New India Insurance Company vs Raj Kumar and Others

Muzaffar Hussain Attar, J.—This statutory appeal u/s 173 of M.V. Act would collapse as the grounds available to the appellant-Insurance

company for filing an appeal are delineated in Section 149(2) of the M.V. Act of 1988, (hereinafter referred as the Act of 1988). It is settled

position in law that appeal can be filed only when statute authorizes filing of such an appeal and can be filed only on the ground which the statute

permits. The present appeal is not filed on the grounds mentioned in Section 149(2) of the Act of 1988. The appeal on the face of it being

incompetent would suffer dismissal. However, the ld counsel for the appellant referred to certain pleadings and evidence to show to the court that

the respondent No. 1 Raj Kumar has suffered the fatal injuries on account of accident not as a pillion rider, but was driving the scooter himself.

The ld counsel for the appellant has referred to objections as also evidence brought on the record of MACT, Jammu. This appeal on the face of it,

is not maintainable. However, this Court deemed it appropriate to hear this appeal on the presumption that perhaps the award was obtained by

practising fraud on tribunal.

It is settled position in law that any order or decree obtained by practising fraud on Court, is denuded of its legal effect. It was for this reason

that this appeal was heard on the plea raised by ld counsel for the appellant. Before addressing the said plea the facts of the case are briefly

summarized as under:

One Raj Kumar S/o Shakar Ram R/o Reshamghar colony, Jammu on 20th Feb. 1989 was travelling on a scooter as a pillion rider bearing

registration No. 2685 JKU. The scoter was being driven by respondent No. 2 as per the pleadings of the claim petition. The scooter met with an

accident when it reached near Purkhu on Akhnoor road which resulted inflicting of fatal injuries on Raj Kumar respondent No. 1. The respondent

No. 1 remained unconscious for about one and half month and regained consciousness in All India Institute of Medical Sciences New Delhi. The

injuries which were sustained were so fatal that he was incapacitated to perform any normal functions. The further case pleaded is that the

respondent No. 1 was being looked after by his father but after his death he could not fall back upon for his assistance on anybody or for getting

his medical treatment, which ultimately constrained him to file the claim petition. The case of the claimant was thus that because of the rash and

negligent driving of the driver Sheshi Kumar respondent No. 3 he suffered fatal injuries. The respondents 2 and 3 as also the appellant filed their

objections before the MACT Jammu. Respondent No. 2 admitted to be an owner of the scooter and respondent No. 2 also admitted that he was

driving the scooter on the fateful day when they met with an accident. The appellant filed objections to the maintainability of the claim petition, and

raised a specific objection that it was the respondent No. 1 who was driving scooter negligently, rashly and carelessly which caused the accident

and thus he suffered the injuries because of his own act. Reference is also made to FIR at para 3 under the head of preliminary objections, where it

is stated that there was no mention of the scooter in question either in the FIR or in the final report of the police. It is on this ground the claim

petition is resisted by the appellant.

The MACT Jammu on the pleadings of the parties framed four issues and parties lead evidence in support of their respective claims.

The petitioner examined Dr. Deedar Singh, Karan Singh, M.K. Dhar, as witnesses. Respondents 2 and 3 did not lead any evidence. Whereas,

the appellant examined Sh. Sunil Bhat, Lal Chand, and Swami Raj as witnesses in the case. The petitioner in his deposition before the tribunal has

given all the details and the circumstances in which the accident took place. It is specifically stated in his statement that on 20th Feb. 1989 he was

travelling on scooter as pillion rider which was being driven by Shashi Kumar. The scooter was coming from Jammu to Akhnoor when it reached

Purkhu it met with the accident. The respondent No. 1 became unconscious. It is also stated that scooter was driven on excessive speed. He

further stated that he regained consciousness in All India Institute of Medical Sciences (AIIMS) after one and half month. He has stated that his

spinal cord was fractured. He was taken to Delhi and was attended by 5/6 persons. Respondent No. 1 remained admitted in AIIMS for about

three months but could not be cured. He has also stated that he was 20 years of age at the time of accident and used to sell chappals. He had kept

three employees and his daily income was 150/-. After the accident right side of the body has become paralytic and thus is incapacitated to do any

kind of work. He is also rendered unfit for marriage. In the cross examination respondent No. 1 stated that police never recorded his statement

and the registration number of the scooter was given JKU 2685 on which he was travelling as pillion driver.

