Saimawii vs Government of Mizoram and Others

Lanusungkum Jamir, J.

Heard Mrs. Dinari T. Azyu, learned Counsel appearing for the appellant as well as Mr. A.K. Rokhum, learned Addl. Advocate General, Mizoram for the respondent No. 1 and Mr. Zochhuana, learned Counsel appearing for the respondent No. 2 i.e. United India Insurance Co. Ltd. This appeal is directed against the judgment and award dated 20th June, 2014 passed by the learned MACT, Aizawl in MACT Case No. 33/2010 whereby the claim petition of the claimant was dismissed. Being aggrieved by the dismissal, the present appeal has been filed.

Mrs. Dinari T. Azyu, learned Counsel appearing for the appellant submits that the appellant has filed MACT Case No. 33/2010 claiming for compensation due to the death of her husband late Sh. K. Vanlallawma (L) in a collision with a truck on 13th May, 2007. The deceased (husband of the appellant) was driving a motorcycle bearing Registration No. MZ01B-6500 on 13th May, 2007 driving towards Kolasib to Vairengte when he was struck by one truck bearing Registration No. MZ-01-B6500. The claimant husband was struck by the rear right side of the truck driven by an employee of the respondent No. 1 who was holding a valid driving licence. After the accident, the deceased was taken to Vairengte CHC (Hospital) on the date of the accident i.e. 13th May, 2007 at around 10.30 a.m. and he succumbed to his injury and died at around 4.30 p.m. the same day. The husband of the claimant/deceased was a Government servant working as Jail Warden and was earning a monthly salary of Rs. 8,234. At the time of the death, the deceased was 45 years of age.

Mrs. Dinari T. Azyu, learned Counsel appearing for the appellant, submits that after filing of the claim petition, the learned Tribunal examined 4 claimant witnesses and 2 witnesses of the opposite party No. 1 and 1 witness of the opposite party No. 2. Thereafter, the claim petition was disposed by the learned Tribunal awarding an amount of Rs. 8,65,836 along with interest @ 9% per annum in favour of the claimant/appellant. The opposite parry No. 2/respondent No. 2 had approached this Court by way of MAC Appeal No. 5/2013 against the said judgment and award dated 15th November, 2012. This Court after hearing the parties had disposed of the said appeal by judgment and order dated 20th March, 2014 remanding the matter back to the learned Tribunal for re-hearing of the claim petition within a period of 2 (two) months. It is further submitted that on remand, the learned Tribunal had proceeded to rehear MACT Case No. 33/2010 and thereafter dismissed the said claim petition on the ground that the accident occurred due to the rash and negligent driving on the part of the deceased and there was no fault on the part of the driver of the truck.

Mrs. Dinari T. Azyu, learned Counsel appearing for the appellant, submits that the learned Tribunal has erred in law as well as in facts inasmuch as it had failed to appreciate the evidence of the claimant, more particularly CW2 who has stated that the bike collided with one truck near Vairengte. He also deposed that the bike had hit the rear right side of the truck while approaching from the opposite side which would indicate that the bike was on the correct side. However, the learned Tribunal had failed to appreciate this evidence and had come to the finding that there was rash and negligent driving on the part of the deceased. The learned Counsel for the appellant also submits that in the final report of the police, it was indicated that the Motorcycle had hit the rear right hit of the truck. In the examination of the said ASI as CW2, he had stated that the bike had hit the right side of the truck. The report was exhibited as Exhibit M-1 and the said ASI was examined as CW2. The learned Tribunal should have considered the facts that there was fault on the part of the driver who was driving the truck. As the learned Tribunal had not considered such aspect, the impugned judgment and order being not sustainable should be set aside.

