Jintu Kalita vs Smti Padma Borgohain And Anr

This appeal is directed against the judgment and award dated 30.04.2010 passed bythe MACT, Tinsukia in MAC Case No. 3/2007.

The brief facts of the case were that on 18.05.2006, at about 9.30 PM, when DipankarBorgohain, son of the claimant was waiting on the side of the

road at Makum, the motorcycle bearing registration No AS-23-4372, which was driven by the respondent No. 2, hit him from behind and consequently,

said Dipankar Borgohain sustained injury and died. It was stated that the accident took place due to rash and negligent driving of the motorcycle by

the respondent No. 2. The parents of the deceased filed a claim petition seeking compensation. The present appellant as well as the respondent No. 2,

who were arrayed as respondent in MAC Case, contested the claim. The present appellant took the plea that the vehicle was transferred in favour of

the respondent No. 2 and as such the appellant was not liable to pay compensation. The plea taken by the respondent No. 2 was that the victim,

Dipankar Borgohain died as a result of physical assault by some miscreants and denied the factum of vehicular accident as well as involvement of the

offending vehicle.

Learned Tribunal on appreciation of the evidence and material brought on recordawarded a compensation of Rs. 4,42,000/- and directed both the

respondent No. 2 and the present appellant to satisfy the award in equal share.

Aggrieved by the said award, the present appellant, the registered owner of the vehiclepreferred the instant appeal.

Learned Sr. Counsel, Mr. K. Agarwalla appearing for the appellant basically argued, thatthe death of the victim was not because of the vehicular

accident, rather it was because of physical assault mounted on him by some miscreants, and as such, learned Tribunal erroneously awarded the

compensation holding that the death of the victim was due to vehicular accident. Though, a plea was taken in the memo of the appeal with regard to

the ownership of the vehicle, that the vehicle was transferred, in view of the decision rendered by the Apex Court in Naveen Kumar Vs. Vijay Kumar

& Ors. reported in (2018) 3 SCC 1, learned Sr. Counsel has not pressed this point and focused his argument on the sole point that the death of the

victim was not by the vehicular accident. Therefore, the sole issue to be decided in this appeal is whether the death of the victim Dipankar Borgohain

was as a result of the accident involving the offending vehicle bearing registration No. AS-23-4372.

The claimant examined four witnesses in support of his case being the claimant PadmaBorgohain (CW-1), one Ajay Sarma (CW-2), one Rupjyoti

Hatibaruah (CW-3) and Chandan Hatibaruah (CW-4) and proved a number of documents. Evidently, CW-1 was not an eye witness. However, he

proved the FIR, Ext.13, the accident information report, Ext.14, charge sheet, Ext.15, seizure list, Ext.16, besides, other documents including the post-

mortem report and the document relating to treatment of the deceased immediately after the accident.

Respondents also examined three witnesses including respondent No. 2 himself.

CW-4, was an eye witness of the occurrence. He stated that he had a pan shop at theplace of occurrence. He deposed that Dipankar Borgohain

came to his shop along with his friend Ajay Sarma (CW-2) and purchased betel nut. At that time, receiving a phone call, the victim moved little away

from his shop and was attending the phone call standing on the side of the road, just infront of the Makum branch of UBI. Suddenly he heard a sound

and noticed that one motorcycle hit Dipankar Borgohain and he fell down. Immediately, he was shifted to hospital. CW-2, who was also along with the

victim, stated that after taking betel nut from the shop of CW-4, the victim was attending a phone call standing on the side of the road and at that time,

a motorcycle, which was coming from Tinsukia side, hit the victim. According to him, there was also a pillion rider and both the rider and the pillion

rider also fell down and sustained injuries. Immediately they were shifted to hospital. Although, these two witnesses were cross examined at length,

nothing material could be elicited to discard their evidence.

Ext. 13, the certified copy of the FIR transpires that the accident took place on18.05.2006 at about 9.30 PM, when the motorcycle bearing

registration No. AS-23-4372, which was driven in a high speed, hit the victim causing serious injury. Ext.14, the accident information report also

supports the claim of the claimant, that the deceased was hit by the motorcycle driven by the respondent No.2. Ext.15, the certified copy of the charge

sheet transpires that a case was registered on the basis of the FIR (Ext.13) in respect of the accident and after due investigation, police submitted the

charge sheet against the respondent No. 2 having found him guilty of the offence under Section 279/304 IPC. Ext. 16 is the seizure list, by which the

offending vehicle was seized by police. All these documentary evidence remained unimpeached.

