Dipesh Pal vs Gopendra Das And Ors

Heard Mr. S. Datta, learned counsel appearing for the appellant-owner.

This is an appeal preferred by the owner of the vehicle bearing No. TR-02C-1797 (Truck). The said vehicle was involved in an accident where the claimant-respondent Sri Gopendra Das had suffered severe injuries. I have perused the judgment and the grounds stated in the Memo of appeal. I have also heard Mr. S. Datta, learned counsel appearing for the appellant. It is an admitted position that at the time of accident the vehicle (Truck) had no valid insurance policy. Mr. Datta, learned counsel for the appellant has challenged the quantum of compensation awarded against the appellant. He submitted that the learned Tribunal ought not to have held that the said truck vehicle had also played a crucial role behind the occurrence of the accident. He has further submitted that two vehicles were involved in the said accident but the learned Tribunal declared compensation only on the owner of the truck vehicle bearing No. TR02-C-1797, i.e. the appellant herein.

The brief facts are as under:

On 02.12.2016, at about 15-30 hours the claimant-respondent was proceeding with his Auto Rickshaw bearing No.TR-02B-3726 towards Singirbill from Chebri Choumuhani and when it reached in front of Chantilla Anganwadi Centre near Assam Rifles Camp at Radhanagar, at that time another vehicle TR01-C-1797 (truck) owned by Sri Dipesh Pal and driven by driver Satish Chakma rashly and negligently came from opposite direction and dashed an auto-rickshaw on its front side resulting auto-rickshaw capsized and the claimant-respondent herein sustained grievous injuries on his chest and fractures to the rib bone and sternum. It is also contended in the claim application that the claimant-respondent was firstly shifted to Fatikroy PHC and then due to serious condition he was referred to RGM Hospital, Kailashahar and then to AGMC and GBP hospital, Agartala. After few days the victim was required to take treatment at Silchar South City Hospital and due to the said accident the claimant-respondent became fully disabled and is unable to drive anymore or perform other works for his survival due to physical pain and sufferings and his future treatment has been shattered.

The said accident was registered as KGT PS Case No.97/2016, under Sections 279/338 of IPC and under Sections 177/184 of MV Act. It is also contended in the application that the offending vehicle was insured with the United India Insurance Co. Ltd., Kailashahar Branch having policy No.1309013116P112551515 valid from 23.12.2016 up to 22.12.2017. Ultimately, the claimant-respondent had been quantified with compensation to the tune of Rs.09,07,249/-(Rupees nine lakh seven thousand two hundred forty nine).

The O.P.-respondent No.1 Sri Satish Chakma, the driver of the offending vehicle bearing No.TR02-C-1797 (truck) and O.P.-respondent No.2, the appellant herein, Sri Dipesh Pal, the owner of the offending vehicle had contested the suit by filing written statement. The owner of the offending truck bearing No.TR02-C-1797 denied the fault of his driver behind the occurrence of the accident and stated that the accident took place due to the fault of the claimant-respondent who was driving the Auto-rickshaw vehicle bearing No. TR02-B-3226 at the time of accident with high speed, rashly and negligently. However, O.P.-respondent No.2 admitted that he is the owner of the vehicle bearing No.TR02-C-1797 (truck) which was insured with the United India Insurance Company Ltd. and the vehicle has/had requisite papers. The O.P-respondent No.1 admitted that he was driver of the alleged truck and he had valid driving license at the relevant period of time and he was driving the vehicle quite slowly and cautiously. Claimant-respondent ignoring the signal was driving his auto-rickshaw bearing No. TR02-B-3226 with a very high speed and there was head on collision resulting the cause of accident for which the O.P.-respondent No.2 is not liable to pay compensation.

The O.P.-respondent No.3, the United India Insurance Co. Ltd. appeared through its Branch Manager, Dharmanagar Branch and submitted written statement stating inter alia that the claimant-respondent is not entitled to any amount of compensation and the O.P.-respondent No.3 is not liable for payment of any amount to the claimant-respondent which he claimed under different heads for the alleged accident. The Insurance Company has further stated that the O.P.-respondent Nos. 1 & 2 are not the registered driver and owner of the vehicle bearing No.TR02-C-1797 (truck) and the validity of the insurance policy of TR02-C-1797 (truck) was expired at the time of accident. Ultimately, it is submitted that the Insurance Company should not be fastened with the liability to pay any compensation to the claimant-respondent.

