Gauhati High Court
M/S New India Assurane Co. Ltd vs Smti Champa Lahkar And 2 Ors on 5 August, 2025
Page No.# 1/22
GAHC010072882021
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THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : MACApp./125/2021
M/S NEW INDIA ASSURANE CO. LTD.
HAVING ITS REGISTERED OFFICE AT NEW ASSURANCE BUILDING 87,
MAHATMA GANDHI ROAD,MUMBAI, AND ONE OF THE REGIONAL
OFFICES AT G.S. ROAD, BHANGAGARH, GUWAHATI-5, ASSAM.
VERSUS
SMTI CHAMPA LAHKAR and 2 ORS,
W/O LATE BIKASH JYOTI LAHKAR, VILL. HAZARI KACHUK BIHAGURI,
and MOUZA-BIHAGURI, P.S. TEZPUR, DIST. SONTIPUR, ASSAM.
2:BISHNU HAZARIKA
S/O SRI PURNA KT. HAZARIKA
VILL. GHORAMARI
MOUZA HALESWAR
P.S. TEZPUR
DIST. SONITPUR ASSAM OWNER OF VEHICLE NO. AR-03-0342 TRUCK
3:BIKRAM BORO
S/O LATE GOPEN BORO
VILL. CHAPAGURI GHORAMARI
MOUZA HALESWAR
P.S. TEZPUR
DIST. SONITPUR
ASSAM
DRIVER OF VEHICLE NO. AR-03-0342 TRUC
Page No.# 2/22
Advocate for the appellant : Mr. K.K. Bhatta
Advocate for the respondents : Mr. A.K. Gupta
Date of hearing : 17.06.2025
Date of judgment : 05.08.2025
BEFORE
HONOURABLE MR. JUSTICE ROBIN PHUKAN
JUDGMENT & ORDER (CAV)
Heard Mr. K.K. Bhatta, learned counsel for the appellant. Also heard Mr. A.K.
Gupta, learned counsel for the respondents.
2. This appeal, under Section 173(1) of the M.V. Act, is directed against the
judgment and award dated 15.05.2014 and review order dated 09.07.2014, passed by
the learned Member, Motor Accident Claims Tribunal, Sonitpur, in MAC Case No.
140/2009.
3. It is to be noted here that vide impugned judgment and award dated
15.05.2014, the learned Member, Motor Accident Claims Tribunal, Sonitpur ('Tribunal',
for short) had directed the appellant herein to pay a sum of Rs. 8,96,164/-, to the
claimant/respondent No. 1 herein, being the compensation with interest @ 7.5% per
annum from the date of filing of the claim petition till payment to the claimant, and
vide impugned review order dated 09.07.2014, the learned Tribunal had awarded a
sum of Rs. 9,23,738/-, by modifying the earlier award.
Background facts:-
4. The background facts, leading to filing of the present appeal, are briefly
stated as under:
Page No.# 3/22
“On 05.03.2009, at about 3:45 p.m., when the husband of the
claimant/respondent No. 1 herein, namely, Bikash Jyoti Lahkar was returning
from the Forest Department Office at Chariduar and proceeding towards
Balipara on foot, one Truck, bearing Registration No. AR-03-0342, being driven
in a rash and negligent manner, knocked him down, because of which he died
on the spot. At the relevant time, his age was 40 years and was working as a
Forest Guard in the Department of Forest and Environment, Government of
Assam and earning Rs. 10,000/- per month.
The opposite party Nos. 1 and 2/respondent Nos. 2 and 3 herein, i.e. the
owner and driver of the Truck filed their written statement denying negligence
on the part of the opposite party No. 2, and they stated that on 05.03.2009, at
about 3 p.m., the said Truck, which was loaded with stones and proceeding
towards Balipara, broke down near Mansiri river. Thereafter, the opposite party
No. 2 immediately informed the opposite party No. 1 about the same and the
opposite party No. 1 brought one mechanic to repair the Truck. At about 3:45
p.m., when the Truck was being repaired by the mechanic by keeping the truck
standing on jacks, the claimant’s husband came on foot and seeing the broken
truck he stopped, and when the claimant’s husband saw that the mechanic was
unsuccessful in removing a broken part of the Truck, he voluntarily slipped
below the Truck and hit the bottom part with a hammer which was lying there,
as a result the jack slipped and the Truck fell upon the claimant’s husband
resulting in his instant death. It was also stated that the opposite party No. 1
and opposite No. 2 were not responsible and no responsibility can be saddled
upon them, and that the vehicle was insured with the opposite party
No.3/appellant herein, vide Policy No. 530704/31/08/02/00005549, and it was
valid from 30.12.2008 to 29.12.2009, and that if there was any liability, then the
opposite party No. 3 had to bear the same.
