NEW INDIA ASSURANCE CO. LTD. Vs. MOUMITA PAUL

JUDGEMENT

(1.) The instant appeal is preferred against the judgment and award dtd. 12/6/2013 passed by Learned Motor Accident Claims Tribunal Additional District and Sessions Judge, Fast Track 1st Court Barrackpore in MAC No. 570 of 2009. The present respondent preferred an application u/s 166 of MV Act before the Learned tribunal for getting compensation on the ground that their predecessor has died in a road traffic accident due to rash and negligent driving of the driver of the offending vehicle duly insured by the present appellant. The claim case was contested by the present appellant by filing written statement. The claimants have produced 04 witnesses, on the other hand the Insurance Company had adduced 02 witnesses. After hearing the parties and after perusing the evidences on record both oral and documentary, Learned Tribunal has allowed the claim case in favour of the claimants and directed the Insurance Company to pay the award amounting to Rs.9, 37,500.00 along with 06% interest per annum from the date of the filing of the claim case.

(2.) The appeal was preferred by the Insurance Company on the ground that the impugned award passed by the Learned Tribunal is erroneous. The Learned Tribunal did not consider the evidences on record and passed the award of compensation which is exorbitant. It is the submission of the Learned Advocate for the appellant that the accident occurred due to head on collision between the two vehicles. One of them being driving the vehicle owned by the victim. The evidence of this case shows that the victim Tapas Pal since deceased was driving the Maruti Car in a rash and negligent manner. Thus there is contributory negligence on the part of the victim. In that case the amount of compensation should be apportioned. He pointed out that the so called offending vehicle has collided with the Maruti Van driven by the victim himself. The post mortem report shows the presence some pungent liquid in the stomach of the victim thus it cannot be said that only the so called offending vehicle (Truck) is solely responsible for the accident. He further pointed out that the PW 4 appeared before the Learned Tribunal to be the eye witness of the accident. The evidence of PW 4 is not at all believable as he did not see the actual accident, moreover he said that the driver of the Maruti van sustained no injury while it is the fact that the present victim was driving the Maruti Van. It is the further case of the Learned Advocate for the appellant Insurance Company that DW 2 was the driver of the offending Truck who specifically stated before the Learned Tribunal that the Maruit van was coming from the opposite side of the truck by overtaking another 407 Truck and suddenly came infront of his truck and collided. The evidence of DW 2 is very specific regarding the fact of accident so, on the basis of such fact it is aptly proved that the victim was equally responsible for such accident. The negligence in this case is the contributory negligence by the joint tort-feasors i.e the driver of the Truck as well as the driver of the Maruti Van (victim) Finally, the Learned Advocate for the Insurance Company submitted that the order apportionment of the claim need be passed by modifying the impugned award passed by the Learned Tribunal.

(3.) The Learned Advocate appearing on behalf of the respondent submitted before this court that the claim application was filed before the Learned Tribunal on the basis of fateful accident of the predecessor of the claimants. The predecessor of the claimant namely, Tapas Pal died on the spot on the basis of such accident Bizpur P.S. Case No. 194 of 2009 was initiated. The investigation of police is ended in charge sheet against the driver of the offending vehicle (Truck) which was prima facie proved by the police investigation that the driver of the offending vehicle (Truck) was driving the vehicle in a rash and negligent manner and the accident caused due to recklessness of the offending driver. Finally the Insurance Company has contested the case by filing written statement, in such written statement no such averment was placed to the effect that the victim was also responsible for the accident thereafter one additional written statement was filed by the insurance company to only plead the fact that during post mortem of the victim, 100 ml pungent liquid was found at the stomach of the victim.