National Insurance Co Ltd vs Bhadreswar Das And Ors

Heard the learned counsel, Mr. B.K. Purkayastha for the appellant (the National Insurance Co. Ltd. (hereinafter referred to as ‘the Insurance

Company’). Also heard Mr. B. Chetri, learned counsel appearing for the respondent Nos.1â€"4 and Mr. S.S. Barooah, the learned counsel

appearing for the respondent No.5.

This Appeal is preferred by the Insurance Company against the judgment and award dated 6.9.2012, passed by the learned Member, Motor

Accident Claims Tribunal, Dibrugarh, in the MAC Case No.64/2011.

The claimants (respondent Nos.1â€"4 herein), preferred the claim petition contending inter alia that on 26.3.2011, at about 2:30 P.M., while Late

Dipak Das along with one Dipen Das was riding by the Motor Cycle bearing registration No.AS-04-D/7043, they met with an accident involving the

offending vehicle No. AS-04-D/8094 (a Mini Truck). As a result, the victim Dipak Das sustained severe injury and although he was immediately

shifted to the Assam Medical College, Dibrugarh, he succumbed to his injuries on the next day. It was the allegation of the claimants that the accident

occurred due to rush and negligent driving of the offending vehicle/Mini Truck and the claimants being the legal representatives of the deceased,

preferred the claim petition, who were the parents, wife and the minor son of the deceased.

The driver and the owner of the Mini Truck did not contest the case, although notice was served upon them. So the case proceeded exparte against

both of them. The Insurance Company with whom the offending vehicle/Mini Truck was insured, contested the case and filing written statement, they

denied the allegations and submitted inter alia that the incident occurred due to the contributory negligence of the Motor Cycle, plied by the deceased

person. As usual, the Insurance Company resisted the claim of the claimants. It is also contended that the liability to pay the compensation by the

Insurance Company shall be subject to fulfillment of terms and conditions of the policy, at the time of accident.

On the basis of pleadings, the learned Tribunal framed the following two issues:

(i) Whether Dipak Das died in the motor vehicle accident that took place on 26/03/11 involving the vehicle bearing Registration No.AS-04-D/8094 due

to rash and negligent driving or any other fault of the driver/owner of the offending vehicle bearing registration No.AS-04-D/8094?

(ii) Whether the claimants are entitled to compensation as prayed for? If so, what shall be the quantum of compensation and by whom among the

opposite parties, the compensation shall be paid?

In the course of trial, the claimant examined two witnesses and produced some documents. The Insurance Company also examined three witnesses

in support of their case.

The learned Tribunal, after examining the evidence on record and documents produced by both the parties, answered both the issued in favour of

the claimants and directed the Insurance Company to pay a sum of Rs.6,22,000/-, to the claimants with interest @ 6% per annum, from the date of

filing of the claim petition, till realization; within a period of one month with certain directions that out of the awarded amount, 20% shall be fixed

deposited in the name of the minor son of the deceased till his attaining majority and 30% of the awarded sum shall be fixed deposited in the name of

wife of the deceased for one year. The rest of the awarded amount was directed to be paid to the wife and the mother of the deceased in equal share,

by account payee cheques.

Now the present appeal has been preferred by the Insurance Company, challenging the aforesaid order on two counts. Firstly, it is contended that

although there was collusion between two vehicles, the learned Tribunal has fixed the liability only against the offending vehicle i.e. the mini truck but

not against the vehicle (the Motor Cycle) which was driven by the deceased. On the next, it is contended that the owner of the offending vehicle (mini

truck) has violated the terms and conditions of the policy by violating the condition of the permit, as at the time of accident, there was no valid permit.

So the Insurance Company is not liable to pay the compensation.

According to the learned counsel for the appellant, the order of the learned Tribunal is liable to be interfered with on the ground assigned in the

Appeal memo (as discussed above).

The learned counsel for the claimants/respondent Nos.1â€"4 submits that there appears nothing perverse in the findings of the learned Tribunal to

interfere.

On the other hand, the learned counsel for the respondent No.5/owner of the offending vehicle contends that they are not liable to pay compensation,

as has been contended by the Insurance Company and observed by the learned Tribunal.

I have heard the due deliberation of the learned counsel for both parties and also gone through the impugned judgment and order.

