United India Insurance Co. Ltd vs Parul Roy And 2 Ors

Heard Mr. A. Ahmed, learned counsel for the appellant Insurance Company. Also heard Mr. S. Bikash, learned counsel for the respondent No. 1.

The appellant has filed the present appeal against the Judgment dated 04.10.2016 passed by the MACT, Goalpara, in MAC Case No. 168/2015, challenging the compensation amount of Rs. 4,79,000/-, which was awarded to the respondent No. 1/claimant along with interest at the rate of 6% per annum from 13.07.2016 till final payment.

The case of the claimant/respondent No. 1 in brief is that on 26.05.2011, at about 7:00 a.m, the decease's husband of the claimant, Shri. Tiken Medhi was knocked down on the road by a bus bearing Registratrion No. AS-18-A-0874. Shri. Tiken Medhi was taken to Goalpara Civil Hospital on 26.05.2011 itself at around 9:30 a.m and he was discharged on the same date at around 10:30 a.m. In the Discharge Certificate dated 26.05.2011, issued by the Goalpara Civil Hospital, it was the diagnosis of the Medical Officer as follows:-

" diagnosis = pertrochanteric of rt. femur and post dislocation of rt. hip."

Shri. Tiken Medhi was thereafter under treatment under a Ayurvedic Doctor in Nishiganj, West Benal for some days. Shri. Tiken Medhi expired on 01.05.2012.

The claimant/respondent No. 1 thereafter filed a claim petition under Section 166 of the M.V Act, 1988, claiming compensation on the ground that her husband had died due to the accident that had occurred on 26.05.2011.

The learned Tribunal, Goalpara, vide the impugned Judgment dated 04.10.2016, passed in MAC Case No. 168/2015, awarded compensation to the amount of Rs. 4,79,000/- to the claimant, along with interest at the rate of 6% per annum from 13.07.2016 till final payment.

The learned counsel for the appellant submits that there is no evidence to show that the deceased had died on 01.05.2012 due to the injury sustained by him on 26.05.2011. Further, the fact that the deceased was discharged within one hour after being admitted from Goalpara Civil Hospital, goes to show that the injury sustained by the deceased was trivial in nature. Further, no evidence of any Medical Officer, either the Medical Officer in Goalpara Civil Hospital or the Ayurvedic Doctor in Nishiganj has been recorded by the learned Tribunal. He also submits that there is no medical certificate or documents to show that the deceased died due to the accident that had occurred on 26.05.2011. He also submits that as there is no finding by the learned Tribunal with regard to any rash and negligent act on the part of the driver of the Bus, which was involved in the accident, no compensation can be given/awarded to the claimant under Section 166 of the M.V Act, 1988.

Mr. S. Bikash, learned counsel for the claimant/respondent No. 1 admits to the fact that there has been no finding by the learned Tribunal that there was any rash and negligent act on the part of the driver of the Bus bearing Registration No. AS-18-A-0874. He also does not deny the fact that no evidence of any Medical Officer/Ayurvedic Doctor, was recorded by the learned Tribunal.

I have heard the learned counsels for the parties.

There is nothing in the evidence to show that the deceased Tiken Medhi had died due to the injury, apparently sustained by him on 26.05.2011. Shri. Tiken Medhi was immediately taken to the Goalpara Civil Hospital on 26.05.2011 at 9:30 a.m and discharged one hour later at 10:30 a.m, as per the discharge slip, which has been exhibited as Exhibit-6. The diagnosis and investigating report, as given in the discharge slip does not state that the deceased suffered from fracture of the hip- joint. The discharge slip states that the deceased suffered from dislocation of hip-joint. It is not understood as to how the learned Tribunal could read the word "dislocation" as "fracture."

Besides the above, the Lower Court records show that no evidence of any Medical Officer/Practitioner or Ayurvedic Doctor has been recorded by the learned Tribunal. There is no document to show that the deceased had died on 01.05.2012 due to the accident that had occurred one year earlier.

It is settled law that documents do not prove themselves and that the contents of a documents have to be proved. However, in the present case, neither do the documents prove that the death of the deceased occurred due to the accident nor have the contents of the documents been proved, by taking the evidence of the maker of the documents.

It is also settled law that for a claim petition under Section 166 of the M.V Act, it is "sine-qua-non" that rash and negligent act on the part of the driver/owner of the offending vehicle has to be proved. In the case of Reshma Kumari vs Madan Mohan, reported in 2013 9 SCC 65, the Apex Court has held that in respect of an application for compassionate under Section 166 of the M.V Act, 1988, it is necessary for a claimant to prove negligence on the part of the driver or the owner of the vehicle. Once the burden on the part of the claimant to establish the negligence on the part of the driver or owner of the vehicle is proved, the claimant is entitled to compensation. In the present case, there is no finding made by the learned Tribunal showing that there has been any rash and negligent act on the part of the driver or owner of the offending vehicle.

In view of the above reasons, this Court finds that the learned Tribunal erred in awarding compensation to the claimant under Section 166 of the M.V Act, 1988.

The appeal is accordingly allowed. Consequently, the judgment dated 04.10.2016 passed by the MACT, Goalpara, in MAC Case No. 168/2015 is hereby set aside.

The appellant is allowed to take back the statutory deposit along with interest, if any, after proper identification. Send back the LCR.