Page 1 of 7 HIGH COURT OF TRIPURA AGARTALA MAC APP NO.96/2018 Sri [ENTITY] S/O. Sri [ENTITY], A resident of Dhaleshwar, P.O. Dhaleshwar, P.S. East Agartala, District - West Tripura. Appellant(s) Versus 1. Sri [ENTITY], S/O. Dilip Kr. Guha, Resident of Kalyani, Dhaleshwar, P.O. Dhaleshwar, P.S. East Agartala, District - West Tripura. 2. The Divisional Manager, The Oriental Insurance Company Limited, 44/2, Central Road, PIN. 799 001. District - West Tripura. Respondent(s) BEFORE HON'BLE THE CHIEF JUSTICE MR. [ENTITY] For Appellant(s) : Mr. [ENTITY], Advocate. For Respondent No.1 : Mr. [ENTITY], Advocate. Mr. [ENTITY], Advocate. For Respondent No.2 : Mr. [ENTITY], Advocate. Date of hearing & Judgment : 16.04.2019. Whether fit for reporting : Yes JUDGMENT & ORDER (ORAL)
Petition under [SECTION] of the [ACT] filed by the injured/claimant stands rejected by the Tribunal on the ground that claimant could not prove, in accordance with law, the issues reproduced herein under:-
"1. Whether the claimant [ENTITY] sustained injuries in a vehicular accident on 08.06.2015 due to rash and negligent driving of vehicle bearing No.TR- 01V-7134.
2. Whether the claimant is entitled to get compensation, if so, to what extent and who shall be held liable for payment of the same."
2. Mr. [ENTITY], learned counsel, inviting attention of this Court to the decision rendered by the Apex Court in the case of [PRECEDENT], contends that the Tribunal committed an error in not appreciating that when the owner or the insurer never challenged the appellant's case by leading any evidence, based, on the testimony of the father of the claimant, petition ought to have been allowed.
3. The alleged accident took place on 08.06.2015. At that time, claimant [ENTITY] was sitting as a pillion rider on motor bike bearing No.TR-01V-7134 driven by his friend respondent-[ENTITY] also owner thereof, insured with M/S. Oriental Insurance Company Limited.
4. In the claim petition, it is alleged that the accident occurred on account of rash and negligent acts of the driver/owner of the motor vehicle. However, such averments made in Para 10 of the petition stand categorically denied/refuted by the owner as also the insurer.
5. It is a matter of record that the claimant himself did not step into the witness box. The only explanation forthcoming is that he is suffering from 100% locomotor disability. But then as is evident from the disability certificate, such disability is of both the legs and the claimant could have been examined either in the Court or Commission. He was competent to depose. Anyhow, it is seen that the claimant's father, without any objection from anyone, entered the witness box and narrated the incident in the following terms:-
"5. That, on 08.06.15 my son [ENTITY] was coming from Agartala town and going towards our house at Dhaleswar by a vehicle bearing No.TR-01-V- 7134 sitting behind the driver/owner of the said TVS Jupiter Scooter; When the said vehicle reached near Old Central Jail, Agartala at about 9/930 PM suddenly a dog ran away in front of them and to save the dog the vehicle was capsized and the accident took place and the injured sustained grievous fractured injury on his head and other vital parts of his body. Soon after the accident with the help of local people my son was shifted to AGMC & GBP Hospital and after providing necessary aid the Doctors of GBP Hospital referred him to ILS Hospital, Agartala."
(emphasis supplied)
6. Careful perusal of the aforesaid deposition would only reveal that the witness is absolutely silent with regard to the rash and negligent acts of the driver of the vehicle. An attempt was made to establish such fact through the deposition of one [ENTITY], an alleged eye witness to the occurrence of the accident, whose affidavit-in-examination-in-chief, was filed but then this person never ever stepped into this witness box to testify the veracity of contents thereof or depose with regard to the events which took place, leading to the occurrence of the accident, including the rash and negligent act(s) of the driver.
7. The decision rendered by the Apex Court in [PRECEDENT] (supra) referred to and relied upon by Mr. [ENTITY], learned counsel, Para 16 & 17 reproduced herein below, in fact, supports the respondents and not the claimant:-
"16. It was defendant No.1 who contended that the sale deed, executed by Defendant 2 in favour of the plaintiff was fictitious and the whole transaction was a bogus transaction as only Rs.500/- were paid as sale consideration to Defendant 2. He further claimed that payment of Rs 4500 to Defendant 2 at his home before the registration of the deed was wholly incorrect. This plea was not supported by Defendant 1 as he did not enter the witness-box. He did not state the facts pleaded in the written statement on oath in the trial court and avoided the witness-box so that he may not be cross-examined. This, by itself, is enough to reject the claim that the transaction of sale between Defendant 2 and the plaintiff was a bogus transaction.
17. Where a party to the suit does not appear in the witness-box and states his own case on oath and does not offer himself to be cross-examined by the other side, a presumption would arise that the case set up by him is not correct as has been held in a series of decisions passed by various High Courts and the Privy Council beginning from the decision in [ENTITY] v. Gurdial Singh, AIR 1927 PC 230. This was followed by the Lahore High Court in [PRECEDENT] and the Bombay High Court in [PRECEDENT]. The Madhya Pradesh High Court in [PRECEDENT] also followed the Privy Council decision in [ENTITY] case. The Allahabad High Court in [PRECEDENT] held that if a party abstains from entering the witness box, it would give rise to an adverse inference against him. Similarly, a Division Bench of the Punjab & Haryana High Court in [PRECEDENT], drew a presumption under [SECTION] of the [ACT] against a party who did not enter the witness-box."
8. Despite having afforded sufficient opportunity Mr. [ENTITY], learned counsel for the appellant, could not convince the Court as to how the reasoning adopted by the Tribunal is not borne out from the record, being erroneous, perverse and/or illegal.
9. It is not that in every case where accident takes place, injured is automatically entitled for compensation under [SECTION] of the [ACT]. He has to establish, inter alia, that the offending vehicle was being driven in a rash and negligent manner. The principle of res ipsa loquitur cannot be invoked automatically in the absence of attending fact warranting its application.
10. The Apex Court in the case of [PRECEDENT] and [PRECEDENT] held that Proof of rashness and negligence on the part of the driver of the vehicle, is sine qua non for maintaining an application under [SECTION] of the Act.
11. It is seen that the accident was never ever reported to the police for more than one month. Explanation furnished before this Court, that father was busy with the treatment of the son, which prevented him from reporting the matter to the police, is merely an afterthought and the reason for this Court to conclude the same, emanates from the record itself. Firstly, the father, P.W. 1, Sri [ENTITY], admits the owner of the vehicle to be a family friend. So identity of the person/vehicle was not an issue. Truth was not disclosed at the earliest. Secondly, Sri [ENTITY], who filed his affidavit in deposition, a close family associate, was serving as a Government servant and working with the Home-guard. At least, he could have reported the matter to the police, which was never ever done and the reason not to do so, is not far to seek, for as Mr. [ENTITY], learned counsel for the owner rightly invites attention of this Court to the medical report and more specifically, Exhibit-3, wherefrom it is evident that the claimant/injured was an alcoholic as also habituated to taking cannabis, a psychotropic substance.
12. Hence, for the aforesaid reasons, the present appeal is devoid of merit and accordingly, the appeal stands dismissed.
Pending application(s), if any, also stands disposed of.
13. Send down the lower Court records forthwith.
([ENTITY]), [ENTITY]