1

BEFORE THE COURT OF THE DISTRICT JUDGE-CUM-

JUDGE, MOTOR ACCIDENT CLAIMS TRIBUNAL,
BARGARH

Present:

Sri R. K. Pattnaik,
District Judge-cum-Judge M.A.C.T.,
Bargarh

M.A.C. No. 90 of 2009

1. Mona Sharma @ Jasbinder Singh Maan,

aged about 33 years, wife of late
Jagdev Singh Maan;
2. Kumari Priti Singh Maan, aged about 14
years, daughter of late Jagdev Singh
Maan;
3. Kumari Kabita Singh Maan, aged about
12 years, daughter of late Jagdev Singh
Maan;
4. Kumari Tanupriya Singh Maan, aged
about 9 years, daughter of late Jagdev
Singh Maan;
5. Dilprit Singh Maan, aged about 5 years,
son of late Jagdev Singh Maan;
6. Krishna Kumar Sharma, aged about 70
 2

years, son of late Gangaram Sharma;

(Sl. Nos. 2 to 5 being minors

represented trough their mother
guardian, namely, petitioner No.1 and
all are residents of Ward No.1,
Tangerpada, Bargarh, P.S./Dist.
Bargarh)

…
Petitioners
-Versus-

1. Phoolnath Sharma, son of Kapildev

Sharma, Sharma Colony Gali,
Baikunthapur, P.S./Dist. Raigarh (C.G.);
2. Narendra Ramesh Kumar Arora, son of
Ramesh Arora, At/P.O./P.S,/Dist.
Nagpur; at present r/o Kali Maandir
road, P.O./P.S./Dist. Jharsuguda;
3. Divisional Maanager, Oriental
Insurance Company, Raigarh,
represented through Divisional
Maanager, Oriental Insurance
Company, Nayapara, Sambalpur; and
4. Branch Maanager, National Insurance,
Jharsuguda, represented through
Divisional Maanager, National
 3

Insurance Company, Nayapara,

Sambalpur

… Opposite
Parties
Appearance:

Counsel for Petitioners : Sri H.B. Debta, Advocate,

Bargarh

Counsel for O.P. No.1 : Sri M.K. Satpathy,

Advocate, Bargarh

Counsel for O.P. No.2 : None

Counsel for O.P. No.3 : Sri P.K. Mohapatra,

Advocate, Bargarh

Counsel for O.P. No.4 : Sri H. Dash, Advocate,

Bargarh

Date of Argument Date of Judgment

18.12.2015 18.01.2016

J UDGMENT

The petitioners named above filed the

instant petition under Section 166 of the Motor Vehicles

Act, 1988 (here-in-after called as ‘the Act') claiming

 4

compensation to the tune of Rs.12,00,000/- on account

of death of the deceased, namely, Jagdev Singh Maan

during and in course of a vehicular accident dated

04.03.2009, against the opposite parties jointly and

severally, on the grounds stated therein.

2. It is contended by the petitioners that the

alleged accident took place on 04.03.2009 and in that,

the deceased died and thus, claimed a compensation as

the latter’s dependants. The petitioner No.1 is the wife,

petitioner Nos.2 to 5 are the children and petitioner

Nos.6 to be the father-in-law of the deceased,

respectively. According to the petitioners, on the fateful

day, the deceased was driving a truck bearing

registration No.CG-04-CZ-9955 and met with the

accident involving the offending vehicle bearing

registration No.CG-13A-6441 and as a result, sustained

grievous injuries and died while being taken to the

hospital. It is further contended that the driver of the

offending vehicle was rash and negligent and that was

 5

the cause of the alleged accident and at the time of

death of the deceased, he was 37 years old, hale and

hearty and a skilled driver with a monthly income of

Rs.10,000/- and on account of his death, the petitioners

lost a precious member of the family and also the

source of income. Accordingly, the compensation of

Rs.12,00,000/- is claimed.

3. It is revealed from the record that O.P. No.1,

the owner of the offending vehicle appeared and filed

W.S. However, O.P. No.2 is said not to have appeared.