The opposite party No. 3/appellant herein also filed written statement
Page No.# 4/22denying the statements and averments made in the claim petition, and that the
compensation being claimed was excessive and speculative, and that the insurer
is not liable to pay any compensation.
Thereafter, the learned Tribunal recording evidence and hearing learned
counsel for both the parties, vide impugned judgment and award dated
15.05.2014, awarded a sum of Rs. 8,96,164/-, being the compensation with
interest @ 7.5% per annum from the date of filing the claim petition till payment
to the claimant.
Thereafter, on a review application, the learned Tribunal had modified the
aforementioned award, vide review order dated 09.07.2014, in Misc. Review
Petition No. 4/2014, and awarded a sum of Rs. 9,23,738/- modifying the earlier
award.
Being aggrieved, the appellant has approached this Court by filing the
present appeal.”
Submissions:-
5. Mr. Bhatta, learned counsel for the appellant submits that there was no rash or
negligent driving on the part of the driver of the offending vehicle as the same was in
a stationary position and as per evidence on record, the deceased voluntarily crawled
under the stationary offending Truck. There was no nexus between the vehicle use
and death and the phrase “arising out of the use of a motor vehicle” requires a causal
connection between the use of the vehicle and the accident. In this case, the death
did not arise due to any operation, function, or use of the vehicle (e.g., movement,
loading, unloading, or mechanical failure). The act of the deceased was entirely
voluntary, unauthorized, and disconnected from any function of the vehicle. The
deceased crawled under the truck voluntarily without the knowledge, invitation, or
instruction of the driver or owner. This breaks the chain of causation and qualifies as
novus actus interveniens (a new intervening act), thus absolving the insurer of
Page No.# 5/22
liability.
5.1. Mr. Bhatta also submits that the claim petition was filed under Section 166 of
the M.V. Act, but the same ought to have been filed under Section 163A of the M.V.
Act, and that since there is no rash and negligent driving on the part of the
respondent Nos. 2 and 3, the award under Section 166 of the M.V. Act is not at all
maintainable. Mr. Bhatta also submits that present case is distinguishable from the fact
of Shivaji Dayanu Patil and Another vs. Vatschala Uttam More (Smt.),
reported in 1991 (3) SCC 530, wherein the Supreme Court has held that the owner
of a motor vehicle is liable to pay compensation under Section 92A of the Motor
Vehicles Act, 1939 (now Section 140 of the 1988 Act), on the principle of no fault
liability, even when the vehicle was stationary at the time of the accident, provided the
accident arose out of the use of the motor vehicle, and in that case the Supreme
Court held that the accident “arose out of the use of the motor vehicle.” In the case
Shivaji Dayanu Patil (supra), the explosion was directly connected to the petrol
leakage, which was due to the motor accident. On the other hand, in the instant case
the Truck was stationary, and the death resulted from a personal act of risk-taking,
unrelated to any defect, danger, or malfunction in the vehicle. And the Supreme Court
itself emphasized that a nexus between the accident and use of vehicle is essential.
5.2. Mr. Bhatta also submits that insurance coverage is not for unauthorized
intrusion. Insurance is not intended to cover injuries resulting from deliberate or
unauthorized entry into hazardous parts of the vehicle. The deceased was a trespasser
and not a passenger, loader, or person involved in any vehicular activity. Therefore,
such an incident is not covered within the risk insured under the Motor Vehicles Act.
5.3. Mr. Bhatta also submits that imposing liability on the insurance company in
such cases would open floodgate of unmeritorious claims, encouraging irresponsible
behavior around stationary vehicles and creating a burden on insurers increase
premiums for all users. And therefore, the impugned judgment and award as well as
Page No.# 6/22
the review order so passed by the learned Tribunal, are erroneous and liable to be set
aside and quashed.
5.4. In support of his submission, Mr. Bhatta has referred following decisions of
Hon’ble Supreme Court in support of his submission:-
(i) Pushpabai Purshottam Udeshi vs. Ranjit Ginning &
Pressing Co., reported in (1977) 2 SCC 745.
(ii) Rita Devi vs. New India Assurance Co. Ltd., reported
in (2000) 5 SCC 11.
(iii) National Insurance Co. Ltd. vs. Nicolletta Rohtagi,
reported in (2002) 7 SCC 456.
6. Per contra, Mr. Gupta, learned counsel for the respondents has supported the
impugned judgment and award. Mr. Gupta submits that the accident took place out of
the use of the motor vehicle and there was negligence on the part of the driver and
owner for keeping the vehicle in stationary position on the road and in allowing the
deceased to undertake repair work.
