Srikrishna Kanta Singh vs Parameswar Achutanan Nair & Ors.

PROTIK PRAKASH BANERJEE, J.

Once upon a time, there was a Block Development Officer for Hura Block in the District of Purulia. He took a lift on the scooter of a man who

resided within his block. He wanted to go to Lalpur College for an official function from Hura. While travelling to Lalpur from Hura, on the Purulia-

Bankura Road, there was a collision between a trailer and the scooter. The trailer was travelling from Purulia side towards Hura. On the Purulia-

Bankura road, which runs from West to East, Lalpur precedes Hura if one is travelling from Purulia. As a result, both the scooter driver and the Block

Development Officer suffered injuries. However, the injuries suffered by the Block Development Officer were more serious and resulted in

amputation of both his legs, one from below the knee and one from above the knee. As a consequence, he was permanently disabled and had to

acquire prosthetics. He claimed compensation of Rs.16 lakhs under Section 166 of the Motor Vehicles Act, 1988apart from obtaining an amount of

Rs.25,000/- from the Insurance Company which had insured the trailer under Section 140 of the Act of 1988.

This claim application was numbered as MAC Case No.89 of 2000 before the Learned Judge, Motor Accident Cases Tribunal, at Purulia. The

Learned Tribunal passed an award dated July 26, 2005 for Rs.7,50,000/- in favour of the claimant, partially allowing his application. However, the

Learned Tribunal by the award apportioned the liability between the company which insured the trailer and the owner-cum-driver of the scooter at

Rs.4,50,000/- (less the amount of Rs.25,000/- already paid under Section 140 of the Act of 1988) and Rs.3,00,000/- respectively.

Being aggrieved the claimant has appealed from the said award. From the memorandum of appeal it appears that the parties to the appeal are the

Owner of the Trailer, who is respondent No. 1 and was the opposite party No. 1 in the claim; the Owner-cum-driver of the scooter, who is respondent

No. 2 and was the added opposite party No. 1A in the claim; and of course, the insurance company which insured the Trailer, being the respondent

No. 3, who was the opposite party No. 2 in the claim.

Mr. Banik, Learned Advocate appearing for the Appellant, has challenged the award passed by the Learned Tribunal on the grounds which may be

summarized as follows: -

(i) The Appellant was entitled to more compensation than was awarded, on the basis of the law settled for such injuries as he suffered.

(ii) The Appellant was entitled to interest on the award from the date he filed the claim application but the Learned Tribunal granted no interest at all.

(iii) The driver of the scooter did not contribute to the accident. He was not negligent. He ought not to have been made liable.

(iv) The Learned Tribunal was not entitled to apportion the award between the joint tort-feasors and direct that payment be made to the Appellant by

the joint tort-feasors in the proportion directed by it.

Mr. Banik has impeached the following finding of the Learned Tribunal: -

“Considering the facts and circumstances and materials on record I am convinced to hold that the applicant has become crippled and permanent

disabled for ever and his permanent disability is 100% and he has been leading his life with the help of his artificial limbs and it is also admitted position

that he has lost control over his movement and requires an assistance of an attendant no doubt are involves a recurring expenditure and his pain and

loss of two limbs cannot be described in words nor his sufferings, frustration etc. and no money can obviously compensate for all these but even the

court must have to undertake the exercise in discharge of his duty if only to compensate him to the extent of payment of money and within the laid

down framework it is the duty of the court to award compensation and accordingly, for artificial limbs already fixed and also for repairing and

maintenance a sum of Rs.1,20,000/- may be awarded and for permanent disablement a sum of Rs.2,00,000/- (Rupees two lakhs) may be awarded and

for pain and suffers a sum of Rs.2,00,00/- (Rupees Two Lakhs) may be awarded and for personal attendant a sum of Rs.1,20,000/- may be awarded

and for his treatment and other purpose Rs.1,00,000/- (Rupees one lakh) may be awarded and Rs.10,000/- may be awarded for the travelling cost of

the family members of the applicant. So at best Rs.7,50,000/- (Rupees Seven lakhs and fifty thousand) may be awarded in favour of the application

for the loss of his two limbs which has been amputed due to the said accident. But, the question is who shall have to pay that amount.

In this regard, the entire facts and circumstances and materials are considered and it is found that for the fault of the driver of the scooter the accident

took place but on the road generally trailer covers greater portion of the pitch road. So, it is the duty of the driver of the trailer to pass through the pitch

road very slowly but, at the same time it is fact that it is not possible for the driver at the relevant time of driving the trailer to keep watch about the tail

end of the trailer at the time of proceeding to pitch road and in this case practically at the tail end of the trailer the scooter came into contact and two

legs of the applicant was damaged but if actually the driver of the scooter was cautious in that case there was no chance of any accident. But,

whatever it may be, considering the liability to some extent of the driver of the trailer the owner of the trailer and the O.P. Insurance company of the

trailer are liable to pay some compensation for such accident and the owner of the scooter is also liable to pay some amount as would be awarded as

compensation in favour of the applicant.

It is to be mentioned in this regard that determination of compensation in such cases would depend on the facts and circumstances of each and

notwithstanding the element of sympathy involved with the accident victim and this court is also conscious of the fact that assessment of compensation

in such cases had to be on objective standards and not based on any fanciful or whimsical calculations and practically there is no difficulty to make

provision for recurring expenditure of attendance for which I am constrained to hold that applicant is entitled to a sum of Rs.7,50,000/- as estimated as

per heads of loss of two limbs and both the owner of the trailer and O.P. Insurance Company of the trailer are bound to pay Rs.4,50,00/- and the

balance amount would be paid by the owner of the scooter because the scooter was not insured at that time.†Thereafter, the Learned Tribunal

made the deductions in respect of payment of the amount under Section 140 of the Act of 1988 and thus partially allowed the claim application for

compensation.

No decision can be understood without considering the facts of the case and the course which the litigation has taken. The claim application and the

somewhat contradictory evidence adduced by the Appellant himself show that the brief summary of the facts in paragraph 1 of this judgement is

correct. The Appellant was a pillion rider on the motor cycle at the time when the collision occurred on November 2, 1999. He had claimed Rs.16

lakhs according to the schedule to his claim application and had also sought 12% interest and costs of the case.

However, initially the Appellant did not make any claim against the present respondent no. 2. The Appellant had initially made his claim only against

the owner of the trailer and the trailer’s insurer. The case as argued before the Learned Tribunal, on the basis of the initial pleadings, comprised

the claim application where only the present respondent no. 1 and the present respondent no. 3 were parties as stated above, in the separate cause

title just above the prescribed Form COMP A, the written statement of the insurer and the evidence adduced by those persons. On that basis, the

matter came to judgement on September 29, 2004. On such date the learned Tribunal however declined to give judgement but held that necessary

parties had not been arrayed and in the interests of justice, instead of dismissing the claim, by an order no. 52 granted liberty to add those persons as

parties.

The contents of Order No.52, dated September 29, 2004, are set out hereinbelow: -

“Today is fixed for delivery of judgement. Argument was heard at length on 4.8.2004 but after that deficit Court was paid on 10.09.2004 and then

today is fixed for delivery of judgment. But after proper scrutiny of the application v/s- 166 of MV Act and the evidence of the PW 1 and 2 it is found

that driver and owner of the scooter and insurance company of the scooter is not made parties and considering the entire evidence on record and also

the copy of the FIR it is found that for proper adjudication of this case and to fix up liabilities of the parties regarding accident the owner and driver of

the said scooter and its insurance company are necessary parties but any how they are not made parties by the applicant and not only that driver of

the said scooter also did not depose in this case or is not cited by the applicant as witness and as such for proper and legal adjudication of the case and

also for fixing up liability of the parties. The drivers of the both the vehicles and its owners and insurance companies, the owner, driver and insurance

company of the scooter are necessary parties but they are not made parties and as such without passing judgment for the ends of justice applicant is

given liability to add then as parties as they are necessary parties of this case to give them chance to contest and to determine nature of fault and

liability of the drivers of both the vehicle owners and insurance companies of the vehicles. To 11.10.2004 for taking steps.â€​

The Learned Tribunal, therefore, held that the joint tort-feasors were necessary parties for determination the fault and liability of both the vehicles

involved in the accident. The Appellant did not challenge the order for such addition of party contemporaneously nor as a ground in the present

memorandum of appeal. He allowed it to become final as between those parties. Instead, the Appellant took out an application on November 29, 2004

stated to be under Order 1 Rule 10 as also under Order 6 Rule 17 of the Code of Civil Procedure. By this, the Appellant sought to add only Samiran

Mishra, the owner-cum-driver of the scooter, one of the persons held to be a necessary party by the Learned Tribunal, as a new opposite party to his

claim application. This was allowed by an Order No.56 dated January 4, 2005 passed by the Learned Tribunal. As the Learned Tribunal has recorded

in the impugned award, the scooter was not even insured as on the date of accident. Yet the respondent No. 2 herein drove it on a road, carrying a

pillion rider. Therefore, the Appellant cannot now be heard to contend that the respondent No. 2 herein could not have been added as the opposite

party No. 1A in the claim application. Consequently, he cannot now be heard to say that the Learned Tribunal cannot give logical effect to the addition

of the ownercum-driver of the scooter a party. The Appellant is estopped by judgement, records and his own conduct from contending otherwise.

Such logical consequence could also involve reaching a finding that the respondent No. 2 was partially at fault for the accident. In fact, the Learned

Tribunal so held.

The Learned Tribunal issued a notice to both the Respondent No.3 herein and to the added Respondent No.2 to show cause against the application

claiming compensation, though as appears from the above history of the case, at different times. The respondent No. 3 sought and obtained leave

under Section 170 of the Motor Vehicles Act, 1988. In its “written statementâ€, the respondent No. 3, apart from the general denials, challenged

the maintainability of the claim application as originally filed, for non-joinder of necessary parties, which was dealt with as stated above. However, in

cause shown by the respondent No. 2 (the added opposite party No.1A), some very significant and material allegations were made, some of them,

against the interest of the said respondent No. 2. These were verified as being true to the knowledge of the said respondent No. 2. Two of these

paragraphs are extracted below:-

“1. That at the relevant point of time the petitioner was the B.D.O. of the Hura Block Development Office.

