New India Assurance Co. Ltd. v. Raja Sekhar And ORS.

IN THE HIGH COURT AT CALCUTTA

CIVIL APPELLATE JURISDICTION [CIRCUIT BENCH AT PORT BLAIR] ******** PRESENT: HON'BLE JUSTICE BIVAS PATTANAYAK FMAT/5/2020 M/S New India Assurance Co. Ltd.

.........Appellant versus Shri Raja Sekhar and others ..........Respondents For the Appellant : Mr. N.A.Khan For the Respondents : Mr. Anil Kumar Chakraborthy Heard on : June 19, 2025 Judgement on : June 23, 2025 BIVAS PATTANAYAK, J.

1.

This appeal is preferred against the judgement and award dated 28th January, 2020 passed by learned Sole Member, Motor Accident Claims Tribunal, Andaman and Nicobar Islands, Port Blair in MACT Case no. 01 of 2014 granting compensation of Rs. 6,32,782/-together with interest in favour of the claimant under section 166 of the Motor Vehicles Act, 1988.

2.

The brief fact of the case is that the claimant is employed as USM in Andaman Lakshadweep Harbour Works. On 2nd February 2013 while he was returning on his motorcycle bearing registration no. AN 01 E

8622 after attending to his duties and when he reached Santoshi Mata Temple near Minnie Bay Junction at about 6.30 PM at that time the offending vehicle bearing registration no. AN 01 B 9814 (Maruti Gypsy) proceeding towards Aberdeen Bazar in a high-speed dashed the motorcycle of the victim-claimant as a result of which he fell down on the spot. The victim-claimant sustained grievous injuries on his right leg particularly segmental fracture of both bones of his right leg. Immediately he was shifted and admitted to G.B Pant Hospital, at Port Blair. The victim-claimant was referred to any CHGS recognised hospital and he was taken to Chennai along with two attendants namely his mother and sister, where he was admitted to Bharatirajaa Hospital and Research Centre Pvt Ltd, T.

Nagar, Chennai on 3rd February, 2013 and discharged on 25th March 2013. The victimclaimant had to undergo surgical measures and plastic surgery at the said hospital and he incurred medical expenses and suffered mental pain and agony. On the basis of the above, the victim-claimant through his power of attorney holder filed an application under section 166 of the Motor Vehicles Act, 1988 praying for compensation of Rs. 7,72,800/-together with interest.

3.

The claim case was keenly contested by the appellant-insurance company, opposite party no.3, by filing its written objection denying, inter alia, the case of the claimant and contending that the claimant being a government servant is not entitled to compensation since he is entitled to get free medical treatment and reimbursement of his medical

expenses from his department on being referred to the mainland for treatment. Further since the driver of the offending vehicle was under influence of alcohol while driving, as such the insurance company cannot be held liable to indemnify the registered owner of the vehicle. 4.

The opposite party no.1, driver of the offending vehicle, though entered appearance before the learned Tribunal but neither filed written objection nor contested the claim application. Opposite party no.2owner of the offending vehicle though filed written objection in the learned Tribunal but subsequently did not contest the claim application. Accordingly, the claim application was disposed of by the learned Tribunal on contest against the insurance company-opposite party no.3 and exparte against rest of the opposite parties. 5.

It is found from the affidavit of service dated 10th June 2025 that the appellant-insurance company in compliance to the order of this court dated 9th April 2025, published a gist of notice of this appeal in newspaper 'Daily Telegram' for substituted service upon respondent no.2 & 3 namely the driver and owner of the offending vehicle respectively. Despite taking such steps none appeared on behalf of respondent no.2 & 3. Accordingly, the appeal was taken up for hearing in the absence of respondent no.2 & 3.

6.

The respondent no.1-claimant in order to establish his case before the learned Tribunal examined himself, his power of attorney holder and four other witnesses and also produced and proved

documents marked Exhibits 1 to 17 respectively as well as documents marked 'X', 'X1', 'X2', 'X3', 'Y', 'Z' for identification. 7.

