National Insurance Company Limited vs Santosh and Others

By this appeal filed u/s 173 of the Motor Vehicles Act, the appellant-Insurance Company has assailed the award of claim granted by the Motor Accident Claims Tribunal to the respondent in a petition filed by the respondent u/s 166 of the Motor Vehicle Act claiming compensation in an accident allegedly held on 29.01.2004 with a motor cycle bearing No. M.P.-11-B.C.-0452 in which the respondent sustained fracture in his left leg as well as the injuries on other part of the body. According to the allegations, the respondent who suffered permanent disability, the appellant was made a party in that petition as insurer of the vehicle. The owner and driver did not contest the proceedings and were proceeded ex-parte. However, the claim was contested by the appellant.

The Motor Accident Claims Tribunal awarded a sum of Rs. 1,20,000/- in favour of the respondent and against the appellant as well as respondents no. 1 and 2, who were arrayed as party in that accident claim because the liability was fixed jointly and severally. However, the award was met by the appellant the insurer of the offending vehicle. Even though the accident is dated 29.01.2004, the claim was filed by the respondent on 16.11.2004, i.e. after a period of 11 months. In the accident claim petition, the -number of the offending vehicle was not mentioned. Infact the-particulars of the FIR was also not mentioned.

The appellant contested the proceedings in their written statement. The appellant denied the liability as well as the involvement of the offending vehicle. It was submitted that

The Accident Claims Tribunal on the pleadings of the parties, framed the following issues:-

Issue no. 1 was decided as having been proved by the claimant i.e. the respondent, based upon the statement made by the driver of the vehicle in criminal proceedings which were initiated against him and the statement made by the respondent and one Rakesh. One of the reason given by the Tribunal was that since the owner and driver of the vehicle has not contested the claim and rather admitted the involvement of the vehicle in their defence in Criminal Court, the involvement of the vehicle in this accident was established and therefore, the appellant being insurer of the said vehicle they were liable to compensate the respondent/ claimant. The relevant observations made by the Tribunal while awarding the claim in favour of the respondent and against the appellant with respect to issue no. 1 which is based upon awarding compensation is reproduced hereunder:-

Thus, the Tribunal clearly overlooked the testimony of the witnesses produced on behalf of the appellant by holding that since the driver had admitted his liability in the criminal prosecution, the testimony of the witnesses produced by the appellant was of no consequence.

The Tribunal completely over looked the plea taken by the appellant that whole case was concocted. It was a collusion matter in which the owner and driver mixed up with the respondent for the purpose of fastening the liability on the Insurance Company even though, the offending vehicle was not involved in the accident and it is for that reason neither the number of the vehicle was mentioned by the claimant in any of the medical document nor they lodged any FIR of the accident. The Tribunal has also failed to appreciate that the FIR was belated by atleast 266 days. It was against one Feroz, the driver who was neighbour of the claimant and as such possibility of collusion could not have been ruled out.

The appellant has submitted that First Information Report of the alleged incident has been lodged almost after 266 days of the alleged incident and respondent nos. 2 and 3 who are known to respondent no. 1 and are residing in the same area have colluded to fasten the liability on the appellant for the accident which was caused otherwise, which is evident from the fact that alleged accident is dated 29.01.2004 and on 29.01.2004, the applicant respondent no. 1 goes to the hospital from where intimation is given to the police in which it has only been mentioned that respondent No. 1 came to the hospital in an accident involving motorcycle and has suffered fracture of tibia fibula bone. Meaning thereby, that immediately after the accident intimation was given to the police and if insured vehicle had caused the accident then there was no reason for the police not to have registered offence immediately. Even in report there is no disclosure of number of the offending vehicle.