On the other hand, O.P. Nos.3 and 4 appeared and

contested the claim of the petitioners separately. In

fact, O.P. No.3 is the insurer of the offending vehicle

bearing registration No.CG-13A-6441 owned by O.P.

No.1. On the other hand, O.P. No.4 is the insurer in

respect of the other vehicle i.e. No.CG-04CZ-9955. The

claim of the petitioners is opposed by O.P. Nos.3 and 4,

independently by filing W.S. It is basically against O.P.

Nos.1 and 3 on the ground that the driver of the

 6

offending vehicle was responsible for the alleged

accident. O.P. No.4 outrightly denied the alleged

accident and at the same time, the liability as well on

couple of grounds. In so far as O.P. No.3 is concerned, it

also denied the liability on the grounds, such as, the

conditions of the policy have been violated and if at all,

the alleged accident is to be believed, the cause to be

otherwise than the fault of the driver of the offending

vehicle, etc. Both O.P. Nos.3 and 4 disputed the claim of

the deceased being a driver and also with respect to

the other facts regarding the age, etc. and his monthly

income of Rs.10,000/- so on and so forth.

4. Considering the pleadings of the parties and

material documents produced before the Court, the

issues which emerge for determination are mentioned

here-in-below:

i) Whether, the alleged accident

took place on 04.03.2009 at 9.30
P.M. on N.H. 200 near village -
 7

Samarbaga, P.S. Rengali, Dist.

Jharsuguda involving the
offending truck bearing
registration No.C.G.-13A-6441 and
the truck of the deceased (No.CG-
04-CZ-9955)?
ii) Whether, on the alleged date,
time and place of occurrence, the
truck of the deceased bearing
registration No.CG-04-CZ-9955
was hit by the offending vehicle
bearing registration No.C.G.-13A-
6441 for which he sustained
grievous injuries and died on the
way to the hospital?
iii) Whether, the driver of the
offending Truck bearing
registration No.C.G.-13A-6441 was
rash and negligent in causing the
accident during which the
deceased received injuries and
that resulted in his death or was it
a contributory one?
iv) Whether, the offending vehicles
were validly insured with O.P.
Nos.3 and 4, as on the date of
 8

accident i.e. on 04.03.2009?

v) What should be the quantum of
compensation and whether, the
O.Ps is/are individually or jointly
liable to pay the compensation, if
any, as determined by the
Tribunal?
vi) Whether, the petitioners are
entitled to any other relief(s)
under law?

5. In order to substantiate the claim of

compensation, the petitioners examined two witnesses

and relied upon, as many as, twelve documents. On the

other hand, O.P. No.3 led no oral evidence but referred

to ten documents. O.P. No.4 did not lead any evidence

oral or documentary.

Issue Nos.(i), (ii), (iii) and (iv):

6. In this regard, petitioner No.1, examined as

P.W.1, deposed that her deceased husband was driving

the truck (CG-04-CZ-9955) of O.P. No.2 and met with the

alleged accident involving the offending vehicle (CG-

 9

13A-6441) and it happened on 04.03.2009 at 9.30 P.M.

on N.H. 200, as a result, sustained grievous injuries and

died on the way to the hospital. O.P. No.1 declined to

cross-examine P.W.1. O.P. No.3 cross-examined P.W.1

and it was elicited that she was not present near the

spot at the time of alleged accident. The fact of the

deceased driving the offending vehicle bearing

registration No.CG-04-CZ-9955 was reiterated by P.W.1.

