Smti. Priya Tripura and Anr v. Sri. Sitesh Choudhury (Now Dead) Substituted by Smti Anamika Datta (Choudhury) and Anr

Judgment and Order :

20.06.2024

Whether fit for Reporting

:

HON"BLE MR. JUSTICE BISWAJIT PALIT Judgment & Order

This appeal is preferred challenging the judgment and award dated 06.02.2023 passed by Learned Member, Motor Accident Claims Tribunal, Court No.5, West Tripura, Agartala in connection with T.S. (MAC) 187/2019.

¶02Heard Learned Counsel, Mr. P.S. Roy representing the claimant-appellants and also heard Ms. R. Purkayastha, Learned Counsel for the respondent-Insurance Company.

¶03In course of hearing of argument, Learned Counsel for the claimant-appellant submitted that the judgment/award of the Learned Tribunal below suffers from infirmities because according to Learned Counsel, the Learned Tribunal below came to an observation that there was contributory negligence on the part of the deceased and as such although the Learned Tribunal determined the amount of compensation to the tune of Rs.31,34,000/- but at the time of award fastened 50% liability upon the Insurance Company and also observed that 50% deduction of compensation is to be made for the contributory negligence of the deceased which was perverse.

He also at the time of hearing of argument referred the evidence of the claimant-appellant and the witnesses and also the exhibited documents relied upon and further submitted that if the appeal is not allowed then the claimant-appellant shall suffer irreparable losses and urged for allowing this appeal and relied upon few citations.

¶04On the other hand, Learned Counsel Ms. R. Purkayastha on behalf of the respondent-Insurance Company submitted that in the relevant prosecution papers i.e. in the connected police case, it revealed to the Investigating Officer

during investigation that the accident occurred due to the contributory negligence of the deceased and furthermore, the alleged motor bike bearing No.TR-08-A-8927 had no valid insurance certificate and the rider had no valid driving licence and the appellant also relied upon the same and finally submitted that the Learned Tribunal below rightly delivered the award, awarding 50% of compensation upon the Insurance Company and there was no infirmity in the judgment of the Learned Tribunal below and urged for dismissal of this appeal with costs.

¶05Now, before coming to the conclusion let us discuss the subject matter of the claim-petition filed before the Learned Tribunal. The claimant-appellant being the wife and mother of the deceased filed an application under Section 166 of M.V. Act which was numbered as T.S. (MAC) 187 of 2019. The gist of the claim filed by the claimant-appellants was that on 25.05.2019 at about 06.30 p.m. to

7.00 p.m., deceased Kumar Sanu Tripura was proceeding towards his residence from Manpathar Bazar at Birchandra Manu by the left side on Agartala Subroom road by riding a motor bike bearing registration No.TR-08-A-8927 and when the vehicle reached near a pacca bridge at Kalkalia at about

6.30-7.00 pm, for natural call, the deceased victim stopped his motor bike and was trying to get down from the motor bike and that time one commander jeep bearing registration No.TR-01-3134 came with high speed in rash and negligent

manner and dashed the deceased with his motor bike. As a result of which the deceased sustained injury on his body and shifted to Jolaibari Hospital from where he was referred to AGMC and GBP Hospital at Agartala and at Agartala the victim was declared as dead. It was further submitted that the deceased used to earn Rs.15,000/- per month as a mason by profession. Hence, the petitioners filed the claim-petition. The claim-petition was contested by O.P. No.1 Sitesh Choudhury, the owner of the offending commander jeep by filing written statement who denied the claim of the claimant-petitioners and submitted that he himself was driving the commander jeep on the date of accident and there was no fault on his part to commit such accident and he had all the valid documents. Thus, prayed for dismissal of the claim-petition. The Insurance Company as O.P. No.2 also filed written statement denying the plea of the claimants and further submitted that the claim-petition is subjected to strict proof.

It was further submitted that any breach of conditions, specifically relating to driving licence and use of the commander jeep may entitle the Insurance Company to avoid liability. So, the Insurance Company by the WS prayed for dismissal of the claim of the claimants.

¶06Upon the pleadings of the parties, following issues were framed:

(i) Whether the case is maintainable?

(ii) Whether deceased Kumar Sanu Tripura died due to road traffic accident on

25.05.2019 at about 06.30-7 pm near Kalkalia Bridge at Kalkalia on Agartala-Sabroom Road under Baikhora PS due to rash and negligent driving of the vehicle No. TR-01-3134 (Commander Jeep)?

(iii) Whether claimants are entitled to get compensation?

(iv) Who is liable to pay compensation?

