The liability of the owner and insurer in motor accident cases, even in the absence of driver negligence, and the maintainability of claim petitions for personal injuries under the M.V. Act.

JUDGMENT :

Judgment and order, dated 12.04.2019, passed by the learned Member MACT, at Dimapur, Nagaland in MAC Case No. 70/2014, is challenged in this appeal by United India Insurance Company Ltd. It is to be noted here that vide impugned judgment and order, the learned Member MACT, Dimapur, has awarded a sum of Rs 6,94,680/-(Rupees six lakhs ninety-four thousand six hundred and eighty) under different heads, payable by the appellant along with interest @ 9% per annum, from the date of filing of the claim petition till actual realization.

2. The factual background, leading to filing of this present appeal is briefly stated as under:-

“On 11.04.2013, at about 11:30 PM, the claimant/respondent No.1, a skilled labour, being the casual employee of respondent No.3, was returning home after attending his assigned duty in a Crane, bearing Registration No. WB-24E/7413, being driven by respondent No.2, met with an accident near Khatkhati Petrol Pump, due to steering failure and rash and negligent driving. The vehicle turned turtle and as result of which the respondent No.1 sustained grievous injuries i.e. “Multiple fractures of the left maxillary bone (wall) and left zygomatic bone with opacication of the left maxillary sinus, s/o haemorrhagic effusion with fracture of the posterior part of the ramus of the mandible on the right side, extending from the angle till the head and neck region, with overlying soft tissue swelling of the face. Thereafter, the respondent No.1 had filed a claim petition before the learned Member MACT, Dimapur, Nagaland under Section 166 of the M.V. Act. The appellant, United India Insurance Company Ltd. and the owner of the vehicle i.e. Transking Carrier Pvt. Ltd, and the Driver had contested the claim by filing written statements. Thereafter, hearing both the parties, the learned Court below, vide impugned judgment and order, awarded a sum of Rs 6,94,680/-(Rupees six lakhs ninety-four thousand six hundred and eighty) under different heads, payable by the appellant along with interest @ 9% per annum, from the date of filing of the claim petition till actual realization.

3. Being highly aggrieved, the appellant, National Insurance Company Ltd., preferred this appeal on the following grounds:-

(i) That, the learned Member MACT, have committed gross error by assessing the disability of the respondent No.1 at 40% without there being any disability certificate of medical board;

(ii) That, the learned Member MACT, had failed to consider the fact that the burden to prove the fault under section 166 M.V. Act is upon the claimant but the claimant has failed to prove the rash and negligent driving of the vehicle on the part of the driver;

(iv) That, the learned Member had failed to consider the fact that no mechanical report was produced by the claimant to establish the fact that the accident took place due to steering failure;

(v) That, the learned Member MACT, had failed to consider the fact that the claimant had failed to prove his age and income by producing any document and also failed to prove the medical report to establish that he had sustained grievous injuries;

(vi) That, the learned Member MACT, have failed to take into account that the driver of the vehicle had special endorsement from the licensing authority to drive a Crane;

(vii) That, the learned Member had failed to take into consideration the fact that no regular police case was filed and the Police Report was filed band on GD Entry only;

4. I have heard Mr. Pfoseko Pfotte, learned counsel for the appellant. Also heard Mr. B.N. Sharma, learned counsel for the respondent.

5. Mr. Pfoseko Pfotte, learned counsel for the appellant had advanced four-fold arguments. Firstly Mr. Pfotte submits that the learned Member had assessed the disability of the claimant at 40% without any certificate issued by the Medical Board. Secondly, Mr. Pfotte submits that the claimant has failed to prove rash and negligent driving of the vehicle by the driver and as such the petition und