National Insurance Company Ltd vs Bina Devi And Others

Ananda Sen, J

By filing this miscellaneous appeal, the appellant-Insurance Company has challenged the award dated 14.03.2016 passed by the Motor Accident Claim Tribunal No.III-cum-District & Additional Sessions Judge III, Dumka in Motor Accident Claims Case No.61 of 2012, whereby the Tribunal while allowing the claim application, has awarded a sum of Rs.15,51,000/-(Rupees Fifteen Lakh Fifty One Thousand) only in favour of claimants against all the opposite parties, with addition of simple interest @ 12% per annum from 18.10.2012, i.e., the date of filing of the application under Section 166 of the Motor Vehicle Act till its final payment or realization. Additional amount of Rs.20,000/- was awarded as cost which includes Court Fee also and all the opposite parties, owner, driver and Insurer are jointly and severally directed to pay such awarded amount of Rs.15,51,000/- (Rupees Fifteen Lakh Fifty One Thousand) only with interest and cost within 45 days from the date of receipt of the order. It was awarded that the National Insurance Company Ltd., being insurer, having statutory liability to indemnify the owner, must pay the awarded amount with interest and cost, by account payee cheque in the name of Claimants Nos.1 and 2 within 45 days from the date of receipt of the order, failing which the opposite parties shall be liable to pay penal interest @ 18% per annum and in such case the claimants shall be entitled to realize the same by due process of law.

Claimants-respondents Nos.1 and 2 filed a claim application seeking compensation before the Motor Accidents Claims Tribunal, stating that on 05.05.2009 at 07 p.m., in an Alto Car bearing registration No. JH 10K 4682, the deceased Nageshwar Singh along with one Sunny Kumar and others proceeded for attending marriage of their friend Soni Thakur to Godda. On their way, when they were near the turning of Village Khairbani, one unknown Bolero vehicle, driven in a rash and negligent manner, came from behind and dashed the Alto car from behind, due to which the Alto Car got badly damaged and persons travelling in it sustained serious injuries, while deceased Nageshwar Singh died. Sunny Kumar, who was driving the Alto Car became injured but out of fear, he even without giving information to anybody, left the place leaving the car in damaged condition. Later on his grandfather Kameshwar Mandal went to Police Station, where his fardbeyan was recorded on 10.05.2009 at 05.15 p.m. and on the basis of the same, Ramgarh Police Station Case No.43 of 2009 was registered under Sections 279, 337, 338 and 304A of the Indian Penal Code against an unknown driver of an unknown Bolero Vehicle. After investigation, chargesheet No.34/10 was submitted against unknown driver of the unknown Bolero vehicle. It was the case of the claimants that the deceased was a labour and being the main earning member of the family, he was earning Rs.4,500/- per month. The deceased left behind his parents. The deceased was aged 20 years.

Pursuant to notice issued by the Tribunal, the opposite parties appeared. Opposite Party No.1 being the owner of the vehicle filed his written statement wherein he admitted that the opposite party No.2 Sunny Kumar is the driver of the offending Maruti Alto Car. Though he admitted the fact of accident on 05.05.2009 but denied any injury caused to anyone in such accident including the deceased Nageshwar Singh. He further contended that his vehicle Maruti Alto Car was duly insured with the opposite party No.3 National Insurance Company Ltd. having Policy No.4175264 valid from 27. 05.2008 to 26.05.2009, thus all the liabilities including the liabilities arising from the injury or death of 3rd party is fully covered under the said insurance policy. He also contended that the accident occurred due to the act of one unknown Bolero vehicle and the claimants have knowledge about the same, but, they have not impleaded the owner, driver and insurer of the said Bolero vehicle.

The opposite party No.2, Sunny Kumar, who is the driver of the Maruti Alto Car did not file any written statement.

The opposite party No.3-the Insurance Company – appellant herein, had also filed a written statement denying the claim of the claimants. It was pleaded that the opposite party No.2 Sunny Kumar was not the driver of the offending car, rather the deceased Nageshwar Singh was driving the car. It was also pleaded that there was delay in lodging the First Information Report and as per the report, the deceased died due to the collision of unknown Bolero vehicle, which was driven in rash and negligent manner, thus, the driver and owner of the said Bolero vehicle are liable to pay compensation. It was also pleaded that the accident took place also due to fault of driver as well as owner of the Alto Car which was loaded more than its capacity and was used as commercial passenger vehicle.

