Allowed

Bina Rani Debbarma and Anr. v. Nihar Debbarma and Anr.

Tripura HC5 May 2017MAC App./71/2014

Case brief

AI extract

What is this about?

In this motor accident appeal, the High Court set aside the Tribunal's judgment denying compensation due to erroneous reliance on a police report denying a rash and negligent driving. The Court held that a civil claim is independent of criminal FIR findings and remanded the case for fresh hearing on quantum of compensation.

What did the court decide?

Impugned judgment set aside and case remanded to Motor Accidents Claims Tribunal for fresh hearing to determine quantum of compensation.

Bina Rani Debbarma and Anr. Vs Nihar Debbarma 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.71/2014

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Smt. Bina Rani Debbarma, Wife of Lt. Dilip Debbarma,

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Sri Nirmalendu Debbarma, Son of Lt. Dilip Debbarma, Both are residing at Ghania Sadhupara, Chandpur, P.S.-Sidhai, Sub-Division-Mohanpur, District-West Tripura, PIN-799211.

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…. Claimant Petitioner-Appellants.

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-: Versus :-

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Sri Nihar Debbarma, S/O. Lt Budhi Ram Debbarma, Of Village Debrai Para, Chachu Bazar, Sub-Division-Sadar, P.S.-Sidhai, District-Tripura West. (Owner of the vehicle No.TR 01C-3487 Cruiser).

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The National Insurance Company Ltd., 42, Akhaura Road, P.S.-West Agartala, District-West Tripura, PIN-799001.

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….. 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. D.R. Choudhury, Advocate, Mr. D. Deb, Advocate.

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Counsel for the respondents : Mr. P. Gautam, Advocate. Date of hearing & Judgment : 05-05-2017. & Order

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JUDGMENT & ORDER (ORAL)

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Having heard Mr. D.R. Choudhury, the learned counsel for the appellants and Mr. P. Gautam, the learned counsel for the insurerrespondent, I am of the view that the impugned judgment is liable to be set aside by remanding the case to the Motor Accident Claims Tribunal, Court

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MAC APP. NO.71/ 2014 Page 1 of 8

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No. 2, West Tripura, for fresh hearing on the quantum of compensation payable to the appellants.

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The facts material for disposal of the appeal may briefly be noticed at the outset. The case of the appellants is that on 10-11-2010 at about 5 AM, when the deceased (Dilip Debbarma) was proceeding along MohanpurSonaibazar Road on foot, he was knocked down by the speeding vehicle bearing registration No. TR-01C-3487 at a place adjacent to the house of one Binoy Debbarma near a school causing him serious injuries. He was shifted to Mohanpur PHC by the local people, but he succumbed to his injuries on the same day. One Sunil Debbarma lodged an ejahar with the Officer-in-Charge of Sidhai Police Station, and the same was registered as Sidhai PS Case no. 104/2010 Us 279/304-A IPC in connection with the said vehicular accident. The offending vehicle was insured with the National Insurance Company Ltd. and the insurance policy was valid at the time of the accident. The deceased is survived by his wife (appellant No. 1) and his two sons and his father (Manik Lal Debbarma), who died during the pendency of the claim petition. The claimant No. 3, who is the son of the deceased, also died during the pendency of the claim petition. The names of the two deceased were accordingly struck of as the claimants in the case. The deceased was 45 years old at the time of the accident and was dealing with the wholesale business of fish, rubber and bamboo and had a piggery, agricultural land, piscicultural pond and poultry farm, etc. He had an income of ₹50,000/- per month. The original claimants filed the claim petition claiming a compensation of ₹50,00,000/- for the death of the deceased.

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The claim petition was resisted by the owner of the vehicle and the insurer by filing their respective written statements. The owner of the vehicle neither denied nor accepted the case of the appellants and they are put to strict proof. He, however, asserted that the driver of the vehicle was having a valid driving license and that the vehicle was insured with the National

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MAC APP. NO.71/2014 Page 2 of 8

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Insurance Co. Ltd. The stance taken by the insurer, however, is that there was no vehicular accident on 10-11-2010 which resulted in the death of the deceased, and the appellants were put to strict proof thereof. The insurer also denied the age, the income, vocation and health condition of the deceased at the time of the alleged accident. The insurer also claimed that it was not aware of the registration of a criminal case in connection with such accident. It is asserted by the insurer that the insured in collusion with the appellants did not report the accident U/s 158(6) of the Motor Vehicles Act with a view to cause loss to it. According to the insurer, the burden of proof was on the appellant to show that the vehicle was insured with it and that the driver was having a valid driving license at the time of the alleged accident. These are the sum and substance of the case of the insurerrespondent.

