Oriental Insurance Co . Ltd vs Moin Uddin Laskar

Heard learned Senior Counsel Mr. S. Dutta for the appellant and Mr. A.J. Saikia, learned counsel for the respondent No. 4/National Insurance

Company Limited and also heard learned counsel for the claimant/respondent.

This appeal is filed by one of the insurer of the vehicle involved in the accident, againstthe judgment and order dated 14.07.2006 passed by MACT

Cachar, Silchar in MAC Case No. 397/2004.

Brief facts necessary for disposal for this appeal, are that on 30.10.03 the claimant Moinuddin Laskar was proceeding towards Bihara by driving

Ambassador Car No. AS-11-8422. When he reached near Neelcherra, another vehicle bearing registration No. ASC-8786 (truck) which was coming

from opposite direction hit the Ambassador Car. It was alleged that the accident took place solely due to fault of the vehicle No. ASC-8786 (truck).

As a result of the accident claimant sustained injuries and filed an application for compensation. Learned Tribunal by the impugned award granted a

compensation of Rs. 2,10,000/- in favour of the claimants and directed the insurer of both the vehicles to satisfy the award in equal share.

Aggrieved by the said judgment, the present appellant, being the insurer of the vehicleNo. AS-8422 (car) preferred the instant appeal.

Learned counsel for the appellant submits that the accident occurred solely due to rashand negligent driving of the driver of the vehicle No. ASC-

8786 and there was no evidence on record, to attribute any contributory negligence to the claimant and as such learned Tribunal erroneously

apportioned the liability between both the vehicles.

The impugned judgment transpires that the learned Tribunal directed both the Insurance Company to pay the compensation on equal share only on

the ground that both the vehicles were duly insured with the respective Insurance Company. The pleadings as well as evidence adduced by the

claimants clearly demonstrated that the accident occurred solely due to rush and negligent driving of the vehicle No. ASC-8786 and the evidence

adduced to that effect remained totally unimpeached. The owner and driver of the truck neither filed written statement nor came to the witness box to

rebut the evidence adduced by the claimant.

Thus evidently the accident occurred solely due to rush and negligent driving of thetruck. It is settled position, that the negligence being a question of

fact it needs to be established by adducing evidence. When the pleadings and evidence clearly established that the accident occurred solely due to

negligence of the driver of the truck, there was no reason for attributing contributory negligence to the claimant without any basis. Therefore, learned

Tribunal appearantly landed in grave error by fixing liability on the appellant company on a fallacious argument, that both the vehicles were duly

insured. When evidently accident took place due to rush and negligent driving of the driver of the truck, no liability could be attached to the

appellant/insurer of the car driven by the claimant. Since, there was no material on record to attribute fault to the driver of the Ambassador Car, and

entire evidence brought on record clearly established, that the accident occurred solely due to rushness and negligence of the driver of the truck, the

impugned award to the extent of apportionment of the liability to satisfy the award in equal share between the insurer of both the vehicles, cannot be

sustained and deserves to be set aside. Since accident occurred solely due to fault of the truck, the entire award shall be satisfied by the respondent

No.4 National Insurance Company.

The appeal is accordingly allowed. The award shall be satisfied by the respondent No.4, National Insurance Company Limited alone

The statutory deposited made by appellant Insurance Company shall be returned.

Send back the LCR.

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