¶07To substantiate the issues, oral and documentary evidences were adduced by the claimant-appellants and from the side of the owner, one Smt. Anamika Datta Choudhury, being the wife of the deceased-owner Sitesh Choudhury, being substituted was examined and she also relied upon some documentary evidence which were marked as exhibits in the case:

APPENDIX Witnesses of Claimant-Appellant:- PW 1 – Smt Priya Tripura. PW 2 – Sri Subal Tripura. Exhibits of Claimant-appellant:- Ext.1:- Certified copy of printed FIR. (2 sheets) Ext.2:- Certified copy of FIR. Ext.3:- Certified copy of postmortem report. (4 sheets) Ext. 4:- Certified copy of seizure list. (8 sheets) Ext. 5:- Certified copy of Printer FIR. (2 sheets) Ext. 6:- Certified copy of FIR. (2 sheets) Ext. 7:- Certified copy of seizure list. Ext. 8:- Photocopy of permanent residence

(PRC) certificate compared with original. O.P. Witness:- OPW.1 – Smt. Anamika Datta Choudhury. Exhibits by Opposite Party No.1:- Ext.A – Photocopy of registration certificate of the offending vehicle compared with the original. Ext.B – Photocopy of driving licence compared with the original.

Ext.C – Photocopy of road permit compared with the original. Ext.D – Photocopy of fitness certificate compared with the original. Ext.E – Photocopy of insurance certificate compared with the original. Ext.F – Photocopy of survival certificate compared with the original. Ext.G – Photocopy of death certificate compared with the original.

¶08Finally, the Learned Tribunal below by judgment and order dated 06.02.2023 delivered the award/judgment. The operative portion of the order/award of the Learned Tribunal below runs as follows:

Order/Award "The OP No.2, the National Insurance Co. Ltd. is directed to deposit the awarded compensation of Rs.15,67,000/- (Rupees Fifteen lakh Sixty seven thousand) only within 30 days from today with interest thereon at the rate of 8% per annum with effect from date of filing of the claim application i.e., from 16.09.2019 to till realization of the full. Distribution of Compensation Claimant No.1 and 2 are entitled to get compensation equally. Protection Awarded Compensation Fifty percent (50%) of the amount of compensation of claimant No.1 and 2 are to be fixed deposited for five years and the rest amount are to be released in their favour in their bank account. In case of necessity, the Tribunal can be approached for withdrawal of fixed deposited amount. On maturity of the fixed deposits Banker shall credit amounts to sole SB Accounts of claimants without any further order from the Tribunal. Furnish a copy of the award to both sides. The case stands disposed of on contest. Make necessary entry in the TR and CIS. Pronounced in the open court."

¶09For the sake of convenience, I would like to discuss herein below the synopsis of the evidence on record of the parties PW1 Smt. Priya Tripura, wife of Lt. Kumar

Sanu Tripura (deceased) filed examination-in-chief in affidavit and in her examination-in-chief in affidavit, she supported her version narrated in the claim-petition and also relied upon exhibited documents.

¶10In course of cross-examination by O.P. No.1 excepting denial nothing came out relevant and cross-examination by O.P. No.2 i.e. the Insurance Company, she submitted that deceased was her husband. She did not submit survival certificate of her deceased husband and the accident occurred on 25.05.2019 and at that time her husband was riding a motor cycle. She also stated that she did not submit any documents of the motor cycle including the driving licence of her husband. She also could not say whether due to accident one Shyamal Nama and Prasenjit Nama were sustained any injury or not.

¶11PW2 Subhal Kumar Tripura in his examination-in-chief in affidavit supported the version of PW1. During cross-examination by OP No.1 save and except denial nothing came out relevant and during cross-examination by OP No.2 nothing came out relevant excepting denial.

¶12The OPW 1 Smt. Anamika Datta Choudhury in her examination-in-chief in affidavit supported the version made by her husband in the written statement and relied upon exhibited documents as already stated.

During cross-examination nothing also came out relevant.

¶13Now from the evidence on record, it appears that on the alleged date and time of accident the deceased victim was riding a motor bike and there was no dispute on that fact and the claimant-appellant, Smt. Riya Tripura also could not adduce any documents before the Learned Tribunal including driving licence of her husband.

¶14In course of hearing, Learned Counsel for the claimant-appellants submitted that Learned Tribunal below wrongly came to an observation that there was contributory negligence on the part of the deceased. So, at the time of delivery of the award/judgment Learned Tribunal below wrongly decided to deduct 50% of compensation towards contributory negligence.