On perusal of the impugned judgment and order, it transpires that the learned Tribunal has appreciated the evidence on record, adduced by both

parties. Although the Insurance Company has taken the plea that there was contributory negligence on the part of the deceased who drove the

vehicle/Motor Cycle, but the claimant examined one eye witness (PW.2), who has categorically stated that the accident occurred due to rash and

negligent driving of the offending truck. The respondent/Insurance Company has not been able to rebut the said evidence on record, who was an eye

witness to the accident to the effect that the accident occurred due to the fault of the offending vehicle. On the other hand, the driver of the offending

vehicle did not contest the case nor adduce evidence, for which the Tribunal find and held that the death of the victim was caused due to the rush and

negligent driving of the offending vehicle/Mini Truck. In view of the above, the first point of challenge can be answered accordingly.

On the next, it is to be noted that while discussing the evidence, the learned Tribunal has discussed about the evidence adduced by the Insurance

Company. In paragraph 9 and 10 of the judgment, the Tribunal has categorically discussed about the evidence produced by the Insurance Company.

As has been pleaded by the Insurance Company that there is a violation of condition of permit, the Insurance Company examined two witnesses

i.e. DW.1 and DW.2, who have led the evidence on the point that as the vehicle did not have permit at the time of accident, as such the insurer is not

liable to indemnify the insured. The DW.2, an employee of the District Transport Office, Dibrugarh has also stated that the offending vehicle bearing

registration No.AS-04-D/8094 had the permit for a period from 19.4.2005â€"18.4.2010, but at the relevant period i.e. from 19.4.2010â€"19.6.2011, the

vehicle did not have permit. On the basis of which the Tribunal has also observed that the offending vehicle did not have the permit at the time of

accident. The learned Tribunal was of the view that even if there was violation of condition, the insurer was liable to pay the compensation amount

and the Insurance Company is at liberty to recover the said amount from the owner of the offending vehicle. However, while giving such observation,

no specific direction was given to the Insurance Company to this effect.

As per the provision of law, the Insurance Company can pay such compensation amount to the aggrieved persons and then the same can be

reimbursed from the owner through due procedure. The second point of grievance can be answered accordingly by giving specific direction in this

regard.

It is to be noted that at the time of filing this Appeal, apart from depositing Rs.25,000/-(Rupees twenty five thousands) as the statutory deposit, the

appellant has also deposited 50% of the awarded amount i.e. Rs.3,11,000/-, on 12.3.2013 and which was subsequently disbursed to the claimants,

namely, Bhadreswar Das (father of the deceased), Dipti Das (mother of the deceased), Rubi Das (wife of the deceased) and the minor son of the

deceased, Bikash Das, in accordance with the order so passed by this Court in Misc. Case No.2202/2013, dated 23.9.2013.

It may be stated that the owner of the offending vehicle did not contest the case before the Tribunal. So at this point of time, they cannot resist the

case, either of the claimants or of the Insurance Company that they are not liable to pay the insurer for violation of conditions of permit, etc. The

submission of the learned counsel for the owner of the offending vehicle is answered accordingly.

There appears nothing to interfere with the order and judgment of the Tribunal.

Today, the learned counsel for the claimant, Mr. B. Chetri has produced the death certificate of Bhadreswar Das (father of the deceased), who

expired on 6.2.2015.

Now as 50% of the award has already been realized, only 50% of the compensation amount i.e. Rs.3,11,000/- remains to be paid. In terms of the

award, 20% of the awarded amount should be fixed in the name of the minor son of the deceased, till he attains majority. It is submitted at the bar that

20% of the total award will be around Rs.1,25,000/- and out of it, Rs.1,00,000/- has already been fixed deposited and the remaining amount of

Rs.25,000/- will be fixed deposited in the name of the minor son of the deceased.

As the earlier amount of Rs.3,11,000/- has been realized, the Insurance Company (the appellant herein), is hereby directed to deposit the remaining

amount of Rs.3,11,000/- of the awarded sum, along with interest before the Registry as per the award and thereafter the Registry will fix deposit an

amount of Rs.25,000/- (Rupees twenty five thousands) in the name of minor Bikash Das, in terms of the award. In the same way, the remaining

amount i.e. Rs.87,000/- (Rupees eighty seven thousands) (30% of the awarded sum), be fixed deposited in the name of the wife of the deceased for

one year (as already Rupees one lac has been paid). The Registry will do the needful.

The balance of the compensation amount will be divided between the mother and the wife of the deceased, in equal share by account payee

cheques. In making the payment, the Insurance Company shall be at liberty to adjust the statutory (deposited) amount of Rs.25,000/-.

As directed above, the Insurance Company will deposit the same before the Registry within six weeks from today and after depositing the amount,

the Insurance Company shall be at liberty to realize the aforesaid awarded amount from the owner of the offending vehicle, as per procedure.

The appeal is disposed of accordingly. Return the LCR forthwith.