Seeta Devi And Others vs Navin Kumar Gupteshwar And Others

Rajesh Kumar, J

The present miscellaneous appeal has been filed against the order dated 08.03.2010, passed by the court of learned District Judge -cum- M.A.C.T., Godda in M.A.C.T Case No.51 of 2008, whereby 20% amount of the compensation of the claimants has been deducted on the ground of contributory negligence on the part of the deceased.

The wife and children of the deceased have approached for grant of compensation due to death of the deceased in road accident involving offending Maruti Van bearing registration No.BR-10E-7323 and the motorcycle driven by the deceased. It has been alleged that Maruti Van was being driven rashly and negligently and this was the cause of the accident. The learned Tribunal has framed four issues at Para - 5 of the impugned judgment, which is quoted herein below :-

(i) Whether the petition as framed and filed is maintainable ?

(ii) Whether the death of Anirudh Kr. Thakur on 16.11.2007 was caused by rash and negligent driving of the driver of the Maruti Van bearing registration No.BR-10E-7323 ?

(iii) Whether the Driver of the Vehicle was having a valid and effective driving licence at the time of accident and whether the owner of Maruti Car No.BR-10E-7323 was having a valid and effective Insurance Policy ?

(iv) To what amount of compensation the claimants are entitled to and from whom ?

The objection has been raised regarding the issue No.

(iii) only and rest of the issues have not been raised before this Court.

The learned Tribunal, after appreciating the evidence and argument advanced by the respective parties, has decided the issue No.(iii) partly in favour of the claimants/ appellants and partly against them, holding that the deceased could not produce the driving licence and he was driving the motorcycle without having the driving licence, and as such, there is contributory negligence on his part, and accordingly 20% of the amount has been deducted from the assessed compensation amount.

Learned counsel appearing on behalf of the appellants/ claimants, has relied upon the judgment of the Hon'ble Apex Court in the case of Sudhir Kumar Rana Vs. Surinder Singh & Ors. reported in 2008 (2) T.A.C 769 (SC), wherein it has been held by the Hon'ble Supreme Court that if a person drives vehicle without a licence, then he commits an offence and this in itself cannot lead to a finding of negligence qua the accident.

Further, upon relying on the judgment of the Hon'ble Apex Court in the case of Minu Rout & Anr. Vs. Satya Pradyumna Mohapatra & Ors., reported in 2013 (4) T.A.C 840 (S.C), it has been contended that in the absence of rebuttal evidence regarding negligence or positive evidence and without recording negligence, no findings can be recorded.

It has been argued by the learned counsel that in the present case oral evidence has been adduced by the claimants that the accident had taken place on the left flank of the road. The motorcycle was being driven by the deceased cautiously on the left flank and the offending Maruti Van was being driven rashly and negligently on the wrong side. There is no rebuttal of the said evidence. Only on the ground of non-production of the driving licence, the contributory negligence has been attributed upon the deceased and accordingly 20% of the compensation amount has been deducted by the Tribunal. On the above facts, it has been submitted by the learned counsel that the order of deduction of 20% amount of the compensation, by the Tribunal, should be set aside.

On the other hand, learned counsel appearing on behalf of the Insurance Company/ respondent No.3, has opposed the prayer. Firstly, it has been submitted that in the prayer portion of the present appeal it has been prayed that 20% amount should be given to the claimants, but no modification of the impugned order has been prayed for by the claimants. Further, the learned Tribunal has relied upon the judgment of the Hon'ble Jharkhand High Court, and as such, the Tribunal has committed no error while passing the impugned judgment.

Having heard learned counsel for the parties and on perusal of the impugned order, it appears that the factum of accident and the death of the deceased have not been disputed. The quantum has also not been disputed. The only issue raised regarding the contributory negligence and the learned Tribunal has deducted 20% of the compensation amount on account of contributory negligence on the ground of non-production of the driving licence by the deceased, who at the time of accident was driving the motorcycle. There is no evidence in rebuttal or positive evidence suggesting any negligence on the part of the deceased. On the other hand, there is ample evidence, including the oral evidence, suggesting the rash and negligent driving by the offending Maruti Van. The Tribunal has also found negligence on the part of the Maruti Van.

The mandate of the Apex Court is very loud and clear that only the absence of the driving licence is not a ground for holding the contributory negligence. It is also noted that the F.I.R was lodged for the accident and the police after investigation has lodged the case against the offending Maruti Van only. Thus, negligence on the part of the Maruti Van has been found by the police authority as well as by the learned Tribunal.

In view of the above discussions, the impugned order dated 08.03.2010, passed in M.A.C.T Case No.51 of 2008, is hereby, modified to the extent that 20% of the amount deducted towards contributory negligence is, hereby, set aside. Consequently, the Insurance Company/ respondent No.03, is directed to deposit Rs.1,56,910/- (Rupees one lakh fifty six thousand nine hundred and ten only) with 6% simple interest from the date of accident till the date of payment of the ordered compensation amount (already paid as submitted), as ordered by the Tribunal, in the court below, within six weeks from the date of receipt / production of copy of the order. The amount so deposited by the Insurance Company shall be disbursed in favour of the claimants.

The miscellaneous appeal stands disposed of.