That, on the date of Accident i.e. 02-11-99 this Opp. Party was holding a Learner Licence in respect of a light motor vehicle and that he was on the

road coming from Kashipur side towards Lalpur More, when the petitioner stop the vehicle of this opposite party and request for a lift to go to Lalpur

More on the said vehicle. This Opp. Party requested the petitioner that he should not take lift with him on the vehicle, as the Opp. Party was still

holding Learner Licence. But the petitioner did not listen the request of the Opp. Party and took his sit on the rear side, when under compulsion and

also considering official status of the petitioner, the Opp. Party, the Opp. Party was proceeding with the scooter towards Lalpur More, and as such as

the scooter reach the Junction point, Nimtala More, Hura, the Trailer all on a sudden with great force knock the rear portion of the scooter, resulting

grievous injuries on both the legs of the petitioner. The Opp. Party also sustained grievous injuries and the scooter was also damaged badly, owing to

the accident which had occurred, owing to the rash and negligent driving of the trailer.â€​

It is the Appellant’s case before this Court that the fact that the added opposite did not have a valid licence to carry a passenger on his scooter

or that he only had a learner’s licence, or indeed, anything alleged by him in the cause shown as referred to above, could not in law be held to

have been established. The Appellant submitted this because, on the face of the records, the said Respondent No.2 had not been called as witness by

the respondent No.3 or examined by the Learned Tribunal, and according to Mr. Banik, in the eye of law, there was no “evidence†in support of

the allegations contained in the cause shown. He went on to argue, that the Learned Tribunal erred in law and wholly misconstrued the law applicable

to a case where there are joint tort-feasors and composite liability is contended. The Appellant submitted that it was the absolute discretion of the

Appellant (qua claimant) to determine from which of the joint tort feasors it would claim compensation, and once the tort was established, and

circumstances were shown to exist on the face of the accident which made it a case of composite negligence, it was no longer open to the Learned

Tribunal to force the Appellant to add anyone other than the owner and insurer of the offending vehicle as a party or to apportion the compensation

between the insurer of the offending vehicle and the owner cum driver of the other vehicle involved in the accident, being the scooter on which the

victim was a passenger, though the scooter was not driven by someone having a valid licence to carry a passenger, but only a learner’s licence.

So far as the second aspect of the submissions are concerned, I am afraid that in view of the Appellant never having challenged Order No.52

dated September 29, 2004 and having, in fact, acted upon it as evinced from his own conduct, culminating in the passing of the Order No.56 dated

January 4, 2005, and in view of what has been held in paragraphs 7, 8 and 9 of this Judgement, it is no longer open to the Appellant to contend that the

Learned Tribunal acted erroneously in adding the opposite party No. 1A (the respondent No. 2 herein) as a party to the proceedings and thereafter

proceeding to the consequence which to the Learned Tribunal, logically followed such act. The Appellant is estopped by judgement, the records of the

case and his own conduct. Once the Appellant acted upon Order No.52 dated September 29, 2004 without even taking it as a ground for appeal

before this Court, he cannot be heard to say that the respondent No. 2 was not a necessary party as joint tort-feasor. If indeed he was convinced that

he had the right to claim compensation from any of the joint tort-feasors and he did not want to include an admitted wrong-doer or seek compensation

from such person and run the risk of having such an award passed, he ought to have challenged Order No.52 dated September 29, 2004 instead of

voluntarily acting to give effect to it.

The respondent No. 2 never appealed from the award nor in fact, did he thereafter come forward to contest the case. He accepted his liability as

apportioned by the Learned Tribunal. Now, the Appellant has challenged the award but there too, the Appellant has been guilty of a level of

mendaciousness which I can only describe as an attempt to reopen that which has achieved finality as against the respondent No. 2 in a manner

unknown to law.

The Appellant by the rules of this Court and also the general principles of law relating to preferring a Memorandum of Appeal against an award

passed in a case under Section 166 of the Act of 1988 was required to implead as parties everyone who was before the Learned Tribunal in the

category of an opposite party. He so did, as described in paragraph 3 of this judgement. However, thereafter, as far back as on May 17, 2012 the

Appellant abandoned his appeal as against the respondents No.1 and 2, and the appeal was dismissed as against them on May 17, 2012. By this

strategy the Appellant hoped to ensure that the award could not be altered to their prejudice as against them nor sent back on remand.

However, all that this really ensured, is that the respondent No. 2 could not be heard to say anything against the proportion of the amount awarded

against him and the fault for which he was held to be liable by the Learned Tribunal as between the parties hereto, without laying down a general

principle of law.

If on the other hand, as prayed for by the Appellant, the award is modified, by making the respondent No. 3 solely liable for the accident then it

would amount to modifying the award at the instance of a person who is not aggrieved by it â€" for after all, how could the victim be aggrieved with

the finding the scooter and the trailer and their drivers were both at fault for the accident? Especially when, the owner-cumdriver of the scooter has

accepted that he was partially at fault? After all, it is nobody’s case that because of the fault of both these vehicles and their drivers, only part of

the compensation awarded will be paid to the victim â€" all that has been done is apportionment of the liability inter se these two tort-feasors.

Any other interpretation will allow a person who has not challenged the award to the extent that it affects him, to ride piggy-back on the victim and

get off scot free when he in law, would not be able to do so otherwise. It may be true that the victim/Appellant piggy-backed on the respondent No.

2’s scooter, but that cannot allow the reverse to happen at the appellate stage when the respondent No. 3 has not preferred any appeal.

So, I hold that the Appellant cannot be heard to say that he is aggrieved by the apportionment of the fault and liability as between the two joint-

feasors who were before the Learned Tribunal. To the extent of the finding of the Learned Tribunal as to the liability of the respondent No. 2, the

appeal fails.

Now we come to the first part of the submissions of the Appellant as to whether there was any valid material before the Learned Tribunal

regarding the Added opposite party (respondent No. 2) not having a valid license to carry a passenger on his scooter, which could be relied upon in a

proceeding under Section 166 of the Act of 1988.

The submissions made on this count by Mr. Banik as summarized in paragraph 11 of this judgement are perhaps irrefutable if the proceedings

from which this appeal arises were adversarial in nature. Adversarial action requires that a party be made to adhere to his pleadings, and any evidence

adduced which is beyond his pleadings ought not to be looked into. The pleading must be specific and not general or evasive. There must be a general

denial, a specific denial and an assertion of a fact which states the version of the adversary pleading in opposition to the claimant. It also requires that

a party must adduce evidence to establish his pleadings in denial of the claimant’s claim. Finally, it requires that the adversary must put so much of

his case to the witness of the claimant or the claimant himself where he takes the stand, so as to give notice to the claimant or his witness to

controvert it. All these are done so that the claimant, in the adversarial litigation, has sufficient chance to controvert the evidence led by his adversary

and where the adversary has led evidence, to ensure that the claimant gets a chance to cross examine the witnesses of the adversary.

If any authority is required for the proposition that the adversary must put so much of his case to the claimant’s witnesses by cross

examination that he has actual notice of the positive case which is going to be led against him, and how a fact is held to be proved before a civil court

in adversarial proceedings, I rely upon the cases of A.E.G. Carapietâ€"vâ€"A.Y. Derderian reported in AIR 1961 Calcutta 359 at paragraph 10and

Dr. N.G. Dastaneâ€"vâ€"Mrs. S. Dastane reported in AIR 1975 SC 1534 at paragraphs 24 and 25.

However, that brings me to the overwhelming question. Is a proceeding under Section 166 of the Motor Vehicles Act, 1988 an adversarial

proceeding? To answer this, I am afraid, I will have to take eternity by the hand and pause while the Court looks at the provisions of the Motor

Vehicles Act, 1988, the West Bengal Motor Vehicles Rules, 1989 and some authoritative precedents.

The relevant provisions of the statute and the statutory rules, which are required for understanding the mode in which the learned Tribunal

proceeds or is required to proceed in these cases, which are dealt with inquisitorially and not in the adversarial form, are set out hereinbelow: -

Section 166. Application for compensation. â€" (1) An application for compensation arising out of an accident of the nature specified in subsection (1)

of section 165 may be madeBy the person who has sustained the injury; or By the owner of the property; or Where death has resulted from the

accident, by all or any of the legal representatives of the deceased; or By any agent duly authorized by the person injured or all or any of the legal

representatives of the deceased, as the case may be: Provided that where all the legal representatives of the deceased have not joined in any such

application for compensation, the application shall be made on behalf of or for the benefit of all the legal representatives of the deceased and the legal

representatives who have not so joined, shall be impleaded as respondents to the application.

[(2) Every application under sub-section (1) shall be made, at the option of the claimant, either to the Claims Tribunal having jurisdiction over the area

in which the accident occurred or to the Claims Tribunal within the local limits of whose jurisdiction the claimant resides or carries on business or

within the local limits of whose jurisdiction the defendant resides, and shall be in such form and contain such particulars as may be prescribed:

Provided that where no claim for compensation under section 140 is made in such application, the application shall contain a separate statement to that

effect immediately before the signature of the applicant.]

[(4) The Claims Tribunal shall treat any report of accidents forwarded to it under sub-section (6) of section 158 as an application for compensation

under this Act.]. Section 168. Award of the Claims Tribunal.- (1) On receipt of an application for compensation made under section 166, the Claims

Tribunal shall, after giving notice of the application to the insurer and after giving the parties (including the insurer) an opportunity of being heard, hold

an inquiry into the claim or, as the case may be, each of the claims and, subject to the provisions of section 162 may make an award determining the

amount of compensation which appears to it to be just and specifying the person or persons to whom compensation shall be paid and in making the

award the Claims Tribunal shall specify the amount which shall be paid by the insurer or owner or driver of the vehicle involved in the accident or by

all or any of them, as the case may be: Provided that where such application makes a claim for compensation under section 140 in respect of the

death or permanent disablement of any person, such claim and any other claim (whether made in such application or otherwise) for compensation in

respect of such death or permanent disablement shall be disposed of in accordance with the provisions of Chapter X.

(2) The claims Tribunal shall arrange to deliver copies of the award to theparties concerned expeditiously and in any case within a period of fifteen

days from the date of the award.

(3) When an award is made under this section, the person who isrequired to pay any amount in terms of such award shall, within thirty days of the

date of announcing the award by the Claims Tribunal, deposit the entire amount awarded in such manner as the Claims Tribunal may direct. Section

Procedure and powers of Claims Tribunals.- (1) In holding any inquiry under section 168, the Claims Tribunal may, subject to any rules that may

be made in this behalf, follow such summary procedure as it thinks fit.

(2) The Claims Tribunal shall be all the powers of a Civil Court for thepurpose of taking evidence on oath and of enforcing the attendance of

witnesses and of compelling the discovery and production of documents and material objects and for such other purposes as may be prescribed; and

the Claims Tribunal shall be deemed to be a Civil Court for all the purposes of section 195 and Chapter XXVI of the Code of Criminal Procedure,

1973.

(3) Subject to any rules that may be made in this behalf, the ClaimsTribunal may, for the purpose of adjudicating upon any claim for compensation,

choose one or more persons possessing special knowledge of any matter relevant to the inquiry to assist it in holding the inquiry. Section 170.

Impleading insurer in certain cases.- Where in the course of any inquiry, the Claims Tribunal is satisfied that- There is collusion between the person

making the claim and the person against whom the claim is made, or The person against whom the claim is made has failed to contest the claim, it

may, for reasons to be recorded in writing, direct that the insurer who may be liable in respect of such claim, shall be impleaded as a party to the

proceeding and the insurer so impleaded shall thereupon have, without prejudice to the provisions contained in sub-section (2) of section 149, the right

to contest the claim on all or any of the grounds that are available to the person against whom the claim has been made.

Rule 329. Application for compensation.- (1) An application for compensation arising out of accident of the nature specified in subsection (1) of

section 165 of the Act, shall be made by a person specified in sub-section (1) of section 166 of the Act to the Claims Tribunal having jurisdiction over

the area in which the accident occurred and such application shall be in Form COMP.A to these rules and shall contain the particulars specified in that

Form.

