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Judgment
D. Hariparanthaman, J.—The appellant is the Insurance Company. The van of the second respondent was insured with the appellant. The first respondent, who is a minor and her mother travelled in the said van. On 04.08.2000, when the said van proceeded from Courtallam to Tenkasi, involved in an accident with the bus owned by the Tamil Nadu State Transport Corporation. The minor received head injuries and suffered 50% permanent partial disability. M.C.O.P. No. 604 of 2001 was filed claiming compensation for the injuries suffered by the minor. The Tribunal awarded Rs. 79,950/- as compensation with 9% interest and costs. The appeal is against the said order.
When the application seeking interim relief came up for hearing, the learned Counsel appearing on either side expressed their willingness for taking up the appeal. Hence, with the consent of the learned Counsel appearing on either side, the appeal is taken up for final disposal.
The only contention of the learned Counsel for the appellant is that the Tribunal committed error in holding that the driver of the van drove the vehicle in a rash and negligent manner and caused the accident. The learned Counsel further submits that while the mother of the minor gave First Information Report-Ex.P1, stating that the driver of the bus belonging to the Tamil Nadu State Transport Corporation was rash and negligent and caused the accident, the mother deposed contradicting her own statement made in the First Information Report and that therefore, the Tribunal should have held that the driver of the bus was responsible for the accident.
On the other hand, the learned Counsel for the first respondent submits that the mother was subjected to cross-examination before the Tribunal and she made it clear that she stood by the Statement made before the Tribunal. She deposed categorically that she never stated that the bus was driven by its driver in a rash and negligent manner, causing the accident. She disowned the First Information Report. The learned Counsel further submits that the van driver was not examined before the Tribunal and the only witness examined on the side of the appellant did not even enquire the van driver about as to how the accident had happened. In these circumstances, it is submitted that there is no infirmity in the award of the Tribunal.
In my view the submissions of the learned Counsel for the first respondent is well-founded. It is true that the Ex.P1-First Information Report narrates that the bus was responsible for the accident. However, the mother deposed before the Tribunal and stated that the van was alone driven in a rash and negligent manner and caused the accident. She also disowned the First Information Report. More particularly, the appellant did not choose to examine the van driver and establish his case. An officer of the Insurance Company deposed before the Tribunal that he was not aware of anything about the accident and he did not choose to enquire the van driver as to how the accident had taken place.
The Calcutta High Court in the decision in Managing Director, South Bengal State Transport Corporation v. Manisha Roy and Ors. reported in 2010 (1) TAC 331 (Cal) has categorically held that in the absence of evidence of the driver of the vehicle which involved in the accident, the Insurance company of the vehicle could not contend that the driver was not responsible for the accident and Paragraph 10 of the said judgment reads as follows:
Therefore, the appellant in this case having failed to bring the driver or the Conductor of the bus who were its employees and under its control to the witness had to give evidence and face cross-examination of the claimants, we should draw adverse inference against the appellant and will not entertain the plea of contributory negligence of the victim when the witness for the claimants have asserted rash and negligent driving on the part of the driver of the offending bus and in spite of such allegation, the appellant did not feel the necessity of bringing the driver as a witness to even deny the rash and negligent driving of the vehicle. The position would have been different if from the evidence given by the witnesses for the claimants themselves it would appear that there was some contributory negligence on the part of the victim or that there was any admission of such contributory negligence in the pleading of the claimants. Such being not the position, it is a fit case of drawing adverse inference against the appellant.
Hence, I do not find any infirmity in the award of the Tribunal and therefore, the appeal fails.
In the result, the Civil Miscellaneous Appeal is dismissed. Consequently,connected Miscellaneous Petitions are dismissed. No costs.