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Judgment
Deepak Gupta, C.J.
This appeal by the National Insurance Company Limited is directed against the award dated 15.07.2011 passed by the learned Motor Accident Claims Tribunal, West Tripura, Agartala in Case No. T.S.(MAC)283/2008 whereby the learned Tribunal awarded a sum of Rs. 36,41,326/- in favour of the claimant.
The undisputed facts are that the claimant was performing escort duty and travelling in a Maruti Gypsy bearing registration No. AS-01-L-7704 along with his Deputy Commandant Sri Anil Kumar Sharma. They along with other constables of the B.S.F were proceeding towards Agartala. When the vehicle reached near Kalabagan under Jirania Police Station at about 15.10 hours, a commander jeep bearing registration No. TR-01-3109 came from the opposite direction. It was alleged that this commander jeep was being driven rashly and negligently. The driver of the commander jeep tried to overtake one auto rickshaw and collided with the Maruti Gypsy. As a result, the claimant sustained injuries and lost his senses. He was taken to the Jirania PHC but referred to the G.B.P. hospital and thereafter to the S.S.K.M hospital in Kolkata. Since there was no accommodation in S.S.K.M hospital, he was admitted at Peerless Hospital in Kolkata where he remained in ICU for 2/3 days and thereafter, in the general ward. On 19.10.2005 he was discharged from the hospital. However, he had not recovered and was admitted to the B.S.F Bn. Headquarter hospital where he remained admitted for prolonged treatment.
On 15.12.2006 the B.S.F authorities assessed the disability of the petitioner to the extent of 74% by constituting a Medical Board. Therefore, compensation was claimed. The owner of the commander jeep contested the claim. He admitted that the accident had taken place but according to him the driver of his commander jeep was not at fault and he blamed the driver of the Maruti Gypsy of the B.S.F for the accident. He also submitted that his vehicle was duly insured and he produced the driving licence of one Kartik Bhatta who was the driver of the commander jeep.
The National Insurance Company Limited took up various defences. However, the insurance company did not deny the fact that the commander jeep was insured with it. The learned Tribunal held that the claimant sustained injuries in the accident but did not specifically decide the issue of negligence. The learned Tribunal held that since the disability was 74% the compensation payable should be Rs. 36,00,000/- and held the insurance company liable to pay the compensation.
In this appeal the main grounds raised by Shri D.K. Biswas, learned counsel appearing for the National Insurance Company Limited is that the learned Tribunal has not decided who was negligent and according to him the negligence was of the driver of the Maruti Gypsy or at best it is a case of contributory negligence. He also submits that the compensation awarded is highly excessive.
At this stage it would be pertinent to mention that the Union of India also fled a claim petition arising out of this very accident. In that claim petition the National Insurance Company Limited was a party. The driver of the commander jeep was also a party and after recording evidence the Motor Accident Claims Tribunal delivered a judgment on 30.10.2009 holding that the accident occurred due to the rash and negligent driving of the driver of the commander jeep bearing registration No. TR-01-3109. This award passed in Case No. T.S.(MAC) 313 of 2006 on 30.10.2009 was never challenged by the insurance company and, therefore, I am of the considered opinion that in the present proceedings arising out of the same accident the insurance company cannot be heard to argue that the accident occurred due to the rash and negligent driving of the driver of the Maruri Gypsy.
It was urged by Sri Biswas that the claimant himself was driving the vehicle. Since he was negligent, he could not be awarded compensation. Sri Biswas has relied upon the following judgments:--
"(i) Municipal Corporation of Greater Bombay v. Laxman Iyer and another , (2003) 8 SCC 731;
(ii) Andhra Pradesh State Road Transport Corporation and another v. K. Hemlatha and others , (2008) 6 SCC 767;
(iii) Sudhir Kumar Rana v. Surinder Singh and others , (2008) 12 SCC 436.
(iv) Ravi Kapur v. State of Rajasthan , (2012) 9 SCC 284;"
I am clearly of the view that these judgments are not at all applicable in the present case. There is no question of contributory negligence. In case the insurance company wanted to prove contributory negligence it was the bounden duty of the insurance company to have summoned the driver of the commander jeep or to have led any other evidence to disprove the statement of the claimant and D.W.1., the driver of the Maruti Gypsy. Therefore, I am not in agreement with this submission.
In the present case, the claimant had fled the claim petition not only against the driver of the commander jeep but had also arrayed the Union of India as respondent No. 3. Statements of witnesses have been recorded and the claimant has in his examination-in-chief clearly stated that the commander jeep came on to the wrong side of the road after overtaking an auto rickshaw and it was being driven in negligent manner when it hit the Maruti Gypsy. He sustained injuries and lost his senses.