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The Tribunal, after hearing the parties, framed the following issues:

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Whether the deceased died in a vehicular accident on 10-11-2010 due to rash and negligent driving of the vehicle bearing No. TR-01C-3487 (Cruiser) by its driver?

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Whether the claimants are entitled to get any compensation and, if so, what would be the quantum of compensation and who shall be liable for payment of the same?

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Two witnesses including the claimant No. 1 were examined. Some documents were also exhibited on behalf of the appellants to substantiate their claims. The insurer examined its Administrative Officer as DW-1 and exhibited the certified copy of the Final Report, which was marked as Exbt. A series. At the conclusion of the trial, the Tribunal passed the impugned judgment denying any compensation to the appellants. Aggrieved by this, this appeal is now preferred by the appellants.

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MAC APP. NO.71/2014 Page 3 of 8

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The Tribunal took note of the absence of eyewitness to prove that the deceased was hit by Cruiser bearing registration No. TR-01-C-3487, which allegedly resulted in the death of the deceased. It, therefore, disbelieved the version of the appellants. It was rather swayed by the contents of the Final Reoprt (Exbt-2 series and Exbt-A series) submitted by the police before and was accepted by a criminal court. The following are findings of the Tribunal:

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“It appears from the final report of police that there was a selfhelp group consisting of 10 members. One Nihar Debbarma is the owner of the alleged offending vehicle. He was the member of the said self-help group. Deceased Dilip Debbarma was also the member of the said self-help group. Nihar Debbarma used to keep his vehicle in the garage of Benoy Debbarma (P.W. 2) on rental basis. Dilip Debbarma on the date of the incident went to bring out the vehicle from the garage. He tried to start the vehicle but failed. Then he pushed the vehicle by standing on the ground and the vehicle started to move forward and then ran over Dilip Debbarma resulting which he sustained injury and died. On the above facts, police submitted final report as mistake of facts reported to police and ultimately no charge sheet was filed against the driver of the alleged offending vehicle. Form the police report relied on by both sides, it is also not established that the incident occurred due to rash and negligent driving of vehicle by its driver Sanjoy Debbarma. On the contrary it is established that the accident occurred due to the fault of deceased having no authority/driving license to drive the vehicle.

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D.W. 1 the Administrative Officer of National Insurance Company also deposed the said facts as stated in the Final report of police before this Court.

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Considering all the above findings, this issue is decided against the petitioner.”

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MAC APP. NO.71/2014 Page 4 of 8

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At the outset, it must be noted that the finding of the Tribunal that the appellants relied on the final report of the police does not appear to be based on record. True, the police final report is relied by the insurer. Here, again, it may be noted that the facts noted in the final report as to how the accident took place was never the pleaded case of the insurer. In my opinion, the case projected by the appellants in the claim petition and the statements of PW-1 and PW-2 prima facie established that the deceased was knocked down by Cruiser bearing No. TR-01-C-3487 on 10-11-2010 which resulted in his death. Having established a prima facie case, it is now for the insurer to rebut the case of the appellants. The only significant evidence relied on by the insurer as noticed earlier is the police report. However, the question as to whether and how the police report can be relied by the insurer has been dealt with by this Court in recent cases, one of which happens to be the case of Rampati 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

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MAC APP. NO.71/2014 Page 5 of 8

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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 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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MAC APP. NO.71/2014 Page 6 of 8

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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 opinion the facts in the present case and the facts in the aforesaid cited case are on all fours. Without 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 the pleaded case of the insurer, it is my irresistible conclusion that the deceased was knocked down by Cruiser bearing registration No. TR-01-C-3487, which resulted in his death. 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 2014, it will be more expedient to remand the case to the Tribunal for determination of the compensation payable to the appellants 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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MAC APP. NO.71/2014 Page 7 of 8

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The impugned judgment dated 26-4-2014 is hereby set aside.

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The case is remanded to the learned Member, Motor Accident Claims Tribunal, Court No. 2, West Tripura, Agartala to proceed with the trial of the claim petition for the sole purpose of determining 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 2010, 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.71/2014 Page 8 of 8

Bina Rani Debbarma and Anr. v. Nihar Debbarma and Anr.

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Bina Rani Debbarma and Anr. v. Nihar Debbarma and Anr.

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