Sri Shiv Kumar Agarwal vs Md. Sultan

Heard the learned counsels for the parties.

M.A. No. 145 of 2017 by the appellant (original defendant) challenges the Judgment and Award dated 07.12.2016 of the Motor Vehicles Accident Claims Tribunal, Dhanbad (Tribunal), in Compensation Case No. 165 of 2010, whereby the Tribunal awarded a total compensation of Rs. 2,35,000/- with interest @ 6% per annum from the date of passing of the judgment.

The appellant contends that the compensation granted to the original claimant of this case is erroneous and bad in law and, accordingly, is liable to be set aside by this Court.

Ms Neeharika Mazumdar, learned counsel for the appellant, contended that the Tribunal has failed to appreciate the evidence properly; wrongly applied the principle of contributory negligence to the facts of the instant case; failed to consider that the driving license of the victim was not even produced; and erred in making the correct calculation of the medical expenditure incurred by the respondent (original claimant).

Mr. P. K. Mukhopadhyay, learned counsel appearing for the respondent, submitted that the compensation awarded by the claims tribunal is just and proper. He accordingly submitted that no interference of this Hon’ble Court is warranted in this case.

Based on the rival arguments and material on record, the following points for determination arise in this appeal: -

Whether the Tribunal failed to properly appreciate the evidence on record and wrongly applied the principle of contributory negligence?

Whether the non-production of the victim’s driving license impacts the liability or quantum of compensation in the present case?

Whether the Tribunal erred in calculating the medical expenses incurred by the respondent (original claimant)?

Whether the compensation awarded by the Tribunal is “just and reasonable” in the facts and circumstances of the case?

Insofar as the first point for determination is concerned, learned counsel for the appellant submitted that despite unflinching evidence on record demonstrating that the appellant’s vehicle was stationary while goods were being unloaded from it, the learned Tribunal completely overlooked this aspect. It was further contended that the accident occurred solely due to the negligence of the claimant himself, as borne out by the evidence. Having meticulously perused the evidence on record, this Court, however, finds itself unable to accept the appellant’s contention, and agrees with the finding recorded by the Tribunal on this issue.

In this regard, it is pertinent to observe that P.W.-1 (the claimant), P.W.-2 (first eyewitness), and P.W.-5 (second eyewitness) have consistently and categorically testified that the offending vehicle was coming from the opposite direction at a high speed, driven in a rash and reckless manner. All these witnesses withstood the rigour of cross-examination, and moreover, nothing has been elicited from their testimony to doubt their credibility or discard their evidence. Consequently, it cannot be held that the learned Tribunal erred in appreciating the evidence on record.

On the issue of contributory negligence, learned counsel for the appellant submitted that D.W.-1 (the owner of the vehicle) has entered the witness box and categorically stated that the vehicle was stationery and goods were being unloaded at the relevant time. It is further contended that D.W.-1 has withstood the rigours of cross-examination and, therefore, the Tribunal ought to have accepted the defendants version that the accident occurred solely due to the negligence of the claimant.

This Court has carefully perused the evidence of D.W.-1. While it is true that D.W.-1 has stated that the vehicle was stationary, the evidence of D.W.-1 has to be weighed against the consistent and natural testimony of the three ocular witnesses examined on behalf of the claimant (P.W.-1, P.W.-2 and P.W.-5).

All the three witnesses have deposed in one voice that the offending vehicle was coming from the opposite direction at a high speed and was being driven in a rash and negligent manner. Their evidence has remained unshaken despite lengthy cross-examination. Moreover, no material contradiction or discrepancy has been brought out before this court or even before the Tribunal which would render their testimony unreliable.

In a case of this nature, where there is conflicting oral evidence, the Tribunal (and this Court in appeal) is required to evaluate the relative credibility, consistency and probability of the two versions. The version of the three independent/natural witnesses who claim to have seen the vehicle in motion is more consistent and probable than the solitary version of the interested owner (D.W.-1).

