United India Insurance Co. Ltd. vs Junmoni Chetry

Heard Mr. A.J. Saikia, the learned counsel for the appellant as well as Mr. Y.S.  Mannan,  the  learned  counsel  for  the  claimant/respondent  and  Ms.  M. Choudhury, the learned counsel for the respondent No. 4.

This appeal is filed against the Judgment dated 03.12.2012 by the appellant Insurance Company which was rendered by the learned Member, Motor Accident Claims Tribunal, Kamrup in MAC Case No. 1330/2005.

Brief facts of the case is that on 09.06.2005 while the husband of the claimant/respondent was driving a truck under Registration No. AS 01/P-2718 insured with the respondent No. 4 Insurance Company, another Truck bearing Registration No. AS03-B 4905 insured with the appellant Insurance Company suddenly collided with the truck driven by the husband of the respondent/claimant. The claimant/ respondent's husband was proceeding towards Guwahati from Jorhat and the collision happened as he reached Kuwaritol. As a result of the accident, the respondent/claimant's husband expired. According to the respondent/ claimant's, the deceased was about 32 years of age at the relevant time and was earning a sum of Rs. 4000/- per month with a sum of Rs. 100/- as his daily allowance. The respondent/claimant filed a claim application before the Motor Accident Claims Tribunal, Kamrup, which was registered as MAC No. 1330/2005. During the claim proceedings, the respondent claimant examined herself as the sole respondent witness. The opposite party arrayed in the claim did not adduce any evidence except cross examine the claimant/respondent. The Tribunal consequently vide the impugned Judgment dated 03.12.2012 held the appellant liable to pay a sum of Rs. 4,90,000/- as compensation to the respondent/claimant alongwith interest @ 6% per annum. The Tribunal further directed that an amount of Rs. 1,50,000/- be kept in a fixed deposit in the name of the daughter of the deceased till she attained majority and likewise, a sum of Rs. 1,00,000/- in the name of the wife of the deceased for a period of three years. The remaining balance of Rs. 1,00,000/- was directed to be paid to the mother of the deceased.

Mr. A.J. Saikia, the learned counsel assailing the Judgment of the Tribunal submits that the accident took place due to a head on collision between the two trucks i.e. AS 01/P-2718, which was insured with the respondent No. 4 Insurance Company and AS-03/B-4905 insured with the appellant insurance company. As such, the Tribunal could not have saddled the entire liability of paying compensation upon the appellant Insurance Company. He submits that at the most, the appellant Insurance Company can only be liable to pay 50% of the awarded compensation. He further submits that in another case arising out of the same accident and involving the same vehicles and insurers, the Tribunal had apportioned the liability of paying compensation in the ratio of 50:50 between the two Insurance Companies with whom the two trucks involved were insured. Therefore, the Tribunal ought to have apportioned the liability of paying compensation to the respondent claimant between the insurance company, who were the insurer of the two trucks involved in the accident.

Mr. A.J. Saikia further submits that since the claim application was filed under Section 166 of the Motor Vehicles Act, 1988, it was incumbent on the part of the claimant to prove fault of the offending vehicle. However, the claimant respondent did not adduce any evidence besides examining herself as the lone claimant witness. The respondent claimant herself having not witnessed the accident, it cannot be said that the truck insured with the appellant Insurance Company was solely responsible for the accident. Under the facts and circumstances, the learned counsel submits that the impugned Judgment may suitably be interfered with by this Court. He also submits that in terms of the direction of this Court, 50% of the awarded amount has already been deposited before the Registry and withdrawn by the respondent claimant.

Mrs. Mr. Y.S. Mannan, the learned counsel for the respondent claimant on the other hand submits that the appellant Insurance Company is estopped from raising other issues such as there being no evidence or no eye witness inasmuch as due opportunity was granted by the Tribunal to the appellant Insurance Company to adduce their evidence. They however failed to adduce any evidence and it is not open for the appellant to raise such issue at this stage. Referring to the grounds of appeal, the learned counsel submits that the only grievance put forth by the appellant is that the entire liability could not have been placed on it and at best, their liability cannot be more than the extent of 50% to pay compensation to the respondent claimant. Therefore, other grounds raised by the appellant may not be considered. In so far as the contention that a similar cases was disposed of by the Tribunal by apportioning the liability between the Insurance Company of the two trucks involved is concerned, the learned counsel submits that the case referred by the learned counsel for the appellant was decided on the basis of the evidence led in that case. Likewise, the present case is also decided on the basis of the evidence led by the respondent claimant and therefore, no similarity can be drawn particularly at this stage. He thus submits that as the amount of compensation quantified by the Tribunal is not disputed by the appellant, there is no merit in the appeal and the same should be dismissed.