The suggestions about the other details of the alleged

accident put to P.W.1 were outrightly denied. In fact,

O.P. No.3 cross-examined P.W.1 with a defence disputing

the alleged accident and also involvement of the

offending vehicle. O.P. No.4 also cross-examined P.W.1

and it was elicited that she not to have any idea

regarding the fault of the offending vehicle. Admittedly,

P.W.1 is not a witness to the said accident and for that

matter, she could not have any idea, as to the details of

the incident. However, the fact of the matter is,

according to P.W.1, both the vehicles met with the

alleged accident on 04.03.2009. In support of the

 10

alleged accident, P.W.1 proved the certified copies of

the F.I.R. and other documents, namely, formal F.I.R.,

P.M. report as Exts.2, 3 and 4 respectively. The details of

the incident and the involvement of the alleged vehicles

stand mentioned in Ext.2. The death of the deceased in

a vehicular accident is proved by Ext.4 and that

corresponds to Rengali P.S. Case No.18 dated

04.03.2009. In fact, O.P. No.3 proved the certified copy

of the charge sheet as Ext.B. The evidence of P.W.1 is

corroborated by P.W.2, who was allegedly present at the

spot. According to P.W.2, the involvement of the alleged

vehicles is deposed while claiming that the driver of the

offending vehicle to be solely responsible for the

incident. O.P. Nos.3 and 4 cross-examined P.W.2. It is

elicited from P.W.2 through O.P. No.3 that he did not

disclose the alleged incident to the police. However, the

evidence led by P.W.1 by itself is sufficient to establish

the fact that on 04.03.2009, such an accident took

place and in that, the alleged vehicles were involved.

