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Judgment
1.Heard Mr. A Mannaf, learned counsel for the appellant and Mr. R Goswami, learned counsel for the respondent/Insurance Company.
This statutory appeal under Section 173 MV Act has been filed by the claimants/appellants challenging the judgment and award dated 19.02.2016
passed in MAC Case No.688/2014 by MACT No.3, Kamrup, Guwahati.
One Sushil Medhi died in a motor vehicle accident on 06.02.2014 involving vehicle bearing registration No.AS-01 EC-1626 owned by respondent
No.2 and insured with the respondent No.1. The claimants being the wife and children of the deceased Sushil Medhi, filed a claim petition before the
MACT No.3, Kamrup. The owner of the vehicle did not contest the claim, however, the insurer contested the claim by filing written statement.
Learned tribunal assessed the compensation at Rs.12,85,000/- on various heads. However, deducted 50% of the said compensation assessed by the
tribunal, attributing contributory negligence to the deceased and directed the respondent No.1, Insurance Company to pay only Rs.6,42,500/- being
50% of the amount of compensation assessed by the tribunal.
Aggrieved by the award, the claimants have preferred the instant appeal on the sole ground, that the learned tribunal committed illegality by
deducting 50% of the compensation assessed, on account of contributory negligence of the deceased in absence of any material on record.
The death of the claimant in the accident involving the vehicle, insured with the respondent/Insurance Company was not in dispute. That the
accident occurred due to the fault of the driver of the vehicle, as held by the learned tribunal on the basis of the evidence and materials brought on
record, has also not been put to challenge. Therefore, the only question to be answered in this appeal is whether the decision of the learned tribunal
deducting 50% of the compensation attributing contributory negligence to the deceased, was proper and sustainable.
Learned counsel Mr. Mannaf placing reliance on the following decisions, Ishwar Devi Malik and Ors Vs. Union of India through the Secretary to
the Ministry of Home Affairs, Govt. of India, New Delhi and Ors reported in AIR 1969 Delhi 183, Bangalore Metropolitan Transport Vs. Padma and
Others reported in (2009) 3 SCC 285, Bondar Singh and Others Vs. Nihal Singh and Others reported in (2003) 4 SCC 161 and Raba Laxmi
Debbarma and Ors Vs. Nupur Deb and Anr reported in 2010 (2) GLT 93 submits that neither there was any pleadings nor any evidence adduced by
the owner/insurer to show that the deceased also contributed to the accident and therefore, the learned tribunal fell in grave error by taking a
presumption of contributory negligence of the deceased without any pleading or evidence, submits Mr. Mannan.
Mr. Goswami, learned counsel for the Insurance Company submits that there was discrepancies between the evidence adduced by the claimant
and pleadings and as such, the learned tribunal rightly deducted 50% of the compensation attributing contributory negligence to the deceased. Mr.
Goswami further submits that by filing this appeal, the claimants prayed for a higher compensation which was not granted by the tribunal and in that
sense, this appeal should be construed as an appeal for enhancement of the award. Mr. Goswami, further contends that the tribunal while assessing
compensation, included excess amount on account of loss of consortium, loss of estate and also for loss of love and affection and such excess amount
should be deducted from the compensation.
Refuting the above submission, Mr. Mannaf submits that this is not an appeal for enhancement and it is only an appeal for rectifying the error
committed by the learned tribunal. The Insurance Company having not filed any appeal or not taking any cross objection against the award, cannot
urge for reduction of the compensation in an appeal filed by the claimant, submit Mr. Mannan.
The claimants examined 2 witnesses in support of their claim being the claimant No.1 and another witness examined as witness No.2, who claimed
to be an eye witness to the occurrence. Since the witness No.1, the claimant was not an eye witness, the evidence of witness No.2, who was an eye
witness of the accident is material. Pw-2 stated in his evidence that he was travelling in the offending vehicle on the relevant day along with the
deceased. According to him, when the deceased was boarding the vehicle suddenly the vehicle moved forward and consequently the deceased fell
down from the footboard and sustained injury causing his death. During cross-examination it was reiterated and clarified that when the deceased put
his leg on the footboard, the vehicle moved forward and consequently he fell down. This evidence of the Pw-2 who claimed to be an eye witness
remained un-controverted. Only a suggestion was put, that the accident occurred due to fault of the deceased, which was denied.
