National Insurance Co. Ltd. vs Kamala and Others

S. Manikumar, J.—Aggrieved by the compensation of Rs. 79,000/- with interest at 9% p.a., awarded to the wife, and five daughters,

National Insurance Company Ltd., Madras, has preferred this Appeal. The main objection of the Appellant/ Insurance Company before the claims

tribunal was that there has been a delay of 9 days in preferring the First Information Report. As per the version of the respondents/claimants, the

accident occurred, on 09.06.1997. Whereas Ex. P-1 -FIR has been lodged only, on 17.06.1997. There was no mention about the registration

number in Ex. P-1 - FIR in respect of an auto rickshaw said to have been involved in the accident and therefore, according to the insurance

company, the claim based on the involvement of the vehicle, bearing Registration No. TN 09-2984, is only for the purpose of unjust enrichment.

Inviting the attention of this Court to the incongruity in the pleading of the claimants that the accident occurred while the deceased was walking

on the road with the entry in Ex. P-4 Accident Register issued by the Chengalpattu Government Hospital, Chengalpattu, wherein, the information

furnished to the medical officer-was that the deceased sustained injury due to a fall from a cycle, Mr. Vadivel, learned counsel for the

appellant/Insurance Company submitted that the Tribunal has failed to consider the fact that there was no support or corroboration to the pleadings

and in such circumstances, upon proper analysis of evidence, the claim petition itself ought to have been dismissed.

Learned counsel for the appellant/ Insurance Company also submitted that the Tribunal has failed to consider that Ex. P-7 - Motor Inspector

report, has been issued after a delay of nearly 5 months from the date of alleged occurrence and upon considering the evidence in proper

perspective, the Tribunal ought to have rejected the claim petition, holding that the vehicle bearing Registration No. TN 09-2984, as not involved

in the accident. Except the above, no other submission has been advanced.

Heard the learned counsel appearing for the appellant/Insurance Company and perused the materials available on record.

Material on record discloses that on 09.06.2007, one Mr. Ganapathy Achari, has been admitted in Chengalpattu Government Hospital, for

treatment of injuries. Thereafter, he was referred to Government Hospital, Chennai, on 10.06.1997, for better treatment. In spite of intensive

treatment, he died, on 10.06.1997. A case in Crime No. 660 of 1997 u/s 304(A) has been registered at the instance of the son-in-law of the

deceased. As per the version of the respondents/claimants in the claim petition, the accident occurred, while he was walking on GST Road.

Upon perusal of Ex. P-4 Accident Register issued by Chengalpattu Government Hospital, the Tribunal has observed that as per the information

furnished to the Medical Officer, at the time of admission for treatment, the deceased was alleged to have sustained injury due to fall from a cycle.

The difference in the version of the respondents/claimants in the claim petition and the entry in Ex. P-4, Accident Register issued by the

Government Hospital, Chengalpattu, is the bone of contention of the appellant/Insurance Company, that by implicating the auto rickshaw bearing

registration No. TN 09-2984, coupled with the delay of 9 days in lodging the FIR, the respondents/claimants, have made a false claim.

A perusal of the award shows that the above said vehicle has been seized by the Sub Inspector of Police, Chengalpattu Police Station and sent

to the Motor Vehicle Inspector, Chengalpattu. The respondents/Claimants, were not the persons who admitted the deceased in Government

Hospital, Chengalpattu. The information given by a third party and recorded in Ex. P-4 Accident Register, issued by Chengalpattu Government

Hospital, at the time of admission for treatment alone cannot be the basis for discarding the claim for compensation. After registering the First

Information Report, the police has seized the vehicle bearing Registration No. TN 09-2984 and issued Ex. P-6 Memo to the Motor Vehicle

Inspector to verify as to whether there was any technical defect.

Perusal of the award also shows that the deceased sustained injury in the left side of occipital region. Ex. P-5 postmortem certificate issued by

the Institute of Forensic Medicine, Madras Medical College shows that the death was due to the head injury.

From 09.06.1997 to 17.06.1997, he had taken treatment in the hospital. As rightly observed by the claims tribunal, after sustaining a serious

head injury, he could not have furnished the information regarding the manner of the accident and some one, who had taken him the hospital, might

have furnished the information. A person, who had sustained serious injury in the head, also will not be in a position to note down the registration

number of the vehicle, which hit him.

In The Manager, New India Assurance Company Ltd. Vs. Ammaiyan, Amirtham and Ashok I had an occasion to consider a case, where the

involvement of the vehicle was disputed by the Insurance Company. In the said case, the registration number of the vehicle was not mentioned in

the FIR and it was further contended that the claimants have failed to prove the involvement of the vehicle. Following the decisions in Laxmi

Gontiya and Another Vs. Nand Lal Tahalramani and Others, Raju Vs. Sardar Singh and Another, , this Court held that,

Merely because the complainant has not mentioned the registration number of the vehicle and the name of the driver in the FIR does not mean that

there was no accident.

At this juncture, it is worthwhile to extract the relevant passages from the above referred judgment in Ammaiyan''s case,

In Laxmi Gontiya and Another Vs. Nand Lal Tahalramani and Others, , a Division Bench of the Madhya Pradesh High Court has considered

the issue as to whether the non-mentioning of the Registration Number of the offending vehicle is fatal to the claim. At paragraphs 9 and 10 of the

judgment, the Court held as follows:

9....Merely because the registration number, if not mentioned in the first information report, testimony of the witnesses cannot be discarded as it is

well settled that the first information report is not a substantive piece of evidence. It is not an encyclopaedia. The object of first information report

from the point of view of the informant is to set the criminal law in motion. From the point of view of investigating authorities, it is to obtain

information about the alleged criminal activity so as to able to take suitable steps for tracing and bringing to book the guilty party. In Kusum Kali v.