(2) Every such application shall be sent to the Claims Tribunal or to theChairman in case the Tribunal consists of more than one member, by registered

post or may be presented to such member of the staff of the Tribunal as the Tribunal or, the Chairman, as the case may be, may authorize for the

purpose and if so sent or presented, shall, unless the Tribunal or Chairman otherwise directs be made in duplicate and shall be signed by the applicant.

(3) There shall be appended to every such application the followingdocuments, namely, (i) Medical certificate in Form COMP. B or Postmortem

Report, or Death Certificate; and (ii) First information Report in respect of the accident.

(4) Officer-in-charge of the police station shall, on demand by a person,who wishes to make an application for compensation and who is involved in an

accident arising out of the use of a motor vehicle or the legal successor of the deceased shall furnish to him within such period as specified by the

Central government under section 160 of the Act, particulars of the vehicle involved in accident. Rule 330. Notwithstanding anything contained in rule

329 of these rules every application for a claim under section 140 of the Act, shall be filed before the Claims Tribunal in triplicate and shall be sign ed

by the applicant and the following documents be appended to every such application- a report containing description of the accident; First Information

Report; Injury Certificate or in case of death, Post-mortem Report or Death Certificate; and A certificate regarding ownership and Insurance

particulars of vehicle involved in the accident from the Regional Transport Officer in Form (COMP.C), issued free of charge.

Rule 334. Notice to the parties involved.- (1) If the application is not dismissed under rule 333 of these rules, the Claims Tribunal shall, on an

application made to it by the applicant, send to the owner or the driver of the vehicle or from whom the applicant claims relief and to the insurer a

copy of the application, together with the notice of the date on which it will dispose of the application and may call upon the parties to produce on that

date any evidence which they wish to tender.

(2) Where the applicant makes a claim for compensation under section 140 of the Act, the Claims Tribunal shall give notice to the owner and Insurer

if any, of the vehicle involved in the accident directing them to appear on the date not later than 10 (ten) days from the date of issue of such notice.

The date so fixed for such appearance shall also be not later than fifteen days from the receipt of the claim application filed by the claimant. The

Claims Tribunal shall state in such notice that in case they fail to appear on such appointed date, the Tribunal shall proceed ex parte on the

presumption that they have no contention to make against the award of compensation. Rule 335. Appearance and examination of parties.- (1) The

opposite party may, and if so required by the Claims Tribunal, shall, at or before the first hearing or within such time as the Claims Tribunal may

permit, file a written statement dealing with the claim raised in the application and any such written statement shall form part of the record.

(2) If the opposite party contests the claim, the Claims Tribunal may, and if no written statement has been filed, shall proceed to examine him upon the

claim and shall reduce the result of examination into writing. Rule 336. Summons to witness.- If an application is presented by any party to the

proceeding for citation of witnesses, the Claims Tribunal shall, on payment of the expenses involved, if any, issue summons for the appearance of such

witnesses, unless it considers that their appearance is not necessary for a just decision of the case. Rule 337. (1) Fees for process.â€"The fees to be

taken for any process issued by the Claims Tribunal shall be in the scale as may be determined by the Tribunal from time to time, but shall not exceed

those taken for a similar process by the City Civil Court in 117[Kolkata] and by the District Courts elsewhere.

(2) Appearance of legal practitioner.â€"The Claims Tribunal may, in its discretion, allows any party to appear before it through a legal practitioner.

(3) Local inspection.â€

(a) The Claims Tribunal may, at any time during the course of an enquirybefore it visit the site at which the accident occurred for the purpose of

making a local inspection or examining any persons likely to be able to give information relevant to the proceeding.

(b) Any party or the representative of any party may accompany theClaims Tribunal for a local inspection.

(c) The Claims Tribunal after making a local inspection shall note brieflyin a memorandum any facts observed, and such memorandum shall form part

of the record of enquiry.

(d) The memorandum shall be made available to any party who desires tosee the same, and shall supply any party with a copy thereof, if applied for

and the fees therefore are paid.

(4) Power of summary examination.â€"(a) The Claims Tribunal, during a local inspection or at any other time, save at a formal hearing of a case

pending before it, may examine summarily any person likely to be able to give information relating to such case, whether such person has been or it is

to be called as a witness in the case or not, and whether any or all of the parties are present or not.

(b) No oath shall be administered to a person examined under clause (a).

(5) Method of recording evidence.â€"The Claims Tribunal shall, as examination of witnesses proceeds, make a brief memorandum of the substance of

the evidence of each witness and such memorandum shall be written and signed by the members of the Claims Tribunal and shall form part of the

record :

Provided that if any member or the Chairman is prevented from making such memorandum, he shall record the reason of his inability to do so and

shall cause such memorandum to be made in writing from his dictation and shall sign the same and such memorandum shall form part of the record :

Provided further that the evidence of any medical witness shall be taken down, as nearly as may be, word for word.

(6) Adjournment of hearing.â€"Normally the hearing of an application shall continue from day to day. If the Claims Tribunal finds that an application

cannot be disposed of at one hearing, it shall record the reasons which necessitate the adjournment and also inform the parties present of the date of

adjournment of hearing.

(7) Expert.â€"(a) The Claims Tribunal may, for the purpose of adjudicating upon any claim for compensation (other than claims under section 140 of

the Act), choose not more than two persons having technical or special knowledge with respect to any matter before the Tribunal for the purpose of

assisting the Tribunal in the holding of the enquiry.

(b) The expert shall perform such functions as the Tribunal may specify.

(c) The remuneration, if any, to be paid to the expert shall, in every case,be determined by the Tribunal.

(8) Framing of issues.â€"After considering any written statement, the evidence of the witnesses examined and the result of any local inspection, the

Claims Tribunal shall proceed to frame issues upon which the right decision of the case appears to depend.

(9) Determination of issues.â€"After framing the issues the Claims Tribunal shall proceed to record evidence thereon which each party may desire to

produce.

(10) Diary.â€"The Claims Tribunal shall maintain a brief diary of the proceedings.

(11) Obtaining of information and documents necessary for awardingcompensation under section 140 of the Act.â€"The Claims Tribunal shall obtain

whatever supplementary information and documents, which may be found necessary, from the police, medical and other authorities and proceed to

award the claim whether the parties who were given notice, appear or not on the appointed date. The Form, COMP. A. to the Rules referred to

above, is set out hereinbelow: -

“FORM COMP. A

[See rule 329 of the West Bengal Motor Vehicles Rules, 1989]

An Application for Compensation

To

The Motor Accidents Claims Tribunal

………………………

I…………….son/daughter/wife/widow of……………residing

at……………having been injured in motor vehicle accident, hereby apply for the grant of compensation for the injury sustained. Necessary

particulars in respect of the injury, vehicle, etc. are given below:

I…………… son/daughter/wife/widow of …………….residing at …………hereby apply, as a legal representative/agent, for the grant of

compensation on account of death/injury sustained by Shri/Kumari/Shrimati………….who died/was injured in a motor vehicle accident.

Necessary particulars in respect of the deceased/injury, the vehicle, etc. are given below:

Name and father’s name of the person injured/dead/(Husband’s name in the case of married woman and

widow)………………………………. Full address of the person injured/dead………………….. Age of the person

injured/dead………………………… Occupation of the person injured/dead……………….. Name and address of the Employer of the

deceased, if any…………….. Monthly income of the person injured/dead……………………………… Does the person in respect of which

compensation is claimed, pay income tax? If so, state the amount of income-tax (to be supported by Documentary vidence)……………. Place, date

and time of accident………………. Name and address of Police Station in whose jurisdiction the accident took place or was

registered…………………. Was the person in respect of whom compensation is claimed travelling by the vehicle involved in accident? If so, give

the names of places of starting of journey and destination…………… Nature of injury/injuries sustained, and continuing effect, if any, of the

injury/injuries……. Name and address of the Medical Officer, if any, who attended on the injured/dead…….. Period of treatment and expenditure, if

any incurred thereon (to be supported by documentary evidence)…………….Nature of the injury and whether it caused permanent disablement or

not…………….. Registration number and the type of the vehicle involved in accident…………….. Name and address of the owner of the

vehicle……………………………………… Name, Policy, Number insurance particulars and address of the Insurer of the

vehicle……………. Has any claim been lodged with the owner/insurer ? If so, with what result………………………. Name and address of the

applicant……………………… Relationship with the deceased……………………………………………………… Title to the property

of the deceased……………………………………………… Amount of the compensation

claimed……………………………………………………….. Any other information that may be necessary or helpful in the disposal of the

claim……….. I wish to claim compensation under section 140 of the motor Vehicles Act, 1988 only. I wish to make a claim for compensation under

the said Act and also in pursuance of the right on the principle of fault.

I………………solemnly declare that the particulars given above are true and correct to the best of my knowledge and belief and that no claim in

respect of the said accident has been filed or is pending before any other Court. Signature or thumb-Impression of the applicant. [See section 213(3)

of the Motor Vehicles Act, 1988]

Dated………………â€​

Thus, we see that while the statute speaks of parties, the statutory form in which compensation is to be sought in cases under Section 166 of the

Act of 1988, makes no provision for arraying anyone as a party. In fact, the statutory scheme treats the Learned Tribunal as an authority to hold an

inquiry into what would be the just compensation, which would be payable, depending upon the nature of the case, by the Owner of the offending

vehicle, or if there be more than one such owner and/or vehicle, the owners, the driver or drivers concerned, and the respective insurance companies.

All that would be required to be stated are the particulars of those persons, as also the of the seeker of compensation, the nature of the injury (in case

of injury), the treatment (including mitigation) and the facts of the case, and thereafter, the Learned Tribunal is not limited to examining those persons

named in the said Form, COMP. A, but can examine any person likely to be able to give information relating to such case, regardless of whether he

has been called as a witness or whether any or all of the parties are present or not.

The duty to “implead†the insurer, id est, to make it a party, only arises when for reasons to be recorded in writing, the Learned Tribunal

records its satisfaction about either of the two clauses in Section 170, (a) or (b), and in such case the Learned Tribunal is required to direct that such

insurer be made a party to the proceeding. It is the only person which is required to be “made†a party on such a direction being issued in such a

manner. It does not become a party merely because he is named in the Form COMP. A. It becomes so on a specific direction by the Learned

Tribunal.

So far as those persons who are put on notice under Rule 334, if they are treated as “Opposite parties†they may be required by the Tribunal

to file a written statement, and when they are so required, they “shall†file a written statement, which will at once form a part of the record.

When such a person files a written statement and contests the claim, there is no mandate on the Learned Tribunal to examine him. It is entirely the

discretion of the Learned Tribunal whether to examine such person who has filed a written statement on being required to do so, contesting the claim,

pursuant to a notice, or whether not to so examine him. Either way, the written statement contesting the claim shall form a part of the record of the

Learned Tribunal, and the scheme of the statute and the rules make it imperative for the Learned Tribunal to nonetheless inquire into the question of

what is “just compensation†and who or who all of the persons involved, is/are required to pay it and even in what proportion. This is the only way

to read the Rules of 1989 harmonizing the rules with the provisions of the statute.

