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Judgment
These appeals are directed against the judgment and awards
dated 5/6/2017 passed by the Motor Accident Claims Tribunal,
Jaitaran, District, Pali (''the Tribunal''), whereby, the Tribunal has awarded a sum of Rs. 2,60,000/- to claimants Bagda Ram &
others, Rs.6,40,928/- to claimants Budha Ram & another and
Rs.6,40,928/- to claimants Kalu Ram and another along with
interest @ 9% p.a. from the date of applications i.e. 14/3/2016.
The applications for compensation were filed by claimants,
sons of deceased Mangilal and parents of deceased Shyam Lal and
Naresh inter alia with the averments that on 17/4/2015 at about
10.30 p.m. all the three persons, Mangilal, Shaymlal and Naresh,
were riding on a Motor Cycle when the offending Maruti Van No.
RJ-01-UA-1027, being driven by Badri Banjara rashly and
negligently, collided with the Motor Cycle, resulting in grievous
injuries to Mangilal, Shyamlal and Naresh on account of which all
three of them died on the spot. Averments were made pertaining
to the basis for claiming various amounts of compensation for the
death of Mangilal, Shyamlal and Naresh.
Replies to the applications were filed by driver and owner of
the Maruti Van with the contentions that the driver of Motor Cycle,
Shyamlal, contributed to the accident and the accident happened
on account of Motor Cycle slipping and no accident occurred from
the vehicle, the vehicle has been wrongly implicated, the vehicle
was insured with the Insurance Company and it was prayed that
the applications be rejected.
The appellant Insurance Company filed its response with the
contention that the accident did not occur from the insured Maruti
Van, the vehicle has been falsely implicated, the police has not
investigated properly, accident occurred on account of negligence
of the driver of Motor Cycle, the driver of Maruti Van was not in
possession of requisite driving licence, the driver of Motor Cycle
was not wearing helmet and was not in possession of driving
licence, he had contributed to the accident. The vehicle being
insured with the Insurance Company was accepted, the basis for
claiming compensation was denied and it was alleged that
excessive compensation has been claimed and it was prayed that
the applications be dismissed.
The Tribunal framed five issues. On behalf of the claimants
A.W.1 - Madan Lal, A.W.2 - Ram Prakash, A.W.3 - Kalu Ram,
A.W.4 - Budha Ram were examined, out of them A.W.2 - Ram
Prakash was claimed to be an eye witness to the accident, by way
of documentary evidence 20 documents were exhibited, on behalf
of the non-claimants N.A.W.1 - Vinod Kumar and N.A.W.2 -
Manjul Tanwar were examined and 5 documents were exhibited.
After hearing the parties, the Tribunal observed that the oral
statements pertaining to the accident were recorded on behalf of
the claimants and non-claimants, claimants have referred to the
documents and qua the documentary evidence no evidence was
produced by the respondents and came to the conclusion that the
accident occurred on account of rash and negligent driving by the
driver of Maruti Van. While considering the issue no.3 pertaining to
the defence raised by the appellant Insurance Company, the
Tribunal observed that the allegations made were based on
imagination and, therefore, same cannot be countenanced and
rejected the defense raised by the appellant Insurance Company.
Whereafter, the issues pertaining to quantum of compensation
were determined and compensation as noticed hereinbefore was
awarded.
It was vehemently submitted by learned counsel for the
appellant that the present is a case wherein from the material
available on record, it is apparent that the accident in question did
not occur from the insured vehicle and the insured vehicle has
been falsely implicated only with a view to ensure that
compensation is recovered from the Insurance Company and,
therefore, the award impugned deserves to be quashed and set
aside.
Learned counsel for the appellant submitted that the Tribunal
has dealt with the issue pertaining to the involvement of the
vehicle under issues no.1 and 3 in a most cursory and slip shot
manner and has totally ignored the documentary evidence placed
on record by the appellant, which has resulted in it returning a
perverse finding on the issue pertaining to involvement of vehicle
and, therefore, the award impugned deserves to be quashed and
set aside.
