NEW INDIA ASSURANCE COMPANY LTD Vs. OLIVIA SAWAIN

JUDGEMENT

(1.) This appeal under Section 173, Motor Vehicles Act, 1988 is directed against the judgment and award dated 20.6.2006 passed by the learned Member, Motor Accident Claims Tribunal, Shillong in MAC Case No. 5 of 2004 awarding a compensation of Rs. 10,89,760 to the claimant-respondent payable by the appellant-insurer and the respondent-insurer in equal shares.

(2.) The facts leading to the filing of the appeal may be noticed at the outset. On 29.12.2003, while the deceased, Peacemaker Ryngnga, was traveling in an auto-rickshaw bearing registration No. ML-05/C-0995 from Polo Bazar to Nongmynsong, Shillong, and was near about Emersion Ghat, Polo, Shillong, the auto-rickshaw was hit by a Tata Sumo bearing registration No. ML-05/D-2305 in a rash and negligent manner. The accident was reported to Shillong Sadar Police Station, which registered a regular case being Shillong P.S. Case No. 5(1)2004 under Section 279/338/427/304A, IPC. against the driver of the Tata Sumo. The auto-rickshaw was damaged. Both the accident Vehicles were inspected by the Motor Vehicle Inspector. The deceased, who is the husband of the claimant-respondent, died in the accident. The deceased was working as Upper Division Clerk under the North Eastern Hill University (NEHU), was said to be 45 years old at the time of the accident and earned a net salary of Rs. 10,935 per month. This prompted the claimant-respondent to file a claim petition under Section 166 of the Motor Vehicles Act for compensation alleging that the accident had been caused by the rash and negligent driving by the driver of the Tata Sump. The owner of the Tata Sumo did not contest the claim petition despite due receipt of the notice. The owner of the auto-rickshaw entered appearance and filed a written statement but subsequently failed to contest the case. Consequently, on the application of the appellant, the Tribunal allowed it to contest the case on all grounds available to the owner of the auto-rickshaw. Similarly, on the failure of the owner of the Tata Sumo to contest the claim petition. Tribunal allowed the insurer of the vehicle to contest the case on all grounds. On the pleadings of the contesting parties, the Tribunal framed the following issues:

(3.) In the course of trial, three witnesses including the claimant-respondent were examined on behalf of the claimant, but no witness was examined by any of the opposite parties. At the conclusion of the trial, the Tribunal passed the impugned judgment and award. Aggrieved by this, this appeal has been preferred by the insurer of the auto-rickshaw. Mr. S. Jindal, the learned Counsel for the appellant, has submitted that the Tribunal has completely overlooked the evidence of the claimant-respondent, who was examined as CW1, as well as the evidence of the I.O. of the case (CW3), who supported the case of the appellant that the accident took place due to the rash and negligent driving of the driver of the Tata Sumo and has in the process grossly erred in law in fastening liability upon the owner of the auto-rickshaw. It is submitted by the learned Counsel that as the claim petition was filed under Section 166 of the M.V. Act, it is the duty of the claimant to prove that the driver of the Tata Sumo was negligent in his driving the vehicle which resulted in the accident causing the death of the deceased, but the Tribunal failed to appreciate that there was neither an eye witness nor any evidence to prove such negligence. According to the learned Counsel, when CW3 categorically deposed that the driver of the Tata Sumo fled from the place of accident, which raised sustainable presumption of negligence against the driver of the Tata Sumo, the Tribunal is not justified in attributing negligence upon the driver of the auto-rickshaw. It is further urged by the learned Counsel that both the FIR and the evidence of CW3 clearly established that the accident occurred due to the rash and negligent driving of the Tata Sumo by its driver and this glaring evidence has been completely ignored or not properly considered by the Tribunal: this resulted in perverse finding. It is also pointed out by the learned Counsel that in the absence of the evidence adduced by the driver, owner and insurer of the Tata Sumo, the Tribunal clearly erred in law in holding the drivers of both vehicles to be guilty of contributory negligence: as there was no pleadings to this effect, the conclusions of the Tribunal that both the vehicles are liable for compensation are perverse and not sustainable in law. The learned Counsel for the appellant also assails the finding of the Tribunal that "there was nothing to suggest that the Tata Sumo was on the wrong side of the road where it ought to be" when there is definite evidence to show, as per the sketch map and paper mark G that the Tata Sumo was at the time of the accident on the wrong side of the road as the said vehicle was proceeding from Nongmynsong to Polo side. It is also Submitted by the learned Counsel that the compensation awarded is on the high side. In support of his various contentions, the learned Counsel relies on the following decisions: (i.) Oriental Insurance Company Ltd. v. Premlata Shukla and Ors., 2007 13 SCC 476, (ii) Machindranath Kernath Kasar v. D.S. Mylarappa and Ors., 2008 ACJ 1964, (iii) Rajib Bhattacharjee v. Union of India and Ors.,2001 1 TAC 563, (iv) National Insurance Co. Ltd. v. Mohanjit Kaur and Ors., 2005 ACJ 654, (v) United India Insurance Co. Ltd. v. Amitabha Dey and Ors.,1993 1 GauLR 149 and (vi) Shankar Chakrvarty v. Brttania Biscuit Co. Ltd.,1979 SCC 1652. He, therefore, submits that the impugned judgment and award is clearly illegal and is, therefore, liable to be set aside.