Moreover, if the vehicle was indeed stationery and goods were being unloaded, one would have expected some independent corroboration (for example, evidence of labourers unloading the goods, contemporaneous documents, or at least the presence of other witnesses supporting the stationary version). However, no such corroboration has been brought forth on behalf of the Appellant.

Be that as it may, even if D.W.-1’s version that the vehicle was stationary is to be considered, the said evidence, at best, seeks to negative the negligence attributed to the driver of the offending vehicle. It does not constitute positive evidence of any negligence or contributory negligence on the part of the claimant. The settled position of law is that the burden of proving the claimant's contributory negligence lies on the party asserting it. In the present case, the appellant has not led any positive evidence to establish that the claimant was driving rashly, negligently, or in a manner that contributed to the accident (See: Mohammed Siddique & Anr. v. National Insurance Co. Ltd. & Ors., (2020) 3 SCC 57). Mere assertion that the offending vehicle was stationary, even if accepted, does not automatically fasten contributory negligence on the claimant

The Tribunal, however, proceeded to apply the principle of contributory negligence. In this regard, it can further be elucidated that the mere occurrence of a frontal collision, without anything more, does not automatically warrant an inference of contributory negligence (See: Jiju Kuruvila v. Kunjujamma Mohan, (2013) 9 SCC 166). In the absence of any positive evidence establishing negligence on the part of the claimant, no such liability can be fastened upon him.

Accordingly, the finding recorded by the Tribunal that the accident occurred due to the rash and negligent driving of the driver of the offending vehicle is upheld. At the same time, this Court holds that the Tribunal erred in attributing contributory negligence to the claimant for the simple reason that no case of contributory negligence is made out on the facts and evidence of the present case.

With respect to the second point for determination, the learned counsel for the appellant has contended that the claimant’s driving licence was not produced and that this circumstance ought to have been considered either for fastening contributory negligence or for reducing the quantum of compensation.

The law in this regard is no longer res integra and is well settled. The Hon’ble Supreme Court in Dinesh Kumar J. v. National Insurance Co. Ltd., reported in (2018) 1 SCC 750 and Mohammed Siddique v. National Insurance Co. Ltd., (supra) has clearly held that mere violation of a statutory provision, including absence of a valid driving licence, cannot by itself lead to a finding of contributory negligence. There must be a causal connection between the absence of the licence and the cause of the accident or the impact thereof. In other words, it must be shown by evidence that driving without a licence contributed to the occurrence of the accident or worsened its consequences.

In the present case, no such evidence has been led. The appellant has neither proved that the absence of the licence was in any manner responsible for the accident nor that it aggravated the injuries suffered by the claimant. Once the rash and negligent driving of the driver of the offending vehicle stands established based on the ocular evidence, the non-production of the claimant’s driving licence becomes wholly irrelevant for the purpose of determining liability or quantum under S. 166 of the Motor Vehicles Act, 1988.

The second point for determination is accordingly answered against the appellant.

Moving on to the third point for determination regarding the calculation of medical expenses incurred by the respondent (original claimant), it is pertinent to note that the Tribunal has calculated a reasonable amount under the head of medical expenses. The Tribunal, after duly appreciating all the medical bills brought on record by the respondent (original claimant), namely Ext. 2 to Ext. 2/91, has taken a proper view of the matter. The Tribunal has also considered the objections raised by the appellant about the reliability and admissibility of the said medical bills and has rightly found the same to be reliable and worthy of acceptance. Accordingly, no interference with the finding recorded by the Tribunal on this aspect is warranted.

Accordingly, no interference on this issue is warranted from this Court.

Lastly, on the issue of whether the compensation awarded is “just and reasonable”, it is observed that the overall calculation of compensation, i.e., Rs. 3,12,331/- as the total sum, is correct. However, the fact that the liability of the appellant was fastened only to the extent of 75%, i.e., Rs. 2,35,000/- (rounded off), for the reason of “contributory negligence” is legally untenable for the reasons discussed hereinabove.

