Shri Laltanngaia vs Shri C. Zairemmawia

Mr. Michael Zothankhuma, J. (Oral)—Heard Mr. Zochhuana, learned counsel for the appellant. Also heard Mrs. Dinari T. Azyu, learned counsel for the respondent No. 2. This appeal has been filed by the claimant No. 1 in MACT No. 65 of 2007, who has challenged the dismissal of the claim petition by the learned Tribunal vide Judgment & Award dated 3.12.2014.

Office note dated 27.11.2015 and 22.2.2016 states that A/D Card has also been returned back after duly signed from the respondent No. 3

This Court vide its Order dated 24.2.2016 has stated that "as the Registry have received back copy of the A/D Card after being duly signed by the parties, service is complete on the respondents".

In respect of the respondent No. 1, Order dated 21.3.2016, states that affidavit of service had been submitted by the appellant in respect of the respondent No. 1. Accordingly, service was deemed to be completed against the respondent No. 1.

In the Order dated 7.4.2016, this Court has stated that if the respondent Nos. 1 & 3 do not appear at the time of hearing, the hearing may be conducted ex-parte against the respondent Nos. 1 & 3.

Today, none appears on behalf of the respondent Nos. 1 & 3. The matter is accordingly being heard ex-parte against the respondent Nos. 1 & 3.

The brief facts of the case is that the appellant/claimant No. 1 Laltanngaia preferred a claim petition due to the death of his daughter Krosmawii, in a motor vehicular accident involving one Tata Sumo VICTA-LX B/R No. MZ-06-0490 belonging to the respondent No. 1. The claim petition filed by the appellant was registered as MACT Case No. 65 of 2007. The claimant filed the case under section 166 of Motor Vehicle Act, 1988.

The respondent No. 3/claimant No. 2, claiming to be the husband of the deceased Krosmawii also filed a separate claim petition, which was registered as MACT Case No. 76 of 2007.

Both the MACT case Nos. 65 of 2007 and MACT Case No. 76 of 2007 were amalgamated by the learned Tribunal and both the cases were taken up under MACT Case No. 65 of 2007.

In view of the absence of the appellant and respondent No. 3 in the learned Tribunal, the learned Tribunal dismissed MACT Case No. 65 of 2007 vide Order dated 5.1.2009. The restoration petitions submitted by the appellant and the respondent No. 3 were dismissed. Thereafter the appellant herein filed a Civil Revision petition, i.e. CRP No. 5 of 2010 in this Court. CRP No. 5 of 2010 was disposed of vide Order dated 16.11.2011 as follows :

"In view of the aforesaid discussion, I am of the view that the tribunal was not justified in dismissing the delay condonation petition. Therefore, the same is interfered with. The delay in filing the restoration petition is hereby condoned. The restoration petition stands allowed. The tribunal will now proceed with the hearing of the MACT Case No. 65/2007. It is made clear that by this order only the MACT Case No. 65/2007 has been restored and not the MACT Case No. 76/2007.

Revision petition stands allowed."

The learned Tribunal thereafter took the evidence of the (1) CW No. 1, i.e. Attorney holder of the appellant, (2) CW No. 2, i.e., the proprietor of Zote Handloom Industries Limited, where the deceased had worked, (3) CW No. 3, i.e., the Assistant Inspector of Police who had conducted enquiry with regard to the motor vehicular accident. The learned Tribunal also took the evidence of the (4), the Attorney holder of the respondent No. 3. Altogether 4 (four) witnesses were examined by the learned Tribunal, i.e. CW-1, CW-2, CW-3 and witnesses of the respondent No. 3.

The learned Tribunal thereafter dismissed MACT Case No. 65 of 2007 vide Judgment and Award dated 3.12.2014 on the ground that :

(1) Income of the deceased had not been proved and

(2) Fault had not been proved.

Mr. Zochhuana, learned counsel for the appellant Laltanngaia submits that the accident occurred due to the slippery condition of the road. He also submits that the Driver of the vehicle was rash and negligent in his driving as the accident would not have occurred if the driver had taken due care and had driven slowly across the slippery road. The appellant''s counsel also submits that the vehicle having met with an accident due to the slippery road condition shows that the driver was negligent as other vehicles had not met with any accident on the said fateful date and on the same road. The appellant''s counsel also submits that the accident had occurred on the road between Chhiahtlang and Chhingchhip, which is a National Highway. The appellant''s counsel also submits that the income of the deceased was Rs. 4,500/-, as she was working as a Weaver under CW No. 2. He submits that CW No. 2 had also issued a Certificate, which is Ext. C-3, in which CW No. 2 has stated that he had employed the deceased from March 2006 as a Weaver @ Rs. 4,500/- p.m. The appellant''s counsel also submits that the doctrine of res ipsa loquitor proved the negligence of the driver and in support of his submission he has relied upon the Division Bench Judgments of this Court in the case of Bipal Bashi Das v. Oriental Insurance Company Ltd & Another reported in 2005 (3) GLT 407 and in the case of New India Assurance Co. Ltd v. Phelishsa Bakai & Ors reported in 2006(1) GLT 282].

