Motor Vehicles Act, 1988: s.166 – Compensation – Contributory negligence – Claimant’s case was that on a fateful day while he was driving a motorcycle, he was hit by jeep driven by respondent no.2 resulting in serious injuries and ultimately amputation of right leg above the knee – Claim petition – Tribunal did not accept the evidence of witnesses produced by claimant, however opined on the basis of police investigation report that the accident was caused by jeep in question – Tribunal also noted the site plan and concluded that the claimant was driving on the wrong side of the road and contributed to accident and accordingly awarded compensation – High Court set aside the award passed by Tribunal noting that no finding regarding negligence of driver of offending jeep was recorded by Tribunal rather it found that the claimant was negligent while riding his motorcycle and that statement of claimant that bumper of jeep had hit the rear of his motorcycle was contradicted by the investigating report which recorded that it did not bear out that jeep was involved in an accident – Instant appeal filed by the claimant – Held: High Court committed manifest error in reversing holistic view of Tribunal in reference to the statement of witnesses forming part of charge sheet, FIR, jeep seizure report – Indeed, the High Court was impressed by the Mechanical Investigation Report which stated that only a scratch mark on the mudguard of the left tyre of the vehicle had been noted – On that basis, High Court observed that the same was in contradiction to the case of claimant – This conclusion was based on surmises and conjectures and also in disregard of the relevant fact that the vehicle was seized by the police after investigation, only after one month from the date of the accident and the possibility of the same having been repaired in the meantime could not be ruled out – Further, the fact that the offending jeep was driven rashly and negligently by respondent No.2 when it collided with the motorcycle of the claimant leading to the accident could be discerned from the evidence of witnesses and the contents of the charge-sheet filed by the police, naming respondent No.2 – The key of negligence on the part of the driver of the offending jeep as set up by the claimants was required to be decided by the Tribunal on the touchstone of preponderance of probability and certainly not by standard of proof beyond reasonable doubt – Further the finding that motor cycle was found one foot wrong side on the middle of the road cannot be basis to assume that appellant was driving on the wrong side of road at the relevant time – Thus, finding of Tribunal that claimant contributed to occurrence of accident by driving motorcycle on wrong side of road was wrong and cannot be sustained.
Motor Vehicles Act, 1988: s.166 – Quantum of compensation – The Tribunal noted the claim of the claimant-appellant that he was getting Rs.1500/- per month towards his salary and Rs.600/per month towards food allowance from employer – The fact that the claimant had possessed heavy transport motor vehicle driving licence has not been doubted – The driving licence on record being valid for a limited period, cannot be the basis to belie the claim of the claimant duly supported by employer, that the claimant was employed by him on his new truck – Besides the said income, the claimant claimed to have earning of Rs.1000/- per month from farming fields – The Tribunal, however, pegged the loss of monthly income to the claimant at Rs.520/- per month while computing the compensation amount on the finding that there was no convincing evidence about complete non-employability of the claimant – Further, no provision was made by the Tribunal towards future prospects – The Tribunal, therefore, should have computed the loss of income on that basis – Additionally, the claimant because of amputation of his right leg would be forced to permanently use prosthetic leg during his life time – No provision was made by the Tribunal in that regard – On these heads, the claimant is certainly entitled for enhanced compensation – Taking the loss of monthly income due to permanent disability of 40%, the appellant is held entitled to Rs.2,25,792/plus 40% future prospects – Besides, the amount quantified by the Tribunal towards the heads for medical treatment after the accident, motorcycle repair, mental and physical problem the appellant is additionally held entitled to medical expenses for procurement of a prosthetic leg, quantified at Rs.25,000/- .
Motor Vehicles Act, 1988: s.166 – Liability of insurer to pay the compensation amount – Insurance company denied liability on the ground that no payment was received by the company towards the insurance premium as the cover note purportedly taken for the jeep in question was obtained from the then Development Officer, who was later on sacked by Insurance Company and, therefore, same was fraudulent – Held: Insurance company has been able to show that no insurance policy was issued in respect of the offending jeep – However, the claim of the driver and the owner of the offending jeep to the extent that they possessed a cover note issued by the then Development Officer of the Insurance Company is accepted coupled with the fact that the Cover Note was issued by the then Development Officer at a point of time when he was still working with Insurance Company – It must follow that the then Development Officer was acting on behalf of the Insurance Company, even though stricto sensu the Insurance Company may not be liable to pay any compensation as no insurance policy was issued in respect of the offending vehicle, much less a valid insurance policy – Therefore, to do substantial justice, principle of “pay and recover” is invoked – Doctrines/Principles – Principle of “pay and recover”.