¶15The crux question in this appeal is to decide whether the findings of Learned Tribunal below that there was contributory negligence or not and thereby deduction of 50% amount from the total amount of compensation was justified or not. In course of hearing, Learned Counsel for the appellant submitted that the Tribunal below did not consider the evidence of PW2, Subal Kumar Tripura, who according to him was an eye witness of the alleged occurrence of offence. According to him, on the alleged day when Kumar Sanu Tripura was proceeding towards his residence by the left side of Agartala Sabroom road by riding motor bike with moderate speed and when he reached near Pacca Bridge at kalkalia and for natural call when he stopped his motor bike

and was trying to get down from the motor bike then from the opposite direction, another commander jeep bearing registration No.TR-01-3134 was coming with high speed rash and negligently dashed Kumar Sanu Tripura for which he fell down on the road and thus serious accident took place. Now, if we go through the final report laid by the I.O. in the connected Baikhora PS Case No.2019/BKR/054 which was marked as exhibit 4/11 relied upon by the claimant-appellants, it appears that the accident occurred between TR-01-3134 commander jeep, being driven by Sitesh Chakraborty and the rider of the motor bike, namely Kumar Sanu Tripura (since dead) i.e. face to face collision in between both the vehicles. It is the settled position of law that the findings of criminal court would not be relevant for decision of a case under Section 166 of MV Act.

¶16In course of hearing, Learned Counsel for the appellant-petitioner relied upon one judgment of the Hon'ble Supreme Court of India in Meera Devi & Anr. v. Himachal Road Transport Corporation & Ors. in (2014) ACJ 1012 wherein in para No.10 and 11 observed as under: "10. To prove the contributory negligence, there must be cogent evidence. In the instant case, there is no specific evidence to prove that the accident has taken place due to rash and negligent driving of the deceased scooterist. In the absence of any cogent evidence to prove the plea of contributory negligence, the said doctrine of common law cannot be applied in the present case. We are, thus, of the view that the reasoning given by the High Court has no basis and the compensation awarded by the Tribunal was just and reasonable in the facts and circumstances of the case.

¶11In view of above, we allow the appeal. Accordingly, the impugned judgment of the High Court dated 27.03.2006 is set aside and the award of the Tribunal dated

01.07.2003 is upheld, with no orders as to costs."

¶17Similarly, the appellant also relied upon another judgment of the Hon'ble Apex Court reported in (2013) 9 SCC 166 wherein in para No.20 to 28, Hon'ble the Apex Court further observed as under: "20. On hearing the parties and perusal of record, the following facts emerge:-

20.1 The owner of vehicle Kunjujamma Mohan and the driver of the bus P.C. Kurian who were the first and third respondents before Tribunal and High Court, had not denied allegation that accident occurred due to rash and negligent driving on the part of the bus driver.

20.2. PW 3, an independent eye witness was accompanying the deceased during the journey on the fateful day. He stated that the bus coming from opposite direction hit the car driven by the deceased and the accident occurred due to rash and negligent driving of the bus driver.

20.3. Ext. A-1, FIR registered by

Pampady Police against bus

driver P.C. Kurian under Sections

279, 337 and 304-A IPC shows that the

accident occurred due to rash and

negligent driving on the part of the bus

driver. After investigation, the police

submitted a charge-sheet (Ext. A-4)

against the bus driver under Sections

279, 337 and 304-A IPC with specific

allegation that the bus driver caused

the death of Joy Kuruvila due to rash

and negligent driving of the bus on

16.04.1990 at 4.50 P.M. In view of

the direct evidence, the Tribunal and

the High Court held that the accident

occurred due to rash and negligent

driving on the part of the bus driver.

20.4. There is no evidence on record to

suggest any negligence on the part of

deceased. Ext. B-2, "scene

mahazar" also does not suggest any

rash and negligent driving on the

part of the deceased.

20.5. The mere position of the vehicles after accident, as shown in a scene mahazar, cannot give a substantial proof as to the rash and negligent driving on the part of one or the other. When two vehicles coming from

opposite directions collide, the position of the vehicles and its direction, etc. depends on a number of factors like speed of vehicles, intensity of collision, reason for collision, place at which one vehicle hit the other, etc. From the scene of the accident, one may suggest or presume the manner in which the accident was caused, but in absence of any direct or corroborative evidence, no conclusion can be drawn as to whether there was negligence on the part of the driver. In absence of such direct or corroborative evidence, the Court cannot give any specific finding about negligence on the part of any individual.

