Seema and Others vs Mohd. Ali and Others

Prashant Kumar Agarwal, J.�Feeling aggrieved by the judgment and order dated 30.10.1999 passed by the Judge, Motor Accident Claims Tribunal, Tonk in M.A.C. Case No. 31/1998 whereby the learned Tribunal has dismissed the claim petition filed by the appellants, the appellants have filed this Civil Misc. Appeal under Section 173 of the Motor Vehicle Act, 1988 (hereinafter to be referred as "the Act").

Brief relevant facts for the disposal of this appeal are that the appellants filed the aforesaid claim petition under Section 166 of the Act claiming a sum of Rs. 31,59,000/- as compensation on account of death of Shri Tarachand with the averments that on 4.5.1998 in the evening at about 4.00 p.m. when the deceased-Shri Tarachand was coming towards his village on his scooter, in the way near Janmangal Public Chareatable Trust, a Motorcycle bearing registration No. RJ-26-M1-3213, which was being driven by respondent-Shri Mohd. Ali rashly and negligently, hit the scooter of the deceased as a result of which deceased sustained several injuries and he was taken to SMS Hospital, Jaipur for treatment, but on the same day he died as a result of the injuries sustained by him. Claiming that the age of the deceased was 30 years at the time of the accident and he was earning Rs. 5,000/- per month as a mechanic and by agriculture, an amount of Rs. 31,59,000/- was claimed as compensation under various heads. Respondent-Shri Mohd. Ali filed written reply with the averment that no accident was occurred on 4.5.1998 by his aforesaid vehicle and the allegation made in the petition are totally false. The correctness of the income earned by the deceased was also disputed and it was further stated that the appellant-claimants are not entitled to get any compensation. The respondent-Insurance Company also filed written statement denying the facts stated in the claim petition and it was further stated that as per medical report the deceased sustained injuries due to fall from the roof. It was also stated that a false story of motor accident has been put-forward by the claimants merely for the purpose of claiming compensation. On the basis of pleadings of the parties, necessary issues were framed by the learned Tribunal and the question of accident due to involvement of the aforesaid motorcycle allegedly driven by the respondent-Shri Mohd. Ali rashly and negligently was dealt with by the learned Tribunal under Issue No. 1 and on the basis of the pleadings and evidence available on record, it came to a definite conclusion that the death of Shri Tarachand was not as a result of a motor accident, but he sustained injuries by falling from the roof of his house. With this finding, the claim petition filed by the claimant-appellants was dismissed.

In support of the appeal, learned counsel for the appellants raised the following grounds:--

"(i) Date of alleged incident is 4.5.1998 and immediately after the accident the deceased-Shri Tarachand was taken to SMS Hospital, Jaipur for treatment and he died on 4.5.1998 at 3.00 p.m. while undergoing treatment and thereafter the appellants and other relatives of the deceased were busy in performing the last rites of the deceased and, therefore, FIR could be lodged only on 7.5.1998 i.e. with a delay of three days only, but only on that ground it cannot be said that the deceased did not sustain injuries in the manner as claimed by the appellants. It is well settled legal position that a claim petition cannot be dismissed only on the ground that the FIR was lodged with some delay.

(ii) To prove the fact of accident and involvement of the aforesaid motorcycle therein, independent eye witnesses were produced on behalf of the appellants, but the learned Tribunal without assigning any sufficient reasons discarded their version of the case by relying on a statement mentioned in postmortem report prepared in the hospital to the effect that according to the legal representatives of the deceased, the deceased sustained injuries by falling from roof. It has not been made clear on whose information the aforesaid fact was mentioned in the postmortem report and in absence thereof the statement of the eyewitnesses could not have been disbelieved. As per postmortem report one Shri Sushil Kumar was present when this report was prepared meaning thereby the aforesaid fact of falling from roof was recorded by the doctor in the postmortem report on the basis of information given by Shri Sushil Kumar, but it has not been explained who this person Shri Sushil Kumar is and in what capacity he was present in the hospital and from what source he gave information to the doctor that the deceased sustained injuries by falling from the roof. In absence of such explanation the learned Tribunal went wrong to dismiss the claim petition on the basis of aforesaid fact more particularly in view of the fact that in such cases a fact is required to be proved only to the extent of probability and not beyond reasonable doubt.

(iii) It is pertinent to mention that after lodging of FIR investigation was conducted and on the basis of evidence collected it was found that respondent-Shri Mohd. Ali was involved in the incident and charge-sheet was filed against him for the offences under Sections 279 and 304-A IPC. The fact of filing of charge-sheet further corroborates the oral evidence produced on behalf of the appellants."

