Case: MANGLA RAM Vs. THE ORIENTAL INSURANCE COMPANY LTD

1. In the present appeals, thehas challenged the judgment dated 5th January, 2017 passed by the High Court of Judicature for Rajasthan, Jodhpur Bench, in SB Civil Miscellaneous Appealof 2001 and 290 of 2001, which set aside the award of the Motor Accident Claims Tribunal] granting compensation to theat the instance of2 and 3 (driver and owner of the offending vehicle, respectively) as also negatived theprayer for enhancement of the compensation amount.2. Thealleges that on or about 10th February, 1990, while he was riding his motorcycle, bearing No. RJ-19-6636, he was hit by jeep No. RST-4701, owned by3 and purportedly being driven by2 at the time, resulting in serious injuries and ultimately, amputation of his right leg above the knee. Thesubsequently filed an application before the Tribunal, Jodhpur, seeking compensation against the1 insurance company. He claimed 40% permanent disability and 100% functional disability, contending that his primary livelihood of driving heavy transport vehicles (HTVs) had been curtailed on account of his amputation, and sought compensation to the tune of Rs. 11,17,000/-. Respondentand 3 denied the accident and the involvement of the jeep in question. The1 insurance company argued that the cover note purportedly taken for the jeep in question was fraudulent. The cover note had been given unauthorisedly by its then Development Officer, no premium had been deposited with the company and no policy had been issued in that regard. Thus, the jeep was not validly insured.3. In its judgment dated 22nd November, 2000, the Tribunal discussed the evidence on record in detail. PW2 (Chainaram) and PW4 (Thanaram), who had taken theto the hospital after the accident, deposed that after the accident, the jeep which caused the accident stopped ahead and they noted the jeep number in the backlight and further, they heard thename being called out by the passengers in the jeep. The Tribunal, however, found that their version of having noted the jeep number and heard thename seemed to be unnatural. The Tribunal also discarded the version of the(PW1) about the details of the vehicle as being not reliable. The Tribunal then noted the evidence of the defence witnesses, that the jeep in question was nowhere near the area of the accident. The Tribunal, however, opined that the accident had been caused by the jeep in question, based on the investigation report filed by the police mentioning that when they seized the jeep after one month of the accident, the jeep bore a scratch on the mudguard of the tyre on the upper footboard on the left side. The Tribunal also relied on the charge sheetfiled by the police, wherein it has been stated that the accident was caused by the jeep in question on the basis of statements made by theand other witnesses (Roopram, Thanaram and Pratap Singh). The Tribunal held that there was no reason to disagree with the conclusion of the police. In short, the Tribunal disbelieved the evidence of thewitnesses, regarding the commission of accident by the jeep in question, as unreliable but nevertheless relied upon the investigation report as also the charge sheet filed by the police in that regard which was supported by two other witnesses who did not depose before the Tribunal.4. The Tribunal then referred to the site map of the accidentto conclude that thewas riding his motorcycle one foot on wrong side from the middle of the road and hence, had contributed to the accident by being negligent. The Tribunal also accepted the plea of the1 insurance company that the cover note as regard the offending jeep was fraudulent. The Tribunal accepted the evidence of witness DW4, the branch manager of the1 insurance company, that the company did not receive any premium under the relevant cover note and had not issued any insurance policy in that regard. DW 4 had deposed that the cover note was not deposited with the company. Further, the concerned development officer, whose signature was on the cover note, had been removed from the1 insurance company but had in his possession certain cover notes, including the relevant cover note. DW 4 stated that no insurance policy was issued on the basis of the said cover note. The Tribunal then found that it was possible that the Development Officer had backdated the cover note and had not deposited the money for issuing a policy with the company. The Tribunal thus held that the vehicle was not insured by the company and, therefore, the company was not liable.5. Based on the aforesaid observations, the Tribunal took into account the injuries caused to theand calculated compensation of Rs. 1,27,000/- but, owing to the purported negligence of thereduced the amount by half and finally awarded a sum of Rs. 63,500/- to thepayable by theNos. 2 and 3 jointly.6. Thefiled an appeal (SB Civil Misc. Appealof 2001) for enhancement whereasNos. 