20.6. The post-mortem report, Ext. A-5 shows the condition of the deceased at the time of death. The said report reflects that the deceased had already taken meal as his stomach was half-full and contained rice, vegetables and meat pieces in a fluid with strong smell of spirit. The aforesaid evidence, Ext. A-5 clearly suggests that the deceased had taken liquor but on the basis of the same, no definite finding can be given that the deceased was driving the car rashly and negligently at the time of accident. The mere suspicion based on Ext. B-2, "scene mahazar" and the Ext. A-5, post-mortem report cannot take the place of evidence, particularly, when the direct evidence like PW 3, (independent eyewitness), Ext A-1

(FIR), Ext A-4 (charge-sheet) and Ext. B-1 (FI statement) are on record.

¶21In view of the aforesaid, we, therefore, hold that the Tribunal and the High Court erred in concluding that the said accident occurred due to the negligence on the part of the deceased as well, as the said conclusion was not based on evidence but based on mere presumption and surmises.

¶22The last question relates to just and proper compensation. Both the Tribunal and the High Court have accepted that the deceased was 45 years of age at the time of accident; he was working as Manager, Freeman Management Corporation, New York Branch, USA and was getting a monthly salary of 2500 US dollars. The High Court accepted that the deceased, as per conditions of service, could have continued the employment up to the age of 65 years.

¶23Ext. A-6, is a certificate issued by the employer of deceased, i.e., Freeman Management Corporation, USA dated

23.04.1990 which shows that his annual salary was 30,000 US dollars. He was in their employment for 9 years and had an excellent standing and his employment was of a permanent nature. The deceased would have continued in service up to the age of 65 years. Ext. A-6 was attested by the

notary public and countersigned by the Consulate General of India, New York, as per Section 3 of Diplomatic and Consular Officers (Oaths and Fees) Act, 1948.

¶24On the basis of the aforesaid annual income and exchange rate of Rs 17.30 per US dollar as applicable in April 1990 (Ext. A-7), the annual income of the deceased if converted into Indian currency will be 30,000 x 17.30 = 5,19,000 at the time of death. The deceased was 45 years of age, therefore, as per decision in Sarla Verma v. DTC:(2009) 6 SCC 121, multiplier of 14 shall be applicable. But the High Court and Tribunal wrongly held that multiplier of 15 will be applicable. Thus, by applying the multiplier of 14, the amount of compensation will be Rs.5,19,000 x 14 = Rs.72,66,000.

¶25The family of the deceased consisted of 5 persons i.e. the deceased himself, wife, two children and his mother. As per the decision of this Court in Sarla Verma (supra) there being four dependents at the time of death, 1/4th of the total income is to be deducted towards personal and living expenses of the deceased. The High Court has also noticed that out of 2,500 US dollars, the deceased used to spend 500 US dollars i.e. 1/5th of his income. Therefore, if 1/4th of the total income i.e. Rs. 18,16,500 is deducted towards personal and living expenses of the deceased, the contribution to the family will be (Rs. 72,66,000 – Rs. 18,16,500=) Rs.54,49,500.

¶26Besides the aforesaid compensation, claimants are entitled to get Rs.1,00,000 each towards love and affection for two children i.e. Rs.2,00,000 and a sum of Rs.1,00,000 towards loss of consortium to wife which seems to be reasonable. Therefore, the total amount comes to Rs.57,49,500.

¶27The claimants are entitled to get the said amount of compensation along with interest @ 12% from the date of filing of the petition till the date of realisation, leaving rest of the conditions as mentioned in the award intact.

¶28We, accordingly, allow the appeals filed by the claimants and partly allow the appeals preferred by Insurance Company, so far as it relates to the application of the multiplier is concerned. The impugned judgment dated 12.04.2007 passed by the Division Bench, of the Kerala High Court in Oriental Insurance Co. Ltd. v. Chinnamma and the award passed by the Tribunal are modified to the extent above. The amount which has already been paid to the claimants shall be adjusted and rest of the amount with interest as ordered above be paid within three months. There shall be no separate order as to costs."