6.1. In support of his submission, Mr. Gupta has referred to the following
decisions of Hon’ble Supreme Court:-
(i) Ningamma and Anr. vs. United Indian Insurance Company
Limited, reported in (2009) 13 SCC 710.
(ii) Rita Devi (Smt) and Ors. vs. New India Assurance Co. Ltd.
and Anr., reported in (2000) 5 SCC 113.
7. Having heard the submissions of learned counsel for both the parties, I have
carefully gone through the memo of appeal and the grounds mentioned therein, and
also perused the impugned judgment and award dated 15.05.2014 and review order
dated 09.07.2014, and also gone through the decisions referred by learned counsel for
both the parties.
Finding of the Tribunal:-
Page No.# 7/22
8. It appears from the impugned judgment and award dated 15.05.2014, that
the learned Tribunal had framed as many as three issues:
1. Whether the accident took place due to rash and negligent
driving by the driver of the offending vehicle?
2. Whether the claimant is entitled to any compensation as
prayed for?
3. To what relief the parties are entitled?
8.1. Thereafter, the learned Tribunal had discussed the evidence of P.W.1 i.e. the
claimant Smt. Champa Lahkar, P.W.2 Sri Ranjit Das, P.W.3 Sri Amalesh Saikia, and also
considered the evidence of D.W.1 and D.W.2 i.e. the owner and driver of the Truck,
and one Sri Krishna Mandal and Sri Ranjit Mandal as D.W.3 and D.W.4. Thereafter, the
learned Tribunal had arrived at a finding that the categorical stand of the opposite
party No. 1 and opposite party No. 2 is that the claimant’s husband having himself
slipped below the truck, which was in a stationary condition, the opposite parties are
not liable to compensate the claimant, and thereafter, arrived at a finding that even if
the version of the opposite parties is taken to be correct, it is incomprehensible as to
how a truck standing on four jacks slipped and slipping of the jack indicates the
negligence on the part of the opposite parties in not ensuring that the same is
stalled/erected properly and in securing the truck from slipping, and that there was
nothing to show that the defence witnesses attempted to stop the claimant’s husband
from going below the truck. Thereafter, the learned Tribunal had held that there was
negligence on the part of the defence witnesses, in leaving the truck on ‘jack’
unguarded and abandoned and leaving the spot to have tea, and thereafter, held that
opposite party Nos. 1 and 2 and their agents (D.W.2 and D.W.3) are also partly held
responsible for the accident which occurred because of the use of the Truck.
8.2. The learned Tribunal further held that there was some contributory
negligence on the part of the claimant’s husband in slipping below the truck, and the
Page No.# 8/22extent of the contributory negligence on the part of the claimant’s husband was held
to be 50%. Thereafter, the learned Tribunal arrived at a finding that the oral evidence
of the claimant, coupled with the documentary evidence mentioned above, established
that the claimant’s husband died in the motor vehicle accident, partly due to the
negligence of the opposite party No. 2/driver of the Truck, bearing Registration No.
AR-03-0342 and the other agents of the opposite party No. 1, and that the said
Truck/the offending vehicle was insured with the opposite party No. 3, New India
Assurance Co. Ltd., was not in dispute.
8.3. Thereafter, the learned Tribunal had assessed the compensation as per the
ratio laid down by Hon’ble Supreme Court in the case of Sarla Verma vs. Delhi
Transport Corporation, reported in (2009) 6 SCC 121, and thereafter, the
learned Tribunal had determined the multiplier as 14, as at the relevant point of time,
the age of the deceased was 40 years 11 months, and the deceased was a Forest
Guard and his gross pay was Rs. 10,067/- as per Ext.4. Thereafter, the learned
Tribunal had determined the loss of dependency at Rs. 17,22,476/-, loss of consortium
at Rs. 1,00,000/- and funeral expenses at Rs. 25,000/-, the total being Rs.
18,47,476/-, and thereafter, awarded only 50% of the aforesaid amount since the
deceased was also responsible to the extent of 50% and ultimately, awarded a sum of
Rs. 9,23,738/-.
Consideration of this Court:-
9. I have considered the submission of learned counsel for both the parties and also
gone through the decision of Hon’ble Supreme Court in the case of Shivaji Dayanu
Patil (supra), while pronouncing on the interpretation of Section 92-A of the
Motor Vehicles Act, 1939 held as under:-
“… Section 92-A was in the nature of a beneficial legislation
enacted with a view to confer the benefit of expeditious
payment of a limited amount by way of compensation to the
victims of an accident arising out of the use of a motor
Page No.# 9/22vehicle on the basis of no-fault liability. In the matter of
interpretation of a beneficial legislation the approach of the
courts is to adopt a construction which advances the beneficent
purpose underlying the enactment in preference to a
construction which tends to defeat that purpose.”
