ICICI Lombard General Insurance Co. Ltd. vs Uttam Joshi And Others

Hirdesh, J

This miscellaneous appeal under Section 173(1) of the Motor Vehicles Act, 1988 has been filed by the appellant/Insurance Company challenging the impugned award dated 30.07.2021 passed by the Second Additional Member, Motor Accident Claims Tribunal, Datia in Claim Case No. 144/2018, whereby compensation of Rs.8,66,000/- has been awarded in favour of the claimants/respondent Nos. 1 and 2 (herein).

Brief facts of the case are that respondent Nos. 1 and 2 preferred a claim application under Section 166 of the Motor Vehicles Act for grant of compensation on account of the death of Smt. Urmila (hereinafter referred to as 'the deceased'). The deceased died in a road traffic accident dated 04.06.2018 involving a motorcycle. On the fateful day, the said motorcycle was insured with the appellant Insurance Company. As per the claimants/respondent Nos. 1 and 2, the deceased was travelling as a pillion rider on the motorcycle, which was allegedly being driven by respondent No. 3, and suddenly a stray cow came on the road, in an attempt to save from the cow, the deceased fell down and succumbed to the injuries sustained.

Respondent Nos. 3 and 4, as well as the appellant, filed their written statements. The claim application was opposed by the appellant Insurance Company on the ground that the motorcycle was not being driven by respondent No. 3, but was in fact being driven by respondent No. 4, who is the son of the deceased, and that respondent No. 4 did not possess a valid driving licence. It was further contended that respondent No. 3 was falsely projected as the driver by suppressing the name of the actual driver, i.e., respondent No. 4, in connivance with the police personnel and other respondents.

The learned Claims Tribunal framed the issues and, after recording the evidence adduced by both parties, allowed the claim application in favour of the claimants.

Being aggrieved by the impugned award, the Insurance Company has preferred this appeal on the ground that the award passed by the Claims Tribunal is contrary to the facts and material available on record and the settled principles of law. It is further submitted that the Claims Tribunal failed to appreciate that, as per the material available on record, the offending vehicle was being driven by the son of the deceased, namely Jitendra, and subsequently the name of the driver was changed and that of Kailash Joshi was introduced. It is also contended that the FIR was lodged after four days of the accident by Jitendra, wherein, along with merg intimation Ex.P-3, he himself stated the relevant facts. As per the settled legal position, the FIR, being the earliest document in point of time, is expected to be closest to the truth. It is, therefore, a clear case of false implication of the vehicle and driver in collusion with the claimants, driver, and owner for the purpose of claiming compensation. Hence, it is prayed that the impugned award be set aside.

Per contra, learned counsel for the respondents supported the impugned award and prayed for dismissal of the appeal.

Heard learned counsel for the parties and perused the record of the Claims Tribunal.

Before adverting to the merits of the case, it is necessary to note the relationship between the parties.

Claimant No. 1 (respondent No. 1 herein), Uttam Joshi, is the husband of the deceased. Claimant No. 2 (respondent No. 2 herein), Sumit Joshi, is the son of the deceased and claimant No. 1. Respondent No. 4, Jitendra, is also the son of the deceased and claimant No. 1 and the owner of the offending vehicle. Kailash Joshi, the driver of the offending vehicle, is the real brother of the deceased and, therefore, the maternal uncle of respondent Nos. 2 and 4.

As per criminal documents/record Ex.P-3 i.e. merg intimation which was lodged by owner of the offending vehicle/son of the deceased-Jitendra on 05.06.2018 is reproduced as under:-

'सूचना कर्ता जीते पुत्र उत्तम जोशी उम्र 23 वर्ष निवासी à¤-्राम हरपालपुर थाना-à¤"रछा ने मय हमराह à¤...निल जोशी के थाना आकर मौà¤-िक रिपोर्ट किया कि दिनांक 4/6/18 को मैं à¤...पने à¤-ाँव हरपालपुर से à¤...पनी माँ उमिला को à¤...पनी मोटर साइकिल हीरो डीलक्स से रतनà¤-ढ़ माता दर्शन करने के लिए सुबह 9 बजे घर से निकला था व भांडेर से à¤...पने मामा à¤...निल भी à¤...पनी मोटर साइकिल से माता रतनà¤-ढ़ à¤-ए थे। रतनà¤-ढ़ माता दर्शन के बाद वापस घर आते समय भांडेर रोड मिà¤-रा à¤-िरिया मंदिर के पहले मम्मी जो मेरी मोटर साइकिल के पीछे बैठी थी à¤...चानक मोटर साइकिल से नीचे à¤-िर पड़ी जिससे उनके सिर में चोट आने से बेहोश हो à¤-ई थी। फिर मैंने à¤...पने फोन से कैलाश जोशी को बुलाया, उनके साथ मम्मी को भांडेर à¤...स्पताल लाया, डॉक्टर साहब को दिà¤-ाया। डॉक्टर साहब ने मम्मी को मृत होना बताया। फिर मैं मम्मी की लाश को à¤...स्पताल में रà¤-कर रिपोर्ट करने आया हूँ। रिपोर्ट करता हूँ। कार्यवाही की जावे।''

