JUDGMENT
A. K. Patnaik, J.
1. This is an appeal against the judgment and award dated 6.1.1986 of the Member, Motor Accidents Claims Tribunal, Kamrup, Gauhati, in Motor Accident Claim Case No. 1(K) of 1979.
2. The brief facts are that respondent No. 1 filed the aforesaid motor accident claim case before the Motor Accidents Claims Tribunal, Kamrup, Gauhati, claiming compensation of Rs. 1,50,000/- from the appellant for an accident that took place on 14.7.1978 between jeep No. WBB 748 owned by the appellant and the motor cycle No. ASU 9400 driven by the respondent No. 1. The aforesaid claim of the respondent No. 1 was contested by the appellant who in his written statement filed before the Motor Accidents Claims Tribunal, Kamrup, Gauhati pleaded, inter alia, that the vehicle of the appellant involved in the accident was off the road for the purpose of repairs and was not used by the appellant and one Pradip Chandra Kalita, who was not an employee of the appellant and was not permitted by the appellant to drive the said vehicle, took away the vehicle from the garage on the date of the accident and for such act of a person who was not an employee of the appellant, the appellant is not liable. It was further pleaded in the written statement that the vehicle was duly insured under Motor Vehicles Act, 1939, with the New India Assurance Co. Ltd., Gauhati Branch and as such, liability for compensation, if any, would be borne by the said insurer and not by the appellant. On the basis of the pleadings between two parties, the Tribunal framed five issues, examined witnesses on behalf of the respondent No. 1 and the appellant and by the impugned judgment and award dated 6.1.1986 awarded a compensation of Rs. 50,000/- in favour of the respondent No. 1.
3. At the hearing of the appeal, Mr. D.K. Talukdar, learned counsel for the appellant, submitted since in the written statements filed by the appellant before the Tribunal a specific plea was taken that the vehicle was insured with the New India Assurance Co. Ltd., the said insurer should have been impleaded as party by the Tribunal but since this has not been done by the Tribunal, the impugned judgment and award should be set aside and the case remanded to the Tribunal with a direction to implead the insurer and decided the matter afresh. In my opinion, this course of action suggested by Mr. Talukdar will delay the final adjudication of the claim of the respondent No. 1 unnecessarily and as New India Assurance Co. Ltd. has been impleaded as respondent No. 2 in this appeal, the question as to whether the vehicle was insured with the insurer and the said insurer was liable for the compensation to be paid to the respondent No. 1 can be decided in this appeal, if necessary, by taking additional evidence. Mr. Talukdar submitted that the vehicle was, in fact, insured on the date when the accident took place and the insurance cover relating to the vehicle was seized by the police during the investigation of the accident and it is for this reason that the appellant could not produce the insurance cover before the Tribunal. He further submitted that the fact that the insurance cover was seized by the police along with other papers relating to the vehicle has been stated by G. Patowary, the police officer who investigated into the accident case, who was examined as DW 1 on behalf of the appellant before the Tribunal. On a reading of the statement of DW 1, however, I find that without referring to any records of the investigation and purely on the basis of his memory, he has made the following statement in course of his examination-in-chief:
As far as I remember the insurance covers of the vehicle concerned were also seized and they were found to be up-to-date. In this case, I remember that the CJM has also accepted final report submitted by me and there was no GR case. I do not admit that the insurance papers which were seized along with other documents in this case were not returned to the parties along with other documents may be because the papers were lost or misplaced.
Since DW 1 made this statement purely on the basis of his memory and without reference to the records of the investigation, the learned Tribunal did not give any credence to the statement of DW 1 particularly when the insurance cover said to have been seized was traced neither with the appellant nor with the police station or the court.
