Ramisha Khatun and Others vs Sri Manjit Das and Others

Heard Mr. A. Mannaf, the learned counsel for the appellants. Also heard Mr. K. K. Bhatta, the learned counsel for the respondent No. 3/Insurance Company.

This appeal under Section 173 of Motor Vehicles Act, 1988 has been preferred by the appellants/claimants impugning the judgment and award dated 15.06.2019, passed by the Motor Accident Claims Tribunal, Barpeta, in MAC Case No. 124/2018, whereby the respondent No. 3/Insurance Company was directed to pay a compensation amount of Rs.8,60,000/- (Rupees Eight Lakh Sixty Thousand) along with an interest at the rate of 9% per annum to the present appellants. The appellants are basically aggrieved with the quantum of compensation awarded to them due to deduction of 50% from the computed compensation on account of contributory negligence.

The facts relevant for consideration of the instant appeal, in brief, are that on 02.04.2018, the husband/father of the present appellants, namely, late Abdul Mannan Akand was proceeding towards Barpeta from Chenga on his motorcycle bearing Registration No. AS-15-E-9367. When he reached Chenga Barbhita Para, one bus (Tata Star Bus) bearing Registration No. AS-01-FC-4588, being driven in a rash and negligent manner, coming from the opposite direction, hit the motorcycle from the front side. As a result of the aforesaid accident, the husband/father of the present appellants sustained severe injuries on his head and other parts of body. Though, the injured was immediately rushed to Chenga B.P.H.C., however, the doctors informed that he was brought dead to the hospital. After the accident, one police case, i.e., Tarabari P.S.Case No. 87/2018 under Sections 279/304(A) of the Indian Penal Code, was also registered at Tarabari Police Station.

Thereafter, the present appellants being the wife/daughters of the deceased, Abdul Mannan Akand filed an application under Section 166 of the Motor Vehicles Act claiming compensation on account of death of their husband/father in the aforesaid motor vehicular accident. The said application was registered as MAC Case No. 124/2018 before the Motor Accident Claims Tribunal, Barpeta.

The owner of the offending vehicle did not contest the claim case filed by the present appellants and the inquiry proceeded ex-parte against him. However, the present respondent No. 3 (the Insurance Company) as well as the driver of the offending vehicle filed written statement denying fault on their part.

On the basis of pleadings of both the parties, the Motor Accident Claims Tribunal, Barpeta formulated following issues: -

The claimants examined the claimant No. 1 as the sole witness in support of their claim and exhibited certain documents including the accident information report, the post-mortem examination report and FIR.It also appears that the Tribunal had also gone through the case diary of Tarabari P.S. Case No. 87/2018 as well as other documents, which includes the charge-sheet, seizure list, sketch map etc. The insurance company did not adduce any evidence to counter the claim of the claimants.

Ultimately, by the judgment which has been impugned in this appeal, the Tribunal computed the damages sustained by the appellants on account of death of their husband/father to the tune of Rs.17,20,000/- (Rupees Seventeen Lakh Twenty Thousand). However, the Tribunal came to the finding that there was contributory negligence on the part of the deceased and as such, the claimants were found to be entitled to 50% of the total compensation computed by the Tribunal, which comes to Rs.8,60,000/- (Rupees Eight Lakh Sixty Thousand) along with an interest at the rate of 9% per annum.

Mr. A. Mannaf, the learned counsel for the claimants/appellants has submitted that the Tribunal has committed an error in deducting 50% of the total computed compensation amount on account of contributory negligence by the deceased. He submits that the Tribunal erred in coming to the conclusion that there was a contributory negligence on the part of the deceased without there being any evidence on record to that effect from the Insurance Company or from the driver of the offending vehicle.

He submits that the law in this regard has been settled by a catena of judgment of the Apex Court as well as by this Court that mere pleading of contributory negligence in the written statement is not sufficient to come to the conclusion that there was a contributory negligence on the part of the deceased/claimant. The plea of contributory negligence has to be proved by adducing cogent evidence in that regard by the respondents, which is not done in this case.

The learned counsel for the appellants submits that the Tribunal took a contradictory view in the impugned judgment wherein it observed that it is not clear as to the manner in which the alleged accident had actually occurred. However, at the same time, it held both the vehicles involved in the accident equally responsible, even though there was no evidence to that effect on record. He, therefore, submits that the impugned judgment and award is required to be modified to the extent that the deduction of 50% of the total computed compensation amount by the Tribunal on account of alleged contributory negligence of the deceased should be set aside and the appellants may be awarded the entire computed compensation amount of Rs.17,20,000/- (Rupees Seventeen Lakh Twenty Thousand). In support of his submission, the learned counsel for the appellants has cited following rulings: -

On the other hand, Mr. K. K. Bhatta, the learned counsel for the respondent No. 3/Insurance Company has submitted that the Tribunal has rightly arrived at a conclusion that there was a contributory negligence on the part of the deceased, Abdul Mannan Akand. He submits that the claimants by adducing the evidence of sole witness, i.e., the claimant No. 1 have failed to establish the fact of rash and negligent driving by the driver of the offending vehicle.

He submits that the present appellants/claimants have also failed to adduce charge-sheet, which was submitted in Tarabari P.S. Case No. 87/2018 against the driver of the offending Star Bus (Tata). He submits that it is only the Tribunal after going through the case diary of the Tarabari P.S. Case No. 87/2018 came to the finding that since the damage of frontal side of the bus on left-hand side as well as damage of front side of the motorcycle (visor, headlight, handle, front indicator and front shock absorber) indicates that there was a head-on collision between both the vehicles and since the accident took place on the left side of the road, there seems to be contribution of both the driver of the colliding vehicles and, therefore, he submits that the Tribunal was correct in coming to the finding regarding contributory negligence on the part of the driver of the motorcycle also.