This Court is conscious that, in the ordinary course, enhancement of compensation in an appeal preferred by the owner would not be undertaken in the absence of a cross-appeal or cross-objection by the claimant. The interference in the present case is confined to its exceptional facts, where the deduction towards contributory negligence is found to be legally unsustainable in the light of the overwhelming evidence on record and the absence of a properly framed issue on that question. In attributing contributory negligence under these circumstances, the ld. Tribunal committed a palpable error, which this Court feels bound to rectify in exercise of its jurisdiction to award just compensation.

The issue of contributory negligence was neither specifically framed nor properly adjudicated by the Tribunal. In the absence of a settled issue, the respondent (original claimant) was effectively deprived of a fair opportunity to adduce evidence and advance submissions directed to that aspect.

Moreover, the overwhelming evidence adduced on behalf of the claimant establishes negligence on the part of the driver of the offending vehicle, while no positive evidence has been led to prove contributory negligence on the part of the claimant. The Tribunal itself assessed the total compensation at Rs. 3,12,331/-, but restricted the payable amount to Rs. 2,35,000/- solely on account of the deduction towards contributory negligence. Once that deduction is held to be untenable, this Court is required to determine and award the compensation that is legally payable to the claimant.

Additionally, it is well settled that the power under Order XLI Rule 33 of the Code of Civil Procedure can be exercised by the appellate court to do complete justice between the parties and to pass any decree or order which ought to have been passed by the Tribunal, even in the absence of a cross-appeal or cross-objection by the claimant. Reliance is placed on the decisions of the Hon’ble Supreme Court in Nagappa v. Gurudayal Singh, (2003) 2 SCC 274 and Surekha v. Santosh, (2021) 16 SCC 467, wherein it has been held that the appellate court can enhance the compensation to the just amount even without a formal appeal or cross-objection by the claimant.

In total, therefore, the respondent (original claimant) is entitled to a compensation of Rs. 3,12,331/- (rounded off to Rs. 3,12,500/-) with interest as awarded. The Tribunal, in this case, awarded interest at the rate of 6% per annum, which need not be disturbed.

However, the Tribunal directed interest to run only from the date of the award on the premise that the offending vehicle was uninsured and the owner would face hardship. In the considered view of this Court, such a reason cannot be sustained. Under S. 171 of the Motor Vehicles Act, interest compensates the claimant for the deprivation of the sum due from the date of the accident. In the instant case, neither the lack of insurance cover nor the owner’s financial hardship is a legally recognised ground to defer the accrual of interest. In the absence of any delay or exceptional circumstance attributable to the claimant, the general rule of awarding interest from the date of filing the claim petition must prevail. Consequently, the claimant is held entitled to interest from the date of institution of the claim petition till realization.

This appeal is accordingly dismissed, and the compensation amount is enhanced from Rs. 2,35,000/- to Rs. 3,12,500/- with interest @ 6% p.a. from the date of filing of the claim petition till actual realization.

The appellant is now directed to deposit the enhanced compensation amount with this Court within six weeks from today, after giving due intimation to the learned counsel for the respondent.

There was no clarity about whether the originally deposited amount was deposited. If the same was not deposited, then the appellant must deposit the same as well within six weeks after giving due intimation to the learned counsel for the respondent. Such amount should also be paid to the respondent in the manner indicated above.

Once the amount is deposited, the Registry is directed to permit the respondent (original claimant) to withdraw it by transferring it into his bank account. Under no circumstances should the transfer be made otherwise than through regular banking channels.

The learned counsel for the respondent shall provide the identity and bank details of the respondent so that the transfer of the compensation can be effected at the earliest.

The appeal is accordingly dismissed and disposed of in the above terms, without any order as to costs.