During the course of enquiry, the claimant proved the Accident Information Report, FIR and also the charge-sheet submitted against the driver of
the vehicle, showing that the accident occurred due to rash and negligent driving of the driver of the offending vehicle. It was also the specific plea of
the claimants that the accident occurred due to the fault of the driver of the offending vehicle. Learned tribunal while attributing 50% contributory
negligence to the deceased observed that deceased fell down from the vehicle as his leg slipped and therefore, the driver cannot be held solely
responsible. This observation of the learned tribunal was contrary to the evidence and materials brought on record and was apparently perverse.
The clear evidence of Pw-2 was that when the victim was boarding the vehicle, the driver moved the vehicle suddenly and as a result of which,
the victim fell down and sustained injuries. It is the driver of the vehicle or the conductor or the handyman whoever being in control of the vehicle, was
under obligation to take care of the safety of the passengers. If for any negligence on the part of the driver or any one in control of the vehicle
accident takes place, causing injury or death to anyone, such victim of the accident cannot be held liable without proving by evidence that the victim
had any role in the accident. Neither any pleading nor any evidence was brought on records to show that the driver took proper care and attention
before starting the vehicle. Had the driver took proper care before starting the vehicle the accident could have been avoided. Evidently the deceased
had nothing to do with the cause of accident, as he was not supposed to know that the driver would drove the vehicle without taking care and
attention. When there was clear evidence proving that the accident occurred due to rash and negligent driving of the vehicle, there could not be any
presumption of contributory negligence on the part of the deceased in absence of evidence.
It can be understood that in all circumstance direct evidence of negligence may not be available and the same may be required to infer from the
facts and circumstances of the case. In the instant case the clear and uncontroverted evidence was that when the victim was boarding the vehicle the
driver drove the vehicle negligently and as a result, the victim fell down and sustained injury. I fail to understand how from the above facts, any
negligence could be attributed to the victim on mere surmise and conjecture. The entire evidence brought on record clearly established that the
accident occurred due to negligence on the part of the driver which remained uncontrovered.
Mr. Goswami, learned counsel for the Insurance Company referring to an averment in the claim petition that the victim was travelling in the
offending vehicle, submits that the claim was liable to be rejected as there was discrepancy in between the pleading and proof, inasmuch as, evidence
was to the effect that accident occurred while the victim was boarding the vehicle and he fell down from the footboard. This argument appears to be
hollow in view of the fact that the death of the victim in the accident due to fault of the driver of the offending vehicle and the manner as to how the
accident took place had been clearly established by uncontroverted evidence. That apart, even if it is assumed for the sake of argument, that the
victim was travelling in the offending vehicle, that does not wash off the entire evidence proving, that the accident took place when the victim was
boarding the vehicle, reason being that neither any pleading nor evidence was brought on record to show that the victim did not alight from the vehicle
at the place of accident.
In the above facts and circumstances, the findings of the learned tribunal attributing contributory negligence to the victim of the accident was
totally perverse and deduction of 50% of the compensation amount is not sustainable.
Having come to the second limb of submission made by the learned counsel for the Insurance Company that this appeal is for enhancement as the
claimant has sought for a higher amount, I am unable to persuade myself to concur with such argument, reason being that the claimant in the instant
case has not prayed for any higher amount then what was assessed by the learned tribunal. The claimants have only approached this Court for curing
the defect or error committed by the learned tribunal and as such this cannot be considered as an appeal for enhancing the award. No doubt, the
submission of Mr. Goswami that some amount which were granted by the tribunal on certain heads were on the higher side in view of subsequent
change in law. Since no appeal or cross-objection has been filed for reduction of the award, in my considered view, the award which has been granted
by the tribunal cannot be reduced in this appeal filed by the claimant, even if it is considered to be an appeal for enhancement
For the reasons stated above, I find that the appeal deserves to be allowed. Accordingly, it is directed that the Insurance Company shall pay the
entire compensation assessed by the tribunal along with interest as fixed by the tribunal, by depositing the same with the tribunal within 6 (six) weeks.
The appeal is accordingly allowed.
Send down the LCR.