Dr. Deedar Singh PW has deposed that respondent No. 1 was treated as a case of post traumatic spastic hemiplegia. The relevant part of the

para referred to is reproduced as under:

Btraumatic spastic hemiplegia. Power around upper limb grade II and there is spasticity in upper limb. Power around hip, knee and ankle is

Grade-III. His permanent disability amounts to about fifty percentb The other witness examined by respondent No. 1 Sh. Karan Singh, has

deposed that on 20.02.1989 he was going to Akhnoor on scooter and when he reached Purkhu he saw a scooter bearing registration No. JKU

2685 coming from the opposite direction which was being driving by respondent No. 3 and respondent No. 1 was pillion rider. The said scooter

slipped and the respondent No. 1 became unconscious on spot. The said witness further deposed that respondent No. 3 was taken to hospital by

the said witness on the scooter and respondent No. 1 was brought to hospital on a bus. The said witness further stated that the accident took place

due to negligence of respondent No. 3. The other witness, Sh. M.K. Dhar was examined by respondent No. 1, the witness happens to be a

medical officer SMG hospital Jammu and on the basis of record, he has given details about the admission of respondent No. 1 in the hospital and

reference to All India Institute of Medical Sciences New Delhi.

The appellant examined Sh. Sunil Bhat, who was an assistant manager in New India Insurance company at that point of time, who has admitted

an insurance policy has been issued in respect of Bajaj Super Scooter bearing registration No. JKU 2685 and Chasis No. 322371 Engine No.

318257 in the name of Ravi Dutt Bhardway respondent No. 2.

Sh. Lal Chand, who at the relevant point of time was ASI of police has deposed that he was posted as Investigating officer in police station

Kanachak and conducted investigation of FIR 37. He has further deposed that FIR was binvestigation respondents No. 1 and 3 had proceeded to

Akhnoor on scooter which was being driven by respondent No. 1. The scooter suffered accident but there was no fault of any person. He has

further deposed that scooter was without registration number and it was not seized by police during investigation. In cross examination he has

admitted that respondent No. 1 was unconscious in the hospital.

Swami Raj, was investigator of the insurance company he has deposed that he conducted the investigation of the case and has further deposed

that police did not record the scooter number. He has further stated that respondent No. 1 was driving the scooter. Heard learned Counsel for

parties. Considered the matter.

Ld counsel for appellant was at pains to explain that in view of the evidence on the record of the tribunal it becomes demonstratively clear that

respondent No. 1 was not pillion rider but was driving the scooter. The ld. Counsel vehemently argued that the police registered FIR and the

police report would show that it was the respondent No. 1 who was driving the scooter on the fateful day. The ld counsel further submitted that

tribunal has relied upon one part of the FIR i.e about the accident but has not relied upon the other part of the FIR which would show that it was

respondent No. 1 who was driving the vehicle and not respondent No. 3. Ld counsel in support of his contention referred to and relied upon the

judgment of the Honb Insurance company ltd. v. Prem Lalta Shukla reported in 2007 (5) Supreme 370.

The facts of the case were that both the parties relied upon the FIR which was marked as exhibit. One of the party relied upon on one part of

the FIR and the tribunal/High Court also relied upon only one part of the FIR. The HonbSupreme Court held that once a part of the FIR is relied

upon by both the parties the tribunal could not be said to have committed any illegality in relying upon other part. The ld. counsel proceeded to

make submission on the assumption that in view of the police report, it is to be admitted that it was respondent No. 1 who was driving the scooter,

as such he would not get benefit of his own fault. More so the claim petition has been filed u/s 166 of the Act of 1988. The ld. Counsel in order to

butters his argument referred and relied upon R.D. Hattangadi Vs. M/s. Pest Control (India) Pvt. Ltd. and Others, , Pushpabai Purshottam Udeshi

and Others Vs. Ranjit Ginning and Pressing Co. (P) Ltd. and Another, , United India Insurance Co. Limited Vs. Bhupinder Singh and Others, .

