Oriental Insurance Company Ltd vs Sharda Devi And Others

Hirdesh, J

This miscellaneous appeal has been filed by the appellant/Insurance Company under Section 173(1) of the Motor Vehicles Act, 1988, arising out of the Award dated 12.04.2023 passed by the Third Motor Accident Claims Tribunal, Morena (M.P.) (hereinafter referred to as "the Claims Tribunal") in Claim Case No. 315/2019, whereby the Claims Tribunal awarded compensation of Rs. 19,20,000/- in favour of the claimants with interest from the date of filing of the petition till its realization. The present appeal has been preferred by the Insurance Company on the ground that the offending vehicle has been falsely implicated by the claimants for the purpose of obtaining compensation.

The brief facts of the case are that the claimants filed a claim petition before the Claims Tribunal seeking compensation for the death of Bharat Singh Rajpoot. It was pleaded that on 18.05.2019, the deceased, along with Bharat Yadav, was walking from Bisangpur to Chhaira Bus Stand to reach Morena. At about 9:30 a.m., when they reached near the house of Ratiram Tiwariya, the driver of a car bearing registration No. MP06/CA6558 came driving rashly and negligently and hit Bharat Singh Rajpoot from the front. Due to the impact, the deceased fell on the ground, sustained severe head injuries, and started bleeding profusely. It is further stated that Anil Singh and Sooraj, who arrived at the spot on a motorcycle, witnessed the accident. They immediately took the injured Bharat Singh to the District Hospital, Morena, in the offending vehicle, from where he was referred to Sahara Hospital, Gwalior. During the course of treatment, on 24.05.2019, Bharat Singh Rajppot succumbed to his injuries. Upon receiving information from Sahara Hospital, Police Station Jhansi Road, Gwalior registered Merg Intimation No. 42/2019. After enquiry, FIR was registered against the driver of the offending vehicle and thereafter, a charge sheet was filed against him. The driver, owner, and Insurance Company of the offending vehicle filed their written statements before the Tribunal and denied all the averments made in the claim petition. The Claims Tribunal, after framing issues and recording evidence of both parties, allowed the claim petition and awarded compensation in favour of the claimants/respondents No. 1 and 2.

Being dissatisfied with the impugned award, the present appeal has been filed by the appellant/Insurance Company mainly on the ground that the Claims Tribunal failed to properly appreciate the evidence on record. It is contended that the First Information Report was lodged with an unexplained delay of 23 days, in collusion with the owner and driver of the insured vehicle, falsely implicating the said vehicle. It is urged that the alleged accident took place on 18.05.2019, whereas the FIR was lodged on 11.07.2019 by Bharat Singh S/o Ajmer Singh. Such an inordinate delay clearly suggests that the insured Alto car bearing registration No. MP06/CA6558 was falsely implicated and that the accident was, in fact, caused by an unknown vehicle. It is further submitted that as per MLC report (Ex. P-9), the doctor has written that the "injury was caused due to head-on collided with another motorcycle." The said report bears the signature of Amit, son of the deceased, who did not object to this entry at that time. This clearly indicates that the accident did not involve the insured vehicle. It is also contended that although the claimants have pleaded that the deceased was taken from Morena to Gwalior, no document has been produced to show that the deceased was referred from the District Hospital, Morena, to Gwalior. Moreover, the alleged eyewitness did not inform the police about the incident, which raises serious doubt about their credibility which appears to be implanted witnesss. Hence, the impugned award deserves to be set aside.

On the other hand, learned counsel for the claimants supported the impugned award and submitted that the police have filed a charge sheet against the driver of the offending vehicle, which remained unrebutted. The driver of the offending vehicle did not step into the witness box to deny his involvement, and the claimants' evidence remains unrebutted. Hence, the appeal deserves dismissal.

I have heard learned counsel for the parties and perused the record of the Claims Tribunal as well as the documents filed therein.

According to the FIR (Ex. P-2), the accident occurred on 18.05.2019, but information about the accident was received to the police on 07.07.2019. Merg intimation (Ex. P-7) was registered by Police Station Jhansi Road, Gwalior, on 24.05.2019, and unnatural death intimation (Ex. P-4) was registered by Police Station Baaghchini, District Morena, on 06.07.2019.

