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Judgment
Heard Mr. K.K. Bhatta, leaned counsel for the appellant/Insurance Company and Mr. M. Choudhury, learned Sr. Counsel for the
Respondent/Claimant.
This appeal is directed against the judgment and award dated 28.05.2013 passed by the MACT, No. 2, Kamrup, Guwahati in MAC Case No.
1079/2008.
The case of the claimant was that Dalim Hazarika (since deceased) was proceeding by driving the car bearing registration No. AS-23-E-9894
(Wagon-R). When he reached near Ultapul, a Mini Truck bearing registration No. AS-25-C-0691, which was coming from the opposite direction and
was driven in a very high speed moved to the wrong track and hit the car driven by the deceased from the front side. As a result of the collision, the
deceased Dalim Hazarika sustained injury and died. It was alleged that the accident occurred due to rash & negligent driving of the Mini Truck. The
legal representative of the deceased filed an application before the MACT and the learned Tribunal by the impugned award granted a compensation
of Rs. 4,22,000/- in favour of the claimant.
Aggrieved by the said award, the Insurance Company, which was arrayed as respondent No. 4 in the claim petition, preferred the instant appeal.
The contention of the learned counsel for the appellant Insurance Company is that the accident occurred due to fault of the deceased himself, who
was driving a Car and hit the stationery truck from rear side. Learned counsel for the respondent/claimant submits that the accident occurred due to
fault of the driver of the truck and the learned Tribunal properly appreciating the evidence brought on record rightly awarded the compensation holding
the owner/driver of the Mini Truck responsible for the accident.
It appears from the submission of the learned counsel for the appellant Insurance Company, that the sole basis of this appeal is a final report
submitted by the police, which was proved before the Tribunal as Ext.A. Learned counsel for the appellant submits, that police exonerated the driver
of the Mini Truck, insured with the appellant from the criminal case, with the observation that driver of the truck was not at fault and as such appellant
could not be saddled with the responsibility to satisfy the award.
The specific plea of the claimant in the claim petition was that at the time of the accident, the deceased was driving a vehicle (Wagon-r Car) and
the vehicle of the deceased was hit by the Mini Truck, which was coming from the opposite direction and driven in a rash & negligent manner and the
accident occurred solely due to the fault of the driver of the truck, which collided with the car, head on. In support of the claim, the claimant examined
herself as PW-1 and one eye witness as PW-2. Apparently, PW-1 the claimant was not an eye witness of the occurrence and as such, it is the oral
testimony of the PW-2, who claimed to be eye witness, which is required to be considered.
The PW-2 stated in his evidence on oath, that on 29.07.2007 at about 7.30 PM, he was proceeding towards Makum from Dibrugarh by driving his
vehicle and the vehicle driven by the deceased was ahead of him. According to him, when they reached near Ultapul, he had noticed the Mini Truck
No. AS-25-C-0691, coming from opposite direction in a very high speed and moving to the wrong track knocked the car driven by the deceased from
the front side. He also stated that the accident occurred solely due to rash & negligent driving of the driver of the truck. Though, this witness was
cross examined by the Insurance Company, as well as, owner/driver of the Mini Truck, nothing material could be elicited to shake his evidence with
regard to the accident. The owner & driver of the offending vehicle, while cross examining this witness, did not controvert the facts deposed by him.
The only question put by the owner & driver was that no injury was caused to the driver of the truck. Besides, the oral evidence, the claimant also
proved the Accident Information Report, Ext-1 and a police report, Ext-1B, wherein, it was mentioned that the accident occurred due to the truck
hitting the car driven by the deceased from front side. Though, the owner and driver of the truck contested the claim by filing written statement, taking
a different plea that the car driven by the deceased hit the truck from the rear side, neither the driver nor the owner of the truck came to the witness
box to substantiate the plea taken by them in their written statement.
The Insurance Company examined an Investigator, who simply proved a final report, purportedly submitted by police, wherein it was held that there
was no sufficient material to submit charge sheet and that the driver of the truck was not responsible for the accident. It is on the basis of this
document alone, the Insurance Company preferred the appeal and sought to avoid the liability to satisfy the award. Apparently, the specific case of
the claimant was that the accident occurred because of the Mini Truck hitting the car from front side because of rash & negligent driving of the driver
of the truck and such claim of the claimant has been substantiated by evidence of the eye witness, PW-2 and also the two police reports, one in form
54, submitted in terms of Section 158(6) MV Act, another police report submitted by police and proved as Ext.1B. Now, the question is, when the
claimant filed a claim petition with a specific plea that the accident occurred due to rash & negligent driving of the driver of the Mini Truck, which
allegedly collided with the car from the front side and the owner driver of the truck having came with a different story, that the truck was stationery
and was hit by the car from the back side, burden necessarily shifted to the owner & driver/respondents to prove such plea. Neither owner nor the
driver came to the witness box, nor any eye witness was examined to substantiate the plea taken by the owner/driver of the offending vehicle.
Evidently, the Investigator of the Insurer (DW-1) was not an eye witness. Though the Insurance Company sought to avoid the liability solely on the
basis of Ext.A final report, submitted by police in the criminal case, the concerned police officer, who submitted the Ext.A was also not examined.
Situated thus, the question necessarily arises, whether mere production of the Ext.A, final report alone, without proving the same by the author
concerned, who prepared and submitted the same, the Tribunal could brush aside all the legal evidence brought on record. It is the settled principle of
law, that the Motor Accident Claims Tribunal has to decide the claim independently on the basis of the evidence brought before it. Any finding of the
police or any other criminal court is not binding on the MACT. The final report, on which the Insurance Company sought to rely heavily to avoid the
liability was not even proved by summoning the concerned officer, who investigated the case and submitted the final report. When there was credible
and positive evidence that the accident occurred due to rash & negligent driving by the driver of the offending truck and such evidence remained un
impeached, mere production of the final report without even proving the same in accordance with the law or in absence of any other evidence, in my
considered view, was not sufficient to brush aside all the legal evidence brought on record, clearly establishing that the accident occurred due to fault
of the truck.
In the above facts and circumstances, I find that the insurer of the vehicle has not been able to substantiate its plea raised in the case and as such,
the present appeal appears to be without any merit and accordingly dismissed.
Send back the LCR.