It was submitted that the accident allegedly occurred at
10.30 p.m. on 17/4/2015; in the police ''Rojnaamcha'' (daily
diary) (Ex.NA/4) of the same date at 10.50 p.m. information of
accident has been recorded and in Ex. NA/4 another entry at 2.00
a.m. has been recorded indicating about the accident having
occurred from an unknown truck; the FIR was lodged on
18/4/2015 at 7.30 a.m. by Madan Lal s/o deceased Mangi Lal against an unknown vehicle; on 31/5/2015, the police gave F.R.
indicating "VERNACULAR MATTER OMITTED" i.e. for want of information about
the vehicle and the accused; on a protest petition filed against the
acceptance of final report, by order dated 8/10/2015 further
investigation was ordered and it is at the stage of further
investigation that the complainants indicated the involvement of
the insured Maruti Van, based on which the police filed challan
against the owner and alleged driver of the insured Maruti Van on
27/12/2015.
It was submitted that from the sequence of events coupled
with the statements of four witnesses, the false implication was
apparent; a bare look at the statements of three claimants A.W.1
- Madan Lal, A.W.3 - Kalu Ram and A.W.4 - Budha Ram reveals
that it is the consistent claim made by them that involvement of
the insured vehicle was informed to all three of them after some
days by the alleged eye witness Ram Prakash, A.W.2; in his cross
examination A.W.1. - Madan Lal indicated that after 20 days of the
accident Ram Prakash informed him about the involvement of
insured vehicle RJ-01-UA-1027; similarly, Budha Ram (A.W.4) also
indicated in his cross examination that Ram Prakash after 15-20
days of the accident informed him about the numbers of insured
vehicle. Ram Prakash in his cross examination also indicated that
after 15-20 days of the accident, he informed the numbers of the
insured Maruti Van to Madan Lal. It is submitted that once all the
three claimants became aware of the involvement of Maruti Van
within 15-20 days of the accident and the negative F.R. was given
by the police on 31/5/2015, no reason is forthcoming as to why
the involvement of the insured vehicle was not brought to the
notice of police till 31/5/2015, when admittedly the claimants
allegedly became aware of the involvement of the insured vehicle
in the beginning of May, 2015 and the said number of vehicle was
disclosed allegedly during the course of further investigation after
the same was ordered by the court. It was submitted that the
conduct of the claimants is wholly unnatural and coupled with the
fact that in the police ''Rojnaamcha'' (Ex.NA-4) involvement of an
unknown truck was indicated, false implication of the insured
vehicle is apparent.
Further submissions were made that A.W.2 - Ram Prakash is
totally made up eye witness, whose statement has been believed
by the Tribunal, which on its face is a false statement. It was
submitted that the said witness claims himself to be an eye
witness of the accident and having noted the numbers of the
insured vehicle after the accident, he also claims to have informed
on telephone within 20 minutes of the accident to the families of
all three persons injured in the accident as they were customers of
the Petrol Pump where he was working and he had their telephone
numbers. It was submitted that the said story falls to the ground
on account of admission in the cross examination of A.W.2 - Ram
Prakash, the alleged eye witness, that he started knowing the
deceased Mangi Lal after the accident, which statement totally
belies the fact of his being an eye witness, his having telephoned
the families of the deceased and having given the numbers of the
insured vehicle and on that count the finding of the Tribunal
deserves to be quashed and set aside.
Further submissions were made that the postmortem report
of all the three deceased persons, which have come on record
shows severe wounds and multiple fractures qua all the three
deceased, which nature of wounds and fractures cannot occur if a
head-on collision takes place between a small vehicle such as
Maruti Van and a Motor Cycle carrying three passengers, which is
also an indication regarding involvement of a bigger vehicle, which
aspect was indicated by the police in its ''Rojnaamcha'' i.e. accident
by an unknown ''truck''. It was submitted that the finding recorded
by the Tribunal in ignorance of such evidence deserves to be
quashed and set aside and consequently the awards deserve to be
set aside.
Learned counsel appearing for the respondents-claimants
vehemently opposed the submissions made by the learned counsel
for the appellant. It was submitted that the Tribunal has recorded
the finding based on oral and documentary evidence which has
come on record, which finding does not call for any interference.
Submissions were made that the appellant Insurance
Company by pointing out minor aspects of the matter is seeking to
disown its liability based on alleged non-involvement of the
insured vehicle, which submissions have no substance. It was
submitted that the involvement of the vehicle has been admitted
by the driver of the insured vehicle in response to a notice under
Section 134(b) of the Motor Vehicles Act, 1988, wherein, he
admitted driving the vehicle and accident having occurred.
