Jagat Jiban Goswami, Since Deceased, His Legal Heirs, Namely, Jharna Goswami & Anr vs New India Assurance Company Ltd

These are utterly frivolous appeals which have been kept lingering for nearly two decades.

The matters pertain to an accident that took place at Kabiguru Road near Michael Madhusudan College in Durgapur on December 14, 1998 at about 6 pm.

Rival claims were lodged by persons claiming through one of the victims. The parents of Jeevan Goswami applied under Section 166 of the Motor Vehicles Act, 1988 and asserted that they were the only persons entitled to make the claim. They denied that their son Jeevan, the victim, was married. The rival claim was lodged by Samapti Goswami claiming to be the legally married wife of the victim.

Since the appellants in FMA 319 of 2002 are not represented even at the second call, such appeal is dismissed for default.

It is recorded that the matter had appeared for several days in the warning list last week before being transferred to the peremptory board this week. The appellants in FMA 319 of 2002 have not been represented on any of the previous three days of this week.

As far as the appeal of alleged wife is concerned, before even the question of entitlement needs to be gone into, it must be noticed that both the claims failed because there was no evidence of any rash or negligent driving. According to the rival claimants and the witnesses called by them, Jeevan Goswami was riding pillion on a motorcycle driven by Ashok Saha. None of the claimants was an eyewitness to the accident. The claimants, however, relied on the evidence of one Pradip Paramanik who claimed to have been present at the Bhagat Singh bus stoppage at the time of the accident.

According to such witness, he saw a truck coming from the Bidhannagar side and, at the same time, "one motorcycle of Jeevan Goswami as pillion rider was going towards City Centre side." Such witness deposed that the "motor cyclist on seeing the truck coming at a high speed got panicked. As a result of which the motorcycle hit one bicycle which was going at his front.... As a result of such collision riders of the motorcycle as well as the cyclist fell down. Due to such collision Jeevan Goswami as well as motor cyclist sustained bleeding injuries on their person...."

The claim was not against the truck which was alleged to have been speeding. The truck was not involved in the collision, though the truck may have been the reason for the collision. The claim was lodged by the rival relatives of Jeevan Goswami against the owner of the motorcycle or the insurance company that had covered the motorcycle at the relevant time.

Both Jeevan Goswami and the driver of the motorcycle, Ashok Saha, died. It was, therefore, incumbent on the claimants to establish that the motorcycle was driven in a rash and negligent manner for their rival claims to succeed under Section 166 of the Motor Vehicles Act, 1988. It is the sine qua non of a claim under such provision that rash and negligent driving has to be established on the part of the offending vehicle before the claim in damages can proceed.

In the light of the evidence before the tribunal, the tribunal was left with no option but to reject the claim since Pramanik's version did not indicate rash and negligent driving on the part of the driver of the motorcycle.

The appellant in FMA 1574 of 2003 seeks to rely on the principle of res ipsa loquitur without being aware of the principle or all of its attending requirements. A judgment reported at AIR 1977 Supreme Court 1735 (Pushpabai Pushottam Udeshi- Vs. - M/s. Ranjit Ginning and Pressing Company) is placed to draw sustenance therefrom on the applicability of the principle of res ipsa loquitur in this case. However, the facts were so glaring in that case that the doctrine applied and the oral evidence in the case at hand is so otherwise that the doctrine of res ipsa loquitur cannot apply. In the reported case the car went to the extreme right of the road and dashed against a tree with violent force which caused the death of the occupants in the car. The very fact that a car veers off the left side of a road to cross over to the wrong side and hit a tree beyond the right extremity of the road, by itself, demonstrates an element of rashness and negligence. Once so much was established, in the state of the evidence as it prevailed, the onus shifted to the person seeking to resist the claim to establish that the switch-over of the car from the appropriate side of the road to beyond the impermissible side was not due to any rashness or negligence on the part of the driver of the vehicle.

Such facts may be contrasted against the facts as established on behalf of the rival claimants through witness Paramanik here. According to such witness, the driver of the motorcycle panicked when he perceived a truck to be coming from the opposite direction at a high speed. The act of panicking is not rashness or negligence. On the contrary, one panics out of fear and one may lose control as a result thereof; but panicking cannot be equated with rashness or negligence. In absolute terms, panicking is a defence mechanism that is triggered off as a response to some stimulus; whereas rashness and negligence are overt and wanton acts.

It is a pity that, for obvious reasons involving advocates in motor accident matters, frivolous claims and bogus appeals plague the system where the pretenders, who may not have the foggiest idea of the legal concepts involved, waste court time and clog the system.

FMA 319 of 2002 stands dismissed for default and FMA 1574 of 2003 is dismissed with costs since it is utterly unmeritorious.

Urgent certified website copies of this order, if applied for, be made available to the parties upon compliance with the requisite formalities.