Arup Kumar Baruah vs Lakhi Doy Mili and Others

Heard Mr. A. K. Gupta, the learned counsel for the appellant. Also heard Mr. T. Kalita, the learned counsel for the respondent/claimant.

This appeal under Section 173 of the Motor Vehicles Act, 1988 has been filed by the appellant/owner of the offending vehicle, impugning the judgment and award dated 21.08.2024, passed by the learned Additional Member, Motor Accident Claims Tribunal No. 2, Tinsukia, in MAC Case No. 20/2023, whereby the Respondent No. 4-Insurance Company, namely, HDFC Argo General Insurance Company Limited, was directed to pay a compensation amount of Rs. 17,71,073/- only with an interest at the rate of 8% to the respondent/claimant and thereafter, were given liberty to recover the said amount from the owner/driver of the offending vehicle, i.e., the present appellant. The present appellant is aggrieved with the judgment to the extent that the Insurance Company was directed to recover the compensation payable by it to the claimant from the present appellant.

The facts relevant for consideration of the instant appeal, in brief, are that, on 16.01.2023, at about 3.50 pm, one swift car bearing Registration No. AS-23-Z-6200, coming from the Tinsukia side towards Duliajan, knocked one auto rickshaw bearing Registration No. AS-23-BC-9901, which was parked on the extreme left side of the road at Nalanihola Panchali. Due to the said accident, the auto rickshaw driver, namely, Krishna Mili, sustained grievous injuries on his person, and he died on the spot. After the said accident, one police case namely, Tinsukia P. S. Case No. 28/2023 was also registered under Sections 279/338/304A/427 of the Indian Penal Code against the driver of the offending vehicle, and later on, charge sheet was also submitted in the said case.

After the aforesaid accident, the wife and children of the deceased approached the Motor Accident Claims Tribunal, (Additional Member), Tinsukia, by filing an application under Section 166 of the Motor Vehicle Act, 1988, seeking compensation on account of death of their husband/father in the aforesaid motor vehicular accident. The said claim case was registered as MAC Case No.20/2023, before the Additional Member, Motor Accident Claims Tribunal, Tinsukia. The inquiry proceeded ex-parte against the present appellant, however, the Insurance Company contested the claim by filing written statement in the said inquiry.

Upon pleadings of the parties, the Motor Accident Claims Tribunal formulated the following issues:

In support of their claim, the claimant No. 1 examined herself as CW-1 and exhibited certain documents, which were exhibited as Exhibit 1 to Exhibit 9. The claimant No. 2 was also examined as CW-2 as a witness for the claimants' side. One Krishna Preme was also examined as CW-3 as a witness for the claimant side as well as one Labanya Nagate was examined as CW-3 for the claimant side. The Insurance Company did not adduce any evidence in their defence. Ultimately, by the judgement and award which has been impugned in this appeal, the claim petition was allowed and the compensation was awarded to the claimants in the manner as already been described in the foregoing paragraph of this judgment.

Mr. A. K. Gupta, the learned counsel for the appellant, has submitted that the present appellant is the owner and the driver of the offending vehicle. He submits that after filing of the MAC Case No.20/2023, before the Additional Member, Motor Accident Claims Tribunal, No. 2, Tinsukia when the matter was fixed before the said Tribunal on 19.05.2023, both the claimants as well as the present appellant were represented by their respective counsel. However, on that day, since the Form 54 was not filed by the claimant, the said MAC Case was kept in abeyance, till arrival of Form 54 in that case. He submits that thereafter, though the matter was again put up before the Motor Accident Claims Tribunal on 28.06.2023 on the basis of an application filed by the claimants before the Tribunal bringing on record the Form 54, however, since, this date was not known to the present appellant and since, no notice was issued to the appellant after keeping the MAC Case No. 20/2023 in abeyance on 19.05.2023, the appellant being unaware about the putting up of MAC case before the Tribunal on 28.06.2023, he could not appear before the Tribunal on that date. He submits that thereafter, on 01.09.2023, though, the Tribunal in its order passed on the same date mentioned that notice issued to opposite party No.1, (i.e., the present appellant) have returned after service, however, it was the original notice issued in the aforesaid case in pursuant to which the appellant had already appeared before the Tribunal on 19.05.2023. He submits that after keeping the aforesaid case in abeyance by the Tribunal, no fresh notice was issued to the present appellant in the aforesaid case and therefore, he was unaware about fixing of the case ex-parte against him.