The respondent No. 2 examining himself as DW-1, stated that he, along with hisfriends, namely, Dipankar Dey, Dulumony Hazarika, Pankaj Bora,

Kamal Das, Lalit Buragohain were proceeding to enjoy Bihu Sanmilani at Margherita and all of them were proceeded on motorcycle. According to

him, Dipankar Dey was with him as pillion rider and they were little ahead of other friends. He also stated that on reaching near Makum Branch of

UBI, he saw that some youths were assaulting the deceased. He then stopped the motorcycle and keeping it with his friend Dipankar Dey, proceeded

to save the victim and the miscreants also assaulted him. However, taking advantage of darkness, the miscreants had fled away. According to him, he

and his friend Dipankar Dey were also assaulted and they were taken to hospital. During cross examination, he admitted that the headlight of his

motorcycle was completely broken. He also admitted in cross examination that as a result of the accident, a police case was registered against him

being Makum P.S. Case No. 55/2006, which was pending. He stated that he alone tried to save the victim, who was being assaulted by 8 to 10

persons. Dipankar Dey (DW-2) who was allegedly pillion rider along with DW-1 also deposed in the same line that both of them were assaulted by

the miscreants. One Kailash Sarma was examined as DW-3. He stated that he was also proceeding in his scooter and on reaching Makum, he

noticed, that some youths were assaulting a boy and out of fear, he stopped his scooter. At that time, he noticed that DW-1 & DW-2 coming from

Tinsukia side and noticing the incident they also stopped their motorcycle. According to him, DW-1 proceeded towards the quarrel to save the

deceased. During cross examination, he had admitted that DW-1, Partha Pratim arrived the place of occurrence after 6/7 minutes of his arrival at the

place of occurrence.

Evidently, police also arrived at the place of occurrence. Though DW-3, Kailash Sarmastated, that he reached the place of occurrence before

DW-1 & DW-2, according to DW-1 & DW-2, when they reached the place of occurrence, except the miscreants, who were assaulting the victim, no

other person was there. Therefore, presence of DW-3 is belied by the evidence of DW-1 himself. Although, DW-1 & DW-2 stated that they along

with their other friends were proceeding to enjoy Bihu and they (DW-1 & DW-2) were little bit ahead, but none of those friends of DW-1 was

examined, though, admittedly all of them arrived the place of occurrence. On the other hand, DW-3 was examined to support the plea of the DW-1,

but the very presence of DW-3 at the place of occurrence was rendered doubtful by the oral testimony of the DW-1.

All the documentary evidence, being the FIR, accident information report and thecharge sheet supported the case of the claimant, that it was the

respondent No. 2, who, by driving the motorcycle rashly & negligently hit the victim. Though the respondent No. 2 sought to put forward a story that

the deceased died because of assault and he was also seriously assaulted, but no case was filed by him. Admittedly, the front side of the motorcycle

of the respondent No. 2 was damaged. Both the DW-1 & DW-2 stated that they stopped the motorcycle at a distance from the place of quarrel and

DW-1 moved forward to save the deceased, keeping the motorcycle in charge of DW-2. If this evidence of DW-1 & DW-2 is believed, then question

arises as to how the damage to motorcycle was caused. Thus, all these circumstances, namely, damages caused to the motorcycle, non-examination

of any of the friends of DW-1, who were accompanying him, the falsity of evidence of DW3, whose presence was denied by DW-1 himself, and not

filing of any FIR by DW-1, rendered the story sought to be projected by the respondent No. 2 totally improbable and unworthy of inspiring confidence.

The improbability of the story projected by the respondent No. 2, coupled with the candid evidence of the CW-2 and CW-4 supported by the

documentary evidence, more particularly, the FIR, accident information report, the GD Entry made immediately after the accident and the charge

sheet submitted against the respondent No. 2, doubly strengthened the case of the claimant that death of the victim Dipankar Borgohain was caused

by vehicular accident due to rash & negligent driving by the respondent No. 2.

It is also submitted by Mr. Agarwalla that evidently, immediately after the accident, thevictim was taken to Mukherjee Nursing Home, but no

document of Mukherjee Nursing Home was produced. The factum of the victim having sustained injury and that he was initially shifted to Mukherjee

Nursing Home was never disputed. It is in the evidence, that immediately after the accident, the victim was shifted to Mukherjee Nursing Home,

wherefrom, he was taken to Sanjivani Hospital and as such, mere non-production of medical document from Mukherjee Nursing Home was of no

consequence, inasmuch as, all the other document proved by the claimant clearly established that the deceased sustained injury and died.