2 and 3 (driver and owner of the jeep, respectively) challenged theaward (by way of SB Civil Misc. Appealof 2001), before the High Court of Rajasthan, Jodhpur Bench. In its judgment dated 5th January, 2017, the High Court concluded that thefindings were incorrect, unconvincing and not supported by evidence. Further, thereasoning, that it did not believe the oral evidence of the parties but had nevertheless answered the issue in favour of the claimant solely on the basis of the police report, on the ground that there was no reason not to believe the conclusion arrived at by the police, was flawed and incorrect. The High Court noted that the Tribunal was not convinced about the involvement of the vehicle, despite which it held that involvement was proved. Furthermore, no finding regarding negligence of the driver of the jeep had been recorded by the Tribunal rather it found that thewas negligent while riding his motorcycle. The High Court took the view that mere filing of a charge-sheet, without any finding of conviction, was insufficient to prove negligence byNos. 2 and 3. Additionally, the High Court also held that the statement of thewherein he claimed that the bumper of the jeep had hit the rear of his motorcycle, was contradicted by the investigation report of the jeep which recorded that it did not bear out that the jeep had been involved in an accident. The High Court, therefore, was pleased to set aside theaward and allowed the appeal filed by the driver and owner of the jeepNos. 2 and 3 respectively) while dismissing the appeal filed by the

Reasoning: 12. From the evidence which has come on record, the finding recorded by the Tribunal that thewhile riding his motorcycle on 10th February, 1990 between 8.00 P.M. and 8.30 P.M., met with an accident when a jeep being driven rashly and negligently, struck his motorcycle resulting in falling down and suffering severe injuries on his right leg, which was required to be amputated from above the knee level at MGH Hospital, seems to us to be a possible view. That position is established from the oral evidence of PWs-1, 2 and 4 and the charge sheet and its accompanying documents filed by the police. Even the High Court has broadly agreed with this finding recorded by the Tribunal.In the above conspectus, theis justified in contending that the High Court committed manifest error in reversing the holistic view of the Tribunal in reference to the statements of witnesses forming part of the charge-sheet, FIR, Jeep Seizure Report in particular, to hold that Jeep2 was involved in the accident in question. Indeed, the High Court was impressed by the Mechanical Investigation Report (Exh. 5) which stated that only a scratch mark on the mudguard of the left tyre of the vehicle had been noted. On that basis, it proceeded to observe that the same was in contradiction to the claim of the(claimant), ruling out the possibility of involvement of the vehicle in the accident. This conclusion is 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. In other words, the reasons which weighed with the High Court for reversing the finding of fact recorded by the Tribunal upon holistic analysis of the entire evidence, about the involvement of Jeepin the accident, cannot be countenanced. For, those reasons do not affect the other overwhelming circumstances and evidence which has come on record and commended to the Tribunal about the involvement of the subject jeep in the accident in question. This being the main edifice, for which the High Court allowed the appeal preferred by2 & 3, it must necessarily follow that the finding of fact recorded by the Tribunal on the factum of involvement of Jeep No. RST-4701 in the accident in question will have to be restored for reasons noted hitherto.21. Another reason which weighed with the High Court to interfere in the First Appeal filed by2 & 3, was absence of finding by the Tribunal about the factum of negligence of the driver of the subject jeep. Factually, this view is untenable. Our understanding of the analysis done by the Tribunal is to hold that Jeep No. RST-4701 was driven rashly and negligently by2 when it collided with the motorcycle of theleading to the accident. This can be discerned from the evidence of witnesses and the contents of the charge-sheet filed by the police, naming. This Court in a recent decision in Dulcina Fernandes (supra), noted that the key of negligence on the part of the driver of the offending vehicle 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. Suffice it to observe that the exposition in the judgments already adverted to by us, filing of charge-2 prima facie points towards his complicity in driving the vehicle negligently and rashly. Further, even when thewere to be acquitted in the criminal case, this Court opined that the same may be of no effect on the assessment of the liability required in respect of motor accident cases by the Tribunal. Reliance placed upon the decisions in Minu B Mehta (supra) and Meena Variyal (supra), by thein our opinion, is of no avail. The dictum in these cases is on the matter in issue in the concerned case. Similarly, even the dictum in the case of Surender Kumar Arora (supra) will be of no avail. In the present case, considering the entirety of the pleadings, evidence and circumstances on record and in particular the finding recorded by the Tribunal on the factum of negligence of the, the driver of the offending jeep, the High Court committed manifest error in taking a contrary view which, in our opinion, is an error apparent on the face of record and manifestly wrong.Be that as it may, the next question isthe Tribunal was justified in concluding that thes also negligent and had contributedequally, which finding(1991) 4 SCC 584 (1987) 3 SCC 234 rests only on the site map (Exh. 2) indicating the spot where the motorcycle was lying after the accident? We find substance in the criticism of thethat the spot