Ms. M. Choudhury, the learned counsel for the respondent No. 4 also adopts the submission of Mr. Y.S. Manna. She submits that from the final report prepared by the Police, it is clear that the truck insured with the appellant Insurance Company got punctured and because of which, it hit the truck coming from the opposite direction, which was insured with the respondent No. 4 i.e., the New India Assurance Company. As a result of the collision, the husband of the respondent claimant died. Likewise, the evidence of the respondent claimant herself clearly shows that it was the truck insured with the appellant Insurance Company which came on the wrong track and hit the vehicle driven by the husband of the respondent claimant. Although, the respondent claimant did not witness the accident herself but her deposition in the examination-in-chief has neither been falsified nor disproved by the opposite party. Under the circumstance, she submits that there is nothing wrong in the Judgment passed by the Tribunal and the appeal may be dismissed. In so far as the similar case relied upon by the learned counsel for the appellant, she submits that both the cases were decided on the basis of the evidence led by the respective claimants in their case and therefore, no similarity can be drawn at this stage.

I have heard the submissions made by the learned counsels for the rival parties and I have perused the materials available on record.

From the projection made by the appellant, the issue to be decided is as to whether the Tribunal ought to have apportioned the amount of compensation between the appellant Insurance Company and the respondent No. 4 Insurance Company since both the vehicles were involved in the accident. As may be noticed, the respondent claimant examined herself as the sole claimant witness and in her examination-in-chief, she deposed that on that fateful day i.e. 09.06.2005 at around 4.30 am, her husband Sh. Chandra Chetry was driving the truck Registration bearing No. AS 01-P/2718 and proceeding from Jorhat towards Guwahati. As the said vehicle reached Kuwaritol, all of a sudden, another truck bearing Registration No. AS-03/B-4905 coming from the opposite direction in a very high speed came on the wrong side and knocked the vehicle AS-01/P/2718 from the front side. The accident happened due to rash and negligent driving of the driver of the said truck bearing Registration No. AS-03/B-4905. As a result of the accident, her husband died. The respondent claimant was cross examined by the opposite parties in which she reiterated what she stated in her examination-in-chief. She also denied that the accident occurred due to the fault of her husband who was driving a truck bearing Registration No. AS01/P-2718. The respondent claimant exhibited two documents, namely, certified copy of the final report comprising of four pages and the Post Mortem report as Exhibit Nos. 1 and 2 respectively. A perusal of the Exhibit-1 goes to show that the vehicle insured with the Insurance Company No. 4 bearing Registration No. AS-03/B-4905 got punctured and as a result of which, the truck swayed to the other side of the road and as a result, it collided with the truck coming from the opposite direction which was driven by the husband of the respondent claimant. The appellant as opposite No. 1 did not adduce any evidence except file their written statement and also cross examined the respondent claimant. Thus, without there being any evidence to be contrary, the Tribunal held the appellant Insurance Company liable to pay compensation to the respondent claimant. Having regard to the facts and circumstances, such conclusion in my considered view cannot be said to be erroneous.

In so far as the Judgment dated 16.08.2011 passed by the same Tribunal in MAC Case No. 1378/2015 is concerned, it may be seen that the evidence set out in the said claim was to the effect that the claimant could not say which vehicle was at fault. She had deposed before the Tribunal that there were no eye witnesses. It was under the given circumstances that the Tribunal was of the view that the accident occurred due to the composite negligence of both the vehicles. The conclusion reached in the said claim, in my considered view cannot be applied at the present case, inasmuch as, as already pointed out the evidence led by the respective parties are not similar. Had this issue been raised during the pendency of the claim, the rival parties could have the opportunity to cross examine the witness leading such evidence. However, as both the claims have already been disposed of, I am of the view that the same should not be reopened at this stage.

In view of what has been stated herein above and upon due consideration of its entirety, I do not find any merit in the appeal and the same is dismissed.

It is seen that this Court vide Order dated 25.01.2017 passed in MAC Appeal No. 214/2014 permitted the respondent/claimant Nos. 1 and 2 to withdraw 2/3rd of the deposited amount while keeping reserved 1/3rd of the said amount for the mother of the deceased i.e. respondent No. 6. The appellant Insurance Company had deposited a sum of Rs. 2,45,000/- before the Registry of this Court. 2/3rd of the said amount would roughly come to Rs. 1,63,334/- while 1/3rd of the said amount would be a sum of Rs.81,667/-

Thus, it is hereby directed that from the remaining 50% of the awarded amount, an amount of Rs. 1,50,000/- shall be kept in a fixed deposit in a Nationalized Bank in the name of the minor child of the deceased i.e. respondent No. 2 and the remaining amount shall be disbursed in equal shares to the respondent No. 1, i.e. Smt. Junmoni Chetry and the respondent No. 6, i.e. Smt. Bidya Chetry. Further, 1/3rd of the amount kept reserved for the respondent No. 6 in terms of the Order dated 25.01.2017 in IA (C) No. 1814/2016 shall be disbursed to the respondent No. 6. Registry shall disburse the amount as indicated hereinabove to the respective respondent/claimant on proper identification and as per usual formalities. It is also made clear that the rate of interest as awarded by the Tribunal shall be calculated by the appellant for payment to the respondents. The appellant shall be at liberty to make necessary adjustments for the amount already deposited in the Registry during the pendency of the appeal.

With the above observations and directions, the appeal stands disposed of. Registry shall send back LCR to the Tribunal immediately.

The appellant is permitted to withdraw the statutory deposit of Rs. 25,000/- made at the time of filing of the appeal alongwith interest, if any.