Allowing the appeals, the Court
HELD: 1. The Tribunal did not accept the version of PW-1, PW-2 and PW-4 about the involvement of Jeep No.RST-4701, but did not discard their version in toto. The evidence of these witnesses to the extent they have consistently stated that when the appellant was riding on his motorcycle at the relevant time, a green jeep coming at a high speed hit the motorcycle from back side, as a result of which the appellant fell down and suffered severe injuries was not doubted. Besides mentioning the description of the offending vehicle as a “jeep” they have also spoken about its colour (green) and that it was displaying the Congress Party flags and banners on the side of the jeep. In other words, their version limited to having noted the jeep number, was not accepted. Besides, the Tribunal relied upon the evidence of respondent No.2 (DW-1) and DW-2 who had stated that the jeep was deployed in the election campaign of Sarpanch and thus denied the involvement of the vehicle in the accident in question. Nevertheless, the Tribunal then adverted to the FIR and the charge-sheet filed in respect of the accident naming respondent No.2 as accused. The Tribunal placed reliance upon the copy of challan copy of FIR Site Map, Jeep Seizure Report, X-Ray and Injury Report to opine that these police records gathered during the investigation of the crime not only confirmed that an accident had occurred but also indicated the involvement of the offending Jeep which was driven by respondent No.2 at the relevant time. The Tribunal went on to conclude that there was no reason to disagree with the opinion of the Investigating Agency in that behalf. On the basis of the entirety of the evidence, the Tribunal had held that Jeep which was driven by respondent No.2 at the relevant time was involved in the accident in question, causing severe injuries to the appellant. The reasons which weighed with the High Court for reversing the finding of fact recorded by the Tribunal upon holistic analysis of the entire evidence, about the involvement of Jeep in the accident, cannot be countenanced. Jeep was driven rashly and negligently by respondent No.2 when it collided with the motorcycle of the appellant leading to the accident. This can be discerned from the evidence of witnesses and the contents of the charge-sheet filed by the police, naming respondent No.2. Considering the entirety of the pleadings, evidence and circumstances on record and in particular the finding recorded by the Tribunal on the factum of negligence of the respondent No.2, the driver of the offending jeep, the High Court committed manifest error in taking a contrary view which is an error apparent on the face of record and manifestly wrong. [Paras 14, 20, 21] [300-E-H; 307-B-C, F-H; 308-A-B]
Dulcina Fernandes and Ors. v. Joaquim Xavier Cruz and Anr. (2013) 10 SCC 646 : [2013] 10 SCR 480; United India Insurance Co. Ltd. v. Shila Datta (2011)
10 SCC 509 : [2011] 14 SCR 763 – relied on.
Minu B Mehta & Anr. v. Balakrishna Ramachandra Nayan & Anr. (1977) 2 SCC 441 : [1977] 2 SCR 886; Oriental Insurance Co. Ltd. v. Meena Variyal (2007) 5 SCC 428 : [2007] 4 SCR 641; Surender Kumar Arora & Anr. v. Dr. Manoj Bisla & Ors. (2012) 4 SCC 552 – held inapplicable.
Kaushnuma Begum & Ors. v. The New India Assurance Co. Ltd. and Ors. (2001) 2 SCC 9 : [2001] 1 SCR 8; Charan Lal Sahu v. Union of India (1990) 1 SCC 613 : [1989] 2 Suppl. SCR 597; Union Carbide Corpn. v. Union of India (1991) 4 SCC 584 : [1991] 1 Suppl. SCR 251; Gujarat SRTC v. Ramanbhai Prabhatbhai (1987) 3 SCC 234 : [1987] 3 SCR 404 – referred to.
Rylands v. Fletcher (1861-73) All ER Rep 1 – referred to.