The insurance company did not adduce any evidence, however, it produced documents before the learned Tribunal which have been marked as Exhibits A, B & C and 'Xx' for identification respectively. 8.

Upon considering the materials on record and the evidence adduced on behalf of the claimant as well as documents produced by the appellant-insurance company, the learned Tribunal granted compensation of Rs. 6,32,782/-together with interest @ 9% per annum from the date of filing of the claim application till the date of realisation, in favour of the claimant under section 166 of the Motor Vehicles Act, 1988.

9.

Being aggrieved by and dissatisfied with the impugned judgement and award of the learned Tribunal, the appellant-insurance company has preferred the present appeal.

10.

Mr N.A Khan, learned advocate representing the appellantinsurance company submitted as follows. The victim-claimant is guilty of contributory negligence since he was found to be in the influence of alcohol while driving his motorcycle which would be evident from the injury report of the victim-claimant produced by the insurance company before the learned Tribunal. The

chargesheet also records that on investigation it was found that the victim was drunk on the date of accident.

Moreover, the victim-claimant has failed to examine any eyewitness to the occurrence in order to establish that the accident took place due to rash and negligent act of the driver of the offending vehicle. The driver of the offending vehicle drove the vehicle in the influence of alcohol which is also been revealed during investigation and chargesheet has been submitted against him under section 279/338 of the IPC and section 185 of the Motor Vehicles Act, 1988. The injury report of the driver of the offending vehicle (Exhibit C) would show that the driver was also under the influence of alcohol and as such the insurance company cannot be held liable to indemnify the registered owner of the offending vehicle.

The learned Tribunal erred in allowing compensation under the head of pain and suffering and cost of attendant without there being any specific pleadings or evidence in such regard. Although the medical bills were never proved by cogent evidence, the learned Tribunal allowed the amount of medical bills of Rs. 4,81,782.80/- under Exhibit 17 without any plausible reasons. Moreover, as the delay in disposal of the case is not attributed to the insurance company, the learned Tribunal ought not to have granted interest on the compensation amount.

In light of his aforesaid submissions, he prayed for setting aside of the impugned judgment and award passed by the learned Tribunal granting compensation in favour of the respondent no.1-claimant. 11.

On the contrary Mr Anil Kumar Chakraborthy, learned advocate appearing for the respondent no.1-claimant submitted as follows. The appellant-insurance company has neither pleaded any case in its written objection that the claimant was guilty of contributory negligence nor has led any evidence in such regard.

Though the chargesheet records that the victim was drunk but that is not the final verdict and further it is relevant to note that the police did not initiate any criminal proceedings against the claimant under section 185 of the Motor Vehicles Act, 1988 for driving allegedly under the influence of alcohol. In order to hold a person liable under section 185 of the Motor Vehicles Act, 1988 the ascertainment of the percentage of alcohol in blood sample of that person is a mandatory requirement. No iota of evidence is there showing the percentage of alcohol in the blood sample of the victim. The injury report of the claimant produced by the insurance company has not been proved in accordance with law and therefore it cannot be considered in the absence of legal proof. Pw3, R. Vijay has categorically deposed that while on the date of occurrence he reached near the spot he saw a huge crowd and noticed that a road accident has taken place involving the offending vehicle and a motorcycle. The witness is acquainted with the victim as he is a

tenant under the mother of the victim. Such evidence of the witness has not been rebutted in cross-examination. As such the aspect of negligence of the driver of the offending vehicle has been duly established.

The medical bills have been exhibited without objection, therefore, the argument advanced on behalf of the insurance company that the same cannot be considered is not tenable.

In view of his above submissions, he prayed for dismissal of the appeal. 12.

Having heard the learned advocates representing the respective parties, following issues have fallen for consideration. Firstly, whether the victim-claimant was guilty of contributory negligence?

Secondly, whether the accident took place due to rash and negligent act of the driver of the offending vehicle?

Thirdly, whether the learned Tribunal erred in allowing compensation under the head of pain and sufferings and cost of attendant? Fourthly, whether the learned Tribunal erred in allowing the medical bills produced by the victim-claimant?

Fifthly, whether the learned Tribunal erred in allowing interest on the compensation amount?