The appellant''s counsel thus prays that the Judgment and Award dated 3.12.2014 passed by the learned MACT in MACT Case No. 65 of 2007 should be set aside and proper compensation should be paid to the appellant under Section 166 of the MV Act, by taking into account the income of the deceased at Rs. 4,500/- p.m.

Mrs. Dinari T. Azyu, counsel for the respondent No. 2 submits that the evidence on record clearly proved the fact that the accident occurred due to the slippery condition of the road and not due to the rash and negligent driving of the driver. She also submits that the claimant has not been able to prove the income of the deceased in view of the fact that the alleged employee of the deceased, i.e., CW2 has stated in his cross examination that the Income Certificate (Ext-C-3) was not prepared by him and that he did not know who had prepared Ext-C-3.

I have heard the learned counsels for the parties.

On perusal of the impugned Judgment and Award dated 3.12.2014, I find that the two issues that have to be decided by this Court is whether the appellant had proved the income of the deceased and whether there was any rash and negligent act on the part of the driver of the accident vehicle. In the case of Oriental Insurance Company Limited v. Meena Variwal reported in 2007 5 SCC 428, the Supreme Court has held as follows :-

"Therefore, the victim of an accident or his dependants have an option either to proceed under Section 166 of the Act or under Section 163-A of the Act. Once they approach the Tribunal under Section 166 of the Act, they have necessarily to take upon themselves the burden of establishing the negligence of the driver or owner of the vehicle concerned.

But if they proceed under Section 163-A of the Act, the compensation will be awarded in terms of the Schedule without calling upon the victim or his dependants to establish any negligence or default on the part of the owner of the vehicle or the driver of the vehicle".

On perusal of the materials on record, I find that the deceased expired on 30.5.2007 due to road accident. The deceased was 24 years old at the time of her death. With regard to the question of the appellant not having proved the income of the deceased, I find that CW1 had stated in his cross examination that the deceased had been staying with the respondent No. 3 since 1995 till her death and that the deceased did not have any income at the relevant point of time.

The evidence of CW2 is that he had not prepared the Income Certificate and he did not know the contents of the Income Certificate, but he had signed the same. CW2 was supposedly the employer of the deceased.

In view of the evidence given by the appellant''s witness, which were not in favour of the deceased, this Court cannot go beyond the evidence and thus holds that the finding of the learned Tribunal that the income of the deceased was not proved is proper. However, just because the income of the deceased is not proved does not mean that the notional income cannot be taken into account while computing the compensation to be paid to the appellant.

Accordingly, I find that even though the claim petition has been made under Section 166 of the Motoer Vehicles Act, 1988, the notional income of Rs. 3000/- should be taken for calculating the income of the deceased. This, however, will be subject to whether the present appeal passes the test of whether the evidence adduced shows any rash or negligent act on the part of the driver of the vehicle, which resulted in the accident.

With regard to whether there was any rash or negligent act on the part of the driver, which resulted in the accident, the evidence given by CW-3, i.e., the case I.O. is to the effect that on receiving information regarding the accident at about 12.20 pm, in between Chhingchhip to Chhiahtlang, he conducted the inquiry in the place of the occurrence. The opinion of the case I.O. was that the accident had occurred due to the slippery condition of the road and not due to the rash or negligent act on the part of the driver.

There is nothing in the evidence of the case I.O. to suggest that his opinion had been based after speaking to the eye witnesses to the accident or after questioning the driver of the vehicle. The decisions of the Division Bench of this Court, referred to by the Appellant''s counsel is with regard to the inference that can be taken by this Court, regarding an accident. However, the facts in this case are different from the facts of those cases and is accordingly distinguished.

The appellant should have at least made an application to the learned Tribunal for calling the driver as a witness. The question of whether due care had been taken by the driver before the vehicle met with an accident can be ascertained only by examining the driver and the case I.O. again. Accordingly, this Court finds that the driver and the case I.O. should be examined as per Order 41, Rule 27 (1)(b) CPC.

In view of the above reasons, the case is remanded back to the learned Tribunal, who shall thereafter call the case I.O. and the driver of the vehicle to give evidence in the case. This is the only way to ascertain whether there was any rash or negligent act on the part of the driver, which resulted in the accident.

With the above observations and decisions, the impugned Judgment and Award dated 3.12.2014 passed in MACT Case No. 65/2007 is hereby set aside.

It is made clear that as the respondent No. 3 has not made any challenge to the Judgment and Award dated 3.12.2014, the said respondent No. 3 cannot have any further claim with regard to the death of the deceased.

The appeal is accordingly disposed of.

Send back the LCRs.