IN THE GAUHATI HIGH COURT (The High Court of Assam: Nagaland: Meghalaya: Manipur:Tripura: Mizoram & Arunachal Pradesh) (Aizawl Bench) -Versus-

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1 1 IN THE GAUHATI HIGH COURT (The High Court of Assam: Nagaland: Meghalaya: Manipur:Tripura: Mizoram & Arunachal Pradesh) (Aizawl Bench) MAC Appeal No. 11 of 2011 Union of India, Represented by 107 RCC (GREF) Phunchawng, Aizawl..Appellant/opposite party -Versus- Pi. Lalbiakzami, W/o Lallianthanga(L) R/o Rangvamual, Mizoram. Respondent/claimant BEFORE HON BLE MR. JUSTICE P K MUSAHARY For the Appellant : Mr. S.N.Meitei, Advocate. For the respondent : Mr. R.Thangkanglova, Advocate Date of hearing : Date of Judgment : JUDGEMENT & ORDER (CAV) This appeal has been preferred against the judgment and order dated passed by the learned Member, Motor Accident Claims Tribunal (MACT), Aizawl District, Aizawl, Mizoram in MACT case No. 52 of 2009 awarding compensation of Rs.4,36,500/- with simple 9% per annum from the date

2 2 of filing of the claim petition till realization from the opposite party/appellant in favour of the claimant. 2. The claim petition was filed by the respondent on claiming Rs.7.5 lacs as compensation under Section 166 of the Motor Vehicles Act, 1988 ( in short M.V.Act) stating inter alia that her husband Pu. Lallianthanga, aged about 20 years was killed in a vehicular accident that took place on at Rangvamual Farm peng, Aizawl at about 9 a.m. involving one truck bearing registration No.R/N 00ZE belonging to BRTF which was driven by one D. Prasannan. The claimant alleged that the incident took place due to negligence of the BRTF driver of the appellant/ opposite party. As per the claimant her deceased husband was a skilled labour by profession earning Rs.3000/- per month. The appellant/opposite party contested the claim by filing written statement seeking dismissal of the claim petition on the grounds that it is not maintainable in its present form and style and there is no cause of action or justification for filing the claim petition and it is bad for mis-joinder /non-joinder of parties and the appellant/opposite party has no liability to pay any compensation. 3. In order to establish her claim the claimant examined herself as witness No.1 and two other witnesses namely Sri Ladinthara and K.Lalthanfala (O.C.Vaivakawn) as witness No.2 and 3 respectively. On the basis of the oral and documentary evidence on record the learned tribunal passed the impugned judgment and order awarding the compensation as stated above. 4. I have heard Mr. S.N.Meitei learned counsel for the appellant and Mr. R.Thangkanglova, learned counsel for the sole respondent/claimant. 5. Mr. Meitei, learned counsel for the appellant submits that although the claim was filed under Section 166 of the M.V.Act, 1988, the claimant failed to adduce evidence of fault and

3 3 negligence of the driver. The claimant is bound to prove fault and negligence of the driver failing which no compensation can be awarded against the driver or the insurance-company. In this regard he relies on the case of Oriental Insurance Company Ltd. vs- Premlata Shukla reported in 2007(2) TAC 11, Oriental Insurance Company Ltd. vs- Meena Variyal & ors reported in (2007)5 SCC 428 and New India Assurance Co.Ltd.-vs-Kailiana & another reported in 2003 (1) TAC 177 (Gau). Secondly he submits that the vehicle in question which belonged to the BRTF was not involved in the motor accident and the death of the claimant s husband is not due to accident cause by the truck (vehicle) concerned. It is the case of the appellant/opposite party that the accident took place when the deceased was travelling in a bike bearing registration No. MZ-01 C 0318 without any involvement of the truck. It is also the case of the appellant that the learned tribunal wrongly applied /imported the principle of res-ipsa loquitor holding the appellant liable to pay the compensation in the light of the decision of the Apex Court in Syad Akbar vs- State of Karnataka, AIR 1979 SC Last of all it was also submitted that the deceased was a pillion rider and the main rider of the bike who is still alive was not examined as a witness by the claimant. He was not even impleaded as a party. The respondent instituted a court of inquiry to find out the veracity of the involvement and fault of the driver of the vehicle and it was found in the report of the officer who conducted the enquiry that the truck was not at all involved in the alleged incident and there was no fault on the part of its driver. This being the factual and legal position, as submitted by Mr. Meitei, learned counsel for the appellant the claim petition should have been dismissed by the learned Tribunal. 6. Mr. R.Thangkanglova, learned counsel for the respondent-claimant submits that the accident took place due to negligence of the appellant s driver inasmuch as he was driving the truck (vehicle) without leaving any space for the bike to pass