9.1. With regard to the contention of proximity between the accident and the
explosion that took place, Hon’ble Supreme Court has held as under:-
“36. This would show that as compared to the expression ’caused
by’, the expression ‘arising out of’ has a wider connotation.
The expression ’caused by’ was used in Sections 95(1)(b)(i) and
(ii) and 96(2)(b)(ii) of the Act. In Section 92-A, Parliament,
however, chose to use the expression ‘arising out of’ which
indicates that for the purpose of awarding compensation under
Section 92-A, the causal relationship between the use of the
motor vehicle and the accident resulting in death or permanent
disablement is not required to be direct and proximate and it
can be less immediate. This would imply that accident should be
connected with the use of the motor vehicle but the said
connection need not be direct and immediate. This construction
of the expression ‘arising out of the use of a motor vehicle’
in Section 92-A enlarges the field of protection made available
to the victims of an accident and is in consonance with the
beneficial object underlying the enactment.”
9.2. In the case of Rita Devi vs. New India Assurance Co. Ltd., reported in
(2000) 5 SCC 113, Hon’ble Supreme Court while interpreting the phrase “accident
arising out of the use of a motor vehicle” held as under:-
“18. In the instant case, as we have noticed the facts, we
have no hesitation in coming to the conclusion that the
murder of the deceased (Dasarath Singh) was due to an
accident arising out of the use of motor vehicle. Therefore,
the trial court rightly came to the conclusion that the
claimants were entitled for compensation as claimed by them
and the High Court was wrong in coming to the conclusion that
the death of Dasarath Singh was not caused by an accident
Page No.# 10/22involving the use of motor vehicle.”
9.3. In the light of the aforesaid principles laid down by Hon’ble Supreme Court in
the cases discussed herein above while the submission of Mr. Bhatta, learned counsel
for the appellant that there is no causal connection herein this case between the use
of the vehicle and the accident, left this Court unimpressed in as much as there is no
dispute that the husband of the claimant died as a result of injury sustained by him
wherein the vehicle No. AR-03-0342 was involved. Perusal of the evidence available on
the record of the learned Tribunal, this Court in the light of the ratio laid down in the
cases discussed herein above, this Court is satisfied to hold that the husband of the
claimant died as a result of accident arising out of the use of a motor vehicle and
there is causal connection between the death of the husband of the claimant with that
of the use of the vehicle.
10. Now, what is to be looked into is the maintainability of the petition under Section
166 of the M.V. Act. While Mr. Bhatta, learned counsel for the appellant submits that
the petition under Section 166 of the M.V. Act is not maintainable, the counter
submission of Mr. Gupta, the learned counsel for the respondent is that the petition is
maintainable and that the learned Tribunal had rightly allowed the petition under
Section 166 of the M.V. Act.
11. This aspect was dealt with by Hon’ble Supreme Court in the case of Oriental
Insurance Co. Ltd. vs. Meena Variyal and Others, reported in (2007) 5
SCC 428. In paragraph No.27 of the said decision Hon’ble Supreme Court discussing
the ratio laid down in the case of Minu B. Mehta v. Balkrishna Ramchandra
Nayan, reported in (1977) 2 SCC 441, laid the proposition as under:-
“27. ………. Therefore, the victim of an accident or his
dependants have an option either to proceed under Section 166
Page No.# 11/22of the Act or under Section 163-A of the Act. Once they
approach the Tribunal under Section 166 of the Act, they have
necessarily to take upon themselves the burden of
establishing the negligence of the driver or owner of the
vehicle concerned. But if they proceed under Section 163-A of
the Act, the compensation will be awarded in terms of the
Schedule without calling upon the victim or his dependants to
establish any negligence or default on the part of the owner
of the vehicle or the driver of the vehicle.
11.1. Again in the case of Ningamma v. United India Insurance Co. Ltd.,
(2009) 13 SCC 710, Hon’ble Supreme Court has held as under:-
“24. However, the question remains as to whether an
application for demand of compensation could have been made
by the legal representatives of the deceased as provided in
Section 166 of the MVA. The said provision specifically
provides that an application for compensation arising out of
an accident of the nature specified in sub-section (1) of
Section 165 may be made by the person who has sustained the
injury; or by the owner of the property; or where death has
resulted from the accident, by all or any of the legal
representatives of the deceased; or by any agent duly
authorised by the person injured or all or any of the legal
representatives of the deceased, as the case may be.
25. When an application of the aforesaid nature claiming
compensation under the provisions of Section 166 is received,
the Tribunal is required to hold an enquiry into the claim
and then proceed to make an award which, however, would be
subject to the provisions of Section 162, by determining the
amount of compensation, which is found to be just. Person or
persons who made claim for compensation would thereafter be
paid such amount. When such a claim is made by the legal
representatives of the deceased, it has to be proved that the
deceased was not himself responsible for the accident by his
rash and negligent driving. It would also be necessary to
prove that the deceased would be covered under the policy so
Page No.# 12/22as to make the insurance company liable to make the payment
to the heirs.”
