Oriental Insurance Co. Ltd. vs Chetan Kumar S/O Madanlal Pawar & Others

THE Insurance Company has filed the present appeal being aggrieved by the Award dated17.03.2015 passed by Additional Member, MACT,

Sardarpur, District Dhar, by which the claim case filed by the Respondent No.1/ claimant has been allowed.

[2] The Respondent No.1 while returning from RTO Office Barrier, Pitol Marg, Indore on 24.10.2007 near about 4.30 PM, the Truck having

registration number GJ-03/V9413 dashed him. Because of the said accident, he suffered fracture on his right hand and injuries on various part of the

body. He was admitted in District Hospital, Jhabua and Xray was taken. Since the injury was serious in nature, therefore, he was referred to

Sardarpur Hospital and further referred to Mittal Medicare Hospital, Dhar. He remained under treatment in hospital for 15 days and again for 6 days

for follow up check up. Surgery was also done and skin of the leg was grafted on shoulder. At the time of accident, he was 40 years of age and

working as a driver and use to earn Rs.4,500-00 per month. Due to the said accident, he suffered permanent disablement and now he is not in a

position to do the work of driver. He claimed Rs.5,00,000-00 as compensation from the Respondents.

[3] The present appellant filed the written-statement disputing the accident and the involvement of the vehicle. It was also pleaded that the driver was

not having valid driving license and the truck was not having valid permit.

[4] On the basis of pleadings, 4 issues were framed.

[5] The claimant examined himself as PW-2 and Dr. Devendra Mandloi as PW-2. The Insurance Company examined Administrative Officer Ritesh

Vishnoi. The claimant got exhibited 64 documents as Exs. P/1 to P/64. The FIR was got exhibited as Ex.P/1 and Exs. P/7 to P/64 were exhibited to

prove the expenditures in respect of the treatment of claimant. By judgment dated 28.03.2008 (Ex.P/6), the driver was punished by way fine of

Rs.2,00000 by the JMFC.

[6] By award dated 17.03.2015 the learned MACT held that the claimant received injuries due to the said road accident and driver was having valid

license and the truck was also having permit, therefore, the Insurance Company is liable to pay compensation of Rs.1,05,498-00.

[7] Being aggrieved by the award dated 17.03.2015, the Insurance Company has filed the present appeal on the ground that there was delay in lodging

the FIR, therefore, it is a case of false implication of vehicle having insurance and valid permit. The accident took place on 24.10.2007 and the FIR

was lodged on 17.01.2008. Hence, the Insurance Company has wrongly been held responsible to pay the compensation.

[8] The Respondent No.1/claimant has filed crossobjection under Order XLI Rule 21 of the CPC seeking enhancement of compensation.

[9] I have heard Shri Pradeep Gupta, learned counsel for the appellant and Shri Sanjay Patwa, learned counsel for the Respondent No.1/claimant.

[10] So far as the delay in lodging the FIR is concerned, in the FIR itself it is mentioned that due to the treatment, the delay caused in lodging the FIR

(as per Ex.P/2). The claimant gave evidence to the effect that immediately after the accident, he was admitted in the hospital and from there he was

referred to Jhabua and thereafter to Dhar. Ex.P/8 was filed in respect of his admission for treatment in Mittal Medicare Hospital, Dhar. He was

admitted on 29.10.2007 and discharged on 10.12.2007. Therefore, he was under continuous treatment up to December, 2017. Therefore, the delay in

lodging the FIR is justified. Even otherwise MLC of District Hospital, Jhabua (Ex.P/4) clearly established that he was admitted in the hospital

immediately after the accident and the injuries received by way of accident have also been proved by the doctor. The driver had been convicted in the

offence of driving the vehicle rashly and negligently. Therefore, the Insurance Company has failed to establish that the vehicle was falsely implicated

in this case.

[11] In the case ofRavi v/s Badrinarayan and others, reported in 2011 ACJ 911,Hon'ble Apex Court has found that in the case of road accident,

delay of three months in lodging FIR is justified. For the sake of reference, para 20 to 22 are reproduced below :-

“20 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.

21 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.â€​

[12] In view of the above, no case is made out for interference with the impugned Award. The appeal is accordingly dismissed with cost of Rs.2,000-

00 payable to the Respondent No.1/claimant.

[13] So far as the question of enhancement of compensation is concerned, the learned MACT has awarded Rs.50,400-00 as compensation after

taking notional income of Rs.3,000-00 per month by applying multiplier of 14. The claimant has also been awarded the amount of Rs.40,098-00 as

medical expenses (Exs. P/7 to P/49). He has also been awarded Rs.5,000-00 for pain and agony; Rs.1,000-00 as diet money and Rs.2,000-00 for

travelling expenses. The claimant filed the certificate issued by the doctor in respect of his permanent disablement as Ex.P/62. He is not having any

certificate from District Medical Board. The doctor has assessed the permanent disablement of 14%. Therefore, the learned MACT has rightly

assessed the compensation of Rs.1,05,498-00. There is no dispute about his monthly income, multiplier of 14 and expenditures in treatment. There is

no scope of enhancement. Hence, the cross-objection is also rejected. No order as to costs.