MD MUFTY ASHADULLAH Vs. SURESH KR DHANUKA

JUDGEMENT

(1.) Heard Mr. A. Ganguly, learned counsel for the appellant and Ms. M. Choudhury, learned counsel for the respondent No. 3 as well as Mr. R. Goswami, learned counsel for respondent No. 4.

(2.) This is an appeal under Section 173 of the Motor Vehicles Act, 1988 (M.V. Act) challenging the order dated 31.03.2012, passed by the Motor Accident Claims Tribunal, Sonitpur, Tezpur.

(3.) The learned counsel, Mr. Ganguly has relied upon the case of Usha Rajkhowa and others vs. M/S Paramount Industries and others, 2009 14 SCC 71, wherein the Apex Court has laid down the ratio that in a case of contributory negligence it is the burden of the insurance company to prove such negligence. The insurance company, the Oriental Insurance Company in the instant case has not discharged the burden of proof cast upon them and as such, the award is liable to be set aside and necessary assessment has to be made in passing the award of apportionment in accordance with the evidence. He has also pleaded that where issue of contributory negligence is involved, issue should be framed and a decision thereof should be arrived at in accordance with the evidence that is brought before the learned Tribunal. In the instant case, no issue as such was framed and hence, the learned Tribunal came to a wrong conclusion. It has been further stated that the burden of proof being cast upon the insurer, the insurance company was not debarred from calling the surviving driver who could have testified on the issue of the contributory negligence. This was not done by the respondents. Hence, they failed in their duty to discharge their burden of proving that there was contributory negligence to come to a just finding.