11.2. Thus, in view of the decision of Meena Variwal (supra) and in the case of
Ningamma (supra) it is well settled that the victim of an accident or his dependants
have an option either to proceed under Section 166 of the Act or under Section 163-A
of the Act. Once they approach the Tribunal under Section 166 of the Act, they have
necessarily to take upon themselves the burden of establishing the negligence of the
driver or owner of the vehicle concerned. And when such a claim is made by the legal
representatives of the deceased, it has to be proved that the deceased was not
himself responsible for the accident by his rash and negligent driving. It would also be
necessary to prove that the deceased would be covered under the policy so as to
make the insurance company liable to make the payment to the heirs.
12. Now, it is to be seen how far the claimant/respondent No.1 herein succeeded in
discharging the burden of establishing the negligence of the driver or owner of the
vehicle concerned. That perusal of the record of the learned Tribunal indicates that the
claimant had examined the following three witnesses including herself:-
(i) Smti. Champa Lahkar (claimant) as P.W.1;
(ii) Shri Ranjit Das as P.W.2;
(iii) Shri Amalesh Saikia as P.W.3;
12.1. The claimant had also exhibited the following six documents:-
(i) Form 54 as Exhibit-1;
(ii) Post Mortem Report as Exhibit-2;
(iii) Certificate issued by Police as Exhibit-3;
(iv) Salary Certificate as Exhibit-4;
(v) Death Certificate as Exhibit-5;
Page No.# 13/22
(vi) Identity Card of the deceased as Exhibit-6.
13. That perusal of the evidence of the claimant and two other witnesses indicates
that the claimant had not seen the occurrence. Her evidence indicates that on
05.03.2009, her husband went to met one person at Chariduar Forest Office, at about
10 am. Then having met the person at the Office, at about 3.45 pm, with a view to
returning home, he was proceeding on foot to catch the vehicle. Then the Truck,
bearing No. AR-03-0342, knocked him down from backside on the left side of the road
and also broke down itself. Her evidence also reveals that one Ranjit Das and another
of her locality had witnessed the occurrence while they were returning from
Bhalukpung and informed her over phone and with the help of local people Ranjit Das
got her husband admitted at Kanaklata Civil Hospital for treatment and got the dead
body post-mortemed there. She also stated categorically that because of the rash and
negligent driving by the driver of the Truck, the accident took place.
13.1. That, perusal of the Exhibit-1 indicates that in connection with the said
accident Rangapara Police Station Case No.53/2009 under Section 279/304(A) IPC has
been registered. Exhibit-3, the Certificate issued by In-Charge, Chariduar Police Out
Post also indicates that Bikash Jyoti Lahkar, the husband of the claimant suffered
demise in a motor vehicle accident and in that connection Chariduar Out Post G.D.
Entry No. 92 dated 05.03.2009 was recorded and Rangapar P.S. Case No. 53/2009
under Section 279/304(A) IPC has been registered and investigation was carried out.
The P.M. Report-Exhibit-2 also indicates that Bikash Jyoti Lahkar died due to
hypovolumic shock as a result of multiple injuries all over the body. Thus, these
exhibits also lend corroboration to the evidence of the claimant in respect of death of
her husband in a motor accident.
13.2. The appellant herein and also the respondent No. 2 and 3 had cross-examined
her at length. But, they failed to discredit her evidence. She had vehemently denied
Page No.# 14/22
the suggestion that her husband went under the vehicle and lowered the jack and
then the vehicle fell down as a result of which he suffered demise for his own fault, as
told by the driver and owner of the said vehicle. She got the information about the
occurrence after 1 and ½ hour and had arrived at Police Station and found the dead
body of her husband. And as such, she had no occasion to witness the incident.
13.3. Her evidence also finds corroboration from the evidence of P.W.2 and 3, who
had testified that on 05.03.2009 at about 3.45 pm they were returning from
Bhalukpung in a motor cycle and in front of them a Truck, bearing No. AR-03-0342,
knock down Bikash Jyoti Lahkar from backside and caused his death. Then they
reported the matter to the wife of Bikash Jyoti Lahkar. They also categorically stated
that the accident took place because of the fault of the driver.
13.4. It is elicited in cross-examination of P.W.2 that from a distance of 100 meters
he had witnessed the accident and having arrived at the place of occurrence he found
Bikash Jyoti beneath the Truck. He denied the suggestion that the deceased, without
any reason, went under the vehicle and moved the jack of the vehicle and then the
vehicle fell down as a result of which he suffered demise. However, he pleaded
ignorance if the accident took place due to removing of the jack by the deceased.
