| Headnote |
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”. |
