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Judgment
1.Heard Ms. P Bhattacharjee, learned counsel for the appellant and Mr. B Purkayastha, learned counsel for the respondents.
This appeal is directed against the judgment and award dated 10.08.2012 passed by MACT, (FTC) Sivasagar in MAC Case No.5/2007.
The brief facts necessary for disposal of this appeal are that one Horen Bharali (since deceased), husband of the claimant, was proceeding from
Sivasagar to Guwahati by driving vehicle No.AS-04/E-3258 (Tata Sumu), owned by the appellant herein. While he was so proceeding, the vehicle
bearing registration No.AS-01/U-6087, which was coming from opposite direction and was driven in a rash and negligent manner, hit the vehicle
driven by the deceased and consequently he sustained injury and died instantaneously. The claimant, wife of the deceased, filed an application before
the MACT, Sivasagar claiming compensation and the learned Tribunal by the impugned judgment and award, granted a compensation of Rs.4,23,000/-
(four lakhs twenty three thousand only) with interest @ 6% per annum from the date of filing claim petition. Learned Tribunal while awarding the
compensation as above, apportioned the liability equally between owner/insurer of both the vehicles involved in the accident attributing 50%
contributory negligence to the deceased and directed the owner of the vehicle No.AS-04/E-3258, the present appellant, to satisfy 50% of the award.
Aggrieved by the said judgment and award, the owner of the vehicle No.AS-04E-3258 preferred the instant appeal.
The only point urged by the learned counsel for the appellant Ms. P Bhattacharjee, is that the findings of the Tribunal attributing contributory
negligence to the extent of 50% to the deceased and thereby, directing the appellant to pay 50% of the awarded amount was erroneous as there was
neither any pleadings nor any evidence to prove that there was any contributory negligence on the part of the deceased. Mrs. Bhattacharjee in support
of her submission placed reliance on a decision of the Apex Court in Sudhir Kr. Rana Vs. Surinder Singh and Others (2008) 12 SCC 436, wherein the
Apex Court observed that “It is one thing to say that the appellant was not possessing any licence but no finding of fact has been arrived at, that he
was driving the two-wheeler rashly and negligently. If he was not driving rashly and negligently which contributed to the accident, we fail to see as to
how, only because he was not having a licence, he would be held to be guilty of contributory negligence.â€
Mr. Purkayastha, learned counsel for the respondents refuting the submission of Ms. Bhattacharjee, contends that the accident having taken place
due to head on collision, both the drivers were responsible and as such, learned tribunal rightly apportioned the compensation equally between the two
vehicles. To buttress the submission, Mr. Purkayastha placed reliance on a decision of the Apex Court in Bijoy Kr. Duggar Vs. Bidya Dhar Dutta and
Others reported in (2006) 3 SCC 242.
In view of the submission of the learned counsel for both the sides, the only question to be considered in this appeal is whether there was any
contributory negligence on the part of the deceased, or in the other words, whether findings of the learned tribunal attributing contributory negligence
to the victim was erroneous.
The claimants filed the claim petition under Section 166 of the Motor Vehicles Act seeking compensation on the basis of fault liability. In a petition
under Section 166 of the M.V. Act, one cannot get any compensation for his own fault. In that view of the matter, if the deceased is held to have
contributed to the accident to the extent of 50%, he shall not be entitled to any compensation for his own fault, rather, the compensation shall be
reduced by 50%. Therefore, when the deceased was held equally liable for the accident, the appellant being the owner of the vehicle driven by the
deceased could not have been saddled with the liability to pay 50% of the compensation and as such, direction of the learned tribunal to the appellant
to pay 50% of the award was fallacious.