On the basis of pleadings of the parties, the Tribunal had framed the following issues: -

I. Whether, the present claim application is maintainable in its present form and had claimants got valid cause of action for filing the same?

II. Whether, the deceased Nageshwar Singh aged about 20 years having income of Rs.4500/- per month died accidental death due to use of the offending vehicle Maruti Alto Car bearing registration No. JH 10K 4682 (wrongly mentioned as BR 10AK 4682)?

III. Whether the driver of vehicle driving the vehicle under valid driving licence?

IV. Whether the owner and driver OP No.1 & 2 plying the vehicle in violation of the terms of Insurance Policy?

V. Whether the Maruti Alto Car No. JH 10 K 4682 insured with OP No.3 at the relevant time of accident dated 05.05.2009?

VI. Whether the claimants are entitled for compensation from the OP No.1 to 3 and if so what will be amount of just compensation?

VII. Whether the claimants are entitled for any other or further relief?

The claimants in support of their claim application, examined three witnesses, namely, P.W.1 Bina Devi, the mother of the deceased and Claimant No.1 herself; P.W.2 Bhuneshwar Mahto, ex-neighbour of the deceased Nageshwar Singh and P.W.3 Shiv Kumar Thakur, a co-passenger in the offending car.

The claimants also produced the following documents, which were marked as exhibits:-

Exhibit 1

Certified copy of FIR of Ramgarh PS Case No.43/2009

Exhibit 2

Certified copy of charge-sheet

Exhibit 3

Original heir-ship Certified No.125/2009 dated 05.06.2009

Exhibit 4

Photo copy of Insurance Package Policy

No.4175264 valid from 27.05.2008 to 26.05.2009

Exhibit 5

Photo copy of owner book/registration certificate of offending Car

Exhibit 6

Photocopy of Driving Licence No.499/2004/PVT/Dumka of OP No.2 driver, valid up to 31.12.2021

Exhibit 7

Photo copy of Postmortem Report of the deceased

Exhibit 8

Report of Motor Vehicle Inspector

The opposite parties, i.e., owner and driver of the vehicle and the insurance company have neither examined any witness nor produced any documents.

The Trial Court, thereafter, vide the award dated 14.03.2016 allowed the claim application, as mentioned in details at paragraph 1.

The issue, which now falls for consideration is, whether the claimants are entitled for any compensation from the appellant National Insurance Company Ltd. and whether the accident occurred due to rash and negligent driving of unknown vehicle?

P.W.1 is Bina Devi. She is the claimant. She stated that her son Nageshwar Singh died in the motor accident. Accident occurred on 05.05.2009 at about 07.00 p.m. The deceased, along with others, were in Alto Car JH 10K 4682 and were going to attend the marriage party of a friend of Sunny Kumar. She stated that while the vehicle reached Khairbani, Dumka-Godda Road, a Bolero being driven in rash and negligent manner, dashed the Alto car. Nageshwar Singh was injured and he was taken to hospital, where he died. Owner of the Alto Car was Kameshwar Mandal. She also stated that the deceased used to earn Rs.4,500/- per month. The police also found the fact of accident to be correct. In cross-examination, she stated that there were 5 (five) passengers in the Alto car. Further she stated that age of the deceased was 19 (nineteen) years. From her statement, it is admitted that she is not an eye witness.

P.W.2 is Bhuneshwar Mahto. The said witness was earlier a neighbour of the deceased. He stated that the deceased died due to motor accident, which took place on 05.05.2009. He also stated that the deceased was travelling as a passenger in the Alto car and was going to attend a marriage ceremony. He stated that the accident occurred at Dumka-Godda Road, where a Bolero vehicle, being driven in rash and negligent manner, dashed the Alto Car as a result of which Nageshwar Singh was injured. He stated that he was also going to attend the marriage and was in a Sumo vehicle, which was behind the Alto Car. In cross-examination, he showed ignorance as to whether the vehicle, which met with accident was taken on hire or not. He stated that the deceased was earning Rs.4,500/- per month. As per his statement, he is an eye witness to the accident.

