Rakesh Debnath vs Ratan Chandra Das And Ors

[1] This appeal is filed by the original claimant to challenge an award dated 7th March, 2019 passed by the Motor Accident Claims Tribunal No.3, West Tripura, Agartala, in Title Suit (MAC) No.47/2017.

[2] Brief facts are as under:

According to the appellant original claimant, on 12.10.2016 he had gone to the house of opponent No.1, Ratan Chandra Das for colour work. At about 2.30 in the afternoon at his request, the opponent No.1 took the claimant on his motorcycle to drop him home. Just before reaching home of the claimant, the motorcycle slipped and fell down causing serious injuries to the claimant who was riding the motorcycle as a pillion rider. He was rushed to G.B.P. Hospital, Agartala, from where he was referred for further treatment to Peerless Hospital Neuroscience Centre on 13.10.2016. From there he was shifted to Calcutta and admitted at Peerless Hospital, Calcutta between 13.10.2016 to 28.10.2016. After his discharge also the claimant had to take follow up treatment. The claimant there upon filed above number claim petition seeking compensation of Rs.14,44,000/-from the owner-driver and the insurer of the motorcycle.

[3] Opponent No.1, owner appeared and filed his reply in which he admitted the incident in question in which while riding as a pillion rider the claimant had received injuries. He, however, claimed that the accident did not occur due to negligence on his part. His case was that on the road where they were travelling, few bricks had come off on account of which the motorcycle had fallen down. He further claimed that he had a valid driving license and the motorcycle was duly insured by the opponent No.2, insurance company.

[4] The insurance company had also filed reply in which none of the averments made in the claim petition were admitted. In the alternative it was stated that the insurance policy should be produced before the Tribunal so that insurance company can verify whether the owner had breached any of the terms of the policy.

[5] Before the Claims Tribunal the claimant examined himself as P.W-1. In his deposition he had stated that the accident occurred due to the negligence of the rider of the motorcycle i.e. opponent No.1. In the accident he had received serious injuries. He was treated at various hospitals. He had suffered loss of vision on account of injury on the eye. The claimant produced several documents of the medical treatment he had taken and the expenditure he had undertaken for the same. He also produced a disability certificate dated 30th August, 2017 issued by the District Disability Medical Board in which it was certified that the claimant had low vision disability which was assessed at 30%. It was further stated that such disability was temporary and that the claimant should be reassessed after five years.

[6] The opponent No.1 also examined himself before the Tribunal. In his deposition, he admitted that on his motorcycle he was going with the claimant as a pillion rider to drop him at his house when the accident occurred as a motorcycle had fallen down on the road. He reiterated that the motorcycle had fallen down because in the centre of the road some bricks had come off and there was a ditch on the road. This witness was cross-examined by the insurance company during which a suggestion was put by the insurance company that he was the rider of the motorcycle involved in the accident but that the accident did not occur on account of his negligence.

[7] The Claims Tribunal dismissed the claim petition by the impugned award disbelieving the very nature in which the claimant had received injuries. The Claims Tribunal noted that an intimation of the accident was made by the sister of the claimant before the airport police station nearly 28 days after the incident. She did not register an FIR against the person driving the motorcycle and that in her intimation to the police she had not made any allegation of the driver being negligent. The learned judge also recorded that in the intimation it was stated that the accident occurred because some people had stolen the bricks from the road. The Tribunal also recorded that the claimant had not examined his sister Uma Debnath. The Tribunal was of the opinion that as per the sister, the claimant had sustained injuries on his head but the claimant claimed permanent disability of his vision in the right eye. The medical papers did not support any injury on the eye. Primarily on such ground, the Tribunal refused to believe the manner in which the accident took place as suggested the claimant. In the result, the claim petition was dismissed. Since the claim petition was dismissed, the Claims Tribunal did not quantify the compensation that would otherwise be awardable to the claimants, nor went into the question of the liability of the insurance company to satisfy the award in case compensation were to be awarded.