4 4 through. Relying on the decision of Madras High Court in the State of Tamil Nadu & another vs- P K Anandan reported in AIR 1982 Madras 126, it is submitted by him that the learned tribunal rightly held the appellant liable to pay the compensation and the impugned judgment and order is not liable to be quashed and set aside. 7. On consideration of the pleadings of the parties it is found that there is no dispute regarding the death of the claimant s husband in an accident. It is not found on record that the deceased was a pillion rider and the main rider of the bike is/was still alive. To accept the submission of the appellant in this regard, this fact was not brought on record in the evidence of the witnesses. It is not found in the police report also. It was, of course, not disputed that it was the husband of the claimant who was found dead at the place of accident. In my considered view the question as to whether the deceased was a pillion rider or a main rider of the bike is not at all relevant. The relevant questions for decision are (i) whether it is mandatorily required to prove by the claimant that the accident took place due to fault, negligence or rush driving of the driver of the accident vehicle (truck) and (ii) whether the appellant s vehicle was involved in the motor vehicle accident in question. 8. It is an admitted position that the claim petition was filed under Section 166 of the M.V.Act. The compensation can be claimed under Section 140 or under Section 163 A or under Section 166 of the M.V.Act. Section 140 provides for liability to pay compensation in certain cases on the principle of no fault liability. Present case is not covered under the provision of the said Section. Section 163 A is a special provision for payment of compensation on structured formula basis. The claim made under Sub-Section (i) of Section 163 A does not require pleading or evidence that the death or permanent disablement in respect of which the claim has been made was due to any wrongful act or neglect or default of the

5 5 owner of the vehicle concerned. The victim of the accident can file claim petition either under Section 163 A or under section 166 of the M.V.Act but once the claimant files the claim petition before a tribunal under Section 166, he is cast with the burden of establishing or proving a case of negligence of the driver or owner of the vehicle concerned. The claimant is, therefore, mandatorily required to prove the fault or negligence for being awarded the compensation. In the present case, since the claim was filed under Section 166, there is no escape for the respondent-claimant to establish the fault or negligence of the driver or owner of the vehicle involved in the accident. This position of law has been settled in Meena Variyal s case (supra). Below I may quote few relevant lines from paragraph 27 of the said case:.therefore, the victim of an accident or his dependants have an option either to proceed under Section 166 of the Act or under Section 163 A of the Act. Once they approach the Tribunal under Section 166 of the Act they have necessarily to take upon themselves the burden of establishing the negligence of the driver or owner of the vehicle concerned. But if they proceed under Section 163 A of the Act, the compensation will be awarded in terms of schedule without calling upon the victim or his dependants to establish any negligence or default on the part of the owner of the vehicle or the driver of the vehicle. 9. Now it can be examined whether the respondentclaimant has been able to discharge the burden of proof or default or negligence of the driver. For coming to a conclusion in this regard I would like to refer myself to and appreciate the evidence on record. 10. Admitted it is, that no eye witness to the accident in question has been examined by the claimant. Claimant s witness No.3 Sri K. Lalthanfala was the In-Charge of Vaivakawn Police Station at the relevant point of time. According to him on receipt

6 6 of a telephonic information he entrusted one S.I., K. Malsawma to investigate the case. He visited the place of occurrence/accident and submitted a report but unfortunately the said S.I.died. The report of the said S.I. dated has been proved and exhibited as Ext.D-1. The said witness No.3 did not enquire the case but in his cross-examination he admitted that the bike rider hit at the rear tyre of the truck. He also admitted that at the place of accident, there was sufficient space for passing the vehicle each other. He further admitted that it was not even in his knowledge as to whether the bike rider drove properly or not. The evidence of claimant s witness No.3 is to be read with the documentary evidence, i.e. police report (Ext.D-1) which reads as under: POLICE REPORT Ref: Vaivakawn-OP GDE No.26 dt This is to certify that on a telephonic information was received from Rangvamual stating that there was road traffic accident at Rangvamual. Hence self with party rushed to the spot to conduct necessary enquiry. On reaching the place of occurance all necessary enquiry was conducted at it was found that one truck B/R No.00ZE68569 driven by one Prasanan belonging to 107 RCC which was proceeding towards Aizawl was hit/dashed by one Bike (Pulsar) B/R No.MZ- 01 C driven by one Nothangliana of Rangvamual resulting which the said Bike rider died at the spot. Hence inquest over the dead body was conducted and forwarded to Medical Officer, Civil Hospital Aizawl for conducting Post Mortem Examination. On careful spot enquiry it was found that the cause of accident was found due to rash and negligent driving on the part of the Bike rider. However since death occurs due to this incident