4. This being the state of evidence relating to insurance cover of the vehicle before the Tribunal, this court passed orders on 12.7.1994 directing the appellant to produce the insurance policy of the vehicle for the period prior to and subsequent to the period during which the accident took place for the purpose of finding out if the vehicle was being insured with the respondent No. 2 from time to time. Pursuant to the said order dated 12.7.1994, the appellant filed copies of the insurance policies in respect of the vehicle No. WBB 748 for different periods from 25.7.1978 to 24.7.1986 showing that the vehicle was insured with the respondent No. 2, the New India Assurance Co. Ltd., but no copy of the insurance policy was filed for any period prior to 14.7.1978, the date of the accident. However, as the copies of the insurance cover produced by the appellant for the period from 25.7.1978 to 24.7.1986 indicated that the insurance policy was issued at Gauhati, by order dated 16.8.1994, this court directed the counsel for the respondent No. 2 to obtain instruction and to file affidavit on behalf of the respondent No. 2 as to whether any policy has been issued in respect of the vehicle No. WBB 748 belonging to the appellant for the period prior to 25.7.1978 by the Gauhati office of the respondent No. 2. Pursuant to the said order, an affidavit dated 8.9.1994 was filed by the Manager, in-charge of the respondent No. 2, North Eastern Region, GS Road, Gauhati, that despite search and efforts, it was not possible to locate any policy of insurance issued in favour of the appellant in respect of the vehicle No. WBB 748 involved in the accident on 14.7.1978 for the period prior to 25.7.1978. Mr. Chowdhury, the learned counsel for the respondent No. 2, submitted that the appellant firm has not produced evidence such as its books of accounts to show that premium was paid to the respondent No. 2 for insurance of the vehicle prior to 25.7.1978, the appellant’s version that the vehicle was insured prior to 25.7.1978 should be disbelieved. He also submitted that the appellant could have produced the seizure list to show that the insurance cover of the vehicle was seized as deposed by DW 1. I find a lot of force in the said submission of Mr. Chowdhury and I am of the considered opinion that the appellant has miserably failed to prove that the vehicle No. WBB 748 was insured with the respondent No. 2 for any period prior to 25.7.1978 and, in particular, on 14.7.1978 when the said vehicle met with the accident. The first contention of Mr. Talukdar, therefore, has no merit and is accordingly rejected.
5. It was next contended by Mr. D.K. Talukdar, learned counsel for the appellant, that the respondent No. 1 was guilty of contributory negligence for the accident and, therefore, Claims Tribunal should have apportioned part of the blame for the accident to the respondent No. 1 and determined the liability for compensation accordingly. Mr. Talukdar took me through the evidence of Baikhunta Nath Das, DW 2, as well as the evidence of the respondent No. 1 himself examined as P.W. 4 to show that the impact of the accident was on the left hand side bumper of the jeep and submitted that this must have happened because the respondent No. 1 was riding the motor cycle on the right side of the road and the jeep of the appellant was on the left side of the road. According to Mr. Talukdar, therefore, the evidence of DW 2 who was an eyewitness to the accident as well as the evidence of the claimant himself would show that the accident took place on account of the negligence of the claimant. Mr. A.S. Bhattacharjee, learned counsel for the respondent No. 1-claimant, in reply submitted that there is no evidence of any contributory negligence of the claimant for the accident. I have carefully read the evidence of the eyewitnesses to the accident examined on behalf of the appellant as well as the respondent No. 1 and I am inclined to agree with Mr. Bhattacharjee. It appears from the evidence of all the eyewitnesses to the accident that the accident took place at the junction where the M.S. Road meets the M.G. Road at Gauhati. Pradip Kumar Jain, P.W. 1, who was examined on behalf of the claimant as an eyewitness to the accident has stated that the area in which the accident took place is a crowded one and he saw that the driver of the jeep did not give any signal before he took a turn by the road and because of this negligence on the part of the driver the accident occurred. P.W. 4, the claimant himself, has stated that the jeep was driven in a high speed rashly, roughly and without horn and it hit his motor bike on the M.G. Road. DW 2, the eyewitness of the motor accident, examined on behalf of the appellant, has stated that the accident occurred on the junction point of M.G. Road and M.S. Road and the driver of the jeep took a turn from the M.G. Road to M.S. Road and the motor bike then hit the left hand side of the jeep near the driver seat when the jeep just entered the M.S. Road. There is nothing in the evidence of DW 1 which indicated that the respondent No. 1 was riding the motor bike on right side of the road as suggested by Mr. Talukdar. On the other hand, all the three eyewitnesses examined have stated that the accident took place when the jeep belonging to the appellant turned into the M.S. Road from M.G. Road. At the turning, the driver of the jeep was required to be careful and should have signalled andn blown the horn before turning. I, therefore, agree with the findings of the Tribunal that the accident took place due to the negligence of the driver of the jeep who negotiated a crowded road turn without blowing the horn and without indicating any signal and it is difficult to hold on the evidence on record that the respondent No. 1 was responsible for contributory negligence in respect of the accident. The second contention of Mr. Talukdar, therefore, also fails.
