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Judgment
This is an appeal under Section 173 of the Motor Vehicles Act, 1988 (as amended upto date) challenging the judgment and award dated 29.03.2019 passed by the learned Member, Motor Accident Claims Tribunal, Shillong (in short the "Tribunal") in M.A.C. Case No.42 of 2012, whereby, compensation to the tune of Rs. 10,59,200/- has been awarded to the claimant along with interest @ 9% per annum from the date of filing of the petition i.e. 19.09.2012 till payment. The liability has been fastened upon the appellant-Insurance Company. Hence, the present appeal has been filed.
Briefly, the relevant facts as narrated in the appeal may be noticed.
The appellant claims that the deceased Shri Bir Bahadur Lama was travelling in the Maruti Omni Van which was hit by Shaktiman truck which was driven in a rash and negligent manner on the wrong side of the road by the driver as per the FIR dated 10.11.2011 filed by one Shri Lamsar Rymbai. Thereafter, police had registered the case as Jowai PS Case No.161(11)2011 under Sections 279/427/338/304A IPC against the driver of Shaktiman truck namely Shri Nihon Dan (respondent No.3).
According to the appellant, the claimant (respondent No.1 herein) in her claim petition had claimed Rs. 13,12,000/-. The notices were issued by the Tribunal. The claimant (respondent No.1 herein) as well as opposite party No.5 (appellant herein) entered appearance. Upon receipt of notice from the Tribunal, the appellant filed the written statement rebutting its liability and also the averments made in the claim petition inasmuch as, as per the material available on record, it was the Shaktiman truck bearing registration No.ML 04 8217 was the offending vehicle. The Tribunal as recorded in its order dated 22.05.2013 had proceeded ex parte against the opposite party No.1 the registered owner of Shaktiman truck bearing registration No.ML 04 8217 and opposite party No.2 Shri Nihon Dan, the driver of Shaktiman truck, whereas, the owner and driver of the Maruti Omni Van entered appearance and contested the case. The Tribunal had framed the following issues on the basis of the pleadings of the parties. For ready reference, the issues framed by the Tribunal are reproduced hereunder:-
"(i) Whether the instant claim is maintainable in its present form?
(ii) Whether this Tribunal has the jurisdiction to try this claim?
(iii) Whether there is any cause of action in filing this claim petition?
(iv) Whether the accident occurred to the rash and negligent driving of the vehicle No.ML-04-8217 (Shaktiman) or vehicle No.ML-04-A-6723 or was it head on collision of both?
(v) Whether the claimant is entitled to compensation, if so, to what extent?
(vi) Who is liable to pay compensation?
The respondent No.1 had examined three witnesses including herself, opposite party No.3 (respondent No.4 herein) opposite party No.4 (respondent No.5 herein) the driver of Maruti Omni Van bearing registration No.ML 04-A-6723 had also adduced evidence of one witness, Shri Princestone Rymbai (OP4), the driver of the vehicle No.ML 04-A-6723 as OP No.1.
The learned Tribunal after hearing the parties passed the impugned judgment and award dated 29.03.2019 holding that the insurer of Maruti Omni van is liable to pay the entire compensation of Rs. 10,59,200/- along with interest @ 9% per annum from the date of filing of the petition till payment. Hence, the appeal for quashing and setting aside the judgment and award dated 29.03.2019 passed by the Tribunal.
Learned counsel for the appellant, inter alia, submitted that the accident had taken place due to rash and negligent driving of Shaktiman truck and not on account of negligence of the driver of Maruti Omni van bearing registration No.ML 04-A-6723 which was insured with the appellant-Insurance Company. It was urged that the Tribunal had erred in deciding issue No.4 and erroneously observed that the accident took place due to rash and negligent driving of Maruti Omni van bearing registration No.ML 04-A-6723 which was operating from Shillong to Jowai carrying five passengers.
The said contention of learned counsel for the appellant was opposed by learned counsel for the respondent No.1-claimant.