¶18Learned Counsel for appellants further referred one judgment of our High Court in connection with MAC APP. No.59 of 2015 dated 16.01.2017 wherein in para No.5 and 6 this Court observed as under: "5. Before proceeding further, I must hold without any hesitation that the brothers and sisters of the deceased are not entitled to any compensation as there is no proof that they were his dependants. I say this on the authority of Sarla Verma v. Delhi Transport Corporation, 2009 ACJ 1298. As for contributory negligence, I have carefully examined the depositions of the claimant-appellant, who was examined as PW-1, and PW2 produced by the appellant and other materials on record. On perusing the FIR as well as the charge sheet submitted by the police against the driver of the offending vehicle, there is absolutely no evidence to support the findings of the Tribunal that "due to collision of minibus and motor bike the said incident took place when two vehicle collided face to face, in absence of any cogent evidence that a particular vehicle was driven in a rash and negligent manner, negligence of both the vehicles should be inferred…….[S]ince the rider of bike has expired, after investigation, police submitted only against the driver of the bus as charge-sheet cannot be submitted against a deceased person. So, in the instance case, it appears to me that the incident took place due to rash and negligent driving of both the vehicles involved. I am satisfied that the deceased being rider of his own vehicle has also contributed his action by driving his bike in rash and negligent (sic)." To my mind, the approach of the Tribunal is MAC APP NO.59/2015 Page 4 of 5 wrong. The police in the charge sheet did not say so. No evidence was adduced by the insurer to show that the deceased was driving the bike in a rash and negligent manner. In my opinion, the findings of the Tribunal on this aspect of the matter are apparently based on figment of its imagination and are, therefore, perverse. Head-on collision does not necessarily lead to the conclusion that the accident occurred due to the negligence of both the vehicle. In the absence of any direct or corroborative evidence, inference can be drawn as to contributory negligence on the part of the victim.─ See Jiju Kuruvila v. Kunjujamma Mohan, (2013) 9 SCC 166. Consequently, I hold that there is contributory negligence on the part of the deceased in the vehicular accident. In the absence of contributory negligence, the Tribunal has, therefore, grossly erred in

deducting 50% of compensation payable to the appellant on the ground of contributory negligence of the deceased. In M. Mansoor v. United India Insurance Co.,

(2013) 15 SCC 603 and the decision of the three-Judge Bench of the Apex Court in Munna Lal Jain v. Vipin Kumar Sharma,

(2015) 6 SCC 347, it has been clearly held that multiplier is to be used with reference to the age of the deceased and not the age of the parents. The appellant is, therefore, entitled to loss of dependency to the extent of ₹13,00,500/- without any deduction, to which shall be added a sum ₹50,000/- for loss of love and affection and another of ₹50,000/- for loss of estate. Another sum of ₹25,000/- shall be added for his funeral expenses plus a sum of ₹10,000/- for transportation and medical expenses incurred for his treatment before his death. Therefore, total amount of compensation payable to the appellant will come to ₹14,35,500/- with interest calculated at the rate of 6% per annum from the date of the claim petition." "6. Resultantly, this appeal partly succeeds. The Oriental Insurance Co. Ltd. is, therefore, directed to deposit the afore-mentioned awarded amount with interest to this Registry within a period of two months from date of MAC APP NO.59/2015 Page 5 of 5 receipt of this judgment for payment to the appellant. As and when the amount is deposited, the same shall be released to the appellant after observing usual formalities without further reference from this Court. The impugned judgment stands modified in the manner and to the extent indicated above. Transmit the L.C. record forthwith."

¶19Referring those citations, Learned Counsel for the appellants submitted that although the Learned Tribunal below came to an observation that there was contributory negligence on the part of the driver/rider of the bike. In this regard, according to Learned Counsel, there was no such evidence like that. But the Learned Tribunal below came to the said observation and thus, committed error in delivering the judgment.

¶20From the charge-sheet, as relied upon by the appellant-petitioner, it appears that the I.O. after completion

of investigation, submitted charge-sheet against both the driver of the commander jeep and the rider (since dead).

¶21Now, here in this appeal, we are to see as to whether the observation of Learned Tribunal there was contributory negligence on the part of deceased is justified or not. Admittedly, the I.O. gave charge-sheet against the driver of the commander jeep and the rider of the motor bike. In the claim petition, it was submitted that on

25.05.2019 Kumar Sanu Tripura was proceeding towards his residence from Manpathar Bazar at Birchandra Manu by riding a motor bike bearing No.TR-08-A-8927 and when he reached near a pacca bridge at Kalkalia at about 6.30-7.00 pm that time for natural call he stopped the motor bike and he was trying to get down from the motor bike, that time from the opposite direction one commander jeep bearing No.TR-01-3134 came with high speed rashly and negligently dashed against said Kumar Sanu Tripura for which said Kumar Sanu Tripura splashed upon the road and sustained severe injury.

It was further submitted that the driver of the commander jeep came from the wrong side and dashed the rider and thereafter, he was shifted to hospital when he was declared dead. But in the police investigation I.O. submitted charge-sheet against both of them. It was further stated that the motor bike rider had no valid driving licence and Insurance Certificate. But from the charge-sheet, it could not

be conclusively ascertain as to how far there was contributory negligence on the part of the deceased and how he committed contributory negligence, Learned Tribunal below also came to the observation that there was contradictory negligence in respect of riding the motor bike.