6. The third contention of Mr. Talukdar is that the appellant’s main plea in the written statement before the Tribunal was that Pradip Chandra Kalita who was chiving the jeep was not an employee of the appellant and that he had taken out the vehicle which was off road and kept in the garage for repairs without the knowledge and permission of the appellant. He argued that this plea of the appellant was substantiated by the evidence of Jamini Bora, DW 1, who was an employee of the appellant. DW 1 stated that he met the driver of the jeep at the police station soon after the accident and he found that he was not the driver of the appellant firm and had never been employed as such by the appellant firm. DW 1 has also stated that the said driver was never permitted on that particular day by anyone of the firm to drive the jeep belonging to the firm and that the jeep had been kept in the motor garage at Kumarpara within the compound of the residence of the owner of the appellant firm and was under repair for about 15 to 20 days. Mr. Talukdar submitted that this evidence of DW 1 has not been considered and dealt with by the Tribunal in the impugned judgment and award. According to Mr. Talukdar, if this evidence of DW 1 is accepted and it is held that the driver who was driving the vehicle at the time of the accident was not an employee or servant of the appellant, there would be no vicarious liability of the appellant for the negligence of the driver and the impugned judgment and award for compensation against the appellant will have to be set aside.
7. It is difficult to accept this contention of Mr. D.K. Talukdar. Ordinarily, the Tribunal or the court will presume that the person who was actually driving a private or commercial vehicle at the time of the accident was a servant of the owner of the vehicle. Alternatively, there is a presumption that the person who was driving the vehicle at the time of the accident, where he was not the servant of the owner, was driving for the purpose of the owner and was hence his agent. This presumption has to be rebutted by the owner by all evidence in his possession. John G. Fleming in his book The Law of Torts, 5th Edn., at page 375 under the Chapter ‘Vicarious Liability’ has explained this presumption thus:
Also relevant in the present context is the procedural device of treating car ownership as prima facie evidence, fit to go to the jury, that the driver was the owner’s servant or agent acting in the course of employment or (for the purpose of the extended doctrine of agency just canvassed) at least partially for the owner’s purposes. This so-called presumption, applicable to private and commercial vehicles alike, does not, however, go so far as to change the legal burden of proof. It raises only an inference, but one that the owner must seek to dispel if anxious to escape an almost certain adverse verdict.
The appellant is the owner of the jeep and, therefore, he had to dispel the strong inference that Pradip Chandra Kalita who was driving the jeep at the time of the accident was not an employee of the appellant or was not driving the jeep for the purpose f the appellant. DW 1 who was an employee of the appellant has stated that Pradip Chandra Kalita was not a driver or employee of the appellant firm but the appellant has not produced documents, such as the salary register or muster roll of the appellant firm to show that the said Pradip Chandra Kalita was not an employee of the appellant. Assuming that Pradip Ghandra Kalita was not an employee of the appellant, he could still be driving the vehicle at the time of the accident for the purpose of the appellant and it was, only the owner of the appellant firm and not his employee who could have stated before the Tribunal that at the time of the accident Pradip Chandra Kalita was not driving the vehicle for any purpose of the appellant, but the owner of the appellant firm has chosen not to examine himself before the Tribunal. Thus, the appellant has not been able to dispel the strong inference that Pradip Chandra Kalita who was driving the jeep and caused the accident was an employee or an agent of the appellant and for whose negligence the appellant was vicariously liable for compensation to the respondent No. 1.