[8] Having heard leaned counsel for the parties and having perused documents on record, I am of the opinion that the claims tribunal has committed a serious error in dismissing the claim petition. As noted from the beginning of the case of the claimant was that while returning from the home of the opponent No.1 on his motorcycle, he received injuries when the motorcycle slipped on the road. In his deposition, he had further elaborated that the accident occurred on account of negligent driving of the motorcyclist. The opponent No.1 in his written statement as well as in his deposition had admitted that he was driving the motorcycle on which the claimant was the pillion rider when the motorcycle slipped causing injuries to the claimant. His only case was that it was the case of pure accident and he was not negligent in driving. The insurance company in the cross-examination of opponent No.1 made no suggestion of his vehicle not being involved in the accident. Only two questions were put to this witness in the cross examination by the insurance company suggesting that he was ridding the motor cycle and that he was not negligent while driving. To both these suggestions the witness agreed. Thus, even the insurance company has not taken a serious defence of the claimant not receiving injuries during the accident in question in which the motorcycle owned by the opponent No.1 and driven by him was involved. The Claims Tribunal committed an error in disbelieving very accident as described by the claimant. The claimant had to be treated at G.B.P. Hospital, Agartala from where he was referred for further treatment to National Neurosciences Centre in the Peerless Hospital from where he was taken for further treatment to Calcutta. Obviously, the family would be worried about and occupied with the recovery of the injured. If, therefore, the intimation to the police was made somewhat late, that would not destroy the reliability of the deposition of the claimant. If the sister did not wish, an FIR being lodged against the opponent No.1 due to the relations, the same would also not be any indication of the involvement of the vehicle and the driver in the accident. The Claims Tribunal has also criticised the claimant for not examining any other eye witness of the accident. Firstly, the claimant himself was a witness. He, therefore, did not need support of any other eye witness. Secondly, when the claimant received such serious bodily injuries in an accident, he can hardly be expected to remember the people who might have seen the incident and could later on be summoned as witnesses. The Tribunal also found discrepancy in the nature of injury sustained by the claimant, totally ignoring the disability certificate which showed reduced vision.

[9] Having thus come to the conclusion that the claimant did receive injuries in the vehicular accident as suggested by him, the question of negligence of the rider of the motorcycle in causing such an accident survives. The claimant in his deposition has stated that the accident occurred on account of negligence of the opponent No.1 in driving the motorcycle which the opponent No.1 has denied in his deposition. However, going by the record of the case negligence of the opponent No.1 is writ large on the face of the record. Even by his own account, the motorcycle fell down on the road since there was a ditch in the centre of the road created by removal of a few bricks. The pothole on the road due to removal of few bricks, may be the reason for the motorcycle to have slipped and fallen down, the rider of the motorcycle cannot claim his innocence in causing the accident. The accident took place at about 2.30 in the afternoon, i.e. in broad daylight when the visibility would be clear. Secondly, the opponent No.1 has also not pleaded that the pothole on the road was at a turn where it was not possible for him to have seen the pothole in advance to be able to break the speed of the vehicle and to negotiate the pothole without any damage. Had the motorcyclist been driving the motorcycle at a moderate speed with due care and caution expected under normal circumstances, a mere pothole on the road which in the afternoon could be seen from a far distance, would not to have caused such a violent fall of the motorcycle and the pillion rider sitting on the motorcycle. In plain terms, the opponent No.1 failed to take basic care while riding the motorcycle which was the sole reason for occurrence of the accident in question.

[10] As noted, the Claims Tribunal has not assessed the compensation payable to the claimant, nor examined by the insurance company should be held liable to satisfy the award. These tasks must be performed by the Claims Tribunal at the first instance. While deciding the question of liability to the insurance company, a relevant question would be whether the insurance policy covered the risk of the pillion rider. While awarding compensation, the Claims Tribunal would have to ascertain the disability that the claimant had suffered. The disability certificate issued by the medical board was for a period of five years. The injury had to be re-assessed thereafter. Such a period is virtually over. The Claims Tribunal shall have the claimant examined by the medical board afresh and the disability certificate which may be issued shall be taken on record.

[11] In view of the above, the appeal is disposed of with following directions:

(i) The award of the Claims Tribunal dated 7th March, 2019 is set aside.

(ii) It is held that the claimant received bodily injuries in an accident which took place on 12th October, 2016 when he was travelling on the motorcycle as a pillion rider, the opponent No.1 being the rider of the motorcycle. It is further held that such an accident took place on account of rash and negligent driving of the motorcycle by the opponent No.1.

(iii) The proceedings are remanded back to the Claims Tribunal on the quantification of the compensation that should be awarded to the claimant and to decide whether the insurance company is liable to satisfy such award. While doing so, the claims Tribunal shall permit the claimant to produce further evidence of his disability at the present stage. He would be examined by the medical board. The disability certificate that may be issued shall be brought on record. The claimant will be required to examine the panel doctor. The insurance policy, if not on record, shall be allowed to be brought on record.

With these directions, the appeal is disposed of. Pending application(s), if any, also stands disposed of.