The learned counsel for the appellant further submits that the Motor Accident Claims Tribunal has also erred in coming to the conclusion that there was a breach of policy condition on the part of the present appellant, as he was found to drive the offending vehicle on the date of alleged accident under the influence of liquor. He submits that no evidence is there on record to indicate that the appellant was under the influence of liquor. He submits that the only material on record, which indicates that the appellant might be under the influence of liquor is the written argument submitted by the counsel of the Insurance Company before the Tribunal as well as the FIR, which was exhibited by the claimant side as Exhibit-2.

He further submits that in the Exhibit-2, the informant has alleged that it has come to know that the appellant was driving the offending vehicle under the influence of liquor, which he submits that is in the nature of hearsay evidence. He further submits that the informant of the FIR, which has been exhibited as Exhibit-2, namely, Shri Brojen Borgohain was not examined either by the claimant or by the Insurance Company to adduce evidence as regards allegations of the present appellant driving the offending vehicle under the influence of liquor.

He further submits that no such plea was taken by the Insurance Company in the written statement filed by it in the MAC Case No. 20/2023. As such, he submits that the Tribunal has arrived at a finding regarding breach of policy condition without there being any admissible evidence on record. As such, he submits that the impugned judgment and award is liable to be set aside to the extent by which it directs the Insurance Company to recover the compensation payable by it from the present appellant.

He further submits that though the Insurance Company had filed an application before the Motor Accident Claims Tribunal on 02.07.2024 praying for examination of the Investigating Officer of the G.R. Case No. 56/2023 as DW and also to issue a direction to the Investigating Officer to produce the toxicological report of the driver of the offending vehicle before the Tribunal was rejected by the Tribunal by its order dated 02.07.2024 and the said order of rejection was not put to challenge by the Insurance Company. Hence, he submits that there is no evidence on record on the basis of which the Tribunal could have arrived at a finding that the present appellant was under the influence of liquor when the alleged accident occurred and, as such, there was a breach of the policy condition.

On the other hand, Mr. T. Kalita, the learned counsel for the Insurance Company submits that the Motor Accident Claims Tribunal has rightly arrived at the conclusion that there was a breach of policy condition by the owner of the offending vehicle in as much as after perusing the materials on record which includes the FR (Forwarding Report) of the present appellant as an accused in the criminal case, which was filed after the accident as well as extract of the Duliajan G.D. Entry No. 250 and 254 dated 16.11.2023, it came to the conclusion that the present appellant was driving the vehicle under the influence of alcohol on the date of alleged incident.

He submits that the fact as to whether the petitioner was under the influence of liquor or not is a special knowledge, which could be exclusively known to the present appellant only and therefore, he ought to have adduced evidence to counter this allegation, which was leveled in the FIR in the connected criminal case. He also submits that during the inquiry which proceeded ex-parte against the present appellant, he could have filed an application for setting aside ex-parte order and later on, he could have also filed an application for setting aside the ex-parte decree, but same was not done by the present appellant. Hence, he submits that now the present appellant cannot take this plea in this appeal.

He also submits that the allegations against the present appellant that he was under the influence of the liquor could have been denied by him by filing written statement. However, he failed to do so as the inquiry proceeded ex-parte against him. He also submits that as the fact as to whether he had consumed liquor on the date of alleged incident or not was known exclusively to the present petitioner. It was he who had the burden of proving the said fact under Section 106 of the Indian Evidence Act.

The learned counsel for the respondent/Insurance Company also submits that in view of the provisions contained in Section 150 (2) (a) (ii) of the Motor Vehicles Act, 1988, there was a breach of policy condition in as much as he was driving the offending vehicle under the influence of alcohol. Hence, he submits that the impugned judgment and order needs no interference by this court and the appeal should be dismissed.

I have considered the submissions made by the learned counsel for both sides and have gone through the materials available on record. I have also gone through the rulings cited by learned counsel for both sides in support of their respective submissions.

The point to be determined in this appeal is as to whether the Motor Accident Claims Tribunal was correct in holding that there was a breach of policy condition on account of the driver of the offending vehicle driving the vehicle on the date of accident under the influence of liquor, and thereby holding that the insurance company may recover the compensation paid by it from the owner of the offending vehicle.