13.5. P.W.3 also in his cross-examination denied the suggestion that the accident
did not take place for the fault of the driver. He pleaded ignorance that if the accident
took place due to moving of the jack by the deceased. It is elicited that the accident
did not take place in front of him and that he arrived at the place of occurrence after
20 minutes.
14. On the other hand, respondent No.2 and 3 herein had examined following
witnesses:-
(i) Shri Bishnu Hazarika (owner of the vehicle) as D.W.1;
Page No.# 15/22
(ii) Shri Bikram Boro (driver of the vehicle) as D.W.2;
(iii) Shri Krishna Mondal (Mechanic) as D.W.3;
(iv) Shri Ranjit Mandol (mechanic) as D.W.4.
14.1. The evidence of D.W.1 and 2 reveals that on 05.03.2009, at about 3 p.m., the
Truck, which was loaded with stones and proceeding towards Balipara, and broke
down near Mansiri river. Then the driver (D.W.2) immediately informed D.W. 1 about
the same and then D.W.1 brought one mechanic to repair the Truck. At about 3:45
p.m., when the Truck was being repaired by the mechanics (D.W.3 and 4) by keeping
the truck standing on a jack, the deceased came there with another person on a bike
and seeing the broken truck he stopped and saw that the mechanic was unsuccessful
in removing a broken part of the Truck, then without any permission the deceased
voluntarily slipped below the Truck and hit the bottom part with a hammer which was
lying there, as a result the jack slipped and the Truck fell upon the claimant’s husband
resulting in his instant death. D.W.3 and 4 also testified the same fact. Their evidence
also reveals that the deceased came with with another person in a bike.
14.2. It is elicited in cross-examination of D.W.1 that in connection with the
accident Rangapara P.S. Case No. 53/2009, under Section 279/304(A) IPC has been
registered. He denied that because of the rash and negligent driving of the Truck the
accident took place. D.W.2 also denied that the accident took place due to rash and
negligent driving of the Truck. It is elicited in cross-examination of D.W.3 and 4 that
the Truck was standing on four jacks.
14.3. Thus, a careful analysis of the evidence of the D.Ws indicates that the same
are irreconcilably in conflict with that of the written objection filed by the D.W.1 and 2.
While it is stated in the written objection that the deceased came from backside of the
vehicle, whereas in the evidence, it is stated that the deceased came with another
person on a bike. While it is stated in written objection and also in evidence-in-
Page No.# 16/22
affidavit that the vehicle was on one jack, it was elicited in cross-examination that the
Truck was over four jacks.
14.4. No doubt, these contradictions are not material, but while the evidence of
D.Ws vis-à-vis the evidence of the P.Ws and its documents, are considered, the
contradictions, as noticed and discussed above, goes a long way to raise a doubt
about the veracity of the story of D.Ws.
The Standard of Proof:-
14.5. The issue regarding standard of proof in the case of claim petition under
Section 166 of the M.V. Act has been dealt with by Hon’ble Supreme Court in catena of
decisions. In the case of Mathew Alexander Vs. Mohammed Shafi and Anr.,
in Criminal Appeal No. 1931 of 2023 [Arising out of SLP(CRL.) No.
8211 of 2022], Hon’ble Supreme Court has held that the matter of alleged
negligence on the part of the driver of the vehicle is a matter which has to be
considered on the basis of preponderance of the possibilities and not on the basis of
proof beyond reasonable doubt. It was further held that even if final report, in respect
of the FIR lodged in connection with the accident, is filed then it would not have a
bearing on the claim petition for the aforesaid reasons.
14.6. In the case of Meera Bai & Ors. ICICI Lombard General Insurance
Company Ltd. & Anr., in Civil appeal no………….. of 2025 [Special leave
petition (c) no.3886 of 2019], Hon’ble Supreme Court has held that if FIR was
lodged against the owner driver of the vehicle for the offence of rash and negligent
driving and if charge sheet is filed against the owner driver of the offending vehicle,
then there could be no finding that negligence was not established.
14.7. Similarly, in the case of Bimla Devi vs. Himachal Road Transport
Corporation, reported in (2009) 13 SCC 530, it was observed that in a claim
Page No.# 17/22petition filed under Section 166 of the Motor Vehicles Act, 1988, the Tribunal has to
determine the amount of fair compensation to be granted in the event an accident has
taken place by reason of negligence of a driver of a motor vehicle. A holistic view of
the evidence has to be taken into consideration by the Tribunal and strict proof of an
accident caused by a particular vehicle in a particular manner need not be established
by the claimants. The claimants have to establish their case on the touchstone of
preponderance of probabilities. The standard of proof beyond reasonable doubt
cannot be applied while considering the petition seeking compensation on account of
death or injury in a road traffic accident. In the case of Dulcina Fernandes vs.