It is only when the opposite party does not file a written statement, that the Learned Tribunal has a duty to examine him â€" denoted by the word

“shall†â€" and this makes the power and jurisdiction exercised by the Learned Tribunal something more than adversarial. I notice with great

emphasis the words “may†and “Shall†used to distinguish the nature of the Learned Tribunal’s duty depending upon whether written

statement has been filed or not, in this connection. In any adversarial litigation, where a person contesting a claim does not file a written statement, or

a counter to the claim, he cannot adduce evidence in support of any case not made out in the claim. Neither can he deny anything written in the claim.

This is the basis of the argument of Mr. Banik which required this lengthy analysis of the provisions of the statute and the statutory rules to find out

the legislative intention and the statutory scheme of the inquiry. However, as shall appear from what is determined hereinafter, the powers of the

special tribunal under the Act of 1988 is not limited to only recording denials.

The fact that the tribunals established under Section 165 of the Act of 1988 are manned by the members of the subordinate judiciary does not

change it into a Court rather than a statutory tribunal discharging statutory functions of holding an inquiry into just compensation and who is required to

pay it. Similarly, the provisions in Rule 342 and Rule 343 making certain provisions of the Code of Civil Procedure directly applicable to the

proceedings before the Learned Tribunal, and where there is no provision made for a certain thing in either the Act or the Rules, making the provisions

of the Code applicable thereto, will not change the Learned Tribunal into a civil court.

This becomes clearer when the provisions of Section 169 of the Act of 1988 are considered. Sub-section (2) makes it amply clear that the Tribunal

shall have all the powers of a civil court for specified and other purposes as may be prescribed and shall only be “deemed to be a civil court for all

the purposes of Section 195 and Chapter XXVI of the Code of Criminal Procedureâ€, but not a “court†for the purposes of the Code of Civil

Procedure. That is why it was required to specify the provisions under the Code of Civil Procedure which apply to proceedings before such Tribunal

even while constituting it as a special tribunal. The specified and other purposes, are clearly the determination of just compensation and who shall be

liable to pay it.

Therefore, it is evident that a “Claims Tribunal†established under Section 165 of the Motor Vehicles Act, 1988 is not a civil court though it

has many of the powers of a civil court and many of the provisions of the Code of Civil Procedure apply to it and this Court holds accordingly.

Once the statutory scheme read with the rules made to give effect to that scheme are considered, in the light of my above finding it is evident that

the mode of proceeding before this special tribunal whose function is to inquire into and “adjudicate claims for compensation in respect of accidents

involving the death of, or bodily injury to, persons arising out of the use of motor vehicles, or damages to any property of a third party so arising, or

bothâ€, is actually to hold an inquiry into the claim and make an award determining the amount of compensation which appears to it to be just and

specify the person or persons to whom compensation shall be paid by the insurer or owner or driver of the vehicle involved in the accident or by all or

any of them, as the case may be.

Once this conclusion is reached, it is irresistible that strict rules of adversarial action, with which the Learned Members of such a Tribunal are very

familiar, due to the qualifications prescribed in Section 165(3) of the Act of 1988, would not apply to such a Tribunal and it has been empowered to act

inquisitorially unless expressly forbidden. Once it is accepted that the scheme of the statute and the rules, for the purposes of determining

compensation, fixation of liability, and determining who is to pay what to whom, envisages an inquisitorial procedure, the requirements of adversarial

proceedings take a back-seat, in the interests of the quest for truth.

Therefore, the Learned Tribunal examining an opposite party who has filed his written statement, is not limited under Rule 335(2) of the Rules of

1989 to recording denials by such an opposite party. On the other hand, if he has not filed a written statement, where adversarial litigation would have

allowed only the recording of his statements without there being any power to rely upon them in the absence of pleadings, the duty encompasses

taking into note what he has said. The phrase “proceed to examine him upon the claim†when considered with the phrase “reduce the result of

the examination into writing†in the context of the Motor Vehicles Act, 1988, indicate that whatever such an opposite party says as a result of the

examination becomes part of the record, and thus is required to be considered by the Learned Tribunal. Similarly, whatever the opposite party has said

in the written statement, and has verified as being true to his knowledge, when it goes against his own interest, can be treated as an admission so far

as he is concerned, without there being any necessity for the said opposite party to be examined, so long as the claimant is not denied compensation

from the said opposite party without giving the claimant an opportunity to cross examine the said opposite party.

I draw confidence from the Judgement of Mayur Aroraâ€"vâ€"Amit @Pange and Others, reported in (2011) 1 TAC 78 where the Hon'ble High

Court of Delhi, while interpreting the above statutory provisions and the corresponding and substantially in pari materia provisions of the Motor

Vehicles Rules of Delhi, in the light of the judgment of the Hon'ble Supreme Court in the case of Jai Prakashâ€"vâ€"National Insurance Company

reported in (2010) 2 SCC 607 has been pleased to hold as follows: -

“The aforesaid directions to the Tribunals are without prejudice to the discretion of each Tribunal to follow such summary procedure as it deems fit

as provided under Section 169 of the Act. Many Tribunals instead of holding an inquiry into the claim by following suitable summary procedure, as

mandated by Sections 168 and 169 of the Act, tend to conduct motor accident cases like regular civil suits. This should be avoided. The Tribunal shall

take an active role in deciding and expeditious disposal of the applications for compensation and make effective use of Section 165 of the Evidence

Act, 1872, to determine the just compensation.â€​

However, it should be noted that the said portion of the judgement in the case of Mayur Arora (supra) was a direct quotation from the case of Jai

Prakash (supra) where the Hon'ble Supreme Court was concerned with accidents in respect of which proceedings were started under Sections 158(6)

and 166(4) of the Act of 1988 and the directions issued to the Learned Tribunals were in respect of proceedings thereunder, which were stated to be

without prejudice to the duty of the Learned Tribunal in other cases, where too the duty to hold an inquiry instead of proceeding as if it was a regular

civil suit, was mandated by the Hon'ble Supreme Court.

Again, one of the propositions of law laid down by the Hon'ble Supreme Court in the case of United India Insurance Co. Ltdâ€"vâ€"Shila Datta,

reported in 2011 ACJ 2729 (SC) is that“Though the Tribunal adjudicates a claim and determines the compensation it does not do so as in an

adversarial litigationâ€. These findings are of immense importance to the case at hand, as shall appear from the records of the case brought before

this Court, and the facts apparent therefrom and the submissions made.

In the instant case, the claimant being the Appellant has not been denied any part of the total compensation awarded to him on the ground of any

admission made by the opposite party No. 1A who has not been examined by the Learned Tribunal, nor cross-examined by the Appellant. The

respondent No. 2 (opposite party No. 1A) has also not disputed his liability for the accident.

Therefore, in the light of the provisions of the statute and the statutory rules and their analysis and the discussion considering the interpretation of

these provisions to arrive at the true statutory scheme intended by the legislature, as apparent from paragraphs 22 to 37 of this judgement, it is clear

that on receipt of a notice to show cause, not just the owner of the offending vehicle and its insurer, but any opposite party in the case before the

Learned Tribunal, if so required by the Learned Tribunal shall file a written statement under Rule 335(1) of the said Rules of 1989 which shall form a

part of the record. Again, under Rule 335(2) where written statement has been filed, examination of the party is not mandatory but discretionary.

Once I have held, as I have done in paragraphs 22 to 36 above, that the procedure before the Learned Tribunal, according to the statutory scheme,

is inquisitorial and not adversarial, and when admittedly the Learned Tribunal held the added opposite party No. 1A to be a necessary party and

accepting the said position, the Appellant applied for addition of the opposite party No. 1A as a party which was allowed, it is no longer open to the

Appellant to contend that the filing of the written statement by the opposite party No. 1A (respondent No. 2 herein) was without jurisdiction. Once the

written statement is held to have been accepted by the Learned Tribunal within its jurisdiction, it has become part of the records of the case, even

without examination by the Learned Tribunal or without the opposite party No. 1A deposing or adducing evidence and without cross-examination by

the Appellant.

Once the proceedings have been held, in such circumstances, to be inquisitorial the Learned Tribunal cannot be prohibited from looking into that

which has become part of the records under statutory rules. This power to hold inquiry would allow the Learned Tribunal to hold anyone whosoever,

on the basis of the materials on record before it at any time before the award is passed, as liable, provided such person is first given an opportunity of

being heard. The opposite party No. 1A was given an opportunity of being heard and his verified statement was accepted as true. When exercising

inquisitorial power, the Learned Tribunal can take the entirety of the factual circumstances before it into account and so long as it does not take a

view which is not a reasonable one in the circumstances, this Court, even in appeal, will be reluctant to interfere.

There is nothing in the law relating to procedure, whether inquisitorial or adversarial, which prevents the Learned Tribunal from accepting and

proceeding to hold a person who has admitted his fault in carrying a pillion rider in such circumstances as set out above, to be liable for the accident, at

least partially, and from proceeding against such an opposite party on the basis of an admission made by him against his own interest. The

apportionment would not affect the joint and several liability of the joint tort-feasors towards the Appellant. It does not affect the award in favour of

the Appellant. It only prejudices the opposite party No. 1A since the respondent No. 3 would be entitled to recover whatever proportion of the amount

the opposite party No. 1A is held liable to pay. He had a chance to contest the proceedings by adducing evidence, after filing what I can only hold to

be a written statement in the light of the above discussion including paragraphs 22 to 40 hereinabove, and he chose not to do so or explain his

admission. He has not preferred any appeal from the said award. Therefore, it is an established fact on the basis of such admission that the opposite

party No. 1A (respondent No. 2) was driving a scooter with only a learner’s licence, while carrying a pillion rider (passenger) who did not have

any valid licence to drive a scooter, to the knowledge of the opposite party No. 1A. Therefore, he was partially liable for the accident and to the extent

of his liability as apportioned by the Learned Tribunal, the insurance company (respondent No. 3) would have the right to recover the amount paid by it

from the respondent No. 2.

Thus, the first set of submissions of the Appellant as in paragraph 11, on the count of admissibility of the verified statement made by the

respondent No. 2 are answered accordingly by holding them admissible and capable of being relied upon, in the circumstances aforesaid, as against

the respondent No. 2, in the proceedings which have been held to be inquisitorial.

Once these submissions relating to holding the respondent No. 2 to be partially liable for the accident are held to be unassailable, which is the

effect of the discussion and analysis so far, and as has been held at paragraph 18 of this Judgement, the questions of law and fact attempted to be

raised by Mr. Banik become irrelevant and are not required to be decided, though for the sake of completeness, I shall refer to the precedents he has

cited before concluding with the case and I shall refer to the questions of fact, raised very briefly by him now.

Mr. Banik essentially submitted that when there was evidence adduced by the Appellant through three eyewitnesses, all unshaken in cross

examination, that the accident occurred due to the rash and negligent driving of the trailer, it was not open to the Learned Tribunal to hold that the

accident was caused due to the fault or partly due to the fault of the respondent No. 2 herein.

As I will show, the evidence of the three, so-called eye-witnesses are not the same and they contradict each other. Let us take the evidence of

each of these in turn.