¶22PW2 Subal Kumar Tripura stated that the deceased was in stationary condition but the appellant, Priya Tripura during her cross-examination stated that her husband was riding the motor bike. So, Learned Tribunal below came to the finding that there was contradictory evidence of PWs No.1 and 2 and in absence of driving licence the Learned Tribunal decided that there was contributory negligence and deducted 50% of compensation from the claim. In normal parlance it is not expected that all the witnesses would depose in the same tune or same language. Here in the case, there is no dispute on record that prior to accident the deceased was riding the motor bike. PW1 and PW2 during their examination-in-chief in affidavit stated that just prior to accident the deceased rider of motor bike stopped the vehicle for natural call. But during cross-examination, PW1 stated that at the time of accident, the deceased was running the motor bike. This language is to be understood as to how and in what manner the witness made the deposition before the Tribunal because the deceased was driving the motor bike, there was no dispute in this regard on record. PW1 also was not present to the place of

occurrence at the time of accident. More so, maturity of understanding varies from person to person.

The Insurance Company in their WS did not deny this fact, nor did they adduce any witness to counter the said fact. Police submitted charge-sheet that both the vehicles came face to face and the accident occurred. From the prosecution charge-sheet, it cannot be conclusively inferred as to how far the deceased was responsible for the act conducted as alleged. More so, in the claim petition as well as in the affidavit both the witnesses of the appellants specifically stated that on the alleged day the accident took place due to high speed, rash and negligent driving of the driver of the commander jeep bearing registration No.TR-01-3134.

¶23It was further submitted that the said commander jeep was not only coming with high speed but also came absolutely from the wrong side and dashed against the victim deceased. There was no contrary evidence on record from the side of the Insurance Company or the owner also. Meaning thereby, the contesting respondent admitted the fact of driving the vehicle in the wrong side of the alleged commander jeep. By mere filing of a charge-sheet, it cannot be conclusively said that there was contributory negligence on the part of the deceased i.e. the rider of the motor bike. The Learned Tribunal below came to the observation that there was contributory negligence and also there was no

driving licence of the deceased on that relevant point of time.

¶24Here, I would like to refer one citation of the Hon'ble Supreme Court of India in Usha Rajkhowa and Ors. v. Paramount Industries and Ors. dated 17.02.2009 reported in (2009) 14 SCC 71 wherein in para No.20, 21, Hon'ble Apex Court has discussed contributory negligence: "20. The question of contributory negligence on the part of the driver in case of collision was considered by this Court in Pramodkumar Rasikbhai Jhaveri v. Karmasey Kunvargi Tak: (2002) 6 SCC 455. That was also a case of collision between a car and a truck. It was covered in SCCp. 458, para 8:

¶8… The question of contributory

negligence arises when there has been

some act or omission on the claimant"s

part, which has materially contributed

to the damage caused, and is of such a

nature that it may properly be

described as "negligence".

Negligence ordinarily means breach of

a legal duty to care, but when used in

expression "contributory

negligence" it does not mean breach of

any duty. It only means the failure by a

person to use reasonable care for the

safety of either himself or his property,

so that he becomes blameworthy in

part as an "author of his own wrong". "21. This Court further relied on an observation of the High Court of Australia in Astley v. Austrust Ltd.: (1999) 73 ALJR 403 to the following effect: "A finding of contributory negligence turns on a factual investigation whether the plaintiff contributed to his or her own loss by failing to take reasonable care of his or her person or property. What is reasonable care depends on the circumstances of the case. In many cases, it may be proper for a plaintiff to rely on the defendant to perform its duty. But there is no absolute rule. The duties and responsibilities of the defendant are a variable factor in determining whether contributory negligence exists and, if so, to what degree. In some cases, the nature of the duty owed may exculpate plaintiff from a claim of

contributory negligence; in other cases, the nature of the duty may reduce the plaintiff"s share of responsibility for the damage suffered; and in yet other cases, the nature of the duty may not prevent a finding that the plaintiff failed to take reasonable care for the safety of his or her person plaintiff. The duty owed by the defendant, although relevant, is one only of many factors that must be weighed in determining whether the plaintiff has so conducted itself that it failed to take reasonable care for the safety of its person or property."

¶25Further in Sudhir Kumar Rana vs. Surinder Singh and Ors. reported in (2008) 12 SCC 436, Hon'ble the Apex Court in para Nos.6 to 11 observed as under: "6. A contributory negligence may be defined as negligence in not avoiding the consequences arising from the negligence of some other person, when means and opportunity are afforded to do so. The question of contributory negligence would arise only when both parties are found to be negligent.