where the motor vehicle was found lying after the accident cannot be the basis to assume that it was driven in or around that spot at the relevant time. It can be safely inferred that after the accident of this nature in which thesuffered severe injuries necessitating amputation of his right leg above the knee level, the motorcycle would be pushed forward after the collision and being hit by a high speeding jeep. Neither the Tribunal nor the High Court has found that the spot noted in the site map, one foot wrong side on the middle of the road was the spot where the accident actually occurred. However, the finding is that as per the site map, the motorcycle was found lying at that spot. That cannot be the basis to assume that thewas driving the motorcycle on the wrong side of the road at the relevant time. Further, thedid not produce any contra evidence to indicate that the motorcycle was being driven on the wrong side of the road at the time when the offending vehicle dashed it. In this view of the matter, the finding of the Tribunal that thecontributed to the occurrence of the accident by driving the motorcycle on the wrong side of the road, is manifestly wrong and cannot be sustained. The High Court has not expressed any opinion on this issue, having already answered the issue about the non-involvement of the offending vehicle in favour of2 & 3.24. In other words, we are inclined to hold that there is noof evidence about the motorcycle being driven negligently by theat the time of accident. Thedid not produce any such evidence. That fact, therefore, cannot be assumed. Resultantly, the argument of theant did not possess a valid motorcycle driving licence at the time of accident, will be of no significance. Thus, we hold that there is no legal evidence to answer the issue of contributory negligence against theThe Tribunal noted the claim of thethat he was gettingper month towards his salary andper month towards food allowance from Bhanwar Lal. The fact that thehad 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 theduly supported by Bhanwar Lal, that thewas employed by him on his new truck. Besides the said income, theclaimed to have earning ofper month from farming fields. In other words, we find that the Tribunal has not analysed this evidence in proper perspective. The Tribunal, however, pegged the loss of monthly income to the/- per month while computing the compensation amount on the finding that there was no convincing evidence about complete non-employability of theFurther, no provision has been made by the Tribunal towards future prospects. The Tribunal, therefore, should have computed the loss of income on that basis. Additionally, thebecause of amputation of his right leg would be forced to permanently use prosthetic leg during his life time. No provision has been made by the Tribunal in that regard. On these heads, theis certainly entitled for enhancedTribunal has absolved the insurance company on the finding that no premium was received by the insurance company nor any insurance policy was ever issued by the insurance company in relation to the offending vehicle. The2 and 3 had relied on a Cover Note which according toInsurance Company was fraudulently obtained from the then Development Officer, who was later on sacked by1 Insurance Company. The possibility of misuse of some cover notes lying with him could not be ruled out. The2 & 3 have relied on the decision of this Court in Rula (supra). That decision will be of no avail to2 & 3. In that case, the Court found that the insurance policy was already issued after accepting the cheque; whereas in the present case, the1 Insurance Company has been able to show that no payment was received by the company towards the insurance premium nor any insurance policy had been issued in respect of the offending vehicle (jeep). However, the claim of2 & 3 to the extent that they possessed a cover note issued by the then Development Officer of the Oriental Insurance Company) will have to be accepted coupled with the fact that there is no positive evidence to indicate that the said Cover Note is ante dated. Pertinently, the Cover Note has been issued by the then Development Officer at a point of time when he was still working with1 Insurance Company. It must follow that the then Development Officer was acting on behalf of the Insurance Company, even though stricto sensu the1 Insurance Company may not be liable to pay any compensation as no insurance policy has been issued in respect of the offending vehicle, much less a valid insurance policy. But for the Cover Note issued by the Development Officer of1 Insurance Company at a point of time when he was still working with, to do substantial justice, we may invoke the principle ofas has been enunciated by this Court in the case of National Insurance Co. Ltd.. Reverting to the calculation of compensation amount, taking the loss of monthly income due to permanent disability of 40%, thewill be entitled to0 per month (i.e. 40 % of+ 40% future prospects [as per Pranay Sethi (supra)] x 12 x 16, i.e. (840 + 336) x 12 x 16. We uphold the amounts quantified by the Tribunal towards the heads for medical treatment after the accident, motorcycle repair, mental and physical problem, as it is. However, thein our opinion, is additionally entitled to medical expenses for procurement of a prosthetic leg, which is quantified at(Rupees twenty five thousand only).