Joaquim Xavier Cruz, reported in (2013) 10 SCC 646 also same observation was
made by Hon’ble Supreme Court which has referred to the aforesaid judgment in
Bimla Devi (supra).
14.8. Again in the case of State of Mysore Vs. S.S. Makapur, reported in 1993
(2) SCR 943, the Hon’ble Supreme Court has held that the Tribunals exercising
quasi-judicial functions are not courts and are not bound by strict rules of evidence.
14.9. The proposition of law, that can be crystallized from the aforementioned
discussion is that the onus to prove the rash and negligent driving is not to be
discharged beyond reasonable doubt or in similar manner as a fact is to be proved in a
civil case. Rather, it has to be proved on the touchstone of preponderance of
probability and holistic view is to be taken while dealing with the claim petition based
upon negligence.
14.10. It is now well settled that while interpreting the provisions under the M.V. Act,
always a liberal approach has to be adopted, so that very object of enacting the Act,
which is a piece of social welfare legislation, is not defeated. In Bimla Devi vs.
Satbir Singh, reported in 2012 (4) SCALE 217, Hon’ble Supreme Court, held as
under:-
Page No.# 18/22
“The Motor Vehicles Act is a social piece of legislation and
has been enacted with intent and object to facilitate the
Claimants/Victims to get redress for the loss of family
member or for injuries at an early date. In any case, money
cannot be any substitute for it, but in the long run it may
have some soothing effect. Thus, it is desirable to adopt a
more realistic, pragmatic and liberal approach in these
matters.”
14.11. Thus, having tested the evidence, both documentary and oral, in the light of
the principle of preponderance of probability, this Court is of the considered opinion
that the claimant has succeed in establishing her case by the preponderance of
probability. Her evidence and the evidence of two other witnesses examined by her
and the documents exhibited her outweighed the evidence of the D.Ws. She has
successfully established the negligence of the driver of the vehicle concerned so as to
invoke the jurisdiction of this Court, under Section 166 of M.V. Act. In that view of the
matter, the finding of the learned Tribunal, in respect of the manner and of arriving at
the finding of rash and negligent act on the part of the respondent No.2 and 3 herein
and their agents i.e. D.W.3 and 4, and also determination of the extent of the
contributory negligence on the part of the deceased, appears to be erroneous and
unacceptable and the same warrants interference of this Court and accordingly, the
same is interfered with.
15. In view of above discussion and finding, being the first appellate Court, this
Court is inclined to assess just compensation, which the claimant/respondent No.1
herein, is entitled to.
15.1. It is not in dispute that the age of the deceased was 40 years 11 months as
per Ext.6, which indicates his date of birth as 05.04.1968, and he was serving as
Forest Guard and his monthly salary as per Ext.4 was Rs. 10,067/-, and it is also not in
dispute that the deceased left behind his wife/the claimant and two children and his
Page No.# 19/22
parents.
15.2. As discussed herein above, the date of birth of the deceased was 05.04.1968,
and on the date of accident, his age was 40 years 11. So, the applicable multiplier
would be 15 as per the decisions of Sarla Verma (Supra). Indisputably, the
deceased was serving as Deputy Ranger and his salary was Rs. 10,067/-, and after
deduction of professional tax i.e. Rs.208/- the same would be Rs.9859/- per month.
Thus, having accepted the income of the deceased at Rs. 9859/- per month, 30% of
the same has to be added as future prospect, as at the time of accident the deceased
was between 40-50 years, in view of the decision of Hon’ble Supreme Court in the
case of National Insurance Company Limited vs. Pranay Sethi, reported in
(2017) 16 SCC 680. After addition of 30% to Rs. 9859/- the amount would be
Rs. 12,817/- (Rs.9859/-+ Rs.2957.7/- =Rs.12,816.7/- (rounded off at
Rs. 12,817/-).
15.3. Thereafter, in view of the decision of Hon’ble Supreme Court in the case of
Sarla Verma (Supra), ¼th of the aforesaid amount has to be deducted as personal
expenses since he left behind five dependants at the time of accident. After deducting
¼th of the above, the amount would be Rs. 9,613/- [Rs. 12,817/- Rs.3204.25
= Rs.9,612.75/-(rounded off at Rs. 9,613/-)]. After application of
multiplier, the amount would be Rs.17,30,340/- (Rs.9,612/- x 12 x 15 =
Rs.17,30,340/-).