Before we discuss the main question involved in this appeal, let us also discuss as to whether the Tribunal was correct in proceeding ex parte against the owner of the offending vehicle by its order dated 01.09.2023. It appears from record that on 19.05.2023, the owner of the offending vehicle was represented before the Tribunal. However, on that day, the MAC Case No. 20/2023 was directed to be kept in abeyance till the Form No. 54 is received by the Tribunal. Thereafter, it appears that on 28.06.2023, the aforesaid MAC case was put up before the Tribunal on strength of an application filed by the claimant side, wherein it was intimated to the Tribunal that the Form No. 54 has been received. Since the aforesaid MAC case was not fixed on 28.06.2023, it was not expected that the owner of the offending vehicle to remain present on that date or on the next date unless he is notified about the putting up of the records on an off-date and thereafter notified about the next date. It also appears that the Tribunal also erred in recording in its order dated 01.09.2023 that though the notice issued to Opposite Party No. 1, i.e., the present appellant, have returned after service, hence, in his absence, the enquiry shall proceed ex parte. However, it failed to take into consideration the fact that in between the issuance of notice, the Opposite Party No. 1, i.e, the present appellant, had appeared before the Tribunal on 19.05.2023, and thereafter, it is by the order of the Tribunal itself, the MAC Case No. 20/2023 was kept in abeyance and the owner of the offending vehicle was not notified about putting up of the case again. The Tribunal ought to have notified the owner of the offending vehicle after receipt of the Form 54 and after the case was taken up for hearing again. Be that as it may, since the owner of the offending vehicle has not prayed for setting aside the ex parte order or setting aside of the ex parte decree, we are not, in this appeal, going into the said question any further.

Let us now discuss as to whether there was any cogent material on record on the basis of which the Tribunal could have arrived at a finding that the owner of the offending vehicle was driving the said vehicle on the date of the accident under the influence of liquor.

On perusal of the records, it appears that the only material wherein an indication is given that the owner of the offending vehicle might be under influence of liquor on the date of accident is the FIR lodged by one Brajen Borgohain and which was exhibited as Exhibit-2 by the claimant. In the said FIR, the first informant, namely Sri Brajen Borgohain, had stated that he had come to know that the driver of the offending vehicle was driving the same under the influence of liquor. It is not disclosed in the FIR as to from where he came to know the said fact. Neither the insurance company had examined the first informant, Sri Brajen Borgohain, to verify this fact, nor any other evidence was adduced by the Insurance Company to produce any material from which the Tribunal could have arrived at a finding that the owner/driver of the offending vehicle was driving the same on the date of accident under the influence of liquor, so as to come to a conclusion that there was a breach of policy condition by the owner of the offending vehicle.

It is pertinent to note herein that the facts alleged in an FIR is normally in form of an accusation and same cannot be regarded as an established fact. However, after investigation, when some materials are found in support of the accusation made in the FIR and charge-sheet is filed, and in the charge-sheet the facts stated in the FIR are reiterated, then there may be some justification to rely on such allegations which were made in the FIR. However, in the instant case, the Insurance Company has not produced anything to show that during investigation it was established that the owner/driver of the offending vehicle was under the influence of liquor on the date of the accident while driving the offending vehicle.

It is also pertinent to note that though the Insurance Company made an attempt during the enquiry before the Tribunal in MAC Case No. 20/2023 to get the toxicological report of the driver of the offending vehicle produced before the Tribunal, however, such a prayer was rejected by the Tribunal by its order dated 02.07.2024, and the said order of rejection was not challenged before any higher judicial authority by the insurance company. As such, the insurance company has failed to produce any reliable material before the Tribunal during the enquiry in MAC Case No. 20/2023 on the basis of which the Tribunal could have arrived at a finding that the owner/driver of the offending vehicle was under the influence of liquor on the date of accident while driving the offending vehicle. As such, the said finding is arrived at on the basis of unreliable evidence, which is in the nature of hearsay evidence. Hence, the said finding cannot be sustained in law and same is liable to be set aside.

In view of the discussions made and reasons stated in the foregoing paragraphs, the finding arrived at by the Motor Accident Claims Tribunal in the impugned judgment to the extent that there was a breach of policy condition by the owner of the offending vehicle inasmuch as the said vehicle was driven by the driver of the offending vehicle under the influence of liquor is held to be without any cogent basis and as such, same is hereby set aside. Consequently, the observations made by the Tribunal in the impugned judgment that the Insurance Company is entitled to recover the compensation payable to the claimant from the owner of the offending vehicle is also set aside.

In view of the above discussion, it is hereby held that it is the respondent No. 4 Insurance Company, which shall have to bear the entire liability of paying compensation assessed by the Tribunal in the impugned judgment.

This appeal is, accordingly, allowed.

Send back the records of MAC Case No. 20/2023 along with a copy of this judgment to the concerned Tribunal.