The offending vehicle bearing registration No.CG-13A-

 11

6441 besides the other vehicle of O.P. No.2 was seized

by the local police, as evident from Exts.4, 8 and 9. The

documents of the concerned vehicles were also seized

by the police. In view of the above, notwithstanding the

defence of O.P. No.3 in particular, it is to be held that

the alleged accident happened on 04.03.2009 involving

the alleged vehicles. As earlier mentioned, the

deceased was driving the truck owned by O.P. No.2 and

it was during the alleged accident in connection with

Rengali P.S. Case No.18 dated 04.03.2009. It is, thus, to

be held that the evidence on record is sufficient to hold

that the alleged vehicles met with the accident on

04.03.2009 and in that the deceased died. Now the

question is, whether the deceased and the driver of the

offending vehicle were equally responsible for the

accident or it was solely for the latter driver? The

learned counsel for O.P. No.3 strongly contended that

the evidence on record, if appreciated properly, would

reveal that there was a headon collision between the

vehicles and from that, it can be held that the deceased

 12

also contributed to the negligence and therefore, the

compensation, if at all to be paid, shall have to be

borne by O.P. Nos.1 and 2 jointly. In support of such a

contention, a decision of the Hon’ble Apex Court in the

matter of Bijoy Kumar Dugar Vrs. Bidyadhar Dutta and

others reported in II (2006) ACC 36 (SC) is relied upon

by the learned counsel for O.P. No.3. It is settled law

that if there was contributory negligence, the liability is

to be borne jointly by the owners of the vehicles

involving the accident. The learned counsel for the

petitioners, however, contended that whosoever is

negligent, either singly or jointly, the insurers, namely,

O.P. Nos.3 and 4 individually or jointly should be

directed to pay the compensation. According to P.W.1,

the deceased was not at fault but the driver of the

offending vehicle and in support of that Ext.2 is relied

upon. In Ext.2, it is clearly mentioned that the offending

truck hit the vehicle of the deceased by speedily driving

to the right of the road and that was the cause of the

accident. If Ext.4 is perused, the deceased received

 13

injuries in respect of the right sides of his body parts

like, fracture of right maxilla bone, destruction of right

eye ball and lacerated injuries inside the right frontal

lobe of the brain, etc. The Tribunal perused the accident

report proved by O.P. No.3 as Ext.D and in that, the spot

is described and from its description, it is made to

understand that the offending vehicle hit the right side

of the deceased’s vehicle. However, as per Ext.D,

opinion of the Inspector of Vehicles, Jharsuguda, the

accident was on account of rash and negligence of both

the drivers. It is settled law that a report of such kind

carries the opinion of an expert which may be accepted

by a Court or a Tribunal or otherwise rejected

considering other materials. The person who lodged the

report i.e. Ext.2 being present at the spot clearly

claimed the negligence on the part of the offending

vehicle bearing registration No.CG-13A-6441. O.P. No.3

submitted the certified copies of the statements of the

witnesses recorded by the local police under Section

161 of the Code. It is equally a settled position of law

 14

that the police papers and other materials including the

recorded statements of the witnesses under Section

161 of the Code may be gone through by the Tribunal,

while entertaining a proceeding under Section 166 of

the Act, in order to ascertain and find out the real

picture vis-à-vis the alleged incident. In the instant

case, the certified copies of the statements of the

witnesses under Section 161 of the Code are very much

available in the record. In fact, the helper of the

deceased’s truck claimed that the offending vehicle

turned to the right side running at a high speed and

then, collided, as a result he and others sustained

injuries, as is evident from the statement, he allegedly

made to the police under Section 161 of the Code. The

statements of other witnesses claimed that the alleged

vehicles were found to be standing near the spot,

apparently with a headon collision. Actually, the

witnesses, whose statements were recorded by the

police under Section 161 of the Code, as it seems,

reached the spot shortly after the alleged accident. In

 15

that event, it may be said that said witnesses did not

have a direct knowledge regarding the incident except

to reach the spot a little time later and to find presence

of both the vehicles, standing on the road in damaged

condition. The statement of the offending vehicle’s

helper, namely, Bimalesh Maria under Section 161 of

the Code is to the effect that the driver of their vehicle

drove it to the right side and for that, the collision

between the two trucks took place. The said statements

of the offending vehicle’s helper besides that of the

helper of the truck, that was run by the deceased,

clearly and conspicuously suggest that the deceased

had no negligence and it was purely and solely on

account of the negligence of the other driver, who

allegedly lost control over the offending vehicle and

went to the right side of the road and hit the other

approaching truck. If a vehicle is hitting another that is

approaching from the other direction and it goes to the

right side or to the far end of the right side, at the time

of accident or gets off the track, then certainly the

 16

collision would be front to front. In the instant case, as

per Ext.D, the opinion is that the accident was on

account of rash and negligence of both the drivers but

it runs counter to the evidence of the ocular witnesses,

who were examined by the police, in connection with

Rengali P.S. Case No.18 dated 04.03.2009. The

negligence of the driver of the offending vehicle bearing

registration No.CG-13A-6441 is disclosed by none other

than its own helper. That apart, the helper of the other

truck (CG-04-CZ-9955) also disclosed the manner in

which the alleged accident took place and clearly

attributed the negligence to the driver of the offending

vehicle. As stated earlier, an offending vehicle, if drags

itself to the right side and gets off the track and hits the

other approaching vehicle, it would certainly appear, as

if there was a headon collision. Notwithstanding Ext.D,

it is held by the Tribunal that the material evidence

collected by the local police clearly suggested the

negligence on the part of the driver of the offending

vehicle bearing registration No.CG-13A-6441 and as

 17

such, there was no contribution, of any kind, from the

deceased. The decision (supra) of the Hon’ble Apex

Court is the settled position of law but for that, the

material facts vis-à-vis negligence contributory are to

be established to the hilt. In the present case, the

negligence is only attributed to the offending vehicle

and its driver which could be clearly ascertained from

the material evidence. The report of the expert i.e.

Ext.D is not accepted by the Tribunal, in view of the

material evidence collected by the police from the

accident spot. It is, thus, to be held that the driver of

the offending vehicle alone was rash and negligent and

that was the cause of the accident and there was no

contributory negligence from the side of the deceased.

As to the insurance of the offending vehicle, it is not

questioned by O.P. No.3. In fact, the certified copy of

the insurance policy respecting the offending vehicle

bearing registration No.CG-13A-6441 is proved by O.P.

No.3 as Ext.J. On a bare perusal of Ext.J, it appears that

the concerned vehicle was validly insured as on

 18

04.03.2009, in as much as, the period of insurance is

from 06.09.2008 to mid night of 05.09.2009. It means,

the insurance in respect of the offending vehicle, as per

Ext.J, covers the risk and the alleged accident dated

04.03.2009. In other words, the vehicle of O.P. No.1

stood validly insured with O.P. No.3, as on 04.03.2009.