The ld counsel for the appellant made great efforts to pursue the court to take a view that the accident has not taken place in the manner in which it

was projected before the tribunal. It was respondent No. 1 who was driving the scooter and not respondent No. 3, who has been held to be the

driver of the scooter on fateful day.

Mr. Sunil Sethi, Sr. Advocate appearing for the respondent No. 1, while referring to Section 149 of (2) of the Act of 1988 submitted that

appeal is not competent as no ground has been projected as is referable to the above said section which would authorize the appellant to file the

appeal. The ld. Counsel further submitted that the tribunal on the basis of evidence, lead before it and material relied upon has had jurisdiction to

come its own independent conclusion in respect of issues involved. The ld counsel in support of his contention relied on judgment reported in

N.K.V. Bros. (P) Ltd. Vs. M. Karumai Ammal and Others, , R.P. Gautam Vs. R.N.M. Singh and Another, , besides making reference to Section

78 of evidence Act to demonstrate that the police report would not be sufficient to dislodge the claim of respondent No. 1 if on the evidence and

material produced before the tribunal it is proved that respondent No. l was not the driver of the scooter but was a pillion driver.

Police investigations are conducted by the statutory authority in accordance with the mandate contained in Criminal Procedure Code. The

investigating officer while conducting the investigation may lose sight of some facts which may have material bearing on the conclusion of

investigation. The second aspect of the case is that if investigating police officer after investigation of the case makes report for closure of the case

due to some deficiency, then he has to refer the matter to magistrate for passing of appropriate orders. In such eventuality the ld Magistrate before

passing orders on closure of case has to issue notice to the informant or complainant as the case may be. Any order passed on such reports by the

Magistrate cannot be said to be validate the investigation so conducted. The investigation conducted in a criminal case may have reliance and

bearing on the proceedings which are being conducted in a civil court or in a tribunal. It may be considered as piece of evidence, but it cannot

become basis for throwing out the case of the claimant. Probative value of such evidence has to be considered by the courts.

In the present case admittedly the investigating officer has stated that the scooter was not bearing any registration mark and scooter was not

seized by him. It is further admitted that the statement of respondent No. 1 or even the owner and driver of the scooter were not recorded by the

investigating officer. Since no material was brought before the tribunal to show as to what was the evidence and material collected by the I.O

during investigation of the case on which he formed an opinion for closure of the case as not proved and for opining that it was respondent No. 1

who was driving the scooter. It will not be very difficult but would also not be safe to rely on such type of perfunctory investigation.

Assuming as situation that the investigating officer had after conducting the investigation submitted report u/s 173 of Cr.P.C before the court of

competent jurisdiction showing therein that the accused in his opinion had committed the offence. The said report and material evidence collected

during such investigation was thereof to be proved on the anvil of trial before the court of competent jurisdiction. The court could dismiss the case

and acquit the accused on the ground that prosecution has failed to produce the evidence. The legal value of such type of investigation in the

attending facts and circumstances of the case come under serious cloud. The investigation report alone would not thus be sufficient to dislodge the

case of respondent No. 1. The tribunal on the material before it has come to a right conclusion.

The evidence which has been brought on record of tribunal, the respondent No. 1 was pillion rider has remained uncontroverted for the reason

that even in cross examination no question has been put to respondent No. 1 or other witnesses that it was respondent No. 1 who was driving

scooter and not respondent No. 3 as claimed by respondent No. 1.

In the facts and circumstances of this case it cannot be said that the award has been obtained by respondent No. 1 by practising fraud upon

tribunal. It is made clear that the ld. Counsel for the appellant did not specifically argue that the award has been obtained by practising fraud but the

submissions which were projected did concern the court to look into this aspect of the matter.

For the aforementioned discussions this appeal is found merit less and is accordingly dismissed.