Further submissions were made that in the statement
recorded under Section 164 Cr.P.C., Ram Prakash clearly indicated
the involvement of insured vehicle and, therefore, there was no
reason for the Tribunal to disbelieve the said material which has
come on record regarding the involvement of the insured vehicle
and, therefore, the findings recorded by the Tribunal do not call
for any interference.
I have considered the submissions made by learned counsel
for the parties and have perused the material available on record.
In the present appeals, the appellant Insurance Company
has seriously challenged the involvement of the insured vehicle
and from the material available on record it is apparent that the
said challenge was laid from the very beginning i.e. in response to
the applications for compensation and during the course of
evidence, whereby, the claimants'' witnesses were cross examined
on the said aspect and documentary evidence was produced as
Ex.NA.1 to Ex.NA.5 to substantiate the contention regarding non-
involvement of the insured vehicle.
The claim of claimants in all the three applications was
consistent that the three deceased persons were riding on a Motor
Cycle when the accident occurred at 10.30 p.m. on 17/4/2015 and
on account of accident all the three died on the accident spot.
While Madan Lal claims that he was informed on telephone by
Ram Prakash (A.W.2), Kalu Ram (A.W.3) claims that he received a
call from Madan Lal and Budha Ram (A.W.4) stated that someone
telephoned him, but it is their consistent claim that all three of
them reached the spot within 20 minutes of the accident and it is
most relevant to consider that Ram Prakash (A.W.2), who claims
to be an eye witness and regarding whom a claim is made that he
called Madan Lal informing him about the accident, in his
statement clearly indicated that he started knowing Mangi Lal i.e.
father of Madan Lal after the accident. The said witness Ram
Prakash in his cross examination claimed that he knew the family
members of all the three deceased occupants of the Motor Cycle
as they used to visit the Petrol Pump for fuel where he was
working and he had their telephone numbers in his mobile and,
therefore, he called them. Statement of Ram Prakash having
called Madan Lal in light of his statement that he started knowing
the deceased after the accident clearly makes the statement of
Ram Prakash unreliable. Further, the conduct of Ram Prakash,
wherein, he claims that he knew the families of all the three
deceased persons, left the place of accident after sometime and
despite knowing the number of offending vehicle did not meet
and/or inform the family members regarding the involvement of
the vehicle for about 15-20 days, in the circumstances of the case
is quite unusual, wherein, if the deceased were known to him to
the extent that he had telephone numbers in his mobile of their
family members, not meeting the family members and not
informing the numbers of the vehicle in a typical village setting, in
view of the claim made, cannot be believed.
Further, the fact that if the particulars of the offending
vehicle were handed over to the families of the claimants
inasmuch as all the three witnesses A.W.1, A.W.3 & A.W.4 have
claimed in their examination-in-chief that they received the
information about the involvement of the particular vehicle within
15-20 days of the accident i.e. around first week of May, 2015 (as
the accident took place on 17/4/2015) and before the police
submitted negative F.R. on 31/5/2015 and despite all the three
having known about the involvement of the insured vehicle chose
not to inform the police regarding the involvement of the insured
Maruti Van, is a conduct which is absolutely unnatural and
unbelievable. No explanation whatsoever has been given by the
claimants pertaining to the said aspect of the matter as to what
prevented them from informing the police about involvement of
insured vehicle as soon as they became aware of the involvement
of the vehicle.
In fact the claimants did not even indicate anywhere in the
pleadings or statements that the police initially gave negative F.R.
on 31/5/2015 and on protest petition having being filed, on re-
investigation and on the claimants informing about the
involvement of insured vehicle that the challan was filed.
Suppression of the said facts, which are quite relevant in the
circumstances of the case, cannot be ignored.
The Tribunal in its judgment leave alone considering, did not
even indicate that the documents Ex.NA/1 to NA/5 were produced
by the respondent contesting the involvement of the vehicle and
after mentioning the documents produced by the claimants has simply indicated that no contrary evidence has been produced by
the Insurance Company and has not at all considered the
consistent plea raised by the appellant Insurance Company, which
clearly renders the finding recorded by the Tribunal perverse.