Lastly, whether the appellant-insurance company is liable to indemnify the registered owner?

Issue No.1: Whether the victim-claimant was guilty of contributory negligence?

13.

At the outset on going through the written objection filed by the appellant-insurance company it is found that no case has been pleaded by the insurance company that the claimant was guilty of contributory negligence in the said road accident. That apart, the insurance company has also not led any cogent evidence to establish contributory negligence on the part of the victim-claimant. It has been strenuously argued on behalf of appellant-insurance company that the materials on record namely the injury report of the victim-claimant marked 'Xx' for identification shows that the victim was under the influence of alcohol which has also been noted in the charge sheet. Hence, the victimclaimant contributed to the accident.

Although such injury report of the victim-claimant was produced by the appellant-insurance company and marked 'Xx' for identification yet the appellant-insurance company has not adduced any evidence to prove such injury report despite the fact that the insurance company was permitted by the learned Tribunal on its prayer to contest the claim application on merits and take all defences available to it.

"185. Driving by a drunken person or by a person under the influence of drugs.-Whoever, while driving, or attempting to drive, a motor vehicle,- (a) has, in his blood, alcohol

exceeding 30 mg. per 100 ml. of blood detected in a test by a breath analyser, or in any other test including a laboratory test".

Upon bare reading of the aforesaid provision, it is quite clear that a person would be liable under Section 185 of the Motor Vehicles Act, 1988 if while driving or attempting to drive a motor vehicle has in his blood alcohol exceeding 30 mg per100 ml of blood detected in a test by a breath analyzer or in any other test including a laboratory test. Needless to mention that there is no evidence that any test by breath analyzer or laboratory test was done in respect of the blood sample of the victim-claimant to ascertain extent of alcohol in the blood of the victim-claimant on the relevant date and find out whether it exceeded the limit provided in the said provision.

Although in the charge sheet it is mentioned that the victim-claimant was drunk on the date of occurrence but no such specific case under Section 185 of the Motor Vehicles Act, 1988 has been initiated against the victim-claimant. Further chargesheet is not a substantive piece of evidence. In the absence of such specific evidence as required under the aforesaid provision it cannot be held that the victim-claimant in the influence of alcohol contributed to the accident. It is settled proposition of law that contributory negligence has to be proved and established by cogent evidence. Contributory negligence means the failure by a person to use reasonable care or safety of either himself or his property, so that he become blameworthy in part as an author of his own wrong.

absence of any evidence to show any wrongful act on the part of the victim-claimant which have contributed either to the accident or to the nature of the injury sustained, the victim cannot be held guilty of contributory negligence. [See Mohammed Siddique and another versus National Insurance Company Limited and Others reported in (2020) 3 SCC 57]. There cannot be contributory negligence of the victim in the absence of legal evidence by the insurance to that effect. [See Minu Rout and another versus Pradyumna Mahapatra and Ors. reported in (2013) 10 SCC 695]. In the light of above discussion, the ground of contributory negligence of the victim in the said accident falls short of merit.

Issue No. 2: Whether the accident took place due to rash and negligent act of the driver of the offending vehicle?

14.

In order to establish the factum of rash and negligent driving on the part of driver of the offending vehicle the claimant has adduced the evidence of one S Thiraviya Raj, power of attorney holder of the claimant, as PW1, one R. Vijay as PW2 and himself as PW6. 14.1. PW1, S Thiraviya Raj deposed in his examination-in-chief that he is acquainted with the facts of the case and that the road accident which occurred on 2nd February 2013 causing injury to the claimant was due to rash and negligent driving of the said offending vehicle by the driver-Opposite party no. 1. Be that as it may, the witness has admitted in his cross-examination that he has not seen the accident and has no personal knowledge as to how the accident occurred.

Therefore, the evidence of PW1 so far as the proving the fact of rash and negligent driving by the driver of the offending vehicle is concerned becomes inconsequential.