It is true that the accident occurred on 18.05.2019, but no information was given on that date either by Sahara Hospital, Gwalior or District Hospital, Morena, to the concerned police station. The first information report was registered only after the death of the deceased on 24.05.2019 and upon receipt of information from Sahara Hospital. Thereafter, the police investigated the matter and registered the FIR.

It is settled law that delay in filing the FIR is not fatal either in criminal case or in claim case provided that sufficient and cogent reason for delay in filing the FIR is given

The Hon'ble Apex Court in the case of Ravi vs. Badrinarayan and others, AIR 2011 SC 1226 in para 20 & 21 in para 20 & 21 has held as under:

''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.

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."

In the present case, the accident occurred on 18.05.2019 and the deceased passed away on 24.05.2019. From the perusal of Ex. P-7, it is evident that Sahara Hospital, Gwalior, informed the police only after the death of the deceased, and thereafter, the FIR (Ex. P-2) was registered on 07.07.2019. It was therefore incumbent upon the claimants to satisfactorily explain this delay.

It is true that at the time of accident it can not be expected from family members of the injured/deceased that they firstly lodged the FIR or gave information to the concerned police station. It is duty of family members of the deceased firstly to facilitate treatment to deceased/injured and thereafter they lodged report before the concerned police station promptly.

It is settled principle that merely delay in lodging FIR can not fatal the case but claimants are duty bound to explain the delay and it is also a settled law that if police registered the case against driver of the offending vehicle and investigated the matter and after investigation filed the charge sheet against driver of the offending vehicle then Claims Tribunal may presume guilty against driver of the offending vehicle. But this presumption is rebuttable which can be rebutted by the party who wants to rebut it by way of adducing evidence or evidence adduced by the claimants.

In the present case, (Ex.P.9) was produced by claimants and according to (Ex.P.9), it is documents of Sahara Hospital, Gwalior in which it is mentioned that injured-Bharat Singh Rajpoot s/o Raghunath Singh Rajpoot was brought by Mr. Amit who is son of deceased (A.W.1) and it was also mentioned in (Ex.P.9) that accident occurred due to head on collision with another motorcycle and in this documents bear signature of deceased's son Amit (A.W.1).

According to document (Ex.P.9), accident occurred by another motorcycle. In the case of Oriental Insurance Company Ltd Vs Premlata Shukla and Ors. 2007, ACJ 1928 wherein the Apex Court held that once a part of contents of document is admitted in evidence, the party bringing the same on record can not be permitted to turn round and contend that other contents contained in the rest part thereof had not been proved.

In the present case, (Ex.P.9) was produced by claimants wherein it is clear that they have relied upon those documents and signature of document (Ex.P.9) was admitted by Amit (A.W.1). Therefore, they can not discard this document.

It is duty of claimants to prove that how and which manner in document (Ex.P.9) it is mentioned that accident occurred with another motorcycle.

In the case of National Insurance Company Ltd Vs Smt. Setu Bai ILR 2008 M.P. 2367, wherein Division Bench of this High Court held in para Nos. 10 and 11 as under:-

"10. P.W.-2 Hukum Khati has appeared before the Court as an eye-witness, unfortunately we do not know whether he was examined as an eye-witness at the time of the investigation by the Police. It is not known to us that Hukum Khati immediately after the accident evbr lodged any FIR or appeared before the Police for recording of his statements or at any point of time, informed the Police that the bus was involved in the accident. In the examination-in-chief which is typed and prepared by the Counsel he has shown the involvement of the bus but however, in the cross-examination in paragraph 5 he made a statement that he could remember number of the truck. From this statement of the witness it would appear that in fact a truck was involved in the accident.