Thus, the oral testimony adduced by CW-1, CW-2 and CW-4 and also DW-1 & DW-2,coupled with the documentary evidence, more particularly,

Ext.13, 14, 15 and 16 in the touchstone of preponderance of probability, clearly established that the victim died as a result of the injuries sustained in

vehicular accident, involving the motorcycle driven by the respondent No 2, and such the finding of the learned Tribunal holding, that the death of the

victim was due to vehicular accident, involving vehicle bearing registration No. AS-23-4372 driven by the respondent No. 2 cannot be faulted. Since

no other issue is involved in the appeal, it deserves to be dismissed.

Learned counsel for the respondent/claimant submits that the award made by theTribunal was inadequate and urged for enhancement. Learned

counsel for the appellant, vehemently resisting the above submission, contends, that in absence of cross appeal or cross objection, compensation

cannot be enhanced in an appeal filed by the insured or insurer on the ground of inadequacy of compensation. Mr. R.C. Paul, learned counsel for the

respondent/claimant submits, that even in absence of cross appeal, court can enhance compensation and in support of his submission placed reliance

on the decision of the Delhi High Court in United India Insurance Company Vs. Ashok Kumar & Ors reported in (2015) ACC 479 (Del).

The Apex Court in Ranjana Prakash And Ors vs The Divisional Manager And Anr reported in (2011) 14 SCC 639 dealing with the scope of

enhancement of compensation in absence of cross appeal held in para-6 & 8 as under:

“6. We are of the view that High Court committed an error in ignoring the contention of the claimants. It is true that the claimants had not

challenged the award of the Tribunal on the ground that the Tribunal had failed to take note of future prospects and add 30% to the annual income of

the deceased. But the claimants were not aggrieved by Rs.23,134/- being taken as the monthly income. There was therefore no need for them to

challenge the award of the Tribunal. But where in an appeal filed by the owner/insurer, if the High Court proposes to reduce the compensation

awarded by the Tribunal, the claimants can certainly defend the quantum of compensation awarded by the Tribunal, by pointing out other errors or

omissions in the award, which if taken note of, would show that there was no need to reduce the amount awarded as compensation. Therefore, in an

appeal by the owner/insurer, the appellant can certainly put forth a contention that if 30% is to be deducted from the income for whatsoever reason,

30% should also be added towards future prospects, so that the compensation awarded is not reduced. The fact that claimants did not independently

challenge the award will not therefore come in the way of their defending the compensation awarded, on other grounds. It would only mean that in an

appeal by the owner/insurer, the claimants will not be entitled to seek enhancement of the compensation by urging any new ground, in the absence of

any cross-appeal or cross-objections.â€​

“8. Where an appeal is filed challenging the quantum of compensation, irrespective of who files the appeal, the appropriate course for the High

Court is to examine the facts and by applying the relevant principles, determine the just compensation. If the compensation determined by it is higher

than the compensation awarded by the Tribunal, the High Court will allow the appeal, if it is by the claimants and dismiss the appeal, if it is by the

owner/insurer. Similarly, if the compensation determined by the High Court is lesser than the compensation awarded by the Tribunal, the High Court

will dismiss any appeal by the claimants for enhancement, but allow any appeal by owner/insurer for reduction. The High Court cannot obviously

increase the compensation in an appeal by owner/insurer for reducing the compensation, nor can it reduce the compensation in an appeal by the

claimants seeking enhancement of compensation.â€​

What therefore transpires from the ratio laid down by the Apex Court in Ranjana Prakash (supra) is that in an appeal filed by the owner or insurer,

for reduction of compensation or setting aside the award compensation cannot be enhanced in absence of cross objection or appeal, except where, the

learned Tribunal committed any illegality and/or no compensation was awarded on any heads, where the Tribunal ought to have awarded

compensation. Where Tribunal awarded some compensation, such compensation cannot be enhanced on the ground of inadequacy, in an appeal filed

by the owner/insurer. The claimant, of course, can defend the award by pointing out any illegalities or deficiency in the award, but cannot get

enhancement in absence of appeal or cross objection. In the instant case, learned counsel for the claimant/respondent has sought for enhancement of

compensation granted by the Tribunal on the ground of inadequacy, which is not permissible in view of the ratio laid down by the Apex Court in

Ranjana Prakash. Therefore, I am unable to accept the submission made by the learned counsel for the claimant for enhancement of the award

without any cross objection and counter appeal.

When the sole issue raised by the appellant assailing the award that the death of thevictim was not due to accident has fallen through, the appeal is

devoid of merit and accordingly stands dismissed.

The appellant shall satisfy the award with interest to the extent of his liability fixed bythe Tribunal by depositing the same with the Tribunal within 6

weeks.

Send back the LCR.