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Judgment
Heard Mr. A. Mannaf, learned counsel for the appellant and Mr. K.K. Dey, learned counsel for the respondent.
This appeal is by the claimant against the judgment and award dated 11.01.2016 passed by the MACT, No. 3, Kamrup, Guwahati in MAC Case
No. 1830/2010.
The facts of the case in a nutshell, which may be necessary for disposal of this appeal are that on 18.04.2010, Bapan Saha was proceeding by riding his motorcycle from Sarbhog towards Roy Petrol Pump. When he reached near Gandaguri diversion of the National Highway, the offending vehicle bearing registration No AS-15-C-1838, which was coming from the opposite direction and driven in a rash & negligent manner hit the motorcycle and as a result of the accident Bapan Saha sustained injury and died. The parents and other legal representatives of the deceased filed a claim petition before the MACT seeking compensation and the learned Tribunal, by the impugned award granted a compensation of Rs. 5,84,000/-.
However, learned Tribunal attributing 50% contributory negligence to the deceased, deducted 50% of the compensation determined by the Tribunal and directed the respondent insurer of the vehicle No. AS-15-C-1838 to satisfy 50% of the award.
Aggrieved by the said judgment and award, the claimant preferred the instant appeal.
Learned counsel Mr. A. Mannaf, for the appellant, submits, that the specific case of the claimant was that the accident occurred solely due to the rash & negligent driving of the offending vehicle No. AS-15-C-1838 and adduced evidence to that effect. However, learned Tribunal without considering the evidence and materials brought on record, attributed 50% contributory negligence to the deceased, erroneously without any pleading or evidence. In absence of any evidence and pleading from the side of the insurance company, there could not be any automatic presumption for contributory negligence, submits Mr. Mannaf. Further contention of Mr. Mannaf is that though the deceased was a young businessman having good earnings, learned Tribunal without considering his real income, assumed a paltry notional income of Rs. 3000/- per month and thereby failed to award a just and fair compensation. In order to buttress his submission, Mr. Mannaf placed reliance on the following decisions:
(i) Godavari Devi Sharma & Ors. Vs. United India Insurance Co. Ltd. & Ors. reported in 2012 (4) GLT 516;
(ii) Raba Laxmi Debbarma & Ors. Vs. Nupur Deb & Anr. Reported in 2010 (2) GLT 93 and
(iii) Bangalore Metropolitan transport Corporation Vs. padma & Ors. reported in (2009) 3 SCC 285
Mr. K.K. Dey, learned counsel for the Insurance Company submits, that the accident occurred due to head and collusion of two vehicles and no eye witness could be examined by the claimant and in that circumstances, learned Tribunal rightly apportioned the liability attributing negligence to both the vehicles equally, and as such, the finding of the learned Tribunal did not suffer from any illegality or irregularity warranting interference by this court.
So far the income is concerned, except a casual statement of the claimant that the deceased was doing petty business, no other evidence was brought on record, to prove the income of the deceased. It is understandable that, it may not be possible to adduce any documentary evidence of income by a person engaged in unorganized sector. But atleast some evidence with regard to specific avocation of the deceased required to be adduced to enable the court to assume a reasonable income, which is also absent in this case. This apart, the learned Tribunal already added future prospect to the extent of 50%, which appears to be on higher side. Therefore, in absence of any evidence atleast to show the actual occupation of the deceased and the fact, that Tribunal already granted future prospect on higher side, I am of the view that no further enhancement to the income is necessary in the instant case.
So far the question of contributory negligence is considered, the specific case in the claim petition and also in evidence of the claimant was that the accident occurred solely due to rash & negligent driving of the offending vehicle No. AS-15-C-1838. In support of the plea, the claimant examined one witnesses as PW-2 and exhibited the accident information report (Ext.1) as well as charge sheet (Ext.5) submitted by police after investigation.
