Bhagwati And Others vs National Insurance Company And Others

Puneet Gupta, J

The Motor Accidents Claims Tribunal, Jammu vide Award dated 04.04.2014 found the appellants-claimants entitled to compensation to the tune of Rs.14,41,000/-. However, the learned Tribunal held the victim-Maya Ram liable for 50% of the contributory negligence of the accident and slashed down the compensation in favour of the claimants to the tune of Rs.7,20,500/- along with interest @ 7.5% as mentioned in the award. The appellants have challenged the award on the ground that the Tribunal has wrongly held Maya Ram as contributory to the accident in which the said Maya Ram lost his life. The appellants also submit that they are entitled to certain additional amount on account of the expenses incurred on the deceased during his treatment after the accident took place.

The Tribunal has held the respondent No.1-National Insurance Company liable to pay the awarded amount. The Insurance Company has not challenged the award meaning thereby the company has admitted its liability to compensate the appellants for the amount awarded in their favour.

The argument of learned counsel for the appellants is that the Tribunal has erred in appreciating the evidence brought on record and has only relied upon the FIR while holding the deceased also liable for accident. The appellants could not be deprived of the compensation at least which was otherwise found due to the appellants on account of the accident in question.

The learned counsel for the respondent-Insurance Company has submitted that the Tribunal has rightly held the deceased-Maya Ram contributory to the accident that has taken place on 21.05.2012.

Heard learned counsel for the parties and perused the record of the Tribunal.

The accident between the vehicle (alto car) bearing No. JK02AC-2263 and vehicle (motorcycle) bearing No. JK02Q-4185, driven by Maya Ram, resulted into death of the motorcyclist on 29.05.2012. The appellants produced one witness regarding the accident in question. The copies of FIR and challan were filed before the Tribunal. The statement of Mukesh Kumar is relevant, who is stated to be eye witness. The witness has filed his affidavit by way of evidence and has also been cross-examined. The witness has deposed about the accident having taken place on 21.05.2012 when Maya Ram was proceeding from Nai Basti to Shastri Nagar on motorcycle bearing no. JK02Q-4185 and when he reached near morh water-tank Shastri Nagar, Jammu, alto car bearing no. JK02C-2263 coming from Shastri Nagar drove on the wrong side in a rash and negligent manner and hit the motorcyclist causing severe injuries to the motorcyclist-Maya Ram. The victim was shifted to GMC, Jammu where he died on 29.05.2012 due to the injuries sustained in the accident. The witness was cross-examined. However, the respondents could not elicit different version from the witness to what had been stated by the witness in examination-in-chief. The Tribunal while deciding the issue of negligence held that the accident took place due to the negligence of the driver of the car as well as the driver of motocycle. The Tribunal also relied upon the documentary evidence while giving this finding. The documentary evidence is the copies of the FIR and the challan which are placed on record.

This court is not convinced with the finding of the Tribunal as far as holding the deceased-Maya Ram also liable for the accident in which he received injuries and subsequently died. It appears that the Tribunal was influenced by the challan wherein the drivers of both the vehicles were held responsible for the accident. In view of the fact that the statement of the eye witness to the accident could not be diluted during cross-examination before the Tribunal there was no reason for the Tribunal to hold the deceased-Maya Ram liable also for rash and negligent driving resulting into accident.

Learned counsel appearing for the Insurance Company has relied upon the judgment of the Hon’ble Apex Court reported in 2009 (2) SCC 75 titled ‘National Insurance Co. Ltd. Vs. Rattani and others’ and 2007 (13) SCC 476 titled ‘Oriental Insurance Co. Ltd. V. Premlata Shukla and others’ wherein the Apex Court held that the allegation made in the FIR can be looked into though not admissible where allegations made in the FIR are made part of the claim petition and once a part of contents of the document is admitted in evidence the party which brings it on record cannot be permitted to turn around and contend that the other contents contained in the rest part had not been proved.

Learned counsel for the appellant has relied upon ‘National Insurance Co. Ltd. V. Chamundeswari and ors.’ SLP(C) No. 4705 of 2019 decided on 01.10.2021, wherein the Apex Court held the driver of the one of the vehicles only negligent for the accident as the court took note of the fact that there was no rebuttal to the evidence produced by the petitioner by examining driver of the other vehicle. The court also held that whether the driver of the vehicle was negligent or not there cannot be any straight jacket formula and each case has to be decided on its own facts. The court in this judgment took note of above mentioned judgments and held that there was no contributory negligence on the part of the deceased-driver.

In the case in hand there is no evidence from the respondents to negate the version put by the witness on the aspect of rash and negligent act of driver of the car. The Tribunal did not provide any reason as to how the copy of the FIR or copy of the challan qua the statement of the witness proves the negligence of the victim in the accident. The court is of the view that the statement of the eye witness before the Tribunal necessarily makes out that only the driver of the alto car was responsible for the accident and not Maya Ram who was driving the motor cycle.

The judgments produced by the respondent-Insurance Company do not apply to the facts of the present case as the court in those judgments had given the findings keeping in view the facts of the case also.

The consequence of the same is that whatever amount may be due to the appellants as compensation cannot be in any manner slashed down on account of the driver of the motorcycle being contributory to the accident in question.

The learned counsel for the appellant has tried to convince the court that the appellants are entitled to enhanced compensation on account of the medical treatment which has been received by the victim before his death but the same cannot be accepted as there is no evidence on record otherwise to show the expenses which may have been incurred on the victim after the accident.

The Tribunal has granted the compensation under different heads in a just manner and requires no interference from the court.

In the final analysis, the award is modified to the extent that the appellants will be entitled to compensation from the Insurance Company to the tune of Rs. 14,41,000/- and not Rs.7,20,500/- as granted by the Tribunal. The appellants shall be entitled to interest as mentioned in the award.

Disposed of.