It was prayed on behalf of the appellants that the finding of the Tribunal may be set aside and reversed and the matter be remanded back to the Tribunal to consider and decide the remaining issues.

On the other hand, it was submitted on behalf of the respondent-Insurance Company that no explanation has been furnished by the appellant for the delay made in lodging the FIR and that fact alone is sufficient to doubt the story developed by the appellant in the claim petition. It is an admitted fact that when deceased was admitted in hospital several of his near and dear were also present, but even then information regarding the alleged accident and involvement of the aforesaid motorcycle was not given to the police post situated in the hospital premises. If infact the deceased sustained injuries as a result of motor accident, this fact definitely should have been intimated to the treating doctor and the doctor should have further informed the police as in that situation the case would come within the category of a MLC case. It is an admitted fact that after the death of Shri Tarachand his postmortem report was prepared in the presence of his near relatives including his wife and, therefore, it cannot be said that the fact of falling from the roof was wrongly mentioned in the report without any basis. There was no reason for the doctor who prepared the postmortem report to falsely mention the aforesaid fact at his own.

On consideration of submissions made on behalf of the respective parties and the perusal of the record made available to me and the reasons recorded by the learned Tribunal in support of its finding, I do not find any illegality and perversity in the impugned judgment and order requiring any interference. The claimant-appellant- Smt. Seema Devi, wife of deceased-Shri Tarachand, appeared as a witness before the Tribunal, but it is an admitted fact that she was not present at the time of alleged incident and she reached the place of incident after getting information from one Shri Satyanarayan. Therefore, her statement is no help to the appellants so far as the fact of accident and involvement of aforesaid motorcycle is concerned. It is pertinent to note that it has been stated by Smt. Seema Devi that she came to SMS Hospital alongwith her mother-in-law, sister-in-law and Sarpanch Shri Satyanarayan. Thus, it is clear that when the deceased was being treated in the hospital and died while undergoing treatment, her close relatives including some of the claimants were also present in the hospital. To prove the fact of accident, AW2-Shri Salimuddin was also produced as eye witness and he supported the story developed by the appellants, but his presence at the time of alleged incident is very much doubtful because he did not inform any person about the accident and went to his Village Malpura although he admits that the deceased was known to him before the occurrence. This conduct on the part of the witness is entirely unnatural. Therefore, his statement has rightly been discarded by the learned Tribunal. Similarly, AW3-Shri Radheyshyam can also not be said to be an eye witness of the accident. In his examination-in-chief he admits that he reached at the place of accident after getting information from one Shri Satyanarayan and on reaching at the place of accident he found Shri Tarachand lying unconscious and it was informed by Shri Saleem that the deceased has sustained injuries due to reason that respondent No. 1-Shri Mohd. Ali hit him by his motorcycle. This witness further admits that some persons including some of the claimants took Shri Tarachand to SMS Hospital, Jaipur for treatment and his postmortem was conducted next day. Although, he further states that none of them informed the doctor about falling from the roof and the doctor may have mentioned this fact in the PMR at his own, but the explanation furnished by the witness cannot be believed. No doctor would ever state a false fact in postmortem report or any other document at his own. I am of the considered view that unless some near and dear of the deceased informed the doctor about the cause as a result of which deceased-Shri Tarachand sustained injuries, the doctor would not mention the fact at his own more particularly in view of the fact that no benefit was going to be gained by the doctor by mentioning a false fact in postmortem report. Apart from that, the fact of lodging of FIR with delay further makes the case of the appellants doubtful. It is an admitted fact that as soon as the fact of alleged accident came into the knowledge of family members of the deceased, they reached the place of incident and took the injured for treatment to the hospital, but even then the fact of accident was not intimated to the treating doctor and the police person available at the police post situated in the premises of the hospital. This conduct on the part of the appellants is also unnatural. There was ample time and opportunity to the family members of the deceased to lodge the report immediately or within a reasonable time, but the same was not done and the report was lodged only on 7.5.1998. The reason furnished for the delay cannot be said to the sufficient in the facts and circumstances of the case. Although a claim petition cannot outrightly be dismissed only on the ground that the report regarding accident was lodged with some delay, but if the claimant fails to furnish sufficient cause for the delay then the fact of accident becomes doubtful. In the present case, not only the FIR was lodged with some delay without furnishing any reasonable explanation, but the fact mentioned in the postmortem report further makes the story of accident doubtful. The learned Tribunal have recorded its finding under aforesaid issue after considering every aspect of the matter and I find no reason to interfere in the same.

Consequently, by affirming and maintaining the finding arrived at by the learned Tribunal, the appeal filed by the appellants being meritless is, hereby, dismissed, but without any order as to costs.