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2016 Supreme(Tri) 44
IN THE HIGH COURT OF TRIPURA, AGARTALA
DEEPAK GUPTA, J.
Smt. Tapati Nag - Appellant
Versus
Abu Taher Saikh – Respondents
MAC App. No. 87 of 2012
Decided On : 19-02-2016
For the Appellant :Mr. S. K. Dutta, Advocate.
For the Respondent:Mr. A. Gonchoudhury, Advocate., Mr. S. Lodh, Advocate.
The need for cogent evidence to prove contributory negligence and negligence of the opposite side, and the inadmissibility of hearsay evidence.
Headnote:
Contributory Negligence - Motor Accident Compensation - Meera Devi & Anr. Vrs. H.R.T.C. & Ors.: (2014) 4 SCC 511
Fact of the Case:
The claimant filed an appeal for enhancement of compensation following a collision between a Maruti Car and a lorry, resulting in the death of the claimant's son. The tribunal found both drivers equally negligent and awarded compensation of Rs.2,59,000 to the claimant.
Finding of the Court:
The court found that there was no specific evidence to prove contributory negligence and that the claimant's evidence was hearsay and not admissible. The court also noted that the FIR did not indicate fault on the part of the lorry driver.
Issues: The issues revolved around proving contributory negligence and negligence of the opposite side, as well as the admissibility of evidence.
Ratio Decidendi: The court emphasized the need for cogent evidence to prove contributory negligence and negligence of the opposite side. It also highlighted the inadmissibility of hearsay evidence.
Final Decision: The court modified the compensation to Rs.4,94,000, holding the deceased equally responsible for the accident. The insurance company was directed to deposit the enhanced amount with interest, and the appeal was disposed of accordingly.
This is an appeal filed by the claimant for enhancement of compensation and is directed against the award dated 21.07.2012 passed by the learned Motor Accident Claims Tribunal, West Tripura, Agartala whereby he awarded compensation of Rs.2,59,000/- in favour of the claimant.
2. The claimant, Smt. Tapati Nag is the mother of deceased Joydeep Nag. The admitted facts are that on 08.10.2002 Joydeep Nag along with some friends was travelling in a Maruti Car bear registration No.WB-02A-9449 from Kolkata to Agartala. At Ahiran Bridge there was a collision between this Maruti Car and Lorry bearing registration No.WGQ-1627. In the claim petition it is alleged that the Maruti Car had crossed 3/4th of the bridge and was being driven slowly and cautiously and that the Lorry came from the opposite side in a rash and negligence manner at a high speed.
3. The learned tribunal came to the conclusion that both the deceased who was driving the Maruti Car and the driver of the Lorry were equally negligent. He assessed the income of the deceased @ Rs.5,000/- per month and calculated the total loss at Rs.5,18,000/-but has held the claimant entitled to only Rs.2,59,000/- on account of contributory negligence.
4. Sri S. K. Dutta, learned counsel for the claimant submits that there is no cogent evidence in the instant case to prove that the accident had taken place due to rash and negligent driving of the deceased driver of the vehicle. He relied upon the judgment rendered by the Apex Court in Meera Devi & Anr. Vrs. H.R.T.C. & Ors.: (2014) 4 SCC 511, wherein the Apex Court held as follows:
“10. To prove the contributory negligence, there must be cogent evidence. In the instant case, there is no specific evidence to prove that the accident has taken place due to rash and negligent driving of the deceased scooterist. In the absence of any cogent evidence to prove the plea of contributory negligence, the said doctrine of common law cannot be applied in the present case. We are, thus, of the view that the reasoning given by the High Court has no basis and the compensation awarded by the Tribunal was just and reasonable in the facts and circumstances of the case.”
5. There can be no quarrel with the proposition of law that there must be some evidence to prove contributory negligence. At the same time there must be some evidence to prove negligence of the opposite side. In the present case, the only witness examined by the claimant was the mother of the deceased. Admittedly, she was not present when the accident took place and therefore, her evidence as to the position of the car or the manner in which the car was being driven is only hearsay and not admissible in evidence.
6. Next reliance is placed upon the F.I.R. lodged by one of the occupants of the Maruti Car who is also a friend of the deceased. The F.I.R. reads as follows:
“To
The Officer In-Charge,
Suti Police Station,
Mursidabad.
Sir,
My humble submission is that yesterday (dtd 08-10-02) while we the 3 (three) friends namely Anirban Das, Sudip Das and Manidip Deb along with Joydeep Nag were proceeding to Tripura from Kolkata boarding on a vehicle (a Maruti Car) bearing regn no. 02-A-9449 then one lorry coming from opposite direction had met head on collision with our vehicle over the iron bridge located under Suti Police Station on 08-10-02 AD at around 9.00 o'clock. Resultantly 2 (two) persons got admitted in the Jangipur Sardar Hospital. Amongst them one was Joydeep Nag and another was Anirban Das. Doctorbabu on duty had declared Joydeep Nag as dead at around 3.45 o'clock night and till now another also has been admitting in the Hospital. No details has yet been learnt in the matter of lorry. Inspite of this it is humbly prayed that a legal step be taken against the offending 'Lorry' and the concerned authority may decide in this regard providing solution. Delay has been caused in lodging the ejahar as (we) were busy with medical treatment of the injured persons as well as in the matter of the d