Learned Counsel for die respondent claimants placed reliance upon paragraph 10 of the judgment of the learned Court below. We are sorry to record that the contents of paragraph 10 of the judgment show absolute non application of mind on the part of the learned Court below. The learned Court below had ignored the FIR and its contents simply observing that it was not the positive evidence. The learned Court below failed to appreciate that Ex. P/1 was a document which was filed by the claimants and they placed reliance upon it. If the claimants wanted to explain the contents then they were obliged to inform the Court that under some misapprehension wrong details of the offending vehicle were given in the FIR. The learned Court below in our considered opinion committed an absolute illegality in observing that as the Police had filed challan against the driver of the bus and as the driver of the bus has not taken any step s against filing of the challan it has to be presumed that the bus and the driver of the bus were involved in the accident. The approach of the learned Court below in our considered opinion is absolutely perverse. Filing of the challan against a particular person would only show that there was some evidence to connect the person with the alleged crime but on the basis of filing of the challan a Court would not be entitled to presume or record a finding that such person was involved in commission of the crime. If the approach of the learned Court below is accepted as a principle of law then the ceremonial trial would not be required and simply on the basis of filing of the challan an accused would stand convicted. Filing of the challan against a particular person would only clothe a Court to go for a trial. In our system after giving due opportunity of hearing to the parties a Court is required to record a finding that whether the person had authored the crime or not. Filing of the challan would not gag the mouth of the Court in delivering a judgment in favour of the accused. In the present case the learned Court below- simply observed that because the driver and the owner have not challenged the contents of the challan before any Superior Court or under Section 482- of the Code of Criminal Procedure it would be justified to hold that the bus and the driver were involved in the offence."

In the aforesaid case, Division Bench held that when eye witness lodged the FIR that truck had hit the motorcycle killing driver and police filed charge sheet that involvement of truck not proved. However, bus had caused the accident. So, it is a duty of claimant to examine Investigating Officer to prove that on what particular evidence, he recorded findings that truck was not involved in the accident and in-fact that bus caused the accident. Non examination of Investigating Officer, First Information Report would give dent to the claim

In the present case, Amit (A.W.1) who is son of deceased admitted his signature in Ex.P.9 which it shows that he brought his father-Bharat Singh Rajpoot to Sahara Hospital, Gwalior and it was mentioned in Ex.P.9 that head on collided with another motorcycle.

Therefore, it is duty of claimants to prove that how and which manner FIR was registered against the offending vehicle bearing registration No. MP06/CA6558 but claimants had not examined the Investigating Officer who is best witness to prove that why he had not relied on Ex.P.9 and how and which manner, he registered the FIR and filed charge sheet against driver of Alto car bearing registration No. MP06/CA6558 but claimants are unable to adduce Investigating Officer to examine before the Tribunal to prove this fact. Therefore, adverse inference can be drawn against claimants.

In the present case, Amit (A.W.1) before the Tribunal admitted his signature in Ex.P.9 but he has not explained in Ex.P.9 how and which manner, the accident occurred on head collided with another motorcycle. It is the duty of claimants to call doctor of Sahara Hospital, Gwalior to prove that Amit (A.W.1) did not give information to him in this regard but they failed to call concerned doctor of Sahara Hospital, Gwalior and rebut the fact mentioned in Ex.P.9. Bharat Singh Yadav (A.W.3) who was travelling with deceased-Bharat Singh Rajpoot and they are resident of same village. Thereafter, Bharat Singh Yadav alongwith Anil and Sooraj took deceased-Bharat Singh Rajpoot to Morena hospital but he did not appear to inform to the concerned Police Station and also did not give information to the family members of Bharat Singh Rajpoot, therefore, his evidence is not reliable.

This Court is of the considered view that evidence of Bharat Singh Yadav (A.W.3) is not credible as it appears that he was implanted as an eye¬witness. Therefore, considering document (Ex.P.9), lack of evidence of Investigating Officer and doctor of concerned Sahara Hospital, Gwalior as well as evidence of Amit (A.W.1) and Sooraj (A.W.2) who are also not reliable witnesses and they are unable to explain the delay in lodging the FIR,hence, it is found that claimants have falsely implicated the offending vehicle in the alleged accident.

In view of the foregoing discussion, it is proved that claimants have falsely implicated the offending vehicle only for seeking compensation in the case. Therefore, this Court is of the considered view that Tribunal has committed error in holding that driver of offending vehicle is liable for accident by driving offending vehicle bearing registration No. MP06 CA 6558 but it was occurred by another motorcycle. Therefore, impugned Award of the Claims Tribunal is not sustainable in the eye of law and deserves to be set-aside.

Consequently, the appeal filed by the appellant/Insurance Company is allowed. The impugned award dated 12.04.2023 passed by the Third Motor Accident Claims Tribunal, Morena, in Claim Case No. 315/2019 is hereby set aside. No order as to costs.