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Judgment
M.D. Shah, J.—First Appeal No. 7137 of 1999 has been filed by the appellant-original opponent No. 4-The New India Assurance Company Ltd. under Sec. 173 of the Motor Vehicles Act, 1988 being aggrieved and dissatisfied with the judgment and award dated 11-8-1999 passed by the Motor Accidents Claims Tribunal (Main), Surendranagar, in MACP No. 198 of 1986 whereby claimants are entitled to recover from opponent Nos. 1,2 and 4 an amount of Rs. 80,000/- as compensation with costs and interest @ 12% per annum from the date of claim petition till realisation. The claim petition was originally filed by the injured claimant-minor Gajendrasinh Nathubha claiming Rs. 2,00,000/- as compensation for injuries suffered by him in an accident which occurred on 19-5-1984 at about 8.00 a.m. it was contended that when the claimant was walking on road in Village Sankalo, Taluka Wadhvan, a tractor No. GAN-8419 driven by its driver rashly and negligently dashed the claimant from behind causing grievous injuries to the claimant. As the minor claimant died during the pendency of the claim petition 21-10-1994, his father and mother prosecuted the claim petition being the heirs of the minor deceased. After hearing the learned counsel for the parties and considering the oral as well as documentary evidence on record, the impugned award was passed by the Tribunal.
I have heard learned advocates for the appellant-Insurance Company, Ms. Lilu K. Bhaya and Mr. H.D. Vasavada for the original claimants and have also taken into consideration the relevant oral as well as documentary evidence such as FIR, panchnama, medical evidence and other evidence.
Ms. Lilu K. Bhaya for the appellant has submitted that the Tribunal has not properly appreciated the oral and documentary evidence adduced in the case and has not drawn correct inference from proved facts of the case. She has further submitted that the Tribunal has not considered the facts that although the deceased claimant or his heirs know very well and identified the driver and owner of the tractor, no complaint has ever been filed nor any panchnama drawn at any point of time with regard to the incident in question. The learned Tribunal has failed to appreciate the fact that as this was a claim petition under Sec. 166 of the Motor Vehicles Act, negligence of the driver has to be proved by leading evidence, however the claimants have chosen to delete the driver from the array of opponents. According to her, the Tribunal has also lost sight of the fact that an application Ex. 19 u/s 170 has been filed by the Insurance Company which was granted only on the contention that there was collusion between driver and owner of vehicle. She has submitted that the collusion between the driver and owner can also been seen from the fact that no written statement has been filed in the case. She has further submitted that it was for the claimants to prove that deceased succumbed to the injuries due to the vehicular accident, however, no medical papers of C.J. Hospital, Surendranagar where the deceased was alleged to have taken treatment was produced to prove the factum of death of the deceased. It is further submitted that Dr. Nathvani who has been examined has deposed at the instance of the claimants that the injured received injuries due to the accident, however, no medical papers regarding the treatment undertaken by the injured with the C.J. Hospital could be proved by the claimants and, therefore, it is requested that the impugned judgment and award be quashed and set aside and this appeal deserves to be allowed.
It is submitted by Mr. Vasavada that it is a settled legal position that every case is decided on its own facts and circumstances. It is further submitted that registration of offence and police investigation is not a condition precedent in awarding compensation. According to him, the victim would be entitled to compensation on proving the aspect of injuries sustained in the accident. It is further submitted that the claimant in his evidence recorded in 1993 has specifically stated that due to vehicular accident, his stomach, intestinal organs, kidney etc. were injured and for which, he took treatments from various hospitals. It is further submitted that the Insurance should have examined the driver and owner to prove the aspect of happening of the accident. Regarding the aspect of injuries, it is further submitted that it has been specifically observed in para 16 of the judgment of the Tribunal that in the medical evidence produced, there were fracture on both legs and kidney and sgottom were damaged. Taking this Court through the evidence of Dr. Nathwani, who treated the victim at C.J. Hospital, he has submitted that it is Dr. Nathwani, who operated the deceased partially and stated that the complications seen might be due to improper follow-up of earlier treatment given for the accidental injuries. He has further submitted that the victim was advised to take treatment from Neurologist, Dr. P.C. Patel, who operated the victim on 30-1-1985 for perennial urologists and stricture urethra. According to him, all the documentary evidence regarding the treatment taken by the victim are on record were considered by the Tribunal and after discussing the evidence in true perspective, findings have been arrived at by the learned Tribunal. Since the said findings appear to be just and proper, it is requested that same may not be interfered with in this appeal. In this connection, he has relied on the following decisions:
i) R.P. Gautam Vs. R.N.M. Singh and Another,
ii) New India Assurance Co. Ltd. Vs. P. Saguna and Others,
iii) Sansar Chand Vs. Chander Mohan and Others,
iv) 2009 (3) G.L.H. (N.O.C.) 10 in the case of New India Assurance Company Ltd. v. Ransiben, Wd/o. Chhitubhai Laxmanbhai and Ors.
This Court has gone through the record and proceedings as well as oral and documentary evidence together with the decisions relied on by learned advocate for the claimants.
In order to prove the factum of accident in question, this Court has gone through the oral evidence of three important witnesses namely, deceased Gajendrasinh Nathubha, P.W. No. 1 at Ex. 59, P.W. No. 2-the alleged eye witness-Tribhovanbhai Thakarsibhai at Ex. 63 and P.W. No. 3-Nathubha Narubha, father of the deceased Gajendrasinh at Ex. 66.