14.2. PW2, R. Vijay deposed in his examination-in-chief that when he reached near Santoshi Mata Temple, Minnie Bay, Port Blair he noticed a huge crowed on the road and he stopped there and went to the place of occurrence where he noticed that a road accident has taken place involving a white colour Maruti Zypsy and a motorcycle. At the outset it is found from the evidence of PW2 that he has not deposed any fact that the accident has taken place due to rash and negligent driving on the part of driver of the offending vehicle. That apart the deposition of PW2 as above would show that the said witness reached the place of occurrence after the accident had taken place. Therefore, PW2 is also not an eye witness to the occurrence to depose the aspect of rash and negligent act of the driver.

14.3. At this stage it would be profitable to reproduce the observation of Hon'ble Supreme Court in Sunita & Ors. versus Rajasthan State Road Transport Corporation & Anr. reported in (2020) 13 SCC 486), as follows.

"22. It is thus well settled that in motor accident claim cases, once the foundational fact, namely, the actual occurrence of the accident, has been established, then the Tribunal's role would be to calculate the quantum of just compensation if the accident had taken place by reason of negligence of the driver of a motor vehicle and, while doing so, the Tribunal would not be strictly bound by the pleadings of the

parties. Notably, while deciding cases arising out of motor vehicle accidents, the standard of proof to be borne in mind must be of preponderance of probability and not the strict standard of proof beyond all reasonable doubt which is followed in criminal cases. xxxxx

34. Similarly, the issue of nonexamination of the pillion rider, Rajulal Khateek, would not be fatal to the case of the appellants. The approach in examining the evidence in accident claim cases is not to find fault with non examination of some "best" eye witness in the case but to analyse the evidence already on record to ascertain whether that is sufficient to answer the matters in issue on the touchstone of preponderance of probability. This court, in Dulcina Fernandes (supra), faced a similar situation where the evidence of claimant's eyewitness was discarded by the Tribunal and the respondent was acquitted in the criminal case concerning the accident. This Court, however, took the view that the material on record was prima facie sufficient to establish that the respondent was negligent.

In the present case, therefore, the Tribunal was right in accepting the claim of the appellants even without the deposition of the pillion rider, Rajulal Khateek, since the other evidence on record was good enough to prima facie establish the manner in which the accident had occurred and the identity of the parties involved in the accident."

In view of the above proposition, the claimants are merely to establish their case on the touch stone of preponderance of probabilities and the standard of proof beyond reasonable doubt as in criminal cases is not applicable to motor accident cases and the Court has to analyze the materials before it to decide whether the case of the claimant is acceptable or not.

14.4. Bearing in mind the above principles, now it is to be examined whether the contention of the claimant that the accident took place due

to negligence of the driver of the offending can be accepted. It is found from the materials on record that the written complaint (Exhibit 15) has been lodged by the victim himself. In the written complaint it is contended by the victim that the accident took place while the driver of the Maruti Zypsy driving at a very high speed and carelessly hit the motorcycle of the victim and the victim sustained severe injuries of bone fracture on his right leg. PW6, Raja Sekhar (victim) in his examination-in-chief also deposed that on 2nd February 2013 while he was returning on his motorcycle bearing registration no. AN 01 E 8622 to his residence after attending his duties and when he reached Santoshi Mata Temple near Minnie Bay Junction at about 6.30 PM at that time the a Maruti Gypsy bearing registration no.

AN 01 B 9814 proceeding towards Aberdeen Bazar in a very high-speed dashed his motorcycle, as a result of which he fell down on the spot and sustained grievous injuries on his right leg. The aforesaid evidence of PW6, who is the victim himself, has remained unchallenged in cross-examination. Further taking judicial notice of the discharge summary of Bharathirajja Hospital and Research Centre Private Limited, Chennai at page-58 of the paperbook, it is found that the victim sustained Grade-II Compound Segmental Fractures of both bones of right leg in road traffic accident. Such injury has not been disputed by the appellant-insurance company. On the other hand, the injury report of the driver (Exhibit C) produced by the appellant-insurance-company shows that the driver of the offending vehicle did not sustain any injuries.

14.5. In Usha Rajkhowa and Others versus Paramount Industries and Others reported in (2009) 14 SCC 71 the Hon'ble Supreme Court observed as follows.