¶7The question is, negligence for what? If the complainant must be guilty of an act or omission which materially contributed to the accident and resulted in injury and damage, concept of contributory negligence would apply. (See New India Assurance Co. Ltd. v. Avinash: 1998 ACJ 322 (Raj).

¶8In T.O. Anthony v. Kavarnan:(2008) 3 SCC 748 it was held: (SCC pp. 750-51, paras 6-7)

"6. 'Composite negligence' refers to the negligence on the part of two or more persons. Where a person is injured as a result of negligence on the part of two or more wrongdoers, it is said that the person was injured on account of the composite negligence of those wrongdoers. In such a case, each wrongdoer is jointly and severally liable to the injured for payment of the entire damages and the injured person has the choice of proceeding against all or any of them. In such a case, the injured need not establish the extent of responsibility of each wrongdoer separately, nor is it necessary for the court to determine the extent of liability of each wrongdoer separately. On the other hand where a person suffers injury, partly due to the negligence on the part of another person or persons, and partly as a result of his own negligence, then the negligence on the part of the injured which contributed to

accident is referred to as his contributory negligence. Where the injured is guilty of some negligence, his claim for damages is not defeated merely by reason of the negligence on his part but the damages recoverable by him in respect of the injuries stand reduced in proportion to his contributory negligence.

¶7Therefore, when two vehicles are involved in an accident, and one of the drivers claims compensation from the other driver alleging negligence, and the other driver denies negligence or claims that the injured claimant himself was negligent, then it becomes necessary to consider whether the injured claimant was negligent and if so, whether he was solely or partly responsible for the accident and the extent of his responsibility, that is, his contributory negligence. Therefore where the injured is himself partly liable, the principle of 'composite negligence' will not apply nor can there be an automatic inference that the negligence was 50:50 as has been assumed in this case. The Tribunal ought to have examined the extent of contributory negligence of the appellant and thereby avoided confusion between composite negligence and contributory negligence. The High Court has failed to correct the said error.

¶9If a person drives a vehicle without a licence, he commits an offence. The same, by itself, in our opinion, may not lead to a finding of negligence as regards accident. It has been held by the courts below that it was the driver of the mini truck which was driving rashly and negligently. It is one thing to say that the appellant was not possessing any licence but no finding of fact has been arrived at that he was driving the two-wheeler rashly and negligently. If he was not driving rashly and negligently which contributed to the accident, we fail to see as to how, only because he was not having a licence, he would be held to be guilty of contributory negligence.

¶10The matter might have been different if by reason of his rash and negligent driving, the accident had taken place.

¶11We, therefore, are of the opinion that impugned judgment cannot be sustained which is set aside accordingly. The appellant is entitled to the said sum of Rs. 30,000 by way of compensation with interest at the rate of 7½% per annum from the date of the award till making of the payment. Even otherwise there is no reason as to why in view of the nature of the injuries he has suffered, he should be deprived of even petty sum of Rs.30,000 by way of compensation. The appeal is allowed with the aforementioned direction. No costs."

¶26Further in Dinesh Kumar J. Alias Dinesh J. vs. National Insurance Company Limited and Ors. reported in (2008) 1 SCC 750 Hon'ble Apex Court in para Nos.5 to 10 also observed as under: "5. On behalf of the appellant, it has been submitted that both the Tribunal and the High Court were manifestly in error in holding the appellant to be guilty of contributory negligence to the extent of forty per cent. It has been submitted that the Tribunal as well as the High Court proceeded on the erroneous premise that since the appellant had failed to produce the driving licence, an adverse inference on aspect of contributory negligence would have to be drawn. Moreover, it was submitted that the entire discussion on contributory negligence is conjectural and is not worthy of acceptance. In this regard, reliance was placed on the judgment of this Court in Sudhir Kumar Rana v Surinder Singh:(2008) 12 SCC 436.

¶6Both the Tribunal, and in appeal in the High Court, have found fault with the appellant for not having produced his driving licence. The tribunal noted that the appellant had admitted in the course of his cross-examination that the road where the accident took place was a two-way road and that on each side, three vehicles could pass at a time. A suggestion was put to the appellant that while trying to overtake another vehicle, he had approached the offending lorry from the right side as a result of which the accident took place. The appellant denied the suggestion. The award of the tribunal indicates that absolutely no evidence was produced by the insurer to support plea that there was contributory negligence on the part of the appellant.