I now proceed to examine the evidence led in respect of issue No.IV to assess whether the accident had taken place due to rash and negligent driving of Maruti Omni van bearing registration No.ML 04-A-6723. Claimant had examined CW2 Shri Tyrshan Dkhar who was travelling as a passenger in the Maruti Tourist taxi Van No.ML 04-A-6723 from Shillong to Jowai. He had deposed in the affidavit that on 10.11.2011 he was travelling from Shillong to Jowai and when the vehicle reached near Shallam Syngkon Petrol Pump, he saw that the driver of the said vehicle started shouting that brake had failed and he became nervous and could not control the vehicle whereupon it hit a Shaktiman bearing registration No.ML 04 8217 which was coming from the opposite direction. He further opined that the accident was due to rash and negligent driving of Maruti Omni Van No.ML 04-A-6723. Claimant also examined CW3, Shri Eibormi Siangshai who had deposed that on 10.11.2011 at about 8:45 AM, he saw an accident at Shillong-Jowai Road NH44 near Shallam Syngkon Petrol pump between a Maruti Omni van bearing registration No.ML 04-A-6723 and Shaktiman truck bearing registration No.ML 04 8217 coming from Shillong side in a zigzag way and seeing the said vehicle coming in his way, he pushed himself to the extreme corner of the road and the driver of Maruti Omni van could not control the vehicle and suddenly hit the shaktiman truck coming from the opposite direction. For reference, the statement and cross examination of CW3 is reproduced as under:-
"CW 3 Shri Eibormi Siangshai in his evidence filed by way of an affidavit had deposed that "on 10.11.2011 at about 08:45 AM, I saw a Motor Vehicle Accident at Shillong-Jowai Road, N.H.44 near Shallam Syngkon Petrol Pump between a Maruti Tourist Taxi Van bearing No.ML 04-A-6723 and a Shaktiman Truck bearing registration No.ML 04-8217. The Tourist Van was coming from Shillong side in a zigzag way as its breaks had failed and seeing the said vehicle coming in this way, I pushed myself to the extreme corner of the road. Then suddenly the driver of the said Tourist Van was not able to control the vehicle and it suddenly hit a Shaktiman which was coming from the opposite direction. I can say that the accident took place due to the fault of the driver of the Maruti Tourist Taxi Van who drove the vehicle in a rash and negligent manner.
In his cross examination he stated that "it was about 3 metres distance I saw the tourist van came in a zigzag way. Since I saw that the van was coming in a zigzag way I said that the fault is of the Maruti van. The number of the Maruti van is ML 04-A-6723. Yes the accident took place in the middle of the road. I do not agree to the suggestion that whatever I have deposed today is just to help the claimant."
Next, OPW1 Shri Princestone Rymbai had deposed that on 10.11.2011, when he was driving the Maruti Omni van bearing registration No.ML 04-A-6723 from Shillong to Jowai suddenly the brake of the vehicle failed and he could not control the same and also he do not remember at what time his vehicle got hit as he was unconscious. OPW1 in his cross examination had stated that before starting the journey from Shillong he had checked the brake of the vehicle and found that there was a little problem in the functioning of the brake and he thought he will check it later. He also stated that the accident which occurred on 10.11.2011 was exclusively due to his negligence. For reference, statement and cross examination of OPW1 is reproduced as under:-
"OPW 1 Shri Princestone Rymbai in his evidence filed by way of an affidavit had stated that "on 10.11.2011, I was driving the aforesaid Maruti Tourist Taxi Van ML 04-A-6723 from Shillong to Jowai carrying 5 passengers besides me and when the said vehicle reached at Shallam Syngkon Petrol Pump at about 8:45 AM, the break of the vehicle suddenly failed and thereafter I became nervous and I could not control the vehicle and in the nervousness I don't know at that time where my vehicle got hit as I became unconscious.
In his cross examination he had stated "I state that before starting my journey from Shillong I have checked the brake of the vehicle I found that there is a little bit of disturbance in the functioning of the brake and I thought that I will get it check later after I reach Jowai. It is a fact that the accident that occurred on 10.11.2011 was solely due to my negligence."
The Tribunal under issue No.IV on appreciation of the above evidence had recorded that the accident on 10.11.2011 between Maruti Omni Van bearing registration No.ML 04-A-6723 operating from Shillong to Jowai and Shaktiman truck No ML 04 8217 was due to rash and negligent driving of the driver of Maruti Omni Van No. No.ML 04-A-6723. After hearing learned counsel for the parties, and in view of the above, it cannot be said that the Tribunal has erred in adjudicating issue No.IV holding the driver of Maruti Omni Van No.ML 04-A-6723 to be negligent.
Accordingly, I do not find any ground to interfere with the award of the Tribunal and finding no merit in the appeal, same is hereby dismissed.
The record of the Tribunal be returned forthwith.