" 19. Under such circumstances, applying the doctrine of res ipsa loquitor, it is clear that it was because of the negligence on the part of the truck that the accident took place. After all the hit given by the truck was so powerful that two persons in the car died on the spot, while the third escaped with serious injuries. When we see the award of the tribunal, as also the appellate judgment, they are astonishingly silent on these aspects. We are, therefore, convinced that there was no question of any contributory negligence on the part of the driver of the Maruti car and it was solely because of the negligence on the part of the truck that the accident took."

Bearing in mind aforesaid proposition of Hon'ble Supreme court and the manner in which the accident has taken place resulting in severe injuries of both bones of the right leg of the victim, applying the principles res ipsa loquitur, where the facts of accident constitute evidence of negligence and the uncontroverted evidence of the victimclaimant as above, it can be said in all probabilities that the accident took place due to negligence on the part of the driver of the offending vehicle. The appellant-Insurance Company has not adduced any evidence in the contrary to negate the contention of the claimant of negligence of the driver of the offending vehicle. In view of the above discussion, the argument advanced on behalf of the appellantinsurance company that negligence of the driver of the offending vehicle is not established since no eye witness was examined, is negated.

Issue No. 3 : Whether the learned Tribunal erred in allowing compensation under the head of pain and sufferings and cost of attendant ?

15.

It has been vociferously argued on behalf of the appellantinsurance company that there are neither any pleadings or evidence of any pain and sufferings nor that any attendant accompanied the victim for his medical treatment and therefore, the amount allowed by the learned Tribunal under such heads is erroneous. 15.1. Before delving into the aforesaid issue, it would be profitable to reproduce the observation of Hon'ble Supreme Court in R.D Hattangadi versus Pest Control (India) Pvt. Ltd. and Others reported in (1995) 1 SCC 551 as hereunder:

" 12. In its very nature whenever a tribunal or court is required to fix the amount of compensation in cases of accident, it involves some guesswork, some hypothetical consideration, some amount of sympathy linked with the nature of the disability caused. But all the aforesaid arrangements have to be viewed with objective standards."

In the light of the aforesaid proposition laid down by Hon'ble Supreme Court, the present issue needs to be examined. PW6, Raja Sekhar (victim) in his examination-in-chief deposed that at first, he was admitted to G.B Pant Hospital, at Port Blair on 2nd February, 2013 where he was diagnosed with segmental fracture of both bones on his right leg. On 3rd February, 2013 he was rushed to Bharathirajja Hospital Research Centre Private Limited, Chennai where he was treated as indoor patient. Such evidence of PW6 has not been rebutted.

Upon going through the discharge summary dated 25th March 2013, at page-58 of the paperbook, issued by Bharathirajja Hospital Research Centre Private Limited, Chennai it is found that the victim-claimant sustained Grade-II Compound Segmental Fractures of both bones of right leg, Interlocking Nailing of Tibia was done on 3rd February 2013, Fasciotomy was done on 10th February, 2013 and Reverse Sural Artery Flap with SSG was done on 13th February, 2013. Thus, there cannot be any dispute that in the said accident the victim-claimant sustained the aforementioned injuries and had to undergo operative measures. The victim for his treatment was hospitalized for a period of 51 days.

The victim-claimant (PW6) in his examination-in-chief has categorically stated that during such period of hospitalization he suffered mental shock, agony and physical pain. Considering the operative measures undergone by the victim and his prolonged hospitalization this Court is of the view that the amount of Rs. 1,00,000/- granted under the head of Pain and Sufferings by the learned Tribunal does not call for interference.

