THE BRANCH MANAGER, ICICI LOMBARD GENERAL INSURANCE COMPANY LTD. AND ORS. Vs. SONAM PALZOR BHUTIA AND ORS.

JUDGEMENT

(1.) This Appeal is directed against the impugned Judgment and Award dated 28 -05 -2015 passed by the Learned Member, Motor Accidents Claims Tribunal, North Sikkim at Mangan (for short "the Claims Tribunal"), in MACT Case No. 20 of 2014, directing the Appellant/Insurer to pay Rs. 14,99,500.52 (Rupees fourteen lakhs ninety nine thousand five hundred and paisa fifty two) only, with interest @ 10% per annum on the said sum to the Claimants from the date of filing of the Claim Petition, i.e., 12 -09 -2014, till full and final payment.

(2.) The primary thrust of the arguments advanced by Learned Counsel for the Appellants is that the Claim before the Claims Tribunal does not stand as the accident, the onus of which lies on the Claimants to prove, did not occur either due to rash or negligent driving which is a sine qua non for a Claim made under Sec. 166 of the Motor Vehicles Act, 1988 (for short "the Act of 1988"), but is attributable to natural calamity, an Act of God, since it occurred due to a landslide which crushed the occupants and the vehicle. That the contents of the FIR, Exhibit 2, or the Final Report, both, relied on by the Respondents do not indicate any element of rashness or negligence on the part of the deceased driver as evident from the fact that the case was registered only under Sec. 174 of the Code of Criminal Procedure, 1973 (for short "Cr.P.C.") and not under Sec. 279 of the Indian Penal Code, 1860 (for short "IPC"), hence the Respondents cannot base their Claim on the principle of res ipsa loquitur, which is not applicable in the present facts and circumstances. Besides which, it is urged that the compensation awarded is not just and the interest of 10% is exorbitant, the impugned Judgment and Award be set aside. Learned Counsel has placed reliance on the decision of the Hon'ble Apex Court in Oriental Insurance Company Limited vs. Premlata Shukla and Others : (2007) 13 SC 476.

(3.) Per contra, it was the contention of Learned Counsel for the Respondents No. 1 and 2 that the facts at the site of the accident unequivocally establish that the driver of the vehicle proceeded to drive through the landslide despite being aware that the area was prone to falling boulders, without application of mind which resulted in the fatal accident, killing the victim, the driver and a third occupant. The act of the driver was undoubtedly rash and negligent and not the act of a prudent person who would have considered the risks involved in driving through the landslide area, hence the principle of res ipsa loquitur kicks into place. In view of the facts and circumstances of the case, the finding and Award of the Claims Tribunal requires no interference. He has relied upon a plethora of Judgments to buttress his arguments.