The first indication pertaining to nature of/manner of
accident has been noticed in the police ''Rojnaamcha'' dated
18/4/2015 at 2.00 a.m., wherein, the involvement of an unknown
truck was indicated along with the fact that three persons had
died on the spot, whose bodies were transported to the
Government Hospital, Neemaj and that ''Naka Bandi'' for
apprehending the truck was made along with checking at the
highway hotels, however, the same could not be apprehended.
The FIR was lodged against an unknown vehicle by Madan
Lal, AW.1 on 18/4/2015 itself. The postmortem report of all the
three deceased persons indicate multiple wounds, multiple bruises
and multiple fractures on the entire body. The status of body of
Mangi Lal as indicated in the postmortem report, who was not
even the driver, which is almost similar in all cases pertaining to
muscles, bones and joints indicates the extent of injuries suffered
by three deceased persons, who were riding the Motor Cycle and
met with the accident:
"E-MUSCLES, BONES & JOINTS 1. Injury - Sclap is lacerated and 2x2 cm Hole is present in frontal bone - 7x5 cm lacerated wound is present on Right knee - Bone is coming out of large lacerated wound of Right leg - Swellings are present on mid thigh & mid arm on Right hand 2. Disease or Deformity - skull is grossly disfigured due to multiple fracture and lacerated wound of scalp and turned towards left side - Right leg is rotated medially due to fracture of leg bones 3. Fractures 1. multiple fractures of skull bones (2) fracture of Rt. Humerus (3) fracture of Rt radius & ulna (4) multiple Rt sided Ribs fractures (5) fracture of Rt. Thigh (6) fracture of Rt Tibia & Fibula 4. Dislocation Multiple dislocations present in multiple joints all over body."
The nature of wounds, injuries and fractures which have
been suffered by the three occupants of Motor Cycle coupled with
the claim that accident occurred from a Maruti Van, which it is
common knowledge and regarding which judicial notice can be
taken is a small vehicle with very small tyres and low ground
clearance, is factually not possible and the nature of injuries
coupled with the indication in the police ''Rojnaamcha'' regarding
involvement of an unknown ''truck'' clearly indicates towards the
accident by a big vehicle resulting in such massive/severe injuries
to the deceased persons resulting in multiple wounds/fractures all
over the body. Further, if such nature of injuries to three persons
were caused by a Maruti Van, the said vehicle apparently could not
be then in a position to flee away from the accident scene. The
Tribunal, failed to take into consideration the said aspect also and
has essentially proceeded in an absolutely slip shot and cursory
manner merely based on the fact that the police had filed challan
against the insured vehicle.
So far as the admission made by the driver in response to
notice under Section 134(b) of the Act vide Ex.11, is concerned,
the same reads as under:
"VERNACULAR MATTER OMITTED"
The above admission in reply to notice (though the same is
in incorrect language) further fortifies the allegations made by the
appellant Insurance Company regarding false implication of the
vehicle as the response made to the notice indicating that ''he
himself has committed the accident'' implicating himself is wholly
unnatural and further fortifies the allegation about collusion of the
owner and driver of the insured vehicle for the purpose of
recovering amount of compensation from the Insurance Company
as the accident occurred from some unknown vehicle, which could
not be traced by the police.
The above aspect is further confounded by the fact that
despite filing reply to the applications both the driver and the
owner chose not to appear in the witness box.
In view of the above discussion, the finding of the Tribunal
on issue nos. 1 and 3 cannot be sustained. The oral and
documentary evidence available on record does not in any manner
indicate the involvement of insured vehicle in the accident and the
entire sequence of events as noticed hereinbefore apparently
indicate false implication of insured vehicle in question.
As such, it is held that the insured vehicle was not involved
in the accident. As the insured vehicle has been held to be not
involved in the accident, consequently in the absence of the actual
offending vehicle, its owner, driver and the Insurance Company
before the Tribunal, the award passed by the Tribunal cannot be
sustained.
Consequently, the appeals are allowed, the impugned
judgment and awards dated 5/6/2017 passed by the Tribunal in
MAC Case No. 40/16, 41/16 and 42/16 are quashed and set aside.
The claim petitions filed by the claimants are dismissed.
No order as to costs.