The deceased-Gajendrasinh Nathubha, P.W. No. 1 has deposed that after the accident, he was immediately brought to C.J. Hospital, Surendranagar, where he remained as an indoor patient for 11 days during which period, his operation was done. However, no medical evidence of C.J. Hospital nor medical papers of Rajkot where also he was alleged to have treated has been produced nor any witness from the said hospital has been examined to prove the factum of accident.
P.W. No. 2 Tribhovanbhai Thakarsibhai is the alleged eye witness. He has admitted in his cross-examination that he was not interrogated by the police nor his statement was recorded by the police nor has be informed the Sarpanch regarding the incident in question. His evidence is recorded in 1993 and for the first time appeared before the Tribunal and stated on oath regarding the accident. However, his evidence is not supporting the case of the claimant.
P.W. No. 3-Nathubha Narubha, who is the father of deceased Gajendrasinh has deposed at Ex. 66 that Gajendra met with the accident with the tractor and in the said tractor, he was brought to C.J. Hospital where he was kept for 12-13 days. He has also stated on oath that during the treatment, jaundice developed in his body and, therefore, he was removed to Limdi Hospital where he stayed for two days and thereafter the deceased was admitted in Government hospital at Rajkot where he remained as an indoor patient for 25 days. Thereafter, he was admitted in C.J. Hospital where he remained for three months and went under operation. This witness has admitted in his cross-examination that after the accident, the doctor was informed of the accident. He has stated that in Rajkot, he did not disclose before the doctor that deceased received injuries in vehicular accident.
From the evidence of this witness, it is crystal clear that initially the injured received injuries and was admitted in the hospital. However, surprisingly, no medical case papers are produced nor any doctor has been examined. It is pertinent to note that no autopsy or postmortem appears to have been carried out on the dead body of deceased since no report in this regard is appearing on the record. Therefore, involvement of the vehicle is not proved by the claimant by the evidence of aforesaid witnesses. Moreover, the nexus between cause of death and injury is also not proved by the claimant.
It is to be noted that although accident occurred on 11-9-1984, claim petition was filed in the year 1986 and it is during the pendency of the said claim petition that the victim died on 21-10-1994. It is pertinent to note that in respect of the incident in question, no complaint has been filed before the police. Normally, when a patient is brought to the hospital for taking treatment concerning the vehicular incident, it is the duty of the relative of the victim or the concerned hospital authorities to inform the police regarding the incident. However, in this case, no such information has been provided to the police either by the hospital authorities or the relatives of the victim. Moreover, documentary evidence regarding the treatment undertaken by the victim produced on record could not be established by the claimants to show that victim received injuries due to the vehicular accident. Moreover, Dr. M.T. Nathvani, who has been examined on behalf of the claimant, has deposed at Ex. 80 after a long period of about 12 years that according to the claimants, the victim suffered injuries due to the vehicular accident. This witness has deposed on oath regarding the incident as per the say the claimant and hence, his version is not finding support with the claimant.
This Court is aware that in normal circumstances, it is the duty of the insurance company to prove the aspects of occurrence of accident and involvement of the vehicle in the accident in question. However, in the present case, it is to be noted that an application Ex. 19 u/s 170 has been filed by the Insurance Company raising a contention that there was collusion between driver and owner of vehicle and driver has been deleted from the array of opponents and said application was allowed by the Tribunal. Therefore, it was for the claimants to have examined either the driver or the owner for proving the occurrence of accident and involvement of the vehicle. However, they have chosen not to examine them. On the contrary, they have been deleted by the claimants. Under the circumstances, in the absence of driver and owner, it would be impossible for the Insurance Company to prove the aspect of occurrence of accident and involvement of the vehicle. Therefore, the burden is shifted to the claimant to prove regarding the occurrence of accident and involvement of the vehicle. However, since they have not examined either the driver or the owner and also since the driver and owner have been deleted by the claimant, occurrence of accident and involvement of the vehicle could not be proved by the claimant either by the witnesses examined by the claimant or through any evidence. In view of the above, the Insurance Company cannot be fastened with any liability. Hence, a grave error has been committed by the Tribunal in fastening liability on the Insurance Company.
This Court totally agrees with the principle laid down in the decisions relied on by the learned advocate, Mr. Vasavada, that a claim petition cannot be dismissed only on the ground of there being no FIR or police investigation. However, there should be some clinching evidence regarding occurrence of accident either by way of telephonic vardhy or statement before the police from the hospital authorities or the relatives of the patient. In this case, no reliable and convincing document has been proved by the claimant regarding occurrence of accident and involvement of the vehicle. Hence, this Court is of the opinion that the decisions relied on by the learned advocate for the claimants would not be of any help to the claimants.
In view of the above, this Court is of the opinion that the Tribunal was erred in coming to the conclusion that the claimants has proved that victim died due to injuries suffered by him due to rash and negligent driving of driver of tractor No. GAN-8419 and further erred in fastening liability on the Insurance Company. In view of the above, the appeal filed by the insurance company deserves to be allowed and Cross Objection filed by the original claimants deserves to be dismissed by quashing and setting aside the impugned judgment and award.
Thus, First Appeal No. 7137 of 199 is allowed. Impugned judgment and award dated 11-8-1999 passed by the Motor Accidents Claims Tribunal (Main), Surendranagar, in MACP No. 198 of 1986 is hereby quashed and set aside. The amount lying deposited in the fixed deposit by the Insurance Company pursuant to the order passed by this Court be refunded to insurance company. The Insurance Company is also entitled to recover the amount, if any, received out of the amount deposited as also the interest received by the claimants from the fixed deposit. Office is directed to send back the records and proceedings, if any, forthwith.