She further submits that the learned Tribunal had considered only the FIR and the cross-examination of the CW2 without considering the element of contributory negligence. It is the further submission of the learned Counsel for the appellant that as both the driver and the I.O. of the case being employees of the respondent No. 1, it was therefore natural that they would have covered up the negligence on the part of the driver driving the truck. In such a case, the learned Tribunal should have fairly examined all the evidences before the Tribunal and thereafter should have come to a proper and just finding without just relying on the FIR and the cross-examination of CW2. In the fact and circumstances of the case, she submits that the impugned judgment and order dated 20th March, 2014 be set aside and quashed and the appellant be awarded compensation for the death of her husband who died due to the accident that occurred on 13th May, 2007. In support of her case, the learned Counsel for the appellant has placed reliance in the case of Raj Rani and Others Vs. Oriental Insurance Co. Ltd. and Others, .

Mr. A.K. Rokhum, learned Addl. Advocate General, Mizoram appearing for the respondent No. 1, submits that the vehicle has been insured under the respondent No. 2 and at the time of accident, the vehicle was having a valid insurance policy and therefore submits that if any liability is cast, the same should be cast on the respondent No. 2.

Mr. Zochhuana, learned Counsel appearing for the respondent No. 2 i.e. United India Insurance Co. Ltd., submits that in the present case, the claimant/appellant had miserably failed to prove rash and negligent driving on the part of the driver of the truck. From the evidence on record as well as the police report and the FIR that has been filed, it clearly indicates that the fault lies with the deceased who was driving the motorcycle in a rash and negligent manner. Such evidence are also the evidence of the claimant and not of the opposite party. He also submits that the claim petition was filed under Section 166 of the MV Act and therefore if the claimant/appellant is to be awarded any compensation, the rash and negligent driving of the driver of the truck should be proved without any iota of doubt. This being not done, at best the claimant is entitled to award under Section 140 of the MV Act and not otherwise. He therefore, submits that the present appeal be dismissed.

I have considered the submissions forwarded by the learned Counsel appearing for the respective parties.

There is no dispute that the accident occurred on 13th May, 2007 when the deceased was driving from Kolasib toward Vairengte. He was hit by the rear right side of the truck and succumbed to his injury due to the said accident. At the time of the accident, the deceased was serving as a Jail Warden with salary of Rs. 8,234 per month and was aged about 45 years.

The only question that arises before this Court is whether there was rash and negligence on the part of the driver of the truck or whether in the facts and circumstances of the case, contributory negligence would be held against both the parties. From the evidence of record, it is seen that the motorcycle had hit the rear right side of the truck. From such evidence, it becomes clear that the motorcycle was travelling on the right side of the road. CW2 in his cross-examination stated that the accident was caused due to the rash and negligent on the part of the deceased.

However, considering the ratio laid down by the Hon''ble Supreme Court in the case of Raj Rani (supra) as relied upon by learned Counsel for the parties, it is seen that in the said accident, the truck was stationary and, therefore, the Hon''ble Supreme Court had decided that there was contributory negligence on the part of the deceased.

In the present case in hand, both the vehicles were moving towards each other in the opposite direction. This Court considers that it would have been prudent on the part of the truck driver to have at least put the brakes to avoid the accident. It appears that no evidence has been led by the opposite party/respondents before the learned Tribunal that the driver of the truck had applied the brake in order to avoid such accident. Such being the position, this Court while subscribing to the ratio laid down by the Hon''ble Supreme Court in the case of Raj Rani (supra), as well as considering the facts and circumstances in the present case is of the considered opinion that contributory negligence can be cast upon the driver of the truck.

Accordingly, the appellant is entitled to compensation. The appellant shall be, therefore, entitled to a compensation award of Rs. 6,02,870 (Rupees six lakh two thousand eight hundred seventy) only which is worked out as under:

The respondent No. 2 i.e. United India Insurance Co. Ltd. is directed to pay the compensation award of Rs. 6,02,870 (Rupees six lakh two thousand eight hundred seventy) only along with interest at the rate of 9 percent from the date of filing of the claim petition till realization in full. Appeal is allowed. No costs.