On the basis of the pleadings and documents, following issues were framed:

(i) Whether the suit is maintainable in its present form & manner?

(ii) Whether on 02.12.2016 at about 15:30 hours at Chantilla Anganwadi Centre near Assam Riffle Camp at Radhanagar under Kumarghat PS, the victim-claimant Sri Gopendra Das met with an accident and sustained grievous injury, when he was proceeded towards Singirbil in his auto rickshaw bearing registration NO.TR02-B-3726, due to the rash & negligent driving of the driver of the offending vehicle bearing No.TR02-C- 1797 coming from opposite direction and dashed the auto?

(iii) Whether the victim-claimant is entitled to get any compensation, if so, to what extent?

(iv) Who is liable to pay the compensation?

(v) To any other relief/reliefs to which the party is entitled to, if any?

The learned Tribunal had observed that the owner-claimant-petitioner in the claim petition wrongly mentioned the number of the auto-rickshaw as TR02-B-3226 and after framing of issues and closing the evidence of the claimant side, on 20.12.2018 the claimant-petitioner filed an application under Order VII, Rule 17 read with Section 151 of CPC for amendment of the claim petition taking plea that the actual number of the auto-rickshaw is TR02-B-3726 and due to typographical mistake it was written as TR02-B-3226, which was rejected by the Tribunal against which the claimant-petitioner preferred revision application before this Hon'ble High Court which was registered as CRP No.22 of 2019. The High Court vide order dated 16.05.2019 had considered the revision petition and disposed of with cost. The claimant-petitioner in compliance with the direction of the High Court submitted his amended complaint correcting the number of the auto-rickshaw as TR02-B-3726 instead of TR02-B-3226 and thereafter the O.P. Nos. 1 and 2 filed additional written statement. Accordingly, the issues were framed twice due to wrong mentioning of the number of the auto-rickshaw by the claimant-petitioner side.

In course of hearing of the claim application, the Tribunal came to the conclusion that the Insurance Company of the Auto-rickshaw bearing No. TR02-B 3726 was not impleaded as such the United India Insurance Company Ltd. is not a necessary party. The Tribunal had observed that the evidence of O.P. Nos. 1 and 2 tried to defend themselves on the plea that it was a case of contributory negligence and therefore, the Insurance Company of Auto-rickshaw was a necessary party and should have been impleaded in the suit. From the pleaded case and evidence of the claimant-petitioner the Tribunal found that this was not at all a case of contributory negligence and Insurance Company was not a necessary party. Moreover, the claimant-petitioner has prayed for compensation against the owner, driver and insurance company of the offending Truck bearing registration No. TR02-C-1797 under Section 166 of the M.V. Act on the ground of rash and negligent driving. On the aforesaid ground, according to learned Tribunal, the impleadment of the Insurance Company of the Auto-rickshaw bearing No. TR02-B-3226 is not a necessary party in the instant case. That apart, claimant-petitioner himself is the owner of the Auto-rickshaw. If contributory negligence is proved then liability required to be borne by the owner of the Auto-rickshaw can be deducted from the amount of compensation. The matter can be understood from another angle.

The learned Tribunal had observed that if it is the claim of the O.Ps that Insurance Company of the auto-rickshaw had to bear the expense in view of first party insurance, then each and every joint tort feasor is liable to pay whole amount of compensation and payment of compensation by one tort feasor amounts to discharge of all tort feasors. In case of multiple tort feasors, it is the discretion of claimant to proceed against any one or all as he desires. The learned Tribunal had relied upon the judgment passed by Jharkhand High Court in the Divisional Manager United .... Vrs. Smt. Madhulika Kumari & Anr. on 3rd August,2015 in M.A. No.317 of 2013 wherein it was held that- "7... the contention that the owner of Air Force vehicle was a necessary party is misdirected because the choice of selecting the tort-feasor is with the claimant or the legal heirs of the deceased and in case of composite negligence the claimant can recover the compensation from any of the joint tort-feasors. In the facts of the instant case such plea is discarded." Thus, according to learned Tribunal it cannot be said that the present case is not maintainable but the Tribunal held that the claim-petition was maintainable.