From Ex.P-3 (merg intimation), it is evident that the accident occurred on 04.06.2018. The merg intimation was lodged by Jitendra (respondent No. 4), the owner of the offending vehicle and son of the deceased. In the said merg intimation, it is stated that he himself was driving the motorcycle and that his mother, who was sitting as a pillion rider, suddenly fell down, resulting in fatal injuries. Thereafter, he informed his maternal uncle, Kailash Joshi, and took the deceased to the hospital, where she was declared dead. However, during investigation, the police changed the name of the driver to Kailash Joshi and filed the charge-sheet (Ex.P-1) against him.

The Inquiry Officer, Anurudh Singh Parihar, admitted in his cross-examination that in the merg intimation (Ex.P-3), Jitendra had clearly stated that he himself was driving the motorcycle. He further admitted that neither in the FIR (Ex.P-2) nor in the merg intimation (Ex.P-3) was it mentioned that Kailash Joshi was driving the motorcycle. He failed to give any satisfactory explanation as to how he concluded that Kailash Joshi was the driver and on what basis the charge-sheet was filed against him. This clearly indicates that the investigation was not conducted in a fair and proper manner.

The claimants filed the claim petition relying upon the criminal documents, including Ex.P-2 and Ex.P-3. These documents clearly indicate that Jitendra was driving the offending vehicle. Having relied upon these documents, the claimants cannot be permitted to disregard or contradict their contents.

In Oriental Insurance Co. Ltd. v. Premlata Shukla and others, reported in 2007 AIR SCW 3591, the Hon'ble Supreme Court held as under:

''13. However, the factum of an accident could also be proved from the First Information Report. It is also to be noted that once a part of the contents of the document is admitted in evidence, the party bringing the same on record cannot be permitted to turn round and contend that the other contents contained in the rest part thereof had not been proved. Both the parties have relied thereupon. It was marked as an Exhibit as both the parties intended to rely upon them.

Once a part of it is relied upon by both the parties, the learned Tribunal cannot be said to have committed any illegality in relying upon the other part, irrespective of the contents of the document been proved or not. If the contents have been proved, the question of reliance thereupon only upon a part thereof and not upon the rest, on the technical ground that the same had not been proved in accordance with law, would not arise.

A party objecting to the admissibility of a document must raise its objection at the appropriate time. If the objection is not raised and the document is allowed to be marked and that too at the instance of a party which had proved the same and wherefor consent of the other party has been obtained, the former in our opinion cannot be permitted to turn round and raise a contention that the contents of the documents had not been proved and, thus, should not be relied upon.''

In view of the law laid down by the Hon'ble Supreme Court in Premlata Shukla (supra), once Ex.P-2 and Ex.P-3 were produced and exhibited by the claimants themselves, they cannot be permitted to resile from or contradict the contents thereof. These documents form part of the evidence relied upon by the claimants and are binding upon them.

In the present case, the claimants have attempted to deviate from their own exhibited documents, i.e., Ex.P-2 and Ex.P-3, which is not permissible in law. Further, Ex.P-3 (merg intimation) was lodged by Jitendra (respondent No. 4), who was the best person to explain the circumstances under which the statement was made. However, he was not examined before the Tribunal. Therefore, an adverse inference is liable to be drawn against the claimants.

From the aforesaid discussion, it is manifestly clear that the present case is one of deliberate false implication of the driver with a view to secure compensation from the Insurance Company. Such conduct amounts to an abuse of the process of law and cannot be permitted under any circumstances. The Court is duty-bound to prevent misuse of judicial proceedings and to ensure that compensation is awarded only in genuine cases. Any attempt to unjustly burden the Insurance Company by setting up a false claim deserves to be deprecated in the strongest terms.

The claim petition was filed under Section 166 of the Motor Vehicles Act, wherein it is incumbent upon the claimants to prove that the accident occurred due to the rash and negligent driving of the offending vehicle. However, in the present case, this essential ingredient has not been established, and the case appears to have been set up only to claim compensation by falsely implicating the vehicle and driver.

In view of the aforesaid discussion and in the considered opinion of this Court, it has not been established that Kailash Joshi was driving the offending vehicle or that the accident occurred due to his rash and negligent driving. The learned Claims Tribunal, therefore, erred in fastening liability upon the Insurance Company to pay compensation. Accordingly, the appeal i s allowed, and the appellant Insurance Company is exonerated from its liability under the impugned award.

It is further directed that if the claimants have withdrawn any amount pursuant to the impugned award, the same shall be refunded to the Insurance Company within a period of two months from the date of receipt of a certified copy of this order. In case of failure to do so, the Insurance Company shall be at liberty to recover the said amount from the claimants in accordance with law, along with interest as awarded by the Claims Tribunal.