2. There is substance in the criticism of the appellant that the spot where the motor vehicle was found lying after the accident cannot be the basis to assume that it was driven in or around that spot at the relevant time. It can be safely inferred that after the accident of this nature in which the appellant suffered severe injuries necessitating amputation of his right leg above the knee level, the motorcycle would be pushed forward after the collision and being hit by a high speeding jeep. Neither the Tribunal nor the High Court has found that the spot noted in the site map, one foot wrong side on the middle of the road was the spot where the accident actually occurred. However, the finding is that as per the site map, the motorcycle was found lying at that spot. That cannot be the basis to assume that the appellant was driving the motorcycle on the wrong side of the road at the relevant time. Further, the respondents did not produce any contra evidence to indicate that the motorcycle was being driven on the wrong side of the road at the time when the offending vehicle dashed it. Thus, there is no evidence to answer the issue of contributory negligence against the appellant. [Paras 23, 24] [311-A-E, F-G]
3. The appellant because of amputation of his right leg would be forced to permanently use prosthetic leg during his life time. No provision has been made by the Tribunal in that regard. On these heads, the appellant is certainly entitled for enhanced compensation. [Para 25] [312-C-D]
4. Respondents no.2 and 3 had relied on a Cover Note which according to Insurance Company was fraudulently obtained from the then Development Officer, who was later on sacked by Insurance Company. The possibility of misuse of some cover notes lying with him could not be ruled out. Insurance Company has been able to show that no payment was received by the company towards the insurance premium nor any insurance policy had been issued in respect of the offending vehicle (jeep). Pertinently, the Cover Note has been issued by the then Development Officer at a point of time when he was still working with Insurance Company. But for the Cover Note issued by the Development Officer of respondent No.1 Insurance Company at a point of time when he was still working with respondent No.1, to do substantial justice, the principle of “pay and recover” is invoked. [Para 26] [312-D-H; 313-A-C]
National Insurance Co. Ltd. v. Swaran Singh & Ors. (2004) 3 SCC 297 : [2004] 1 SCR 180; National Insurance Co. Ltd. v. Pranay Sethi & Ors. AIR 2017 SC 5157 – relied on.
New India Assurance Co. Ltd. v. Rula & Ors (2000) 3 SCC 195 : [2000] 2 SCR 148 – held inapplicable.
Kaushnuma Begum & Ors. v. The New India Assurance Co. Ltd. and Ors. (2001) 2 SCC 9 : [2001] 1 SCR 8; Dulcina Fernandes and Ors. v. Joaquim Xavier Cruz and Anr. (2013) 10 SCC 646 : [2013] 10 SCR 480; Bimla Devi and Ors. v. Himachal Road Transport Corporation and Ors. (2009) 13 SCC 530 : [2009] 6 SCR 362; Ravi Kapur v. State of Rajasthan (2012) 9 SCC 284 : [2012] 10 SCR 229; National Insurance Co. Ltd. v. Pranay Sethi & Ors. AIR 2017 SC 5157; Kishan Gopal & Anr. v. Lala & Ors. (2014) 1 SCC 244 : [2013]
10 SCR 793; Harbans Lal v. Harvinder Pal 2015 SCC OnLine P & H 9926; New India Assurance Co. Ltd. v. Pazhaniammal & Ors. 2011 SCC OnLine Ker 1881; United India Insurance Co. Ltd. v. Deepak Goel 2014 SCC OnLine Del 362; Manisha v. Umakant Marotrao Kolhe 2015 SCC OnLine Bom 4613; Mahawati Devi v. Branch Manager 2017 SCC OnLine Pat 1145; New India Assurance Co. Ltd. v. Rula & Ors (2000) 3 SCC
195 : [2000] 2 SCR 148; Oriental Insurance Co. Ltd. v. Meena Variyal (2007) 5 SCC 428 : [2007] 4 SCR 641; Minu B Mehta & Anr. v. Balakrishna Ramachandra Nayan & Anr (1977) 2 SCC 441 : [1977] 2 SCR 886; Surender Kumar Arora & Anr. v. Dr. Manoj Bisla & Ors. (2012) 4 SCC 552; N. K. V. Bros. (P) Ltd. v. M. Karumai Ammal and Ors. (1980) 3 SCC 457 : [1980]
3 SCR 101; Charan Lal Sahu v. Union of India (1990)
1 SCC 613 : [1989] 2 Suppl. SCR 597; Union Carbide Corpn. v. Union of India (1991) 4 SCC 584 : [1991] 1 Suppl. SCR 251; Gujarat SRTC v. Ramanbhai
Prabhatbhai (1987) 3 SCC 234 : [1987] 3 SCR 404; National Insurance Co. Ltd. v. Swaran Singh & Ors. (2004) 3 SCC 297 : [2004] 1 SCR 180 – referred to .
Rylands v. Fletcher (1861-73) All ER Rep 1 – referred to.
As published in the Supreme Court Reports, Supreme Court of India. Text from the Indian Supreme Court Judgments open data set (Dattam Labs), CC BY 4.0.
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