Accordingly, issue Nos.(i), (ii), (iii) and (iv) stand

determined.

Issue Nos.(v) and (vi):

8. The next point is, who is to pay the

compensation and also its quantum and for that, the

evidence on record are required to be considered by the

Tribunal. For now, the controversy regarding the liability

vis-à-vis to pay the compensation is over, in view of the

discussion of the Tribunal, regarding the negligence

part. So to say, the Tribunal having arrived at a logical

conclusion that the offending vehicle’s driver was at

fault, it is for O.P. No.1 to pay the compensation. The

next question is, whether O.P. No.3 is to indemnify O.P.

 19

No.1? At this stage, the learned counsel for O.P. No.3

contended that the deceased had no valid driving

licence to ply the truck. In support of such a contention,

the certified copy of the D.L. of the deceased is proved

by O.P. No.3 as Ext.K. Admittedly, from Ext.K, it appears

that the deceased had a licence to drive light motor

vehicle non-transport and a motorcycle with gear with

effect from 05.04.2008. It does mean, the deceased did

not have a valid licence to drive a heavy motor vehicle,

like the alleged truck bearing registration No.CG-04CZ-

9955. O.P. No.1 did not contest such a claim of O.P.

No.3. It is one of the conditions of the insurance policy

which is said to have been violated by O.P. No.1. It was

required to be established by O.P. No.1 to the effect that

necessary precaution was taken by him, while engaging

the deceased after verifying the latter’s driving licence,

etc. In absence of any such stand from O.P. No.1 and to

counter the claim of O.P. No.3, in that behalf, it is to be

held by the Tribunal that a condition of the policy of

insurance is clearly violated and therefore, the risk is

 20

not to be indemnified. In other words, O.P. No.1 is to

bear the risk without being indemnified by O.P. No.3.

However, in view of the settled position of law, O.P. No.3

is to pay the compensation to the petitioners and at the

same time, to recover it from O.P. No.1. Now, the

Tribunal is to assess the evidence on record to fix the

quantum of compensation. Admittedly, P.W.1 produced

no evidence regarding the income of the deceased. As

per P.W.1, the deceased was a driver. It may be that the

deceased was not a skilled driver to ply a heavy motor

vehicle but certainly found to be running the offending

vehicle, at the relevant point of time. Notwithstanding

absence of materials regarding the engagement of the

deceased by P.W.1, in view of the very many evidence

on record, it is to be held by the Tribunal that the

deceased died while being engaged as a driver

although not skilled to drive the offending vehicle. What

was the income of the deceased, according to P.W.1? No

documentary proof is available from P.W.1 regarding the

monthly income or remuneration the deceased had.

 21

The accident took place in the year 2009. At that point

of time, the income of a driver may not be Rs.10,000/- a

month. If such a claim was advanced by P.W.1, some

amount of evidence was required to be produced before

the Tribunal. The family of the deceased comprises of

five members excluding petitioner No.6, who happens

to be his father-in-law. No evidence is on record either

to show or to suggest the deceased to have had any

other source of income, apart from being engaged as a

driver. In absence of any materials, the Tribunal deems

it just and proper to fix Rs.6,000/- as the monthly

income of the deceased, taking into consideration all

such aspects, like the normal income of a driver

engaged in 2009, etc. Since, the family of the deceased

is big and comprised of five to six members, the

appropriate deduction on his personal expenses should

be 1/3rd. With that, the annual contribution by the

deceased towards family would have been and is

arrived at Rs.48,000/-. Before applying the multiplier,

the age of the deceased is to be ascertained. As per

 22

P.W.1 and Ext.4, the age of the deceased is claimed to

be 37 years. However, in support of age proof, P.W.1

produced no evidence. The age of the deceased to be

37 years cannot be accepted merely by relying upon

Ext.4 particularly in the wake of Ext.10. In fact, as per

Ext.10, the date of birth of the deceased is 27th January

1966 and that means, he was 43 years old, as on the

time of alleged incident. The D.L. i.e. Ext.10 is supposed

to carry the date of birth of the deceased disclosed by

his own declaration and in that view of the matter, said

document is to be accepted to determine the age of the

deceased and thus, it is to be held that he was 43 years

of age, by the time of the alleged occurrence. As to the

multiplier, referring the decision of the Hon’ble Apex

Court, in the matter of Mrs. Sarla Verma and others Vrs.