15.2. So far as amount granted towards cost of attendant is concerned, it is found that PW6, Raja Sekhar (victim) in his examination-in-chief has deposed that on 3rd February, 2013 he had to travel with two attendants namely his mother and sister as it was unsafe for him to travel alone being declared as a stretcher patient and the two attendants who accompanied him had to stay near the hospital in a lodge. Such evidence of PW6 has remained unchallenged in cross-

examination. PW1, S. Thiraviya Raj, power of attorney holder of the victim-claimant, has also deposed in his examination-in-chief of such fact, which has also not been controverted in cross-examination. Therefore, bearing in mind that the victim-claimant was accompanied by two attendants, the amount granted of Rs. 1,000/- per day by the learned Tribunal towards attendant cost is reasonable, which in the opinion of this Court also does not call for interference. Issue no.4: Whether the learned Tribunal erred in allowing the medical bills produced by the claimant?

16.

During his examination PW6 (victim), produced the medical bills pertaining to his treatment amounting to Rs. 4,81,782/- and those were marked as Exhibit 17 (collectively) on admission. Therefore, the learned Tribunal has rightly allowed the medical bills in favour of the claimant.

Issue no.5: Whether the learned Tribunal erred in allowing interest on the compensation amount?

17.

It is found from the impugned judgment of the learned Tribunal that it has granted interest on the compensation @ 9% per annum from the date of filing of the claim application till realization of the compensation amount. Learned advocate for the appellant-insurance company has vociferously argued that since the delay in disposal of the claim application is not attributed to the insurance company, it cannot be fastened with the liability to pay interest on the compensation amount. In order to appreciate the aforesaid issue, it would be apposite

to reproduce relevant provisions of section 171 of the Motor Vehicles Act. 1988 as hereunder:

"171. Where any Claims Tribunal allows a claim for compensation made under this Act, such Tribunal may direct that in addition to the amount of compensation simple interest shall also be paid at such rate and from such date not earlier than the date of making the claim as it may specify in this behalf."

The aforementioned provisions of section 171 of the Motor Vehicles Act empowers the tribunal to direct in addition to the amount of compensation simple interest at such rate and from such date not earlier than the date of making the claim as it may specify in this behalf. From this section, discretion has been given to the tribunal to award interest at such rate from the date of the petition as it may specify in the order. Thus, the learned tribunal has rightly exercised its discretion and has awarded interest on the compensation amount, which does not call for interference.

Issue no.6: Whether the appellant-insurance company is liable to indemnify the registered owner?

18.

It has been strenuously argued on behalf of the appellantinsurance company that the driver of the offending vehicle drove the vehicle in the influence of alcohol which is also been revealed during investigation and chargesheet has been submitted against him under section 279/338 of the IPC and section 185 of the Motor Vehicles Act, 1988. Further the injury report of the driver of the offending vehicle (Exhibit C) would show that the driver was under the influence of

alcohol. As such the insurance company cannot be held liable to indemnify the owner of the offending vehicle. 18.1. The appellant-insurance company in its defence has pleaded that the driver on the alleged time of accident drove the vehicle in the influence of alcohol in a rash and negligent manner and as such the insurance company is not liable to indemnify the registered owner. In support of such contention the insurance company has produced the injury report of the driver (Exhibit C). On perusal of injury report of the driver (Exhibit C) it is found that the same indicates that the driver was not under influence of alcohol. Moreover, though charge sheet is submitted under section 279/338 of IPC and section 185 of Motor Vehicles Act, 1988 against the driver of the offending vehicle yet is not substantive evidence. Therefore, the exemption from liability to compensate as sought for on behalf of the appellant-insurance company on such ground does not stand to reason. 19.

In view of the above discussion, the instant appeal being FMAT 5 of 2020 be and the same dismissed on contest. The impugned judgment and award of the learned Tribunal dated 28th January, 2020 passed in MACT Case No. 01 of 2014 is hereby affirmed. No order as to costs.

20.

Let the statutory deposit of Rs. 25,000/- made by the appellantinsurance company in terms of Section 173 of the Motor Vehicles Act, 1988 be refunded to the insurance company upon proper endorsement.

21.

All connected applications, if any, stand disposed of. 22.

Interim order, if any, stands vacated.

23.

Let a copy of this judgment along with trial courts records be sent to the learned Trial Court in accordance with rules for information. 24.

Urgent photostat certified copy of this judgment, if applied, be supplied to the parties upon compliance of necessary legal formalities. (BIVAS PATTANAYAK, J.)