7 7 Bawngkawn Police Station Unnatural Death case No.10/07 Dt u/s 174 CrPc was registered for finalization of the case. Also the truck driver was forwarded to Medical Officer for medical examination to ascertain whether he consume alcohol or not, and the Medical Officer report was found negative. The case will come to an end when the investigation officer submits his final report. Sd/ Illegible Officer In-Charge Vaivakawn Police Out Post Aizawl 11. From the above police report it has been established that it was the bike rider who was driving the bike in a rash and negligent manner and as a result, he hit at the rear tyre of the truck and skided off the road. Further on the face of the evidence of the O.C. that there was sufficient space for passing vehicle at the place of accident, the accident took place while the bike rider himself was negligent in driving his own bike at the curved road. Further evidence of negligent driving by the deceased bike rider is found from the final police report dated (Ext.D-2) submitted by the O.C. Vaivakawn Police Out Post, Aizawl. Relevant portion of the said report is quoted hereunder: on sudden meeting with the said tank lorry the said bike rider had grab on his front brake resulting which the said bike had overturned and resulting which the bike rider spin off from his bike and falling down to the main road, causing injuries to several parts of his body and resulting to his death at the spot During the enquiry no foul play was suspected over his death but purely accidental one. I, therefore, beg to return the case in F.R. as no foul play is found in the cause of his death

8 8 12. As regards the other question as to whether the truck in question was involved in the accident sufficient materials and evidence are not found. As discussed earlier it was not a head-oncollision. No contributory negligence or fault on the part of the truck driver has been found or proved. No evidence has been led to that effect. The witness of the claimant tried to project that it was solely due to fault or negligence of the truck driver which led to the accident in question but this is not the case. The principle of res ipsa locquitor helps the court in coming to a conclusion that the manner in which the accident took place clearly depicts a case of negligence and fault on the part of the deceased bike rider. I do not find it necessary and to refer to and rely on the departmental enquiry and report thereon. I desist from discussing the matter on the basis of the enquiry report of the appellant/opposite party. 13. In regard to case law relied upon by the learned counsel for the respondent-claimant I would respectfully say that that was a case of collision between the lorry and bus and the claim was made under the provision of the old M.V.Act. I am of the considered view that the decision in the said case has no application to the present case. 14. In the above back drop of the case and in view of absence of cogent and reliable evidence proving the fault and negligence of the truck driver and established position of law, I differ from the conclusion arrived at by the learned tribunal and accordingly, I have to quash and set aside the impugned judgment and order awarding compensation. It is ordered accordingly. The appeal succeeds. No order as to costs. 15. Return the LCRs. JUDGE Nandi

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10 10 IN THE GAUHATI HIGH COURT (The High Court of Assam: Nagaland: Meghalaya: Manipur:Tripura: Mizoram & Arunachal Pradesh) (Aizawl Bench) MAC Appeal No. 11 of 2011 Union of India.Appellant/opposite party -Versus- Pi. Lalbiakzami, W/o Lallianthanga(L) Respondent/claimant BEFORE HON BLE MR. JUSTICE P K MUSAHARY FR/NFR JUDGE

11 11 ASSISTANT REGISTRAR (JUDL) Necessary steps may kindly be taken for listing the following case at 11.A.M. to-day ( ) before the court of His Lordship, Hon ble Mr. Justice P K Musahary, for pronouncement of judgment. MC (EP) No. 02(AP) of 2012 IN Election Petition No. 01(AP)/2009. Shri Markio Tado, MLA. -Versus-.Applicant/Returned Candidate Shri Takam Sorang Respondent/Election Petitioner BEFORE HON BLE MR. JUSTICE P K MUSAHARY For the Applicant : Mr. M. Pertin, Advocate. For the respondent : Mr. B. L. Singh, Advocate. Date of hearing : Date of Judgment : By order etc. (P.S.to Hon ble Mr.Justice P.K.Musahary)