On the point of how the accident occurred, the Appellant, being the victim, examined himself as PW 1. He had this to say: -

In the deposition, the Victim had alleged that “On that date about 11.30 am I was going to Lalpur to attend an official duty at Lalpur College riding

on the pillion seat of scooter. We were proceeding towards Purulia and a trailer bearing No. WB-15-1605 and dashed as a result I sustained crashed

injury of my both legs. My elbow bones also fractured, my finger ligaments who are also damaged. I also sustained injuries on my other parts on my

body. After sustaining injury I was removed BPHC, Hura from there I was removed at Purulia Sadar Hospital, and thereafter I was shifted to Tata

Main Hospital, Tata Nagar, Jamshedpur. My both legs were amputed (sic) there, one above knee, left leg and the right leg was amputed (sic) under

the knee.â€​

In the cross examination, the Victim as PW1 alleged, on the other hand, ‘I was going in a scooter of one Mishra while the accident took place. Mr.

Mishra was driving the scooter. In case of any on-rushing vehicle the pillion rider can see the same though he safe at the back of the driver. The place

where the accident took place was the junction of three roads. The scooter was running on the left side of the road. The trailer in question was also

running on the left side of the road. The road proceeds from Purulia to Hura side from west to east. Many persons of the locality saw the incident.â€

So, it is the specific case of the PW 1 (victim himself) that the scooter and the trailer were both running on the left side of the road (from his point of

view) which ran from West to East from Purulia to Hura.

On the point of how the accident occurred, the PW 2 had this to say: -

This man claimed to be a sweetmeat shop owner at Hura Block More, which is also known as “Nimtala Ghat More†again within the jurisdiction

of the victim who was the Block Development Officer, Hura. His case in the deposition is that “I know the petitioner of this case. He met with an

accident on 2.11.99 at about 11.30 am on Puruliaâ€"Bankura Road at Nimtala More. I saw the incident on my own eyes. While the petitioner was

travelling in a scooter and was proceeding from Hura to Lalpur side on the way he met with an accident. A trailer was proceeding from Lalpur to

Hura dashed the scooter being the number WB15/1605. The trailer was running at a high speed. The trailer dashed the scooter on the right hand side

of the road. Owing to such accident the driver of the scooter fell on the earth and pillion rider Krishnakanta sustained serious injuries due to such

accident.â€​. (emphasis supplied).

In the cross examination, the said PW2 stated “I have come to court without receiving any summons from court. The petitioner himself asked me

to depose in this case. Samiran Mishra was driving the scooter at that time. Nimtala More is the junction of four roads. My shop is situated on Hura-

Kashipur Road, in a corner place. At the time of accident many customers were present in my shop. The scooter was proceeding from east to west.

The Trailer was proceeding from western side to the eastern side. While I came out from my shop the petitioner was lying on the road in injured

condition.â€​ (emphasis supplied)

The PW 3, one Ashok Kumar Kundu, had this to say about how the accident occurred, in his cross examination: -

“At the time of accident the petitioner was B.D.O. at Hura Block Office, and I got acquaintance with him since his joining as B.D.O. On the

relevant date of accident I was at Neemtala More. I cannot name the person who was driving the scooter but he is a resident of Lalpur which is about

2 K.M.S away from Hura. At Neemtala More three roads meet. One road stretches to Kashipur and another road leading from Bankura to Hura.

The scooter was approaching from Bankura to Purulia. I found the scooter when it just crossed the Neemtala More. The trailer was proceeding from

Purulia to Bankura. Purulia â€" Bankura road stretches West-East direction. The scooter was on the left side of the road i.e. on the southern side of

the road. The trailer was a big vehicle. The breadth of the Hura-Road is about 18’ in width at the accident site. I found the trailer was

approaching at a high speed and dashed against the scooter. The driver of the trailer moved the vehicle to the right side and finally dashed against the

scooter i.e. on the southern side of the road the trailer dashed the scooter. Then the driver as well as the person who was on the pillion fell on the

road. The trailer stopped about 15 feet away from the accident site, both of them removed to Hura P.H.C. I did not find any mark on the road for

applying of brake by the driver of the trailer. I was about 40/50 cubits away from the accident site and about 50 cubit away from Neemtala Moreâ€​.

On the above basis, Mr. Banik contended that by the principles of res ipsa loquitur, it was clear that the accident on the basis of proven facts, was

wholly the fault of the trailer and its driver.

However, Mr. Asimesh Goswami, appearing for the respondent No. 3, Relying inter alia upon the evidence adduced by the Appellant, through

himself and his witnesses, and the cross examination, pointed out (as extracted in paragraphs 46, 47 and 48 above) that on the face of the said

evidence there was a contradiction since while it was an admitted position that the road from Purulia to Hura runs from west to east, and the victim

himself as PW1 admitted that both the scooter and the trailer were on the left side of the said road, and the trailer dashed the scooter while travelling

thus, yet strangely the PW 2 and the PW 3 maintained that the driver of the trailer moved the trailer to the right and dashed the scooter, that is, on the

southern side of the road. The road was from west to east. The left side could not therefore be the southern side. The trailer and the scooter were

stated by the victim to be travelling on the same side of the road, whereas another alleged eyewitness made out a case that they were travelling

towards each other from the opposite direction and thereafter the trailer moved to the right to cause an accident after it had crossed the scooter. All

three allege that they are eyewitnesses. The versions of the said three witnesses differ materially from each other and more importantly, the evidence

of the injured Appellant differs from that of the other two alleged eyewitnesses in respect of the material particulars and circumstances of how the

“thing†happened. Mr. Goswami contends that when the Appellant has made out a case that “the thing speaks for itselfâ€, if the witnesses

cannot agree how the thing happened, it cannot be said that the circumstances of the happening of the thing have been established. On this basis he

submits that either the witnesses are to be held to be unworthy of credit, or it ought to be held by this Court that the manner in which the accident

happened has not been established. Since the question of the liability of the owner of the trailer and thus, the indemnity through insurance given by the

respondent No. 3, depend on the establishment of the manner of the accident, in a case where res ipsa loquitur has been urged by the Appellant, this

ought to be case where the Court must hold that the thing, by itself, does not speak.

Even though this point cannot be reopened because of what I have held in respect of the submissions made by the Appellant in paragraph 11 at

inter alia paragraphs 18 and 43 of this Judgement, so that the Appellant does not feel that his case on facts was not noticed by the Court, I proceed to

note that since the geography of the place is very material, particularly due to the apparent contradiction between the testimony of so-called eye-

witnesses, the Court sought a sketch map drawn to scale. Mr. Banik produced in Court such a sketch map which was not objected to by Mr.

Goswami, showing the geographical location of the spot where the accident occurred and the relative positions of the roads and the directions marked

on it, with the terminal points indicated in it. This sketch map was kept with the record. It clearly shows that on the road from Purulia to Bankura,

from the Purulia side, Lalpur is before Hura. So, if the scooter was travelling from Hura to Lalpur and the trailer was travelling from Lalpur to Hura,

they were travelling towards each other from opposite directions. On facts, thus, it is possible to harmonize all three versions of the eye-witnesses if it

could be held that the scooter and the trailer were coming from opposite directions, and the scooter was on the left side of the road, and the trailer

moved to the left side of the road, and passed the scooter and then the accident occurred, when the trailer â€" which is quite long â€" had partially or

almost wholly passed the trailer, and if indeed the trailer had moved to the right from the perspective of the scooter. Yet in that case, the theory of

head on collision while the trailer was approaching the scooter, as alleged by the PW 3, cannot be maintained. To that extent the evidence adduced on

behalf of the Appellant has to be disbelieved in the interest of harmonizing the evidence of all three witnesses.

Continuing therefore, with the rather pointless analysis of the evidence (in view of the questions of law decided in paragraphs 18 and 43 and that

the proceedings were inquisitorial in nature and that the finding of partial fault on the part of the respondent No. 2 is unassailable) I must also logically

also record that once it is held that a huge and lumbering trailer is passing a scooter, on a pitch road, which finding about the nature of the road is

undisputed, it is clear that the driver of the scooter had ample scope and in fact the best opportunity to see the trailer swerving, if indeed it had, and

take precautions, since he had a smaller vehicle and could see the entire body of the trailer which was yet to pass him, or the trailer’s tail end, in

case the rest of the trailer had passed and which was in front and to his side, whereas the driver of the trailer in his driver’s cab could not see

behind except through the rear view mirror and particularly considering the nature of movement of a trailer. However, since the accident nonetheless

occurred, the fault of the scooter on which the victim was alleged to be pillion-riding illegally, cannot be ruled out on the preponderance of the balance

of probabilities. It is not the case of any party that the trailer was articulated at several points and each articulated section would move independently.

Therefore, if the thing here at all speaks for itself, it would say, loud and clear that here is a case where both the driver of the trailer and the driver of

the scooter are at fault. If such is the case, then both sets of owners and drivers and both sets of insurance companies would be tortfeasors. This

rather self-referring analysis was necessitated by Mr. Banik’s insistence on the point of res ipsa loquitur being considered and dealt with, though,

on my deciding the questions of law relating to the impermissibility of the Appellant assailing the award on the ground that the Learned Tribunal found

the respondent No. 2 to be partially liable for the accident, such point became academic and otiose.

Now we come to the question of whether the Learned Tribunal, while apportioning the fault and holding the respondent No. 2 to be partially liable

for the accident â€" which finding, as I have held above, is unassailable as between these parties â€"could also have directed that a certain specified

proportion be paid by the respondent No. 2 to the Appellant and another specified portion be paid by the respondent No. 3 to the Appellant.

Here, I find Mr. Banik on slightly surer ground. The locus classicus relating to this aspect of the matter can be found in the law laid down by the

Apex Court itself, not very long ago. This is the Judgement in the case of Khenyeiâ€"vâ€"New India Assurance Co. Ltd. reported in (2015) 9 SCC

The last part of the penultimate paragraph of the report is the locus classicus on the subject of composite negligence and the liability of joint tort-

feasors: -

“(i) In the case of composite negligence, Plaintiff/claimant is entitled to sue both or any one of the joint tort feasors and to recover the entire

compensation as liability of joint tort feasors is joint and several.

(ii) In the case of composite negligence, apportionment of compensationbetween two tort feasors vis-Ã -vis the Plaintiff/claimant is not permissible.

He can recover at his option whole damages from any of them.

(iii) In case all the joint tort feasors have been impleaded and evidence issufficient, it is open to the court/tribunal to determine inter se extent of

composite negligence of the drivers. However, determination of the extent of negligence between the joint tort feasors is only for the purpose of their

inter se liability so that one may recover the sum from the other after making whole of payment to the Plaintiff/claimant to the extent it has satisfied

the liability of the other. In case both of them have been impleaded and the apportionment/extent of their negligence has been determined by the

court/tribunal, in main case one joint tort feasor can recover the amount from the other in the execution proceedings.

