MAC App. No. 19 of 2015. Case: The Branch Manager, ICICI Lombard General Insurance Company Ltd. and Ors. Vs Dichen Bhutia and Ors.. Sikkim High Court
| Case Number | MAC App. No. 19 of 2015 |
| Counsel | For Appellant: Thupden G. Bhutia, Advocate and For Respondents: Ajay Rathi and Phurba Diki Sherpa, Advocates |
| Judges | Meenakshi Madan Rai, J. |
| Issue | Code of Criminal Procedure, 1973 (CrPC) - Section 174; Indian Penal Code 1860, (IPC) - Sections 279, 304A; Motor Vehicles Act, 1988 - Section 166 |
| Judgement Date | April 20, 2016 |
| Court | Sikkim High Court |
Judgment:
Meenakshi Madan Rai, J.
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This Appeal is directed against the impugned Judgment and Award dated 28-05-2015 passed by the Learned Member, Motor Accidents Claims Tribunal, North Sikkim at Mangan (for short "the Claims Tribunal"), in MACT Case No. 19 of 2014, directing the Appellant/Insurer to pay Rs. 64,32,400/- (Rupees sixty four lakhs thirty two thousand and four hundred) only, with interest @ 10% per annum on the said sum to the Claimants from the date of filing of the Claim Petition, i.e., 12-09-2014, till full and final payment.
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The primary thrust of the arguments advanced by Learned Counsel for the Appellants is that the Claim before the Claims Tribunal does not stand as the accident, the onus of which lies on the Claimants to prove, did not occur either due to rash or negligent driving which is a sine qua non for a Claim made under Section 166 of the Motor Vehicles Act, 1988 (for short "the Act of 1988"), but is attributable to natural calamity, an Act of God, since it occurred due to a landslide which crushed the occupants and the vehicle. That the contents of the FIR, Exhibit 2, or the Final Report, both, relied on by the Respondents do not indicate any element of rashness or negligence on the part of the deceased driver as evident from the fact that the case was registered only under Section 174 of the Code of Criminal Procedure, 1973 (for short "Cr.P.C.") and not under Section 279 of the Indian Penal Code, 1860 (for short "IPC"), hence the Respondents cannot base their Claim on the principle of res ipsa loquitur, which is not applicable in the present facts and circumstances. Besides which, it is urged that the compensation awarded is not just and the interest of 10% is exorbitant, the impugned Judgment and Award be set aside. Learned Counsel has placed reliance on the decision of the Hon'ble Apex Court in Oriental Insurance Company Limited vs. Premlata Shukla and Others (2007) 13 SC 476.
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Per contra, it was the contention of Learned Counsel for the Respondents No. 1, 2 and 3 that the facts at the site of the accident unequivocally establish that the driver of the vehicle proceeded to drive through the landslide despite being aware that the area was prone to falling boulders, without application of mind which resulted in the fatal accident, killing the victim, the driver and a third occupant. The act of the driver was undoubtedly rash and negligent and not the act of a prudent person who would have considered the risks involved in driving through the...
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