicles could
pass at a time. A suggestion was put to the
appellant that while trying to overtake
another vehicle, he had approached the
offending lorry from the right side as a
result of which the accident took place. The
appellant denied the suggestion. The award
of the tribunal indicates that absolutely no
evidence was produced by the insurer to
support the plea that there was
contributory negligence on the part of the
appellant.
7. Insofar as the judgment of the High
Court is concerned, the Division Bench has
placed a considerable degree of importance
on the fact that there was no visible
damage to the lorry but that it was the
motorcycle which had suffered damage and
that there was no eyewitness. We are in
agreement with the submission which has
been urged on behalf of the appellant that
plea of contributory negligence was
accepted purely on the basis of conjecture
and without any evidence. Once the finding
that there was contributory negligence on
the part of the appellant is held to be
without any basis, the second aspect which
weighed both with the tribunal and the
High Court, that the appellant had not
produced the driving licence, would be of
no relevance. This aspect has been
considered in a judgment of this Court
in Sudhir Kumar:(2008) 12 SCC 436 where
it was held as follows: (SCC p. 439, paras
9-10)
"9.If a person drives a vehicle
without a licence, he commits
an offence. The same, by itself, in our
opinion, may not lead to a finding of
negligence as regards the accident.
It has been held by the courts below
that it was the driver of the mini
truck who was driving rashly and
negligently. It is one thing to say
that the appellant was not
possessing any licence but no finding
of fact has been arrived at that he
was driving the two-wheeler rashly
and negligently. If he was not driving
rashly and negligently which
contributed to the accident, we fail to
see as to how, only because he was
not having a licence, he would be
held to be guilty of contributory
negligence."
10. The matter might have been
different if by reason of his rash and
negligent driving, the accident had
taken place.
8. In view of the above position, we are of
the view that the deduction of forty per
cent which was made on the ground of
contributory negligence is without any
basis. Accordingly, we direct that the
appellant shall be entitled to an additional
amount of Rs 4.60 lakhs which was wrongly
disallowed.
9. We direct that the respondent shall
accordingly pay an additional amount of Rs
4,60,000, over and above the amount which
has been awarded by the High Court. This
amount shall also carry interest at the rate
of eight per cent per annum as awarded by
the High Court, from the date of the
petition until realisation. The insurer shall
deposit the amount before the tribunal
within 3 months which shall be released to
the appellant.
10. The appeal is allowed in the above
terms. There shall be no order as to costs."
27. On perusal of the principles of law laid down by
the Hon'ble Apex Court, it appears that in absence of driving
licence also Hon'ble the Apex Court granted compensation in
favour of the appellants. Here in the case, it is on record that
no driving licence of the deceased could produce by the
appellants or the claimant-petitioners before the Tribunal
even to the High Court also. There is no contrary evidence
on record that he had an valid driving licence. However,
keeping it in mind the aforesaid principles of law laid down
by the Hon'ble Apex Court, it appears that the findings of
Learned Tribunal that there was contributory negligence on
the part of the deceased appears to be based without any
proper reasoning and justification in absence of clear
evidence on record.
28. So, in my considered view the Learned Tribunal
below committed error in deducting 50% of the total
compensation from the award. Thus, in my considered view,
the judgment/award of the Learned Tribunal below needs to
be modified.
29. In the result, the appeal filed by the appellant is
hereby allowed on contest. The judgment and award of the
Learned Tribunal below dated 06.02.2023 delivered by
Learned Member, Motor Accident Claims Tribunal, Court
No.5, West Tripura, Agartala in connection with T.S.(MAC)
187 of 2019 is modified to the extent that the O.P. No.2, the
National Insurance Company Limited shall pay the total
compensation of Rs.31,34,000/- with 8% interest from the
date of filing the claim-petition i.e. 16.09.2019 to till
realization. The aforesaid amount be deposited by the
Insurance Company to the MAC Tribunal, Court No.5,
Agartala, West Tripura within a period of two months from
the date of receipt of the copy of the judgment. The Tribunal
shall disburse the amount as per the conditions made earlier
in the award dated 06.02.2023 by the Tribunal. With this
observation, the appeal is allowed to the extent as stated
above. Furnish copy of judgment/order to both the sides free
of cost.
Send down the LCR along with a copy of this
judgment/order.
Pending application(s), if any, also stands
disposed of.
JUDGE
MOUMITA Digitally signed by
MOUMITA DATTA
DATTA Date: 2024.06.21 17:46:15
+05'30'
Purnita