(iv) It would not be appropriate for the court/tribunal to determine theextent of composite negligence of the drivers of two vehicles in the absence of

impleadment of other joint tort feasors. In such a case, impleaded joint tort feasor should be left, in case he so desires, to sue the other joint tort feasor

in independent proceedings after passing of the decree or award.â€​

In the light of the above precedent it is clear that while the Learned Tribunal was perfectly justified in the facts of the case to determine the extent

of the composite negligence of the drivers, and even put a monetary value to it, it was not open to it after finding that the respondent No. 3 was also

partly at fault, to direct that each of the joint tort-feasors pay a particular sum to the Claimant. The correct course ought to have been to make the

award after determining the extent of composite negligence of the driver of the trailer and the driver of the scooter for their inter se liability, and then

allow the tort-feasor who has satisfied his own liability and the liability of the other to recover the proportion of the liability of the other which he has

satisfied, from such other in execution of the award in the main proceeding.

However, since the respondent No. 2 has not appealed against the award nor is the present appeal continued against him by reason of the Order

dated May 17, 2012 (about five years after the claimant preferring the appeal), any increase in the award as prayed for by Mr. Banik would operate

only against the respondent No. 3, which flies against the face of the law laid down by the Apex Court. Specious arguments made after trying to steal

a march on the Court, the judicial process and one of the parties, by crafty strategies, cannot be allowed to defeat the purpose behind the law laid

down by the Hon'ble Supreme Court or dilute an award determining the composite negligence of joint tort-feasors when such finding of negligence or

the composite negligence itself cannot be reopened as held above. Perhaps the respondent No. 2 was not a party to the strategy of the Appellant and

its Learned Advocate â€" still he cannot be allowed to benefit from such sharp practice.

Let me then see whether the Appellant is entitled to any increase in the quantum of the award. The amputation of both his legs â€" one from

below the knee and one from above the knee â€" has not been disputed. However, he has, as appears from his cross examination, not suffered any

loss of income thereby. He has admitted therein that his basic salary is still the same, but he is getting more than Rs.912/- with increase in dearness

allowance. He has admitted that is not getting any increment not because of the accident because he could not pass the departmental examination.

I have to see whether under Section 166 of the Act of 1988, the conduct of the victim can at all be considered otherwise than by holding him guilty

of contributory negligence. Had the Appellant not been riding pillion on the scooter, even if there had been an accident, he would not have lost his legs.

This is the least I can say. The scooter’s driver-cumowner was also injured, but he did not lose his legs. Why was the Appellant present at the

spot of the accident? Was he a bona fide passenger, going for urgent official work? No such case has been made out. Instead, on the basis of

materials which I have held are admissible in the inquisitorial proceedings, it is clear that the Appellant knowing fully well that the scooter owner-cum-

driver had only a learner’s licence and was not lawfully competent to carry a passenger without a licence to drive a scooter nonetheless forced

the scooter driver-cum-owner to give him a lift, abusing his authority as the Block Development Officer of the block within which the said scooter

driver resided. Now here is a man who abused his authority and forced the commission of an illegal act. There was, unfortunately, an accident. He

lost both his legs and was permanently partially disabled. Justice works in strange ways.

After that, he claimed compensation, completely suppressing his own illegal acts and forcing another to commit an illegal act. He claimed

compensation only from the owner of the trailer and its insurer. His suppression of truth was found out and the driver-cum-owner of the scooter was

arrayed and admitted his illegal conduct which he was forced by the Appellant to do and was found to be also partially liable for the accident.

Compensation was awarded to the Appellant, which is not unreasonable considering the facts and circumstances of the case. Even then, he preferred

an appeal on questions of law, and quietly and surreptitiously, wanting more money from the Insurance Company instead of contenting himself with

seeking an increase in compensation which would be payable in the same proportion of composite negligence as found by the Learned Tribunal, had

the appeal dismissed against the owners of both the vehicles. Why he did so is easy to understand â€" perhaps he knew that the amounts he wanted

were beyond the reach of humble persons such as those whom he had in abuse of his authority, bent to his will. Therefore, the insurance company, the

favourite sacrificial animal in such cases, was to pay for his bonanza. He could not even prove details of all the heads under which he had claimed

compensation.

All that Mr. Banik could do was to show judgements where in cases of amputation higher amounts had been paid, and where negligence was not

held to be contributory where a scooter was being driven by a father with his minor children riding pillion and where the Hon'ble Supreme Court

expressly enjoined a sympathetic view because of that fact and since there was a presumption that a father would take sufficient care while driving

his own children, and where the facts of the accident, uncontroverted and on the unshaken testimony of eyewitnesses showed that the accident

occurred due to the fault of one rather than both the vehicles and their drivers. These facts were not found to be correct by the Learned Tribunal in

the inquisitorial proceedings. The inquisitorial nature of the proceedings and such mode of proceeding by the Learned Tribunal were not challenged by

the Appellant. It is as if he felt that merely throwing judgements at the Appellate Court, without considering whether they were applicable to the facts

of the case, could take the place of facts established or deemed to be established at the stage of the proceedings before the first forum.

In the facts and circumstances of the case, therefore, I do not feel that a case has been made out for enhanced compensation by the Appellant,

and the prayer for modification of the award by enhancing the compensation is therefore rejected.

We come now to the question of interest. Section 171 of the Act of 1988 provides as follows: -

“Award of interest where any claim is allowedâ€"Where any Claims Tribunal allows a claim for compensation made under this Act, such Tribunal

may direct that in addition to the amount of compensation simple interest shall also be paid at such rate and from such date not earlier than the date of

making the claim as it may specify in this behalf.â€​

After considering the reported and authoritative precedents, including the case of Puttamma and Othersâ€"vâ€"K.L. Narayana Reddy and

Another, reported in (2013) 15 SCC 45 and the various judgements referred to in it appears to me that the Hon'ble Supreme Court has not laid down

any law making it mandatory for the Learned Tribunal to award interest. The language of the statute indicates that the Learned Tribunal has a

discretion to award interest. The reported judgements, however, show that the Hon'ble Supreme Court has laid down the criteria for deciding the

proper rate of interest and from when it would be payable.

The Appellant has relied upon the case of National Insurance Company Limitedâ€"vâ€"Keshav Bahadur and Others reported in 2004 ACJ 648

(SC). This case relates to the jurisdiction of the Learned Tribunal to award interest at a higher rate on default. The Hon'ble Supreme Court held that

such a course of action was prohibited and once the discretion to impose interest was exercised, then that would be the rate at which interest would

be payable from the date of the claim application and not a higher rate if there was default in payment within the time stipulated by the Learned

Tribunal. This case does not help me, since here the Learned Tribunal chose not to exercise its discretion to award interest.

The Learned Tribunal, in its wisdom, has not granted any interest to the Appellant though it has allowed the claim, but partially. Therefore, it has

exercised its statutory discretion. As already held above, the power to award interest is a discretion, and therefore, the Learned Tribunal is within its

jurisdiction to award or not to award interest. Not awarding interest is also an exercise of jurisdiction, by exercising the discretion not to award

interest. It is not a case where it has failed to exercise its jurisdiction. It is a rare case when the Appellate Court interferes with an exercise of

discretion. At any rate, if there is a discretion to be exercised by the first forum, then the Appellate Forum, in a proper case, where there are sufficient

materials on record, can exercise such discretion itself, though I reiterate that it is a rare case that it will differ from the first forum by reversing the

exercise of discretion. Very strong grounds need to be made out for it. For the sake of completeness, I will proceed to analyze whether such strong

grounds have been made out.

Even though it is clear that the case was filed within reasonable time from the accident (in November, 1991) the case was prolonged only due to

the fault of the Appellant in not impleading all parties considered necessary by the Learned Tribunal for deciding this case of composite negligence. It

was wholly the Appellant’s fault that the proceeded to the stage of judgement without a necessary party as held by the Learned Tribunal. The

Appellant insisted on bringing the case to judgement on September 29, 2004 without a necessary party as held by the Learned Tribunal and thereby

the proper course ought to have been, on such finding, to dismiss the claim application, on that ground alone. Since there is no question of limitation,

and this would be dismissal for a technical ground, the Appellant could have made the claim again, curing the fatal defect. Instead, the Learned

Tribunal, strained the quality of mercy and was compassionate enough not to dismiss the claim petition the ground of failure to implead a necessary

party but gave a chance to the Appellant to cure the fatal defect by adding the necessary parties. The Appellant applied for the same on November

2004 â€" five years after the accident â€" and the order was passed for addition of party on January 4, 2005, and the proceedings thereafter were

completed on July 26, 2005. Therefore, this is not a case where the proceedings were prolonged due to the act of the respondent No. 3, who is the

sole respondent now. Further, the award was not satisfied because the Appellant challenged it on grounds which have ultimately not prevailed with

this Court. Had he not challenged it he would have got the award money immediately or by execution without any question of stay, since the

respondent No. 3 and/or the other respondents did not challenge the award and the award as passed became final as against them. Had he challenged

it but had continued it against all the respondents, it would have shown his good faith. Neither the delay in satisfaction of the award nor the delay in

deciding the appeal can be attributed to the respondent No. 3. I do not feel that the respondent No. 3 ought to be made to suffer for the fault of the

Learned Tribunal or the Appellant. Therefore, I hold against Mr. Banik’s client also on the question of interest, as contended by him and

summarized by me in paragraph 4(ii) of this judgement.

Now it only remains to deal with the authorities relied upon by the Appellant, before proceeding to the order which logically must follow the

process of reasoning outlined above, in paragraphs 1 to 66 of this judgement.

67.1. 2014 (4) TAC 684 (SC) Kumari Kiran through her father Hari Narayanâ€"vâ€"Sajjan Singh and Others: The Appellant relied upon this

judgement for the proposition that that driver of the heavy vehicle was more responsible for the accident than the driver of the light vehicle. With

respect to the Appellant the facts of the case which was cited before me and the facts of the present case are not the same. I cannot agree that the

Hon'ble Supreme Court was pleased to lay down a general proposition that whenever there is an accident involving a heavy vehicle and a light vehicle

or a two-wheeler, the fault must lie with the heavy vehicle and its driver, regardless of the facts established in each case. This was the case where a

father was driving his minor children riding pillion on a motor cycle and the Hon'ble Supreme Court was pleased to categorically hold that at least this

much could be assumed from such circumstance that he was taking sufficient care (since his own minor children were with him). This case would not

apply in the present circumstances where a reasonable explanation has been given by the Learned Tribunal for holding the scooter and its driver to be

partially liable. Besides the question of reopening the determination of inter se liability in view of what I have held in respect of the submissions at

paragraph 11 of this judgement in paragraphs 18 and 43 hereof, would not arise.

67.2. 2014 ACJ 2161 (SC) Yerramma and Othersâ€"vâ€"G. Krishnamurthy and Another:2014 ACJ 2161 Yerramma and other Vs. G. Krishnamurthy

and Another: Here a corporation bus turned to enter its depot without giving indication such that a motorcyclist following close behind, crashed into it

causing the accident. The situation is wholly different here, on facts. The case does not apply. Besides the question of reopening the determination of

inter se liability in view of what I have held in respect of the submissions at paragraph 11 of this judgement in paragraphs 18 and 43 hereof, would not

arise.

