National Insurance Company Ltd., Divisional Manager vs Smt. Panchei Bai and Others

L. Mohapatra, J.—The Insurer has filed this appeal challenging the judgment and award dated 27th September, 2002 passed by the Second Motor Accident Claims Tribunal, Cuttack in Misc. Case No. 884 of 1993 directing payment of Rs. 86,400/- with 9% interest per annum as compensation.

The claimants are the legal heirs of the deceased Biswanath Bai. The case of the claimants is that on 25.8.1993 at about 10 A.M. the deceased was proceeding towards Chhatia from Tangi in his bicycle on National Highway No. 5. While travelling on the National High Way on the left side of the road, the offending vehicle, a trekker, bearing registration number OR-04-5994 coming from Cuttack side at a high speed and being driven in rash and negligent manner dashed against the deceased from his back as a result of which the deceased fell down and died at the spot. After causing the accident, the driver of the offending vehicle tried to escape but was detained by the people assembled at the spot and was subsequently handed over to the police. The further case of the claimants is that the deceased was about 46 years old at the time of accident and was earning Rs. 1500/-per month. On these allegations, the claimants claimed compensation of Rs. 2,00,000/-. The owner of the offending vehicle, Respondent No. 4 appeared before the Tribunal and filed written statement. Though the accident was admitted and death of the deceased was also admitted, it was contended by the owner that the accident took place due to negligence of the deceased. It was further pleaded that the driver of the offending vehicle had a valid driving licence and that the vehicle was having a valid contract carriage permit covering the date of accident. The Insurer filed separate written statement denying the allegations made in the claim petition and its liability for payment of the compensation. The Tribunal on pleadings of the parties framed five issues and found on assessment of the evidence that the offending vehicle was being driven in rash and negligent manner resulting in the accident. The Tribunal was also found that in view of such accident the deceased died at the spot. With regard to policy, the Tribunal found that the vehicle was covered by a valid Insurance Policy. However, considering the driving licence, the Tribunal held that the driver of the offending vehicle did not have a licence to drive a transport vehicle and accordingly held that there being violation of condition of policy, the Insurance Company cannot be made liable for payment of compensation. Having held thus, the Tribunal saddled with liability on the owner.

Challenging the said award, the owner of the offending vehicle approached this Court in Misc. Appeal No. 154 of 2000. It was contended before this Court that at the time of accident the offending vehicle was returning from Cuttack and was not carrying any passenger. It has further contended that since the offending vehicle was not carrying any passenger at the time of accident, the finding of the Tribunal that the driver of the offending vehicle having no licence to drive a transport vehicle, the owner of the offending vehicle be saddled with liability is not legal and the Insurance Company should be directed to pay compensation. This Court accepted such submission and remanded the matter back to the Tribunal for fresh disposal and ordered as follows :

... Accordingly, the impugned award is set aside and the parties are directed to appear before the Tribunal on 19.8.2002 on which date, on their appearance, the Tribunal shall fix a date of hearing and dispose of the matter in accordance with law by end of September, 2002. It is open to the parties to lead further evidence only on the question whether the offending vehicle was carrying passengers at the time of the accident.

After remand, the Tribunal again heard the matter afresh and found that on the date of accident the offending vehicle was not carrying any passenger and saddled with liability on the Insurance Company. Challenging the said award, the Insurance Company has filed the present appeal. Shri R. Mohapatra, the Learned Counsel appearing for the appellant referring to the grounds taken in the appeal submitted that the evidence adduced before the Tribunal clearly indicate that the offending vehicle was carrying passengers at the time of accident and therefore, the Insurance Company cannot be saddled with the liability as admittedly the driver of the offending vehicle did not have a driving licence to drive a transport vehicle. The Learned Counsel appearing for the owner the offending vehicle, on the other hand, submitted that on assessment of evidence, the Tribunal having found that the offending vehicle was not carrying passengers at the time of accident, there is hardly any scope to interfere with such finding.

As is evident from the earlier order passed by this Court, the Tribunal was directed to decide the question as to whether the offending vehicle was carrying any passenger on the date of accident or not. In order to arrive at such a conclusion, the parties were also given liberty to lead evidence on the aforesaid question. In the FIR, which has been exhibited as Ext. 1 it is alleged that on the date of occurrence the offending vehicle was being driven in very high speed and after causing the accident, it fled away towards Chhatia. The FIR is silent as to whether the offending vehicle was carrying any passenger or not. P.W. 1 in his deposition has stated that to his knowledge the Trekker was returning from Chhatia to Cuttack without any passenger. This witness is the owner of the offending vehicle. In cross-examination, he has stated that the driver was authorised to drive transport vehicle and denied the suggestion that the passengers were being taken in the offending Trekker at the time of accident. The second witness examined on behalf of the insurer is an Investigator. He is not an eye witness to the occurrence. He has stated in his deposition that during investigation he came to learn that on the date of accident the vehicle was carrying passengers. The other witness examined on behalf of the Insurance Company is a Home Guard working under Tangi Police Station. This witness has stated that on 25.8.1993 he was in traffic duty on National High Way No. 5 from Govindpur to Nelia bridge. On the date of accident, he had been commanded by the Officer-in-charge of Tangi Police Station to keep watch in respect of another accident that had taken place. While on duty, he found the offending vehicle coming from Cuttack side and after crossing him, it dashed against the cyclists and after causing accident the Trekker fled away towards Chandikhol. He further stated that there were 15 to 17 passengers in the Trekker and that the said passengers raised hulla to stop the Trekker. In cross-examination, this witness has stated that after the accident there was gathering of 30 to 50 persons at the spot. Those persons also raised hulla to stop the movement of the Trekker. The above evidence has been led by the parties after the matter was remanded back to the Tribunal for fresh consideration. Earlier P.W. 2, an eye-witness to the occurrence, had stated that on the date of accident he was going at a distance of 15 cubits from the deceased and the offending Trekker came from the backside at a high speed and dashed against the deceased. This witness is silent as to whether the offending vehicle was carrying any passenger or not. He denied the suggestion that there were passengers in the Trekker on the date of accident. On analysis of the above evidence, it appears that there is no mention in the FIR about carrying of passenger in the offending vehicle on the date of accident and the eye-witness to the occurrence, P.W. 2, is also silent about carrying of passengers in the offending vehicle and moreover such a suggestion was denied by him in the cross-examination. As against the above evidence, the Insurance Company has examined a Home Guard, who says that while on duty, on National Highway No. 5, he saw the Trekker being driven in rash and negligent manner causing the accident and running away towards Chandikhol immediately after causing the accident. The eye-witness examined on behalf of the claimants has stated that he has seen the occurrence from a distance of 15 cubits but he did not find any passenger in the Trekker. The Home Guard only heard the hulla of some passengers stated to be present in the vehicle. He has also stated that immediately after the occurrence about 30 to 50 people assembled at the spot of accident and shouted to stop the vehicle. The evidence of the Investigator is of no consequence as he was not an eye-witness to the occurrence. Since, P.W. 2 examined on behalf of the claimants saw the occurrence from a very short distance and did not find any passenger in the offending vehicle, I am of the view that such evidence coupled with the allegations made in the FIR should be accepted.

I, accordingly, do not find any infirmity in the finding of the Tribunal that the offending vehicle on the date of the accident was not carrying any passenger. No other point having been raised before this Court, the appeal considers no merit and accordingly the same is dismissed.