Bhailal Tiwari, M.A. No. 465 of 1995; decided on 04.11.1996, where the registration number was not mentioned in the first information report,

this Court has observed that mere non-mention of number in the first information report would not be fatal, if otherwise it is established that the

vehicle was involved in the accident.

In motor accident cases where the litigant persons are illiterate, if the Tribunal finds that the evidence led is not sufficient to establish the

involvement of the vehicle which causes the accident, in our opinion, it would be proper for the Tribunal giving a helping hand by directing the party

to lead evidence in accordance with the requirement of law, as it is well settled that a Court or Tribunal is not to act as an umpire watching a battle

of wits between the parties from a distance through telescope. The court is charged with the responsibility of guiding the procedure and apprising

the parties whenever necessary of their duties. As legal procedure is full of traps; if a litigant happens to stumble, the courts should discharge its

responsibility except when this is the result of an attempt to be clever and over-reach the court or to do something inequitable to the other side. In

the latter event the party concerned should be dealt with severely.

In Raju Vs. Sardar Singh and Another, the Madhya Pradesh High Court has held that even in the absence of Registration number in the First

Information Report, if there is clear oral evidence that the vehicle was involved in the accident, compensation has to be awarded.

In the present case, though the appellant-Insurance Company has disputed the involvement of the vehicle, but in Paragraph No. 3 of the

affidavit, they have admitted the involvement of the vehicle insured with them and blamed the deceased for his negligence. Once they have admitted

the involvement of the vehicle in their counter affidavit filed before the Tribunal, it is not open to them to advance any argument contrary to their

pleading. The Insurance Company cannot approbate and reprobate.

The Division Bench of the Madhya Pradesh High Court in Laxmi Gontiya and Another Vs. Nand Lal Tahalramani and Others, has further

observed that, ""In motor accident cases, where the litigant persons are illiterate, if the Tribunal finds that the evidence led is not sufficient to

establish the involvement of the vehicle which causes the accident, in our opinion, it would be proper for the Tribunal giving a helping hand by

directing the party to lead evidence in accordance with the requirement of law, as it is well settled that a Court or Tribunal is not to act as an

umpire watching a battle of wits between the parties from a distance through telescope.

The Sub Inspector of Police, who has Registered the crime, has located the auto rickshaw involved in the accident and thereafter, the claim

petition has been made.

Mere delay in registering of a crime is not fatal. Reference can be made to the decision in Ravi Vs. Badrinarayan and Others, wherein at

paragraph Nos. 20 and 21 are held as follows:

It is well-settled that delay in lodging FIR cannot be a ground to doubt the claimant''s case. Knowing the Indian conditions as they are, we

cannot expect a common man to first rush to the Police Station immediately after an accident. Human nature and family responsibilities occupy the

mind of kith and kin to such an extent that they give more importance to get the victim treated rather than to rush to the Police Station. Under such

circumstances, they are not expected to act mechanically with promptitude in lodging the FIR with the Police. Delay in lodging the FIR thus, cannot

be the ground to deny justice to the victim. In cases of delay, the courts are required to examine the evidence with a closer scrutiny and in doing

so; the contents of the FIR should also be scrutinized more carefully. If court finds that there is no indication of fabrication or it has not been

concocted or engineered to implicate innocent persons then, even if there is a delay in lodging the FIR, the claim case cannot be dismissed merely

on that ground.

The purpose of lodging the FIR in such type of cases is primarily to intimate the police to initiate investigation of criminal offences. Lodging of

FIR certainly proves factum of accident so that the victim is able to lodge a case for compensation but delay in doing so cannot be the main ground

for rejecting the claim petition. In other words, although lodging of FIR is vital in deciding motor accident claim cases, delay in lodging the same

should not be treated as fatal for such proceedings, if claimant has been able to demonstrate satisfactory and cogent reasons for it. There could be

variety of reasons in genuine cases for delayed lodgment of FIR. Unless kith and kin of the victim are able to regain a certain level of tranquility of

mind and are composed to lodge it, even if, there is delay, the same deserves to be condoned. In such circumstances, the authenticity of the FIR

assumes much more significance than delay in lodging thereof supported by cogent reasons.

After considering the cumulative evidence let in by the respondents/claimants, the Claims Tribunal has arrived at a conclusion that the vehicle

bearing Registration No. TN 09-2984 was involved in the accident which resulted in the death of the husband of the first respondent. Mere delay

in lodging a complaint cannot always give rise to a conclusion that a vehicle has been falsely implicated, for the purpose of making a claim for

compensation. Delay would occur, if the injured is not in a such a state of physical condition to note down the number of the vehicle. It depends

upon the speed of the offending vehicle, the impact on the injured, situs of the injury, the physical and mental shock, suffered by him, immediately

after the accident, the time taken by the police, during investigation to find out the vehicle which caused the accident and so on and so forth.

Therefore, merely because, there was a delay in lodging a complaint, it cannot be said that a false claim has been made. In the case on hand, the

police after investigation, has seized the vehicle and lodged a charge sheet. If there was any falsity, the owner of the vehicle, would have challenged

the registration of a false case. No material evidence has been let in to support the contention that implication of the vehicle was for making a false

claim.

In the light of the above, this Court is not inclined to accept the contention of the appellant. The quantum of compensation awarded is very meager.

The finding of the Claims Tribunal holding that the above said vehicle was involved in the accident and consequently fastening the liability on the

appellant/Insurance Company to pay compensation, cannot be said without any basis or proper appreciation of the evidence, Hence, this Civil

Miscellaneous Petition is dismissed. Consequently, connected Miscellaneous Petition is also dismissed. No costs.