NATIONAL INSURANCE COMPANY LIMITED Vs. NIM LHAMU SHERPA

JUDGEMENT

(1.) The Learned Motor Accidents Claims Tribunal (hereinafter, the 'MACT'), Gangtok, Sikkim, vide its impugned Judgment, dtd. 17/10/2023, in MACT Case No.12 of 2023 (Nim Lhamu Sherpa vs. Passang Lhamu Sherpa and Another), granted the Respondent No.1 compensation of a sum of ? 21,56,000/-(Rupees twenty one lakhs and fifty six thousand) only, on account of the death of her husband, in a motor vehicle accident. It was observed inter alia at Paragraph 13 that; in a case of this nature, roving enquiry to prove rashness and negligence on the part of the driver is not required. That, it is unnecessary for the Tribunal to go into the technicalities because strict rules of procedure and evidence are not followed. That, for the purpose of this case, prima facie, there was rash and negligent driving on the part of the driver, which resulted in the accident and consequential death of the deceased. Having so determined the cause of the accident, the compensation was computed in favour of the Respondent No.1, under the following heads, with interest @ 10% per annum, from the date of filing of the application (i.e. 6/4/2023) until its full realization;

(2.) Before delving into the merits of the matter, the facts leading to the claim of the Respondent No.1 (Claimant before the Learned MACT) are briefly laid out. On 18/9/2011, a Maruti Suzuki, Taxi vehicle, driven by one Bikash Pradhan in which the Respondent No.1 and her husband were travelling with other occupants was hit by boulders that rolled down the hillside after being activated by the occurrence of an earthquake at that time. The vehicle thus hit, careened off the road into the river, flowing below in which all the occupants except Respondent No.1 were swept away. The body of the deceased husband of Respondent No.1 was recovered from the river on 23/9/2011. As per the Respondent No.1 (the accident survivor), the accident was the consequence of the vehicle being driven at high speed, due to which the driver failed to bring the vehicle to a halt when the boulders rolled down the hillside. The deceased, the only earning member of his family, was aged twenty-four years, a truck driver by occupation with monthly income of ? 10,000/- (Rupees ten thousand) only. The compensation claimed was ? 25,40,000/-(Rupees twenty five lakhs and forty thousand) only. The Insurance-Company having been impleaded as Respondent No.1 and the owner of the vehicle as Respondent No.2, contested the Claim Petition, denying the liability to pay the compensation. To establish the cause of the accident as rash and negligent driving the Claimant deposed before the Learned MACT. The Appellant did not examine any witness. The MACT on consideration of the entirety of the matter and finding all relevant documents pertaining to the vehicle including the Insurance Policy Exbt-4, valid at the time of the accident granted compensation as detailed hereinabove.

(3.) Before this Court, Learned Counsel for the Appellant submits that the accident was the result of vis major and beyond human control as it is the Claimant's case itself, that, the ill-fated vehicle fell into the river, having been hit by boulders falling from the hill, due to the earthquake, which crushed the vehicle. Thus, the Appellant is not liable to pay the compensation claimed. Besides, the Claimant failed to establish the rash and negligent act of the driver. That, the Respondent No.1 in fact ought to have filed a Claim Petition under Sec. 163A of the Motor Vehicles Act, 1988 (hereinafter the 'MV Act') and not under Sec. 166 of the MV Act. That, as the finding of the Learned MACT is not in terms of the law, the impugned Judgment deserves a dismissal.