Delhi Transport Corporation and another reported in

(2009) 6 SCC 121, it is held to be 14. Thus, the amount

of compensation with a multiplier of 14 is arrived at

Rs.6,72,000/-. The Tribunal deems it just and proper to

add Rs.8,000/- over and above the compensation, on

 23

the heads of loss of consortium and for incurring funeral

expenses vis-a-vis the deceased. So, the final amount of

compensation is held to be Rs.6,80,000/- payable to

petitioner Nos.1 to 5 being the legal heirs of the

deceased. It is lastly held that the petitioners are not

entitled to any other relief(s) except the above.

Accordingly, issue Nos.(v) and (vi) stand determined.

9. Hence, it is ordered.

10. In the result, petition under Section 166 of

the Act at the instance of the petitioners stands partly

allowed against O.P. Nos.1, 3 and 4 on contest and O.P.

No.2 without contest. As a consequence, O.P. No.3, the

Insurance Company, is directed to pay Rs.6,80,000/- as

compensation to petitioner Nos.1 to 5, at an interest of

6% per annum, from the date of petition filed i.e. on

15.05.2009 preferably within a period of two months,

hencefrom and to recover the same from O.P. No.1, the

owner of the offending vehicle bearing registration

No.CG-13A-6441.
 24

Out of the compensation amount,

Rs.2,00,000/- in the name of petitioner No.1 and

Rs.1,00,000/-each in the names of petitioner Nos. 2 to 5

shall be kept in fixed deposits in any nationalized bank

for a period of five years without any provision to

liquidate it unless permitted by the Tribunal and to pay

the rest with the accrued interest, in shape of cheque to

petitioner No.1 only.

The court fees amount, if not already paid,

shall be realized from the petitioners, at the time of

disbursement of the payment.

District Judge-cum-Judge
M.A.C.T., Bargarh

Judgment is dictated, corrected by me and

pronounced in the open Court today, this the 18th day of

January, 2016, given under my hand and seal of the

Court.
 25

District Judge-cum-Judge
M.A.C.T., Bargarh

List of witnesses examined on behalf of the petitioners

P.W.1 Mona Sharma @ Jasbinder Singh Maan

P.W.2 Binod Agrawal

List of witnesses examined on behalf of the O.P. Nos.3

and 4

None

List of Exhibits on behalf of the Petitioners

Ext.1 Affidavit of P.W.1

Exts.1/1 toSignature of P.W.1 in Ext.1
Ext.1/3

Ext.2 Certified copy of plain paper F.I.R.

Ext.3 Certified copy of formal F.I.R.
Ext.4 Certified copy of P.M. report
Ext.5 Certified copy of medical report
Ext.6 Certified copy of medical report of two other
injured persons of the same accident
Ext.7 Certified copy of seizure list
Ext.8 Certified copy of seizure list
Ext.9 Certified copy of seizure list
Ext.10 Driving Licence of the deceased
 26

Ext.11 Physically handicapped certificate of

petitioner No.5
Ext.12 Legal heir certificate

List of Exhibits on behalf of the O.P. No.3

Ext.A Certified copy of F.I.R.

Ext.B Certified copy of final form
Ext.C Certified copy of inquest report
Ext.D Certified copy of accident report of the
vehicles
Ext.E Certified copy of the dead body challan
Ext.F Certified copy of P.M. report
Ext.G series Certified copy of medical examination
reports
Ext.H series Certified copy of property seizure
memo
Ext.J Certified copy of insurance certificate-cum-
policy schedule
Ext.K Certified copy of extract of the driving
licence

List of Exhibits on behalf of the O.P. No.4

NIL

District Judge-cum-Judge
M.A.C.T., Bargarh