8. It was finally contended by Mr. D.K. Talukdar that the award of a sum of Rs. 50,000/- as compensation by the Tribunal for the injury for two teeth of the respondent No. 1 was unreasonable and excessive. Mr. Talukdar stated that pursuant to the interim orders passed by this court in this appeal, the appellant has already paid Rs. 20,000/- in two equal instalments of Rs. 10,000/- and considering the minimal injury suffered by the respondent No. 1, this court should limit the compensation to Rs. 20,000/- in case it takes the view that the liability for compensation was that of the appellant. Mr. A.S. Bhattacharjee, learned counsel for the respondent No. 1, however, submitted that the respondent No. 1 had laimed a compensation of Rs. 1,50,000/-for mental, physical, social and financial suffering besides expenses for medical treatment both at Gauhati and Bombay and for the loss of two front teeth at the young age of 31 and that the compensation of Rs. 50,000/- awarded by the Tribunal, therefore, is on the lower side and not on the higher side. On a perusal of the impugned judgment and award dated 6.1.1986, I find that the Tribunal has awarded a lump sum amount of Rs. 50,000/- as compensation to be paid by the appellant to the respondent No. 1 but has not indicated in the impugned judgment and award the exact basis for the estimate of Rs. 50,000/- as compensation.
9. On scanning the evidence, I find that P.W. 1, eyewitness to the accident, has stated that in the accident the respondent No. 1 lost his two front teeth of the upper jaw of the mouth and the two teeth were left on the road when the accident took place and the respondent No. 1 was taken to G.M.C. Hospital in a rickshaw. Dr. B.R. Bhuyan, P.W. 2, Associate Professor and Head of the Dentistry Department, Gauhati Medical College, who treated the respondent No. 1 at the OPD, has issued a certificate marked as Exh. 1 certifying that he attended to the respondent No. 1 on 14.7.1978 at the OPD and he found two bleeding sockets in the right upper jaw and that the respondent No. 1 had lost two teeth due to the accident. P.W. 4, respondent himself, has stated that after his treatment at Gauhati Medical College, he shifted to his residence where a doctor attended to him for treatment for about 21/2 months and that he had some treatment at Bombay subsequently and he had suffered mental agony and pain and also loss of business and occasionally he gets swelling on the right eye and pain in the left leg. P.W. 3, who is a motor mechanic and owns a workshop in the name and style ‘Uttam Motor Works’, has stated that he Yezdi motor cycle bearing No. ASU 9400 belonging to the respondent No. 1 was repaired by him in his workshop with spare parts supplied by the respondent No. 1 and his estimate dated 22.8.1978 has been exhibited and marked as Exh. 2 before the Tribunal. On the basis of such oral and documentary evidence on record, the respondent No. 1 was thus entitled to compensation for (a) medical treatment of his injury at Gauhati and Bombay, (b) repair of his motor bike, (c) loss of his business and income for 21/2 months, (d) mental agony and pain and finally (e) loss of pleasurable use of two natural teeth at a young age of 31 years for the rest of his life. A sum of Rs. 50,000/- as lump sum compensation for all these items of loss or damages suffered by the respondent No. 1 annot, in my opinion, be considered as unreasonable and excessive and the last attack of the appellant on the impugned judgment and award also fails.
10. This appeal, therefore, has no merits and is accordingly dismissed and the appellant is directed to pay the compensation, interest and costs as awarded by the Tribunal under the impugned judgment and award less the amounts already paid within a period of three months from today. But considering the facts and circumstances of the case, it is ordered that the parties shall bear their respective costs of this appeal.