67.3. 2013 ACJ 2712 Dulcina Fernandes and others Vs. Joaquim Xavier Cruz and Another.

67.4. (2014) 2 WBLR (SC) 19: 2013 ACJ 2544 (SC), Minu Routh and Anotherâ€"vâ€"Satya Pradyumna Mohapatra. On facts these cases are not

applicable to the present case. Besides the question of reopening the determination of inter se liability in view of what I have held in respect of the

submissions at paragraph 11 of this judgement in paragraphs 18 and 43 hereof, would not arise.

67.5. 2009 ACJ 1314 (SC) : 2009 (2) TAC III (SC): Usha Rajkhowaâ€" vâ€"Paramount Industries and Others. This has been relied upon to contend

that the principle of res ipsa loquitur applies. However, as I have already held,the question of reopening the determination of inter se liability in view of

what I have held in respect of the submissions at paragraph 11 of this judgement in paragraphs 18 and 43 hereof, would not arise. Besides, if the thing

does speak for itself, as I have held in paragraphs 51 and 52 of this judgement, it speaks loud and clear that the driver of the scooter was at least

partially at fault for the accident, and the owner-cum-driver of the scooter has not appealed against such finding of the Learned Tribunal.

67.6. 2013 (3) TAC 181 (SC) = 2013 ACJ 1767 New India Assurance Company Ltd.â€"vâ€"Saheli Sarkar and Others was cited for the proposition

that no evidence beyond pleadings can be considered by the Learned Court or tribunal. However, as I have held in paragraphs 22 to 43, the

proceedings before the Learned Tribunal under the Motor Vehicles Act, 1988 not being adversarial but inquisitorial, this proposition is not attracted in

the present case.

67.7. 2010 ACJ 2212 National Insurance Co. Ltdâ€"vâ€"Mita Samanta: The Appellant cited this case once again in a futile attempt to ignore the

observations of the Court that the finding of partial liability and fault against the respondent No. 2 had achieved finality. This case was on the basis of

a contention by the insurer that in an accident when an unidentified truck struck a motor-cycle from behind and sped away, and where truck was

found by police investigation and the insurance company pleaded that an investigator appointed by him stated that after inquiring from various

witnesses he had concluded that the truck was not involved in the accident, but neither the owner nor the driver of the truck was examined, the

tribunal held that the accident was caused by the rash and negligent driving of the truck. The finding was upheld in appeal. I quite fail to appreciate

how on facts this case can at all apply to the present case, where the tribunal in an inquisitorial proceeding has recorded a finding that the driver of the

scooter was partially at fault and liable and the scooter driver-cum-owner has not challenged the finding.

67.8. (2018) ACC 150 (SC) Dinesh Kumar J. @ Dinesh J.â€"vâ€"National Insurance Co. Ltd. and Others was cited by the Appellant again to

impeach the finding of contributory negligence on the part of the motorcyclist claimant where the claimant motor-cyclist had preferred an appeal

against the finding of the Learned Tribunal affirmed by the Hon'ble High Court. Here, the Appellant is not the person against whom there is any

finding of contributory negligence by the Learned Tribunal. The respondent No. 2 against whom there was such a finding has neither preferred any

appeal nor is the appeal being continued against him. The case clearly does not apply.

67.9. On the question of composite negligence, the Appellant has reliedupon two judgements for the proposition that the Claimant may claim the entire

compensation from any one of the joint tort-feasors.

(i) A full Bench decision of the Hon'ble High Court of Madhya Pradesh being 2005 ACJ 831 Sushila Bhadoriya and Othersâ€"vâ€"Madhya Pradesh

State Road Corporation and Another.

(ii). The case of Khenyeiâ€"vâ€"New India Assurance Co. Ltd. reported in (2015) 9 SCC 273 referred to in paragraphs 54 and 55 of this Judgement.

However, as has been demonstrated above, the facts of the present case are clearly different in the instant case. Here the Appellant impleaded the

joint tort-feasors to avoid having the claim dismissed for non-joinder of a necessary party which finding became final as against the parties, did not

challenge it, obtained an award for compensation on a finding of fault against both the joint tort-feasors whereby the Learned Tribunal also determined

their inter se liability for the composite negligence, and none of the joint tort-feasors challenged this award.

Therefore, while I respectfully will follow the precedent laid down by the Hon'ble Supreme Court, as I must, I have to give effect to the ratio of the

judgement to its fullest, as applicable to the facts of this case.

67.10. The Appellant has relied upon the following judgements to contend that the application of the principle of res ipsa loquitur requires this Court to

reverse the finding of composite negligence on the ground that allegedly the accident speaks for itself and that the trailer was being driven in a rash

and negligent manner: -

(i) 1991 (1) TAC 715 Basthi Kasim Saheb (Dead) by Legal Repsâ€"vâ€"Mysore State Road Transport Corporation and Others,where the Hon'ble

Supreme Court held that where the evidence on the case indicates that there was no unexpected development, it was for the driver to have explained

how this happened and there is no such explanation forthcoming. In such a case, where the claimant could not prove the actual cause of the accident

and on the face of it, it was so improbable that the accident could have happened without the negligence of the driver, the Court should presume such

negligence without further evidence and the burden is on the defendant to show that the driver was not so negligent and the accident might more

probably have happened in a manner which did not connote negligence on his part.

In the case at hand, the finding of fact which has achieved finality as against the respondent No. 2 is not merely that of contributory negligence, but

also of composite negligence where he has been held to be partially at fault. He has not challenged it. The reasoning of the Learned Tribunal is not

fanciful or based on no material on record. Therefore, there is on the face of it, nothing which makes it improbable that the accident could not have

happened without the sole negligence of the driver of the trailer.

(ii) AIR 1979 SC 1862 Bishan Deviâ€"vâ€"Sirbak Singh the rejection of the claim petition on the ground that the Claimant had failed to prove the

identity of the driver of the offending vehicle, on the basis of a pleading of the insurance company which was held to be palpably false, where the

insurance company had alleged that the offending vehicle had been stolen by someone, but the owner of the offending vehicle who filed his written

statement a month later, did not support the case of theft of his vehicle. Here, the owner of the scooter who was also driving the vehicle himself filed

a cause admitting an illegal act against his interest and furthermore, on being found partially liable for the accident, neither challenged the proportion of

composite negligence determined on his account, nor the award. The Appellant not being aggrieved by the finding of composite negligence on the part

of the scooter-driver from whom too he was awarded compensation this decision, which is not applicable to the facts of the case, does not aid him.

(iii) 1976 ACJ 184 Krishna Bus Service Ltd.â€"vâ€"Smt. Mangli and Others: This case too was decided on the basis of presumption of negligence

and res ipsa loquitur. One of the findings of the Hon'ble Supreme Court was that the driver of the offending vehicle had a duty to take care where the

accident was such that in the ordinary course of events it would not have happened if proper care was taken by that driver. The facts of the case, as I

have been at some pains to demonstrate, are not those where in law I can draw such a presumption, first, for the respondent No.2, against whom

there is a finding of partial liability has accepted it, second, because the Appellant is not aggrieved by it and third because the Learned Tribunal has

recorded reasons which appear to be very probable on the preponderance of probabilities on the face of the materials on record in the inquisitorial

proceeding, that there was composite negligence including the partial fault of the driver of the scooter on which the Appellant was riding pillion.

Therefore, this decision will not be applicable in the facts of this case.

67.11. The Appellant has relied upon two decisions being IV (2006) ACC 845 (SC) National Insurance Company Ltdâ€"vâ€"Bhagwani and Others

and also IV (2017) ACC 577 (P & H) National Insurance Company Ltdâ€"vâ€"Kailash Chand & Another both in turn relying upon National

Insurance Co. Ltd.â€"vâ€"Sawran Singh and Others reported in (2004) ACC 1 (SC), to contend that “Learner’s Licence†is also a valid

licence. However, the decisions do not stop at that. They are based on the case of Swaran Singh (supra) which clearly holds that it cannot be said that

if a learner is driving a vehicle subject to the conditions mentioned in the (learner’s) licence, he would not be a person who is not duly licensed. It

has not been disputed from the Bar or on record in the instant case that the conditions of the learner’s licence held by the respondent No. 2 at the

material time did not allow him to carry any pillion rider/passenger who did not hold a valid licence to drive a light motor vehicle or scooter. Therefore,

on the face of the records the respondent No. 2 was in violation of the terms and conditions of his learner’s licence. These judgements therefore

do not come to the aid of the Appellant especially when the respondent No. 2 has not challenged the award.

67.12. I notice two other decisions only to hold that they are not applicable to the facts of the present case and since the Appellant is estopped by

judgement, his own conduct and the records of the case, as held by me in paragraph 12 of this judgement from contending that the driver of the

scooter is not a necessary party. These are 2008 ACJ 1964 : 2008 (2) TAC 799 (SC) Machindranath Karmathi Kasarâ€"v--D.S. Mylarappa and

Others and 2006 (2) TAC 254 (Cal) Malati Alias Mala Alias Mita Goonâ€"vâ€"Union of India. These judgements hurt the Appellant more than they

help him. For one thing, the judgement in the case decided by the Hon'ble Supreme Court was on the basis of the motor vehicles rules in Karnataka

where the driver of an offending vehicle is usually not impleaded as recorded by the Hon'ble Supreme Court; for another, there the Hon'ble Supreme

Court held that if in respect of a single accident, there is more than one claim and a finding is reached against a non-party of being liable for the

accident, then that person, in another claim, even if filed by him, cannot have that finding varied unless he has challenged the finding against him in the

first claim. Therefore, on facts this goes against the Appellant herein, who is actually trying to challenge the finding of composite negligence against

the respondent No. 2 which the respondent No. 2 has not done. The Appellant is not so entitled. The Calcutta case envisaged a situation where the

driver of the vehicle voluntarily offered a lift to the victim and as long as the employer of the driver was a party, necessity of the impleadment of the

driver was not felt. Here, the respondent No. 2 is the owner-cum-driver of the scooter, and that is an admitted fact. He said in a verified statement

that the victim/Appellant forced him to allow the Appellant to ride pillion on the scooter, knowing that the respondent No. 2 had only a learner’s

licence which did not allow him to do so. Therefore, it was not voluntary. On these different facts alone, the Calcutta case would not be applicable to

the present case.

I must reiterate here the salutary and legal principle hallowed by time and its application, that a judgement is an authority only for what it decides and

not what can be logically deduced from it. A little difference in facts can and does make a lot of difference in the precedential value of the judgement.

In the instant case, none of the judgements cited by the Appellant actually apply to the present case on facts.

67.13. The Appellant has cited 6 judgements for the proposition that the Motor Vehicles Act, 1988 is a beneficial legislation (for the victim and the

claimant) and that it is not necessary in proceedings under the Act of 1988 to go by any rules of pleadings or evidence since it is the duty of the

Learned Tribunal to arrive at a just compensation and that the Learned Tribunal is not bound by strict or technical rules of evidence. Not only did most

of these cases cited arise out of an accident resulting in death, these judgements only lay down the settled law with which there can be no quarrel, but

which at the same time, either do not apply on facts, or, as demonstrated by the discussions so far, harm the Appellant more than they help him, since

he has been relying on strict rules of pleading and evidence to try and ensure that the Court does not look at the case which led the Learned Tribunal

to find partial fault in a composite negligence against the respondent No. 2 and award compensation as against the joint tort-feasors in favour of the

Appellant. Nonetheless so that the Appellant does not feel that the cases cited by him were not considered, these are set out hereinbelow: -

(i) IV(2009) ACC 910 (SC) Raj Rani & Othersâ€"vâ€"Oriental Insurance Company Ltd. and Others.