P.W.3 is one Shiv Kumar Thakur. He narrated the fact of the accident. He stated that Sunny Kumar was driving the vehicle at a high speed and they forbade Sunny Kumar not to drive at such high speed, to which he did not pay any heed. He also stated that unknown Bolero vehicle came from behind and dashed Alto Car and thereafter fled, as a result of which Alto vehicle got damaged and Nageshwar Singh got injured. Nageshwar Singh was unmarried and was earning Rs.4,500/- per month. In cross examination, he stated that the deceased was sitting next to the driver. He is also an eye witness to the accident.

Fardbeyan and the First Information Report were also exhibited. As per the said documents, accident took place because of the fact that an unknown Bolero came and dashed the Alto Car from behind. The Postmortem Report of the deceased was also exhibited. Exhibit 8 is an Accident Report submitted by the Inspector of Motor Vehicles. From the said report it is clear that the Inspector has mentioned that the damage of the Alto car is on the front side, as the front glass, front wheel and radiator are damaged. There is no mention of any damage on the rear side.

Now, if the oral evidence and the documentary evidence are analysed, it is clear that all the witnesses have stated that the accident occurred due to rash and negligent driving of an unknown Bolero Vehicle. Further, it is evident from the evidence that Bolero vehicle dashed the Alto car from behind. Further, it is evident that the deceased was sitting in the front seat, next to the driver and there were five passengers. There is nothing on record, nor any evidence that any of the passengers sitting in rear seat of the Alto Vehicle sustained any injury. Further, the documentary evidence at Exhibit 8, which is the report of the Motor Vehicle Inspector, mentions that the damage to the Alto vehicle was on the front side, as the radiator, the front glass and the front wheel were damaged. There is no whisper of any damage to the rear side of the Alto car. From the evidence led by the parties and from Exhibit 8, it is clear that the oral evidence in respect of damage of the vehicle is not matching with the documentary evidence, i.e., the report of the Motor Vehicle Inspector. If the Alto car was dashed by unknown Bolero vehicle from behind, then there was no occasion that front side of the Alto car will be extensively damaged, i.e., radiator, windshield and other parts. Be it noted that it is no one’s case that after the Alto Car was dashed from behind, due to the impact the Alto Car had dashed any vehicle or object which was in front of it.

Another glaring aspect is that when Alto Car was dashed from behind, it is surprising that none of the persons sitting in the rear side of the vehicle sustained any injury, rather the person sitting next to the driver sustained injury and died. The evidence clearly suggests that the alleged eye witness P.W.2 and P.W.3 have not stated the correct fact.

Even if for the sake of argument, it is accepted that P.W.2 and P.W.3 have stated the correct fact that an unknown Bolero dashed from behind and fled, then also no liability can be attached with the appellant-Insurance Company – insurer of Alto Car, because of the reason that there is nothing to suggest that the accident had occurred due to rash and negligent driving of Alto Car. As per P.W.2 and P.W.3, entire accident occurred due to rash and negligent driving of the Bolero Vehicle. Bolero Vehicle remained unidentified. Thus, at best, even if the evidence of P.W.2 and P.W.3 are taken to be correct and the documentary evidence, i.e., the report of the Motor Vehicle Inspector is discarded, then also the case is of hit and run by an unknown vehicle for which the appellant Insurance Company – insurer of the Alto Car cannot be saddled with the liability.

The Motor Vehicles Claims Tribunal failed to appreciate the aforesaid fact and only awarded compensation, considering the fact that the deceased was a passenger in the Alto Car and it is the case of the claimant that unknown vehicle has dashed the Alto Car, in which the deceased was travelling.

From the evidence led, I find that there is no material to hold that the accident occurred due to rash and negligent driving of Alto Car bearing Registration No. JH 10K 4682, in which the deceased was a passenger. Further, the fact as narrated by the claimant witnesses on the point of manner of accident does not suggest that the accident occurred due to fault of the driver of the Alto Car, thereby making the Insurance Company – insurer of Alto Car liable to reimburse the quantum of compensation for the accident caused to the deceased, who was travelling in Alto Car.

In view of what has been held above, I am inclined to allow this appeal. The impugned award dated 14.03.2016 passed by the Motor Accident Claim Tribunal No.III-cum-District & Additional Sessions Judge III, Dumka in Motor Accident Claims Case No.61 of 2012 is hereby set aside. As a result of it, the claim application being Claim Case No.61 of 2012 against the appellant-Insurance Company is dismissed.

The appellant-Insurance Company is allowed to withdraw the statutory amount deposited, at the time of filing of this appeal, by it before this Court.

This appeal stands allowed.