¶7Insofar as the judgment of the High Court is concerned, the Division Bench has placed a considerable degree of importance on the fact that there was no visible damage to the lorry but that it was the motorcycle which had suffered damage and that there was no eyewitness. We are in agreement with the submission which has been urged on behalf of the appellant that plea of contributory negligence was accepted purely on the basis of conjecture and without any evidence. Once the finding that there was contributory negligence on the part of the appellant is held to be without any basis, the second aspect which weighed both with the tribunal and the High Court, that the appellant had not produced the driving licence, would be of relevance. This aspect has been

considered in a judgment of this Court in Sudhir Kumar:(2008) 12 SCC 436 where it was held as follows: (SCC p. 439, paras 9-10) "9.If a person drives a vehicle without a licence, he commits an offence. The same, by itself, in our opinion, may not lead to a finding of negligence as regards the accident. It has been held by the courts below that it was the driver of the mini truck who was driving rashly and negligently. It is one thing to say that appellant was not possessing any licence but no finding of fact has been arrived at that he was driving the two-wheeler rashly and negligently. If he was not driving rashly and negligently which contributed to the accident, we fail to see as to how, only because he was not having a licence, he would be held to be guilty of contributory negligence."

¶10The matter might have been different if by reason of his rash and negligent driving, the accident had taken place.

¶8In view of the above position, we are of the view that the deduction of forty per cent which was made on the ground of contributory negligence is without any basis. Accordingly, we direct that the appellant shall be entitled to an additional amount of Rs 4.60 lakhs which was wrongly disallowed.

¶9We direct that the respondent shall accordingly pay an additional amount of Rs 4,60,000, over and above the amount which has been awarded by the High Court. This amount shall also carry interest at the rate of eight per cent per annum as awarded by the High Court, from the date of the petition until realisation. The insurer shall deposit the amount before the tribunal within 3 months which shall be released to the appellant.

¶10The appeal is allowed in the above terms. There shall be no order as to costs."

¶27On perusal of the principles of law laid down by the Hon'ble Apex Court, it appears that in absence of driving licence also Hon'ble the Apex Court granted compensation in favour of the appellants. Here in the case, it is on record that no driving licence of the deceased could produce by the appellants or the claimant-petitioners before the Tribunal

even to the High Court also. There is no contrary evidence on record that he had an valid driving licence. However, keeping it in mind the aforesaid principles of law laid down by the Hon'ble Apex Court, it appears that the findings of Learned Tribunal that there was contributory negligence on the part of the deceased appears to be based without any proper reasoning and justification in absence of clear evidence on record.

¶28So, in my considered view the Learned Tribunal below committed error in deducting 50% of the total compensation from the award. Thus, in my considered view, the judgment/award of the Learned Tribunal below needs to be modified.

¶29In the result, the appeal filed by the appellant is hereby allowed on contest. The judgment and award of the Learned Tribunal below dated 06.02.2023 delivered by Learned Member, Motor Accident Claims Tribunal, Court No.5, West Tripura, Agartala in connection with T.S.(MAC) 187 of 2019 is modified to the extent that the O.P. No.2, the National Insurance Company Limited shall pay the total compensation of Rs.31,34,000/- with 8% interest from the date of filing the claim-petition i.e. 16.09.2019 to till realization. The aforesaid amount be deposited by the Insurance Company to the MAC Tribunal, Court No.5, Agartala, West Tripura within a period of two months from the date of receipt of the copy of the judgment. The Tribunal

shall disburse the amount as per the conditions made earlier in the award dated 06.02.2023 by the Tribunal. With this observation, the appeal is allowed to the extent as stated above. Furnish copy of judgment/order to both the sides free of cost.

Send down the LCR along with a copy of this judgment/order.

Pending application(s), if any, also stands disposed of.

JUDGE

Purnita

MOUMITA DATTA Date: 2024.06.21 17:46:15 +05'30'

HIGH COURT OF TRIPURA AGARTALA MAC App No.35 of 2023 1. Smt. Priya Tripura W/O- Lt. Kumar Sanu Tripura. 2. Smt. Deb Laxmi Tripura W/O- Lt. Sukhan Tripura. Both are resident of Village- Jolaibari, P.S. Baikhora, Dist- South Tripura ……Claimant Appellants Versus 1. Sri. Sitesh Choudhury (Now dead), Substituted by Smti Anamika Datta (Choudhury) W/o Lt. Sitesh Choudhury Of village Subash Colony, Santirbazar, P.S. Santirbazar, Dist- South Tripura (Owner of TRO1-3134-Commander jeep) 2. The Divisional Manager, The National Insurance Company Ltd., 42, Akhaura Road, Agartala P.S. West Agartala Dist- West Tripura. (Insurer of TR01-3134- Commander jeep) ...….Respondents For Appellant(s) : Mr. P. S. Roy, Adv, For Respondent(s) : Ms. R. Purkayastha, Adv. Date of Hearing : 22.05.2024 Date of delivery of