Remanded

Kalpana Majumder and Ors. v. Sankar Debnath and Anr.

Tripura HC8 May 2017MAC App./16/2016

Case brief

AI extract

What is this about?

The High Court of Tripura set aside an order of the Motor Accident Claims Tribunal awarding nil compensation. The Court held that the Tribunal erred in relying on an unexamined police report to conclude the deceased was a passenger. The appeal was remanded to determine the quantum of compensation.

What did the court decide?

Impugned judgment set aside; case remanded to MAC Tribunal to determine compensation; parties allowed to adduce evidence; three-month deadline imposed.

Kalpana Majumder and Ors. Vs Sankar Debnath and Anr. — Motor Accident Claims | Tripura HC (2017)

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THE HIGH COURT OF TRIPURA A G A R T A L A

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MAC APP. NO.16/2016

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Smt. Kalpana Majumder, W/O. Late Subhash Majumder,

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Sri Rajib Majumder, S/O. Late Subhash Majumder,

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Smt. Kajal Majumder, D/O. Late Subhash Majumder, All are residents of Village-Chitramanipara, P.O.-Champaknagar, P.S.-Jirania,

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District-West Tripura.

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Claimant Petitioner-Appellants.

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-: Vrs. :-

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Sri Sankar Debnath, S/O. Late Haralal Debnath, Resident of Nalgaria, Ranirbazar, P.S.-Ranirbazar, District-West Tripura, (Owner of the offending vehicle No.TR-01-F-0733, Mahindra Maxx).

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The New India Assurance Company Ltd., Divisional Office, Mantribari Road, Agartala, P.S.-West Agartala, District-West Tripura,

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(Insurer of the offending vehicle

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No.TR-01-F-0733, Mahindra Maxx).

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….. Opposite Party-Respondents.

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B E F O R E

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HON’BLE THE CHIEF JUSTICE

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Counsel for the appellants : Mr. B. Debnath, Advocate, Mr. J. Majumder, Advocate. Counsel for the respondents : Mr. A. Gon Choudhury, Advocate. Date of hearing : 10-04-2017. Date of Judgment & Order : 08-05-2017

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JUDGMENT & ORDER

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Aggrieved by the nil award passed by the learned Member, Motor Accident Claims Tribunal, Court No. 1, West Tripura, Agartala in his

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MAC APP. NO.16/2016 Page 1 of 8

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judgment dated 25-1-2016 of TS (MAC) No. 340 of 2013, this appeal is preferred by the appellant-claimants.

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The brief facts of the case, as pleaded by the appellants, may be noticed at the outset. On 3-4-2013 at about 6.30 AM, while Subhash Majumder along with Gopal Ch. Deb and some 6/7 colleagues were returning on foot after catching fish, suddenly one Mahindra Maxx bearing registration No. TR-01-F-0733 appeared and hit him and his colleagues and got capsized. As a result, the said Subhash Majumder and his colleagues sustained several injuries on their bodies. They were immediately evacuated to the Jirania PHC by the local people and were then shifted to GBP Hospital on the same day. On 31-7-2013, the said Subhash Majumder succumbed to his injuries after prolonged treatment as indoor patient at GB Hospital till 18-4-2013. He is survived by his wife, the appellant No. 1 and his son and daughter, who are the appellant No. 2 and 3 respectively. The appellant claimed that the accident occurred due to rash and negligent driving of the driver of the said Mahindra Maxx. The Police registered Jirania PS Case No. 37/2013 U/s 279/304-A IPC against the driver of the offending vehicle. The appellants, therefore, filed the claim petition claiming a compensation of ₹26,44,000/- for the death of the deceased. The deceased was stated to be a fisherman at the time of the accident and was earning ₹9,000/- per month as an income. He was also stated to be 50 years of age when he met the accident.

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The claim petition was opposed by the owner of the vehicle, who is the respondent No. 1 herein, by filing his written statement. He denied that the accident occurred due to the rash and negligent driving. He claimed that on the date of the accident, the vehicle had valid documents and was driven by its driver, who had a valid driving license and that the vehicle was insured with the New India Assurance Co. Ltd., which was accordingly liable to satisfy should any compensation be awarded to the appellants. The

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MAC APP. NO.16/2016 Page 2 of 8

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insurer also contested the claim petition and filed its written statement wherein it denied and disputed the claims of the appellants. On the pleadings of the parties, the Tribunal framed the following issues:

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Did Subhash Majumder sustain any injury on 3-42013 at about 6.30 AM near Khamarbari on the AssamAgartala road in a road traffic accident involving the Mahindra Maxx bearing No. TR-01-F-0733 due to its rash and negligent driving?

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Did Subhash Majumder die on 31-07-2013 due to the injuries sustained in the accident?

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Are the claimants entitled to get compensation as legal heirs of Subhash Majumder? If so, to what extent and who shall be liable to pay the same?