Be that as it may, let us see, whether there was materials to attribute contributory negligence to the deceased. The specific case of the claimant
was that the accident occurred due to rash and negligent driving of the vehicle No.AS-01-U-6087. The driver and owner of the said vehicle did not
contest the claim. The claimant examined only one witness being CW-1, who stated on oath that opposite party No.2 had driven the vehicle very
rashly and negligently, as a result of which, the accident took place. The claimant also produced and proved the Accident Information Report (Exhibit-
1), Certified copy of the FIR (Exhibit-2) and the charge-sheet submitted by police being Exhibit-8. The documentary evidence adduced by the claimant
shows, that, a case was registered against respondent No.2, driver of the vehicle No.AS-01-U-6087 for the accident and after thorough investigation
by a statutory authority charge-sheet was laid against respondent No.2, the driver of the vehicle No.AS-01-U-6087. It has been clearly mentioned in
the charge-sheet (Exhibit-8), that after having inspected the place of occurrence and examining the witnesses, the Investigating Agency came to the
finding that the accident occurred solely for the fault and negligence of the driver of the vehicle No.AS-01-U-6087, arrayed as respondent No.2 in the
claim petition. Thus, Exhibit-8, the charge-sheet is found to have reinforced the case of the claimant that the accident occurred solely due to the fault
and negligence of the driver of vehicle No.AS-01-U-6087. Apparently, the driver and owner of the said vehicle No.AS-01-U-6087 did not come
forward to contest the claim. The oral testimony of CW-1 as well as the documentary evidence Exhibit-8, to the effect that the accident occurred
solely due to the fault of the driver of the vehicle No.AS-04E-3258, remained uncontroverted and unchallenged. The Insurer of the offending vehicle
No.AS-01-U-6087 examined two witnesses, one being officials of the Insurance Company and the other was their investigator. None of them had any
personal knowledge of the accident or was not capable of deposing as to how the accident took place. However, learned tribunal took a presumption
that the deceased also equally contributed to the accident, only because of the fact, that accident took place due to head on collision and both the
vehicles were damaged.
The clear evidence of the CW-1 was that the accident occurred due to rash and negligent driving of the driver of vehicle No.AS-01-U-6087 and
such evidence was supported by the charge-sheet, Exhibit-8, which was submitted by police after thorough investigation of the case. The above
evidence could not be brushed aside by a presumption on the basis of mere surmise and conjecture. Learned tribunal appears to have taken the
presumption that the accident occurred due to fault of both the vehicles, totally ignoring the positive evidence brought on record, showing that the
accident occurred solely due to the fault and negligence of the driver of the vehicle No.AS-01-U-6087. Negligence being a question of fact, it is to be
established by evidence and there could not be a presumption of contributory negligence of the deceased, giving a complete go bye to the positive
evidence brought on record establishing that the accident occurred solely due to fault of the other vehicle.
I have perused the decision cited by the learned counsel Mr. Purkayastha. In the said case, taking note of the facts that both the vehicles got
damaged and accident was due to head on collision, the tribunal held that both the vehicles were equally responsible. It is also apparent from the facts
of the said judgment, that there was pleadings and evidence of the claimant side that the offending vehicle, which was driven in a zig-zag manner, was
noticed by the driver and the occupant of the vehicle driven by the deceased beforehand, and in that view of the matter, the Apex Court observed, that
the driver and occupants of the vehicle having noticed the offending vehicle coming in a very zig-zag manner, naturally they would have taken
precaution and in that event there could not be damage on the middle front of the vehicle driven by the deceased. Considering the facts brought on
record in the said case, more particularly, the nature of damage to the vehicle driven by the deceased indicating lack of care and attention on the part
of the deceased, the Apex Court did not interfere with the findings of the tribunal. However the facts of the present case is distinguishable inasmuch
as, in the present case there was clear evidence that the accident occurred solely due to the fault of the vehicle number AS-01-U-6087 and no
evidence could be brought on record to rebut the evidence adduced by the claimant side nor any contra evidence was adduced to establish
contributory negligence on the part of the deceased. Therefore, the decision of Bijoy Kr. Duggar Vs. Bidya Dhar Dutta cannot be applied in this case.
In absence of any evidence or materials brought before the tribunal, the tribunal could not have taken a presumption of contributory negligence by
the deceased on mere surmise and conjecture ignoring the positive and unchallenged evidence adduced by the claimant. In view of clear evidence and
pleadings that the accident occurred due to fault of the driver of the vehicle No.AS-01-U-6087, this Court is of the view, that the tribunal fell in error
by attributing contributory negligence to the deceased in absence of any evidence. Therefore, this appeal deserves to be allowed. Accordingly, the
appeal is allowed and the respondent No.4, National Insurance Company Ltd., is directed to satisfy the entire award within 6 (six) weeks by depositing
the same with the tribunal. It is apparent that the same Insurance Company was the insurer of both the vehicles and as such, if 50% of the award is
already paid by the respondent No.4, it shall pay the remaining 50% of the award.
The tribunal shall ensure that 60% of the awarded amount be fixed deposited in the name of the claimant for 1 (one) year. The appeal stands
allowed.
Send down the LCR.