While deciding the issue which vehicle was responsible behind the occurrence of the said accident, the learned Tribunal after considering the evidence on record held that it was the truck bearing No.TR02-C-1797 was responsible for the cause of the accident. The learned Tribunal has rejected the plea of the O.P. No.2 that it was a case of contributory negligence on the basis of the investigation report submitted by the police authority. The Investigating Officer in his report has stated that it was due to the rash and negligent driving of the driver of the truck the said accident took place.

After considering all aspects and the relevant records therein, the learned Tribunal came to the finding that the truck bearing No. TR02-C-1797 was responsible to cause the accident and the injury suffered by the driver of the auto-rickshaw. The learned Tribunal opined that at the relevant time of accident, the offending truck was not covered with the insurance policy as such, the liability to pay compensation to the victim was fastened with the owner of the truck bearing No. TR02-C-1797 and he was asked to pay compensation in the manner as stated in the judgment and award dated 13.09.2019 in connection with TS(MAC) 10 of 2018.

In course of survey of evidence of P.W.1, I find that he was examined twice. He has stated that at the time of accident, he had the valid insurance coverage for his auto-rickshaw. He has specifically admitted in his examination dated 10.12.2018 that at the place of accident, there was a turning of road. However, he has not impleaded the Insurance Company to which his auto-rickshaw was insured. But in his cross-examination dated 24th July,2019 the said P.W.1 Gopendra Das has stated that " there is no turning of road nearby the place of accident". On the other hand, it is the definite case of the appellant-owner of the truck that the accident was occurred due to head on collision and in his evidence he has supported his version which he has made in his written statement. He has further stated in his evidence that the claimant-petitioner being the driver of the auto-rickshaw was also equally responsible behind the cause of the accident.

I have given my thoughtful consideration to the evidence of P.W.1 Sri Gopendra Das, the owner-cum-driver of the auto-rickshaw. The said witness has given two contradictory statements at two times before the Court. On his first examination he stated that there was a turning at the place of accident. When he appeared before the witness box for the second time, he has stated that there was no turning of road nearby the place of occurrence. It creates a serious doubt in the mind of this Court about the integrity and genuinity of the said witness. Since it is a case of head on collision, the Court may apply the doctrine of res ipsa loquitur. The enquiry before the MAC Tribunal about the occurrence of an accident is an independent enquiry and would not be influenced by the records of the criminal case. When two vehicles are involved, it is the duty of the MACT Tribunal to implead and bring all the parties connected to the case and then evaluate the evidence. I re-iterate that investigation relating to the criminal case can be taken as an aid in course of enquiry by the Tribunal, but, cannot form the sole basis to fasten the liability ignoring the evidence led by the parties to the lis.

In the facts and circumstances, in my opinion, the Tribunal ought not to have held that the truck bearing No.TR02-C-1797 was solely responsible behind the cause of the accident and, therefore, the judgment and award dated 13.09.2019, passed by the Motor Accident Claims Tribunal (2nd), Unakoti Judicial District, Kailashahar in TS(MAC) 10 of 2018 is interfered with and hereby set aside and quashed. Consequently, the matter is remanded back to the Court of learned Motor Accident Claims Tribunal (2nd), Unakoti Judicial District, Kailashahar to decide the case afresh by giving opportunity to the claimant-respondent to implead the Insurance Company of his auto-rickshaw No. TR02-B-3726 and fasten the liability of payment of compensation accordingly keeping in mind the observation made by this Court here-in-above.

It is further directed that the Tribunal shall dispose of the case within six months from the date it shall receive the records along with the copy of this judgment.

The appeal is, thus, allowed in the above terms. Pending application(s) if any, shall stand disposed.

Send down the L.C. records.