Reliance is placed on the claim petition where in column No. 7, the occupation of this person is shown to be driver. He has clarified in his evidence that he was not a driver but a constable. When he was cross-examined, no suggestion was put to him that in fact he was driving the vehicle at the relevant time. The owner of the commander jeep led no evidence. The insurance company led no evidence.
The B.S.F authorities examined one Jagjit Singh, driver who stated that the accident occurred due to the driving of the civil jeep. In cross-examination he has stated that he was the driver of the B.S.F vehicle which met with the accident and in which vehicle Satyanarayan received head injuries. He was not cross-examined by the insurance company. Therefore, I fail to understand how it can be urged on behalf of the insurance company that the accident occurred due to the negligence of the claimant. To satisfy my judicial conscience I have called for the record of the vehicle and I find from the record that the vehicle was in fact not being driven by the claimant but by Jagjit Singh, D.W.1.
Next comes the question of quantum of compensation. The learned Tribunal has virtually awarded compensation by taking his salary to be 18,035/-, adding 50% for his future prospects and taking the loss of income at 74%. I am of the view that this system followed by the learned Tribunal may not be totally correct.
As far as quantum of compensation is concerned the petitioner remained in hospital for more than 1 year. His date of birth is 05.07.1966. He joined as a constable on 01.04.1988. The learned Tribunal while awarding the compensation had decided that the petitioner had been boarded out from service and given disability pension. This fact was seriously contested by Shri D.K. Biswas. I had therefore, summoned the service record of the claimant from the B.S.F. authorities.
The accident took place on 30.9.2005 and I find that the claimant was in service till 31.03.2009. The petitioner made a false statement in Court that he had been declared to be disabled and, therefore, he was boarded out from service. From the record I find that the petitioner Satyanarayan actually submitted an application for grant of voluntary retirement on extreme compassionate grounds and since he had worked for 20 years, 3 months & 16 days he was held entitled to pension. There is nothing on record to show that he was found unfit to remain in service. Therefore, though the petitioner may have suffered a serious disability he has not lost the job because of his disability but because he himself choose to take voluntary retirement. In this behalf, I may quote the following order which is on the service record of the claimant-petitioner:
"///ORDER///
The voluntary retirement notice tendered by No. 88165776 Constable Satya Narayan of ''D'' Coy of this unit has been accepted by the Commandant 37 BN BSF with effect from 31.03.2009 (AN) on extreme compassionate grounds with pensionary and pecuniary benefits in terms of Rules 48(A)(2) of CCS (pension) Rules 1972.
His date of birth as per service record is 05.07.1966 and date of enrolment in Government service 01.04.1988 and date of confirmation in the rank of Constable is 01.05.1994. His net qualifying service as on 31.03.2009(AN) has been worked out as 20 years, 03 months and 16 days.
He will produce No dues certificate from all concerned before leaving unit campus."
This clearly shows that the petitioner made a false statement in Court that he had been thrown out of service because of his disability. No doubt the petitioner suffered a grievous disability and probably because of his disability he may not have been eligible for future promotions but that will not mean that he has lost his job because of the disability. He had continued in job for more than 3 years. The petitioner also did not prove the details of his medical certificates and that also the learned Tribunal had to summon from the department.
In the evidence the claimant has stated that he was discharged on account of his disability but this fact is not correct. From the record I find that he remained in service and voluntary retired from service. The petitioner tried to mislead the Court in this regard. The learned Tribunal believing the petitioner to be true has awarded a huge amount of compensation. If these facts are not correct the petitioner will definitely not be entitled to this amount of compensation.
There is no material before this Court to decide what is the loss which has been caused to the claimant on account of his voluntary retirement. There is also no proof on record to show that he retired voluntarily because of the injuries. From the service record which has been produced before this Court I could not trace out the application for voluntary retirement.
In view of the above discussion, the appeal is partly allowed. Though the finding on the issue of negligence is upheld, as far as the award on issue of quantum of compensation is concerned, the same is set aside. The matter is remanded to the learned Tribunal with a direction to determine the quantum of compensation afresh on the basis of fresh evidence to be led. The claimant may be given two opportunities to lead his evidence and the insurance company can also summon record from the BSF and other authorities to lead evidence. The petitioner can also be examined by a doctor to ascertain his exact disability as at present.
The appeal is disposed of in the aforesaid terms.
Send down the LCRs forthwith.