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2009(1) Supreme 787
SUPREME COURT OF INDIA
S.B. Sinha and V.S. Sirpurkar, JJ.
Usha Rajkhowa & Ors. — Appellants
versus
Paramount Industries & Ors. — Respondents
Civil Appeal No. 1088 of 2009
(Arising out of SLP (C) No. 16647 of 2008)
Decided on : 17-02-2009
Facts of the Case :
1. Deceased died in a motor vehicle accident when car he was driving collided with a truck coming from opposite side in a rash and negligent manner. On Claim Petition, Tribunal, held that claimant would be entitled to compensation of Rs.6,56,300/- while limiting liability to 50% by apportioning between both involved vehicles. Appeal thereagainst on plea that since Tribunal itself had not held any contributory negligence on the part of Maruti Car nor had it given any finding and thus, the claim could not have been reduced to 50%, applying the theory of contributory negligence. High Court however dismissed the appeal, endorsing the finding of Tribunal.
2. Present appeal has been filed against said order of High Court.
Findings of the Court :
In the Examination-in-Chief, PW3 very specifically asserted that the truck was coming from the opposite direction in a high speed from opposite side and it hit the Car.He was undoubtedly right in saying that he could not say clearly as to which vehicle was at fault, however, he was quick to deny suggestion thrown at him that the accident took place because of the fault of Maruti Car. Tribunal, as well as, the High Court had chosen to go by the inference drawn by PW-3 or at any rate, his inability to fix the liability. It is not the judgment of the witness, which is decisive in the matter. In fact, the Tribunal, as well as, the High Court should have framed their own opinion, instead of going by the judgment or as the case may be, inference by PW-3. No question of any contributory negligence on the part of the driver of the Maruti Car and it was solely because of the negligence on the part of the truck that the accident took place.No evidence to suggest that there was any failure on the part of the Car driver to take any particular care or that he had breached his duty in any manner. Such breach on his part had to be proved by Insurance Company . The Insurance Company obviously failed to discharge its burden. Under the circumstances, there would be no question of restricting the claim to the 50% of the assessed amount of compensation.
Result : Appeal allowed.
JUDGMENT
V.S. Sirpurkar, J.—
1. Leave granted.
2. The appellants herein challenges the judgment passed by the High Court, confirming the judgment of the Motor Accidents Claim Tribunal (hereinafter referred to as ‘the Tribunal’ for short), whereby, the Tribunal limited the appellants’ entitlement to 50% of assessed claim amount and granted compensation of Rs.6,56,300/- on the ground that there was contributory negligence on the part of the driver of the Car, who lost his life in accident. He was the husband of appellant No. 1 and the father of appellant No. 2. The Car was insured by respondent No. 3 Oriental Insurance Company Ltd.
3. One Jadhav Rajkhowa died in a motor vehicle accident on 5.12.1998 at about 7 pm, when he had gone to Dergaon market from his house at Dadhara in his Maruti Car bearing Registration No. WB/12/6287. On the way of Dergaon, one truck bearing Registration No. NLA-241, coming from Jorhat side towards Bokakhat in a rash and negligent manner, hit the Maruti Car causing the instant death of said Jadhav Rajkhowa. Therefore, the claim petition was filed by his legal representatives (the appellants herein). The Car was insured with Oriental Insurance Company Ltd., while the offending truck belonged to M/s. Paramount Industries, Jorhat (respondent No. 1 herein), which was insured with United India Insurance Company Ltd., Golaghat Branch (respondent No. 2 herein).
4. The Oriental Insurance Company Ltd. in defence, contended that Maruti Car was under the valid insurance coverage with it and it was an Act Policy and the owner Jadhav Rajkhowa had paid Rs.373/- by way of premium covering the third party risk and that he had paid no additional premium covering his own life risk, even though there was provision under separate insurance policy nor had he paid any additional premium for driver and occupants. It was claimed by the Oriental Insurance Company Ltd. that the owner, driver and occupants were never treated as third party and since it was an Act Policy, the claimant would not be entitled to claim any compensation from them. The owner of the truck had submitted that its truck was under the valid insurance policy with United India Insurance Company Ltd. and, therefore, the owner was not liable to pay any compensation and compensation, if any, had to be paid by the Insurance Company. The United India Insurance Company Ltd., however, submitted that the accident had taken place due to rash and negligent driving on the part of the driver of the Maruti Car and the valid insurance was in favour of the truck, as had been admitted.
5. In support of the claim, appellant/claimant Usha Rajkhowa appeared as PW-1 and stated that her husband was the driver of the Maruti Car at the time of its accident and he was an employee of Oil India Ltd. She further stated that her husband was 30 years old at the time of accident and he had two children at that time. She claimed the monthly pay of her husband to be Rs.10,536/-. PW-2 Sarbeswar Bora was an employee of Oil India Ltd. He stated that deceased Jadhav Rajkhowa was Safety Inspector at the time of accident. The other witness examined was Madhuriya Rajkhowa PW-3, who stated that he was travelling along with one Dhiren Hazarika in Maruti Car and that the offending truck No. NLA-241 was coming from the opposite direction in high speed and hit the car. It was claimed by the witness that both Dhiren Hazarika, as also Jadhav Rajkhowa had died on the spot, while he escaped the death with certain grievous injuries. In his Cross Examination, PW-3 stated that:-
“As to which vehicle was at fault I can’t say clearly. It is not a fact that accident took place because of fault of Maruti Car.”
He further stated:-
“Maruti Car was going on its own side. Truck hit the Maruti Car.”
On the basis of this evidence, the Tribunal, firstly returned a finding that the Oriental Insurance Company Ltd. was not liable to pay any compensation, since the policy covering the owner of the Maruti Car, was not a com
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