(ii) IV (2009) ACC 981 (SC) Oriental Insurance Company Ltd.â€"v--Md. Nasir & Another

(iii) 2011 (2) TAC 41 SC =1(2011) ACC 62 (SC) National Insurance Company Ltd. and Othersâ€"vâ€"Anita Saha and Others

(iv) 1981 A.C.J. 507 Motor Owner’s insurance Co. Ltdâ€"vâ€"Jadavjit Keshavjit and Others.

(v) 1987 ACJ 411 Skandia Insurance Co. Ltd.â€"vâ€"KokilabenChandravadan and Others.

(vi) II(2004) ACC 37 (SC) New India Assurance Company ltd.â€"vâ€"Kiran Singh & Others.

67.14. So far as the enhancing the amount of compensation is concerned, the Appellant has by his own acts has made it impossible for this Court to

reopen the determination of partial liability of the respondent No. 2 in the case of composite negligence while at the same time precluding the Court

from enhancing the compensation as against the respondent No. 2 whose partial liability can neither be reopened in his absence nor prejudicially

affected further by enhancement, as held in paragraphs 12 to 61 above. Therefore, none of the authorities cited by the Appellant, in the peculiar facts

of this case, apply â€" in fact, the facts of those cases do not show such egregious wrong doing by the victim and such sharp practice by his lawyer to

try and undo those things which have achieved finality, between the parties, as discussed above. These cases, being 2017 ACJ 2834 (SC) New India

Assurance Co. Ltdâ€"vâ€" Gajendra Yadav and Others; 2017 ACJ 979 (SC), 2011 ACJ 1 (SC), 2015 ACJ 729 (SC) equivalent to 2015 ACC 392

SC, New India Assurance Co. Ltd.â€"vâ€"Dr. Sukanta Kumar Behera;2015 ACJ 484 Ramanâ€"vâ€"Uttam Haryana Bijli Vitaran Nigam Ltd., 2014;

ACJ 1441 (SC) Mekalaâ€"vâ€" Malathi and Others; 2014 ACJ 1375 (SC), M.K. Gopinathanâ€"vâ€"J. Krishna and Others; 2014 ACJ 1412 (SC),

Dinesh Singhâ€"vâ€"Bajaj Allianz General Insurance Co. Ltd; 2012 ACJ 28 (SC) Govinda Yadavâ€" vâ€"New India Assurance Co. Ltd.I have dealt

with the cases cited by Mr. Banik as being factually inapposite in paragraph 60 and made my decision on this point clear in paragraph 61 for the

reasons stated in the foregoing paragraphs of this judgement.

67.15. I have already made my decision on the question of interest clear in paragraphs 62 to 66 of this judgement.

In fact, at one stage of the hearing, considering my conclusions about the nature of the inquiry that the Learned Tribunal is required to hold, and in

view of my findings about the accident, a proposal was made that the matter be sent back on open remand, with a direction on the respondent No. 3 to

make payment of the entire amount awarded by the Learned Tribunal when a concession was made by Mr. Goswami that the respondent No. 3

would have no objection to such course of action provided that the respondent No. 3 was allowed to recover any amount found to be due after such

enquiry by the Learned Tribunal on remand, from the respondent No. 2. However, this proposal was made since Mr. Banik had given the impression

that the respondents No.1 and 2 were not contesting the appeal and had not preferred any cross-appeal against the award, without disclosing to this

Court that in fact, Mr. Banik had already, as far back as on May 17, 2012 abandoned his appeal as against the respondents No.1 and 2, and the appeal

was dismissed as against them on May 17, 2012 and therefore the award could not be altered to their prejudice as against them. This court has

recorded the above less than fair conduct on the part of Mr. Banik, in its order dated February 1, 2018.

I would therefore, apply the rule laid down in the case of Khenyei (supra) and hold that the respondent No. 3 would be liable to pay the entire

compensation awarded by the Learned Tribunal by the award impugned and instead of the respondent No. 2 paying to the Appellant the amount

adjudicated to be his share, after satisfaction by the respondent No. 3 of the said amount held by the Learned Tribunal to be payable by the respondent

No. 2 to the Appellant, the respondent No. 3 would be entitled to recover the said amount from the respondent No. 2 by way of execution of the

award as modified by this Appellate Judgement and Order.The appeal, therefore, fails on all grounds, as discussed above, except to the extent that the

award has been modified, as mentioned above.

The appeal therefore succeeds, partly, to the extent indicated above. Though I am unhappy with the sharp practice exhibited by the appellant apart

from my disapproval, I say nothing about it. The parties will bear their own costs.

(PROTIK PRAKASH BANERJEE, J.)

Dipankar Datta, J.:

By presenting this appeal under section 173 of the Motor Vehicles Act, 1988 (hereafter the Act), the appellant essentially seeks (1) enhancement

of the compensation awarded to him by the relevant tribunal while disposing of his application under section 166 of the Act; and (2) fastening the

liability to pay such compensation entirely on the insurer of the offending trailer, meaning thereby that the owner/driver of the scooter on which the

appellant was riding pillion is not made liable to bear any part of the compensation to which the appellant is found to be entitled.

My learned brother in the draft of the proposed judgment has given adequate reasons why the appellant is not entitled to either of such relief.

While I share the views of my learned brother, I wish to express my opinion (upon adverting to the version of the appellant himself once again) to

decline him relief as claimed in the appeal.

The appellant alleged that a trailer being driven in a rash and negligent manner dashed the scooter, on which he was riding pillion, and as a direct

consequence thereof he suffered the unfortunate amputation of his lower limbs.

I have tried in vain to find out from such version of the appellant as to what exactly led to the accident, or to be more precise, how the trailer

dashed the scooter.

A trailer, according to section 2(46) of the Act, “means any vehicle other than a semi-trailer and a side-car, drawn or intended to be drawn by

a motor vehicleâ€. Section 2(39) of the Act defines a semi-trailer as “a vehicle not mechanically propelled (other than a trailer), which is intended

to be connected to a motor vehicle and which is so constructed that a portion of it is super-imposed on, and a part of whose weight is borne by, that

motor vehicleâ€​. It is common knowledge that a trailer drawn by a motor vehicle is commonly used for transport of goods and materials.

A trailer by its very definition in the Act, therefore, is an unpowered vehicle which has to be drawn or towed by a powered vehicle.

For the purpose of proper understanding of the basic issue that has arisen for decision, id est, whether the trailer was being driven in a rash and

negligent manner leading to the unfortunate accident, I shall hereafter refer to the trailer spoken of by the appellant and his witnesses as the offending

vehicle and also classify and describe it as the powered vehicle and the unpowered vehicle, whenever/wherever necessary.

Having understood what a trailer means, as defined in the Act, it would indeed be absurd to suggest that the unpowered vehicle and not the

powered vehicle was being driven rashly and negligently and in the process the unpowered vehicle dashed the scooter. Sight cannot, however, be lost

that a powered vehicle drawing or towing an unpowered vehicle in common parlance compositely is often described as a trailer. I shall assume, giving

the appellant the benefit of incorrect description of the offending vehicle, that the appellant in fact intended to say that the powered vehicle, drawing or

towing the unpowered vehicle, was being driven without proper care and diligence amounting to rash and negligent driving and not the unpowered

vehicle, and that the accident in question was a fallout thereof. So far, so good.

Although the length of the offending vehicle has not been referred to by any of the witnesses supporting the claim, judicial notice can also be taken

of the highways in our country on which long vehicles, id est, a powered vehicle drawing or towing an unpowered vehicle, ply and taken together the

length of the powered and unpowered vehicles normally varies between 20 and 30 meters. If the offending vehicle were a long vehicle, or even if the

same were not a long vehicle, either way, it was necessary for the appellant, who could adduce the best evidence, to depose which part of the

offending vehicle dashed the scooter, ~ whether there was a head-on collision with the powered vehicle or the scooter was dashed by the unpowered

vehicle, or otherwise. The appellant, who was riding pillion, must have been in a proper and clear position to visualize what was happening in front,

unless of course he had dozed off. He did not say so. Apart from deposing that the offending vehicle dashed the scooter, no further/other version is

forthcoming from the appellant’s side of exactly how the scooter was dashed which could enable the tribunal to satisfactorily arrive at a finding

that the accident in question was the obvious outcome of rash and negligent driving of the offending vehicle. What emerges from the version of the

appellant is that the scooter was proceeding on the left side of the road and the offending vehicle was also travelling on the left side of the road, from

the appellant’s point of view. This version, if believed, would give rise to a likely situation of a head-on collision. The appellant by virtue of his

intellect is supposed to comprehend the difference between a head-on collision and dashing. It is not his case that there was any head-on collision.

That being the position, it would stand to reason that the scooter was dashed by the unpowered vehicle. The scooter having passed the powered

vehicle which was drawing or towing the unpowered vehicle, the scooter could be dashed by the unpowered vehicle only if the powered vehicle had

changed its trajectory leading to the unpowered vehicle swerving and in the process dashing the scooter. This version, unfortunately, is not there.

The possibility of the unpowered vehicle dashing the scooter in case the scooter rammed into it, cannot be totally ruled out having regard to the cause

shown by the owner thereof, who was on the front seat and driving it, on affidavit, that he had no driving license but only a learner’s license. An

individual having a learner’s licence is not expected to have the same expertise as an individual having a regular driving license. That the

owner/driver of the scooter may have contributed to the accident is a plausible conclusion on facts and in the circumstances, based on preponderance

of probabilities. Had it not been a case of the insurer accepting the award by not impugning it either by an independent appeal or by filing a cross-

objection, this is a case where it could fairly and reasonably be held that rash and negligent driving of the offending vehicle had not been proved at all.

The appellant ought to thank his fortune that this finding is not required to be given here. Bearing in mind the elaborate discussion of the evidence that

were adduced before the tribunal by my learned brother, the conclusion is inescapable that the tribunal did neither commit any error in holding that

there was negligence on the side of both drivers and also that the compensation payable to the appellant requires to be apportioned in the shares as

directed in the impugned award.

I also record my concurrence in regard to the direction for payment of the entire compensation to the appellant by the insurer, as awarded by the

tribunal, and reserving liberty to the insurer to effect recovery of a part thereof from the owner of the scooter in the manner as proposed by my

learned brother.

To avoid any inconvenience to the appellant, the insurance company is directed to transfer whatever is payable on account of compensation to the

appellant by National Electronic Fund Transfer. Mr. Banik shall furnish the particulars of the bank account of the appellant to the learned advocate-

on-record of the insurance company in course of a week from date; whereafter the insurance company shall act in compliance with this order within a

further period of a month.