15.4. Besides, under the conventional heads, a sum of Rs. 40,000/- each with
10% increase in every three years has to be awarded under the head – consortium,
and a sum of Rs. 15,000/- under head – funeral expenses, and the aforesaid
amounts should be enhanced by 10% in every 3 years, and a sum of Rs. 15,000/-
under head – loss of estate, and the aforesaid amounts should be enhanced by
10% in every 3 years in view of the decision of Hon’ble Supreme Court in the case of
Page No.# 20/22
Pranay Sethi (supra). It is to be noted here that after the accident almost 15
years elapsed. That being so, the aforesaid amounts have to be enhanced by five
times since in the meantime, 15 years have elapsed.
15.5. The whole calculation, after application of the principle laid down in the
case of Sarla Verma (Supra) and also in the case of Pranay Sethi
(Supra), would be as under:-
Sl. Heads Calculation
No.
I Monthly income Rs. 9859/-
II 30% of (i) to be added as future Rs.12,817/-
prospect=(Rs.9859/- + Rs.2957.7/-
=Rs.12,816.7/- (rounded off at
Rs. 12,817/-).
III 1/4th of the (ii) deducted as Rs. 9613/-
personal expenses of the
deceased=(Rs.12,817/-
Rs.3204.25/-)= Rs.9612.75/-(rounded
off at Rs. 9613/-
IV Compensation after multiplier of 15 Rs. 17,30,340/-
is applied (Rs.9,613/- x 12 x 15 =
Rs.17,30,340/-)
V Loss of Estate Rs.15,000/- which Rs.15,000/-+
has to be increased by 10% in every Rs.7,500/-=
three years (15,000/- x 10/100) = Rs.22,500/-
1500 x 5 = Rs.7500/-(Rs.15,000/-
+7500/- = Rs.22,500/-
VI Loss of Consortium =Rs.40,000/-, Rs. 40,000/- +
which has to be increased by 10% in Rs.20,000/-=
each three years 40,000 x 10/100 = Rs. 60,000/-
4000 x 5 = 20,000/- (Rs.40,000/- +
20,000 = Rs.60,000/-)
VII Funeral expenses Rs.15,000/-, which Rs.15,000/-+
has to be increased by 10% in each Rs.7,500/-=
three years 15,000 x 10/100 = 1500 Rs.22,500/-
x 5 =Rs.7500/-
Total compensation awarded = Rs. 18,35,340/-
Page No.# 21/22
15.6. The Exhibit-1 and also written statement of respondent No.2 and 3 reveals
that at the relevant time, the offending Truck was insured with the appellant i.e. New
India Assurance Company Limited, vide Policy No. 530704/31/08/02/00005549 and
the same was valid till 29.12.2009. It also appears that at the relevant point of time
the policy was in force. This is an undisputed fact.
15.7. It also appears from Exhibit-1 that at the relevant time the respondent No.3
had a driving licence, bearing No. 24497/5/Prof and the said driving licence was valid
till 17.01.2011. There is no dispute in this regard.
Finding:-
16. In the result, I find no merit in this appeal and accordingly, the same stands
dismissed.
17. The appellant- New India Assurance Company Limited, is directed to pay the
amount i.e. Rs. 18,35,340/- (Rupees eighteen lacs thirty five thousand
three hundred and forty) only, being the compensation, which according to this
Court is just compensation, here in this case. The amount, if already paid to the
claimant has to be deducted from the aforesaid amount.
18. Though the learned Tribunal had held that there was contributory negligence on
the part of the deceased and awarded only half of the amount, yet in view of the
evidence discussed herein above, this Court is unable to record concurrence with the
finding so recorded by the Tribunal. Accordingly the same stands set aside.
19. It is further provided that the amount will carry interest @ 9% per annum, from
the date of filing of the claim petition, i.e.06.05.2009, till realization of the amount in
view of the decision of Hon’ble Supreme Court in the case of Municipal
Corporation of Delhi vs. Uphaar Tragedy Victims Association and
Others, reported in (2011) 14 SCC 481. In the said case, it has been held that
the interest upon the compensation amount @ 9% per annum, would be justified.
Same principle was followed in the case of Kalpanaraj vs. Tamil Nadu State
Page No.# 22/22
Transport Corporation, reported in (2014) C.R. 693 (SC).
20. The appellant shall deposit the aforesaid amount before the learned Tribunal
within a period of 30 days from today. It is further provided that on such deposit being
made, the learned Tribunal shall consider keeping of some amount in fixed deposit
scheme in a Nationalized Bank in the name of the minor daughter and son as it deem
fit and proper.
21. In terms of above, this MAC Appeal stands disposed of.
22. The Registry shall send down the record of the learned Tribunal with a copy of
this judgment and order forthwith. The parties have to bear their own costs.
JUDGE
Comparing Assistant