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At the conclusion of the trial, the Tribunal passed the impugned judgment refusing to award any compensation to the appellants. The findings of the Tribunal can be best understood by quoting from paragraph 11 of the judgment, which are as under:

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“11. Witnesses for the claimants have corroborated the claimant No. 1 that on 3-4-2013 at about 6.30 AM, Subhash Majumder along with Gopal Chandra Deb and others were coming from Khamarbari, Champaknagar after catching fish. As they reached Kharmarbari on the Assam-Agartala road, the Mahindra Max bearing No. TR-01-F-0733 coming from the southern side in a rash and negligent manner dashed them. But from the FIR lodged by the son of deceased Gopal Chandra Deb proved as Exbt. 6 series by the claimants, it appears that his father and others were travelling in the vehicle. Result of the investigation, i.e. the charge sheet proved as Exbt. B series reveals that Gopal Deb and others were in fact travelling in the vehicle.

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FIR is the basis of every MAC case. Unless there is an FIR, the case has no basis. If the FIR contradicts with the case of the claimants, the beginning is doubtful and then the charge sheet has a different story to tell, it cannot be inferred that the case of the claimants is proved. This is the case here.

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MAC APP. NO.16/2016 Page 3 of 8

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Claimants thus failed to established ( sic ) their pleaded case that Subhash Majumder sustained the injury on being knocked down by the vehicle. As it appears, he sustained the injury while travelling it. Again, case of the claimants that as there was no chance of his regaining sense, doctors of the hospital advised them to take him from the hospital on discharge. Accordingly, they took discharge of Subhash Majumder on 18-4-2013 is not supported by the contents of the injury report marked Exbt. 1 series which narrates that the patient was referred outside the State but the relatives were not willing. Further, they took the patient home against medical advice. With this in the backdrop, if the evidence of Dr. Jyotirmoy Ghosh, PW 5 is considered, it cannot be concluded that injury sustained in the accident caused the death.”

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On careful reading of the first part of the judgment extracted above, the Tribunal was quite satisfied that witnesses for the claimants had corroborated the claimant No. 1 to the effect that on 3-4-2013 at about 6.30 AM, Subhash Majumder along with Gopal Chandra Deb and others were coming from Khamarbari, Champaknagar after catching fish. As they reached Kharmarbari on the Assam-Agartala road, a Mahindra Maxx bearing No. TR-01-F-0733 coming from the southern side in a rash and negligent manner knocked them down. PW-2, who saw the accident from the gate of his house on the fateful day, testified that the Mahindra Maxx dashed against the deceased and other fishermen who were coming together on foot near the mouth of Khamarbari on AA Road. He further deposed that after the accident, he along with some other local people took the injured fishermen to Jirania. According to this witness, the accident occurred due to the rash and negligent driving of the offending vehicle by its driver. The cross-examination of this witness is only in the nature of suggestions which were denied by the witness. Only three questions in the form of suggestion were asked to this witness by the cross-examiner? Suggestion, which is denied by the witness, does not carry any weight in

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MAC APP. NO.16/2016 Page 4 of 8

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the law of evidence. PW-3 and PW-4 are the fishermen who were together with the deceased at the time of the accident and were also hit by the same offending vehicle, but they, unlike the deceased, managed to survive and could tell the tale. The cross-examinations of these two witnesses comprising of hardly three question, that too, only in the form of suggestions, are hardly of any assistance to the respondents.

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The question which now falls for consideration is whether there are sufficient evidence to substantiate the second part of the findings of the Tribunal that the deceased and his colleagues were travelling in the vehicle in question as passengers at the time of the accident and were, therefore, not entitled to compensation as they were gratuitous passengers. In reaching this conclusion, the Tribunal relied on the police report, which was purportedly submitted after the investigation of the case. At this stage, it is worthy of notice that that was not the pleaded case of the insurer or the owner of the vehicle in their respective written statements. The pleaded case of the insurer in their written statement is that the vehicle in question was not involved in the accident or that alternatively, there was no rash and negligent driving of the vehicle. It was for the first time in the witness box, on the basis of the police investigation report, that the insurer took the plea that the deceased and his colleagues were travelling in that goods vehicle at the time of the accident. It is to be noticed that the author of the police papers were never examined by the insurer to prove their contents. True, the FIR was lodged by the son of the deceased 9 days after the accident, but it was explained therein that it could not be lodged in time as they were mentally upset due to the treatment of his father. Delay in lodging the FIR per se is not always fatal as long as there is credible explanation for the delay. It can, therefore, be said that there is satisfactory explanation for the delay. The question as to whether reliance can be placed on the contents of police investigation report to disbelieve and discard the case of the claimant came up for consideration before me in Rampati

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MAC APP. NO.16/2016 Page 5 of 8

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Chakma v. Sunil Kumar Ram and others, (2016) 2 TLR 975 . After reviewing the various case-laws, I held:

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“9 . The question as to how far the decision of a criminal case or the police report can influence the decision of a civil case was discussed by the Division Bench of Madhya Pradesh High Court in Mahila Dhanwanti and others v. Kulwan and others, AIR 1994 MP 44 , and it was held therein:

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“ 10. Coming to the other contention that the deceased was travelling as a passenger and, therefore, the Insurance Company was not liable to pay any compensation, it has also no merit. True, the F.I.R. (Ex. D/2-C) and the statement of the Investigating Officer gives a version which supports the case of the Insurance Company, but even assuming that the F.I.R. is a public document, but it is the rule of law that it is not a substantive piece of evidence. It can be used only for the purposes of corroboration or contradiction of the maker only. The maker having not been examined by either side, the statement of A. S. Yadav carries no weight as he only investigated the occurrence. He is not an eyewitness to the occurrence. His testimony is of hearsay evidence, therefore, the conclusions which he drew after investigation cannot be taken into consideration unless supported by proper material, It is well settled proposition of law that evidence recorded in criminal Court and the findings arrived at thereon should not be used in claim cases. Such evidence, for the purposes of claim cases is inadmissible. (See Shabbir Ahmad v. M.P.S.R.T.C., Bhopal, AIR 1984 MP 173 ).”

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10. In R.P. Gautam v. R.N.M. Singh and another, AIR 2008 MP 68 , the Madhya Pradesh High Court lucidly summed up the proposition of law in the following manner:

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“13. It is settled proposition of law that every civil case is decided on its own facts and evidence without influencing the papers and decision of the criminal case. In such premises registration of the offence and

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MAC APP. NO.16/2016 Page 6 of 8

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police investigation is not a condition precedent for awarding the claim. Besides this due to one reason or another if the first information report of vehicular accident is not lodged with the police or the same was given at later stage and police neither registered the offence nor investigated the same, it does not mean that right of the victim for compensation who suffered the vehicular accident is washed away. The victim remains entitled for compensation on proving the facts and circumstances regarding such accident and factum of injuries sustained by him, he could not be deprived from such right, provided by the Motor Vehicles Act, although such compensation may be awarded only on proving all relevant facts with all probabilities.”

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11. Motor accident claim case is in the nature of a civil suit and certainly not a criminal case. Therefore, the Tribunal has grossly erred in law in relying on the contents of the ejahar and the Police investigation report to disbelieve and discard the case of the claimant. The claimant, on the contrary, is entitled to prove her case on the basis of the evidence adduced by her, which was corroborated in material particulars by the evidence of PW-2, who personally saw the accident resulting in the death of the deceased, in the course of trial. On my above findings, I have no hesitation in holding that the deceased was killed in the vehicular accident on 2-4-2004 due to the rash and negligent driving of the driver of the respondent No. 1. Resultantly, the insurer, who admittedly insured the vehicle in question at the time of the accident, is vicariously liable to satisfy the award.”

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In my judgment, the proposition of law laid down in the paragraphs extracted in the foregoing is squarely applicable to the facts of this case. In the absence of examining the author of the aforesaid police papers to prove the contents thereof and of keeping in mind the glaring fact that the case now being set up by the insurer is never their pleaded case, it is my irresistible conclusion that the deceased was not travelling in the vehicle in question, but was rather knocked down by it, which resulted in his death.

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MAC APP. NO.16/2016 Page 7 of 8

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The findings of the Tribunal to the contrary cannot be sustained in law and are, therefore, liable to set aside. However, this Court is not equipped with all the necessary evidence to go into the quantum of compensation payable to the claimants-appellants. Moreover, the appeal is of 2016, it will be more expedient to remand the case to the Tribunal for determination of compensation by giving the parties the liberty to adduce evidence/further evidence to substantiate their respective cases.

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The result of the foregoing discussion is that this appeal is disposed of with the following orders/directions:

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The impugned judgment dated 25-1-2016 is hereby set aside.

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The case is remanded to the learned Member, Motor Accident Claims Tribunal, Court No. 1, West Tripura to proceed with the trial of the claim petition for the sole purpose of determining the just compensation payable to the appellants in accordance with law;

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Needless to say, both the parties shall be afforded adequate opportunity to prove their respective cases by allowing them to adduce oral and documentary evidence, if they so desire.

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As the vehicular accident took place in the year 2013, an attempt will be made by the Tribunal to dispose of the claim petition within a period of three months from the date of receipt of this judgment.

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No costs.

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CHIEF JUSTICE

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MAC APP. NO.16/2016 Page 8 of 8

Kalpana Majumder and Ors. v. Sankar Debnath and Anr.

Case brief

What is this about?

What did the court decide?

Kalpana Majumder and Ors. v. Sankar Debnath and Anr.

Case brief

What is this about?

What did the court decide?

What the court decided

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