Evidently, no eye witness was examined. Though, PW-2 was sought to be projected as eye witness, from his cross examination it appears that he was not an eye witness, as he arrived the place of occurrence lateron, hearing about the accident. Though, the claimant came with a specific plea in the claim petition that the accident occurred solely due to rash & negligent driving of the offending vehicle, the Insurance Company did not take any plea in the written statement that there was any contributory negligence on the part of the deceased, nor any evidence was adduced to that effect. The driver of the offending vehicle, who was an eye witness of the occurrence, could have controverted the plea of the claimant that the accident occurred solely due to rash & negligent driving of the driver of the offending vehicle, but neither the driver nor the owner came forward to challenge the claim of the claimant that the accident occurred solely due to rash & negligent driving of the driver of the offending vehicle. The case of the claimant that the accident occurred solely due to rash & negligent driving of the driver of the offending vehicle is found to have been supported by the documentary evidence, Ext.5, the charge sheet, which was submitted by police, being a statutory authority after thorough investigation of the case.
Evidently, Ext.5 was also not controverted or challenged by the Insurance Company. Learned tribunal tough, mentioned in the award regarding Ext.5, charge sheet, simply ignored it without assigning any reason and took a presumption of contributory negligence on the part of the deceased on a mere fact, that the accident took place due to head on collusion.
Ext.5 demonstrated that the driver of the offending vehicle was liable for the accident causing death of the victim. It is no doubt true, that charge sheet was not binding on the Tribunal, nor it was conclusive proof of the facts and Tribunal, may decide on the basis of independent evidence brought before it. But a charge sheet submitted by police after investigation of the case holding the driver of the offending vehicle liable for the accident, simply could not be ignored without assigning any reason. Had there been other evidence before the Tribunal, justifying a conclusion contrary to the findings of the charge sheet, the matter could have been different, but this was not the case here. In fact, the charge sheet was supporting the claim of the claimant and there was no contrary evidence and even the charge sheet was not challenged by the Insurance Company or the owner/driver. It should be borne in mind that a charge sheet is not a just scrap of paper, it is the culmination of an investigation conducted by a statutory authority as per provision of law and as such, a charge sheet carry its own weight, which cannot be ignored or rejected without any reason.
This Court in Godavari Devi (supra) held that materials collected during investigation, culminated in the charge sheet and evidence adduced on the basis of charge sheet cannot be discarded straightway as hearsay. In Raba Laxmi Debbarma (supra), this court dealing with the contributory negligence, observed that in absence of any pleading or evidence regarding contributory negligence, court cannot presume, that there was a contributory negligence. The ratio laid down by the Apex Court in Bangalore Metropolitan Transport Corporation (supra) is also to the same effect, that in absence of any pleading and evidence to substantiate a plea, there is no scope for accepting such plea. A Division bench of Kerala High Court in New India Assurance Co. Ltd. Vs. Pazhaniammal reported in 2012 1 TLC 816, observed that a charge sheet submitted by police after due investigation of the case cannot be brushed aside without assigning any reason.
In the above facts and circumstances, when there was no pleading or evidence from theside of the insurance company or owner or driver of the offending vehicle to show that there was contributory negligence on the part of the deceased, and on the other hand, the specific plea of the claimant, that the accident occurred solely due to rash & negligent driving of the driver of the offending vehicle, was supported by the unchallenged documentary evidence Ext.5, the charge sheet, the finding of the learned Tribunal attributing 50% contributory negligence without any evidence and pleading, in my considered view was totally erroneous and perverse, inasmuch as, no contributory negligence could be attributed to the deceased, in absence of any pleading and evidence to that effect, more particularly when the plea of the claimant that accident occurred solely due to fault of the driver of the offending vehicle was corroborated by unchallenged documentary evidence, the charge sheet (Ext.5). Since, evidently the offending vehicle was insured with the respondent United India Insurance Company Ltd., the entire compensation determined by the learned Tribunal being Rs. 5,84,000/- shall be satisfied by the respondent No. 3, United India Insurance Company Ltd. with interest as fixed by the Tribunal by depositing the awarded amount with the Tribunal within 6 weeks. The amount, if any, paid in the meantime towards satisfaction of the award shall stand adjusted.
The appeal is accordingly allowed.
Send back the LCR.