It is also the case of the appellant that:-

(1) alleged accident being dated 29/01/2004, offence was registered on 21.10.2004 and after completing all the formalities final challan was also filed on 31/10/2004. On 01/11/2004 driver appears before the Criminal Court accepts its guilt and conveniently proceeded ex-parte before the learned Tribunal, the conduct of the driver further confirms that accident which was caused by some unknown motorcycle was converted into an accident in which duly insured motorcycle has been implicated. Alleged eye witness if had seen the accident then there was no reason for him not to have disclosed the number of the offending vehicle before the learned Tribunal.

(2) The appellant also proved that driver driving the motorcycle was not holding a valid and effective driving license for driving the motorcycle and further the witness who investigated into the case was examined and he had submitted his report showing false implication of the insured vehicle.

(3) That the learned Tribunal merely based upon the admission made by the driver before the Criminal Court has held the accident involving the insured vehicle but has not considered collusion between the applicant that of the owner and driver implicating the insured vehicle and has even not discussed the evidence minutely justifying registration of FIR late by 266 days as no explanation has been offered for such a late FIR.

During the course of submission made on behalf of the appellant, it is also stated that the appellant was a third respondent in this case. Since respondents no. 1 and 2 did not contest the proceedings of the defence available with the respondents no. 1 and 2, was available with the third respondent. It is not a case that during the accident claim proceedings, the liability was admitted by the owner which may have some binding affect on the stand of the appellant. In fact, the very fact that respondent no. 1 and 2 did not take any care to contest the proceedings, the appellant became entitled to take all the defence including the defence of collusion, but opposed the claim. Infact to prove his collusion of non-involvement of the offending vehicle in this case, the appellant examined their investigator, who appeared in the witness box and deposed as under:-

There is no cross examination of this witness which may contradict his statement or prove him to be false witness. Now coming to the document placed on record by the third respondent, I find that despite the appellant having gone through atleast 3 medical institutions in none of the MLC/Discharge certificate prepared by the medical doctors there is mention of the number of the offending vehicle.

Coming to the statement of the first respondent, even in his statement recorded by the Tribunal, the claimant has not given the number of the motor cycle which caused accident. He further stated that the motor cycle was driven by Feroz who admitted was neighbour, yet neither his name was given to the medical authorities nor to the police, when the accident took place or immediately thereafter. Paragraph 7 of his cross examination is relevant which is reproduced hereunder:-

In the light of the aforesaid deposition of the respondent, it becomes doubtful as to why the number of the vehicle which was being driven by the neighbour was not given at the time of informing about the accident to the police. The only irresistible conclusion which comes to the mind of anyone would be that the vehicle was not involved in the accident.

Dr. Mahesh Agrawal is the second witness on behalf of the appellant, who has treated the respondent for the fracture injury caused on his person and infact he also operated the respondent by inception of rod because of the fracture. The important aspect of his statement is his cross examination. Before referring to it, it may be seen that the respondent had approached this doctor after about four months of the accident. Now I may refer to his cross examination. Paragraph 5 is important which is reproduced hereunder:-

One more witness of whose testimony the respondent relied upon and whose statement has been taken in support of conclusion drawn by the Claims Tribunal fastening the liability of compensation upon the appellant is the deposition of Rakesh again a neighbour of the respondent as well as Feroz, the driver. His entire statement is relevant, which is reproduced hereunder:-

In view of the evidence which has come on record and applying the theory of the preponderance probabilities, the conclusion drawn by the Motor Accident Claims Tribunal in holding that the accident occurred because of the involvement of the offending vehicle cannot be sustained. The logic that since the owner and driver was ex-parte, the statement given by the witnesses on behalf of the Insurance Company could not have been accepted is again wrong on law because if the owner decide not to contest the proceedings, it cannot be said that the defence available with the owner cannot be taken up by the insurer. In these circumstances, I hold that the award given by the Tribunal against the appellant cannot be sustained. Accordingly, the appeal is allowed with a direction to the respondent to pay back the claim amount to the appellant alongwith interest @ 6% from the date of this judgment.

C.C. as per rules.