New India Assurance Co. Ltd. vs Rizwana and Others

Ritu Raj Awasthi, J.—Heard learned Counsel for appellant. This First Appeal from Order has been filed against the judgment and award dated 22nd May, 2014 passed in MACP No. 154 of 2012; Smt. Rizwana and Others v. Virendra Vikram Singh and Others, whereby compensation to the tune of Rs. 4,76,000 along with 7 per cent simple interest per annum from the date of institution of claim till actual payment is made has been awarded in favour of the claimants and against the appellant-Insurance Company.

As per facts of the case as set out in the impugned award the accident had taken place on 18th December, 2011 at about 9.45 a.m. between bus bearing Registration No. U.P.-15 AT/6839 which was coming from Meerut and going to Lucknow. The said bus when reached near Village Arjanpur, Police Station Itaunja, District Lucknow had collided with tractor trolley bearing Registration No. U.P.-32 Z/4447. An F.I.R. in this regard was lodged as Case Crime No. 264 of 2011, under Sections 279/338/427 and 304A of I.P.C., Police Station Itaunja, District Lucknow. The claim was filed on behalf of dependents of deceased Ishtakar who was one of the passengers in the aforesaid bus and had sustained serious injuries due to which he had died.

Learned Counsel for appellant submits that learned Tribunal has wrongly fastened the liability of 40 per cent negligence on the part of driver of bus. In fact, the alleged accident had taken place due to rash and negligent driving of driver of tractor which was attached with trolley. The said tractor in fact had come in front of bus while coming from the wrong side. The driver of bus had tried to save, however, the tractor was driven in a high speed and therefore the accident had taken place. The driver of bus cannot be said to be at fault for the said accident. It is further submitted that learned Tribunal while deciding claim had not framed any issue with respect to contributory negligence and in the absence of any such issue the negligence on the part of driver of bus cannot be held.

Submission of learned Counsel for appellant is that claim was filed against the owner, driver and insurer of the tractor and the appellant-Insurance Company was impleaded as one of the respondents during the course of proceedings. There was no claim against the said bus.

I have considered the submissions made by learned Counsel for appellant and gone through the records.

The learned Tribunal while deciding the claim petition has framed certain issues which on reproduction read as under:

While deciding issue No. 1, learned Tribunal on the basis of documentary as well as oral evidence has come to conclusion that the aforesaid accident had taken place between the said bus and the tractor. The PW-2 who is said to be an eye-witness of the accident has stated in his statement that the bus driver had seen the tractor from 20-30 metres, in case the bus driver had taken due care the accident could have been avoided. PW-2-Farooq, in his statement had also stated that the tractor was rashly and negligently driven by its driver. No effort was made by the tractor driver to save the accident. Learned Tribunal has relied on the statement of eye-witness-PW-2, while coming to conclusion that the alleged accident had taken place due to contributory negligence on the part of drivers of both the vehicles involved in the said accident. It is to be noted that it was a head-on collision. Learned Tribunal on the basis of evidence on record that the tractor was being driven rashly and negligently by its driver which had wrongly come in front of but has held 60 per cent negligence on the part of driver of tractor and 40 per cent on the part of driver of bus.

Learned Counsel for appellant has not been able to show that there was no negligence on the part of driver of bus. There was no reason to disbelieve the testimony of PW-2, learned Tribunal, as such, has rightly come to conclusion that there was contributory negligence on the part of both the drivers of vehicles involved in the said accident.

So far as the contention of learned Counsel for appellant that without framing any specific issue with respect to contributory negligence, learned Tribunal could not have fastened liability on the appellant-Insurance Company is concerned, suffice is to observe that learned Tribunal while deciding issue No. 1 has come to conclusion that the said accident had taken place due to negligence on the part of both the drivers of vehicles involved in said accident, as such, I am of the view that even if no specific issue with respect to contributory negligence was framed, no infirmity or illegality has been committed by learned Court below.

Learned Counsel for appellant has also argued that learned Tribunal has failed to properly, consider as to whether the bus was having valid permit at the time of occurrence of accident. It is to be noted that the learned Tribunal while deciding issue No. 8 which was framed in this regard, has relied on the documentary evidence paper No. 51-G which is a route permit of the aforesaid bus for Meerut to Lucknow via Moradabad and Bareilly. It was valid for the period 17th December, 2011 to 19th December, 2011. The alleged accident had taken place on 18th December 2011 on the highway road near Village Arjanpur, Police Station Itaunja, District Lucknow, which is covered under the said permit.

The appellant neither before learned Court below nor before this Court has produced any evidence to establish that the aforesaid documentary evidence i.e. route permit was a forged document. I am of the view that learned Tribunal has rightly come to conclusion that the aforesaid bus was having a valid permit at the time of occurrence of accident. The argument in this regard, as such, has no force.

No other point has been pressed by learned Counsel for appellant.

Considering the entire material on record and the submissions made by learned Counsel for appellant, I do not find any infirmity or illegality in the impugned judgment and award.

The instant appeal is not a fit case for admission. It is accordingly dismissed at the time of admission itself. The judgment and award dated 22nd May, 2014 is hereby confirmed. The appellant shall comply the impugned judgment and award and pay the amount of compensation to the claimants as directed by the learned Tribunal.

The statutory amount deposited at the time of filing of the appeal shall be remitted to the learned Tribunal forthwith, for that purpose.