He submits that while arriving at the said conclusion, apart from the documents exhibited by the PW-1, the Tribunal also considered the extract copy of Tarabari G.D. Entry No. 18/15 dated 02.04.2018 as well as charge-sheet No. 100/2018, seizure list, reports of the MVI and sketch map. Hence, he submits that the conclusion arrived at by the Tribunal holding that there was a contributory negligence on the part of driver of the motorcycle (the deceased) is not without any basis and same needs no interference by this Court in exercise of its appellate jurisdiction.He, therefore, submits that this appeal is liable to be dismissed.

I have considered the submissions made by the learned counsel for both sides and have gone through the materials available on record. I have also gone through the rulings cited by learned counsel for both sides in support of their respective submissions.

The point to be determined in the instant appeal is as to whether the Motor Accident Claims Tribunal was right in attributing contributory negligence on the part of the deceased, that is, the driver of the motorcycle bearing registration number AS-15E-9367, and thereafter deducting 50% of the compensation computed in this case on account of contributory negligence.

It appears that though the claimant No. 1 has adduced her evidence as witness for claimants' side, she was not the eyewitness to the accident. However, it is also pertinent to note herein that neither the Insurance Company nor the driver of the offending vehicle, who had filed written statement in MAC Case No. 124/2018 before the Motor Accident Claims Tribunal, had adduced any evidence to counter the claim of the claimants or to prove the fact that there was any contributory negligence on the part of the deceased.

On perusal of the impugned judgment, it appears that the Tribunal on the one hand has opined that it is not clear as to what exactly occasioned the alleged accident; however, on the other hand, it assumed that the accident took place due to contribution of both the drivers of the colliding vehicles. It appears that the Tribunal arrived at the said finding merely because of the fact that the MVI report suggested that front side of the motorcycle and left frontal side of the bus got damaged in the accident.

This Court is unable to persuade itself to agree with the findings arrived at by the Motor Accident Claims Tribunal, by which it attributed contributory negligence on the part of the deceased, that is, the driver of the motorcycle involved in the accident, without there being any evidence to that effect on record.

It is well-settled proposition of law that to attribute contributory negligence on the claimant's side, the insurance company or the owner and driver of the other vehicle had to not only plead the contributory negligence, but have also to adduce evidence to prove the same.

In the instant case, the Motor Accident Claims Tribunal failed to take into consideration that Tarabari P.S. Case No. 87/2018 was registered under Section 279/304A of the Indian Penal Code against the driver of the offending bus bearing registration number AS-01FC-4588, and it also appears that in the said case, charge-sheet has been laid against the driver of the offending bus. As such, there are sufficient materials on record to come to the finding that it was the driver of the bus who was at fault for causing the accident in which the husband/father of the claimants died.

It is also well-settled proposition of law that in a case under Section 166 of the Motor Vehicles Act, wherein the claimants have claimed compensation on account of death of their relative on which they were dependent, the claimants have to establish their case on the touchstone of preponderance of probability and not on the basis of proof beyond reasonable doubt.

In the instant case, materials on record including the FIR as well as charge-sheet which was laid in Tarabari P.S. Case No. 87/2018 against the driver of the offending bus bearing registration number AS-01FC-4588, which was perused by the Motor Accident Claims Tribunal in the aforesaid inquiry, are sufficient to come to the finding of rash and negligent driving on the part of the driver of the bus bearing registration number AS-01-FC-4588. However, apart from the fact that the front side of the motorcycle got damaged in the said accident, there is nothing to suggest that there was contributory negligence on the part of the driver of the motorcycle. In every accident where there is head-on collision between two vehicles, negligence may not be attributed on the part of the driver of both the vehicles. It depends on facts and circumstances of each case, which has to be proved by adducing evidence. If contributory negligence is pleaded, same has to be provedby the party who is asserting it, in absence of which it is not open for the Tribunal to attribute contributory negligence on the deceased.

In the instant case, when the Tribunal has perused the charge-sheet laid against the driver of the offending bus, and wherein no specific indication is there regarding any negligence on the part of the deceased who was riding the motorcycle, there was no basis for the Tribunal to come to a finding of contributory negligence on the part of the driver of the motorcycle/deceased. The Tribunal has erred in assuming contributory negligence on the part of the deceased merely because of the fact that there was head-on collision between motorcycle and the offending bus.

As such, this Court is of the view that the conclusion arrived at by the Tribunal in the impugned judgment, whereby it has attributed contributory negligence on the part of the deceased, that is, driver of the motorcycle, is liable to be set aside to that extent, which this Court accordingly does.

In view of the discussions made in the foregoing paragraphs and reasons stated therein, this Court is of considered opinion that there was no contributory negligence on the part of the deceased, and as such, the insurance company is liable to pay the entire compensation amount computed by the Motor Accident Claims Tribunal, that is, Rs. 17,20,000/- along with an interest at the rate of 9% per annum from the date of filing of the claim petition till realization of the entire amount.

In view of the above, the respondent No. 3 Insurance Company is directed to deposit the outstanding dues against the final compensation amount computed by this Court, which is payable to the claimants, before the Registry of this Court within a period of six weeks from the date of this judgment. In the event of deposit of same, it shall be disbursed to the claimants after proper verification.

This appeal is accordingly allowed.

Let the records of MAC Case No. 124/2018 be sent back to the concerned Motor Accident Claims Tribunal along with a copy of this judgment.