Swati Wife vs Indrakumar And Others

Amar Nath (Kesharwani), J

The appellant/claimant has filed this Appeal under Section 173(1) of the Motor Vehicles Act, 1988 being aggrieved with the award dated 20th October, 2022 passed by Seventh MACT, Sagar in MACC No.335/2020 by which the learned Claims Tribunal has rejected the claim of the appellant/claimant on the ground that the appellant/claimant has failed to prove the alleged accident caused by the offending vehicle.

Brief facts of the case are that on 13/12/2019 at about 10:30 A.M. when appellant/claimant was waiting for her colleague at Parkota, Sagar, at that time respondent No.1/non-applicant No.1 who was coming from Namak Mandi was driving the vehicle bearing registration No.MP-20-CE-4758 rashly and negligently dashed the appellant/claimant, due to which she sustained fracture in her left leg. Thereafter, appellant preferred a claim petition before the Claims Tribunal claiming compensation to the tune of Rs.19,69,000/- (Nineteen lakhs sixty nine thousand) on account of injuries sustained by her in the alleged incident.

Learned Tribunal summoned the respondent No.1/non-applicant No.1 and respondent No.2/insurance company. Respondent No.1 filed written statement and denied the averments mentioned in the claim petition. However, it was stated that on the date of incident the respondent No.1 had valid and effective license to drive the offending vehicle, which was insured with respondent No.2/non-applicant No.2, therefore, if any amount of compensation is awarded, then it is respondent No.2/insurance company who is liable to pay the amount of compensation.

Respondent No.2/Insurance company also filed written statement stating that the FIR of the alleged incident was filed with a delay of more than one month. The registration number of offending vehicle was also not informed to District Hospital, Sagar and other hospitals where claimant remained hospitalized. Similarly, no documents pertaining to information given to the District hospital or from hospital to Police, has been filed by the claimant. The claimant has filed this claim petition in collusion with non-applicant No.1 to get the amount of compensation. It was also alleged that on the date of incident respondent No.1 was not possessing valid and effective license to drive the offending vehicle, so the offending vehicle was being driven in violation of terms and conditions of the policy, hence, respondent No.2/insurance company is not liable to pay any compensation and prays for dismissal of the claim petition against the insurance company.

Learned Claim Tribunal framed the issues and recorded the evidence. After considering the evidence placed on the record and the arguments advanced by the learned counsel for the parties, learned Claims Tribunal dismissed the claim petition on the ground that the appellant/claimant has failed to prove the alleged accident caused by the offending vehicle. Being aggrieved by the impugned award, appellant has filed this appeal.

Learned counsel for the appellant submitted that the learned tribunal has rejected the claim petition filed by the appellant solely on the ground that the appellant has failed to prove that the alleged incident was caused due to rash and negligent driving of the offending vehicle. Because the eye-witness of the alleged incident could not be examined before the Tribunal which ultimately persuaded the tribunal to come to a wrong conclusion that the appellant/claimant could not prove her case. It is also submitted that due to mistake of counsel engaged by the appellant before the tribunal, eye-witness of alleged incident could not be examined before the tribunal, therefore, for the fault of her counsel, appellant should not suffer. Under these circumstance, learned counsel for the appellant prays that the matter be remanded back to the concerned tribunal with a direction to decide the matter afresh on merits after affording opportunity to the appellant to examine the eye-witnesses of the alleged incident in support of her case. In support of his contentions, learned counsel for the appellant has placed reliance on the judgment of the Hon’ble Apex in the case of Rafiq vs. Munshilal (1981) 2 SCC 788 and also placed reliance on the order dated 13.02.2023 passed by Coordinate Bench of this Court in M.A.No.1979/2019 (Smt. Anita Kajala vs. Shabeer Khan & ors.).

I have considered the arguments of the learned counsel for the appellant and perused the record and gone through the judgments cited on behalf of the appellant.

From perusal of record it is evident that in support of her pleadings before the Tribunal, appellant/claimant has examined herself as AW-1. She did not examine any eyewitness in support of her pleading or statement. As per Dehati Nalishi (Ex.P-3), Sanjay, husband of claimant dropped her at Parkota, Sagar, where she was waiting for her colleague and after the incident, Rajeev Tiwari also reached the spot and thereafter her husband Sanjay Samaiya and Rajeev Tiwari took her to Tili Hospital, Sagar by an auto, where she was treated. After that she was treated at "Bhagyoday Hospital". Claimant (AW-1) in Para-4 of her cross-examination has admitted that Rajeev Tiwari and her husband took her to the hospital by an auto and FIR (Ex.P-1) was lodged after one month and eight days of the incident and in between her husband and Rajeev Tiwari did not lodge any report anywhere.

As per certified copy of Dehati Nalishi (Ex.P-3) and FIR (Ex.P-1), the date of incident is 13/12/2019 and the report of the incident was lodged on 21/01/2020 i.e. after one month eight days from the date of incident. The reason for delay in lodging the report has been mentioned as she was busy in her treatment and unable to come to Police Station to lodge the report. It reflects from Dehati Nalishi (Ex.P-3) that appellant/claimant got the report written from her home. MLC/Police information (Ex.P-4) dated 13/12/2019 was sent to the Police Station, Gopal Ganj, Sagar from District Hospital, Sagar with regard to the fact that 'injured came to the hospital'. Similarly Ex.P-7 is the OPD prescription dated 13/12/2019 of District Hospital, Tili, Sagar, in which also, history of road traffic accident was mentioned. Swelling and tenderness in left leg is also mentioned in Ex.P-7. In X-ray report (Ex.P-8) dated 13/12/2019, the factum of fracture of left tibial condyle bone is mentioned.

During investigation, notice (Ex.P-10) under Section 133 of the Motor Vehicles Act was issued to non-applicant No.1 and in reply of that notice, non-applicant No.1 informed the investigating officer that he was the owner of vehicle bearing registration No.MP-20-CE-4758 and on the date of incident he was driving the offending vehicle and accident occurred near Parkota Usha Lodge in which one lady sustained injury. Offending vehicle was seized in the criminal case and non-applicant No.1 got the offending vehicle on supurdigi through Court order. After investigation, challan under Section 279, 337 & 338 of the IPC and Section 134 of the Motor Vehicles Act has been filed by Police Station, City Kotwali, Sagar (M.P.) against non-applicant No.1 before the jurisdictional Magistrate, where non-applicant No.1 faced the trial.

Though, in the written statement non-applicant No.1 denied the factum of accident with offending vehicle due to his negligent driving and stated that his vehicle was falsely implicated in the case. However, he did not appear before the Tribunal to prove his pleadings. Non-applicant No.2/insurance company has also not adduced any evidence before the tribunal regarding the plea that claimant has filed the claim petition in collusion with non-applicant No.1.

It appears from the record that the claimant has filed disability certificate (Ex.P-66), but concerned Doctor has not been examined on behalf of claimant. For that reason learned Tribunal has not found proved the permanent disability caused to the claimant in the alleged incident. It also reveals from the record that Tribunal has not properly appreciated various documents which were filed on behalf of claimant. In para-25 of the impugned award, it is mentioned that appellant has not filed any order regarding sanction leave, whereas attested copy of application for leave is enclosed in the record of Tribunal and a certificate (Ex.P-62) regarding sanction of medical leave issued by office of Principal, Government Higher Secondary School, Barau, District Sagar (M.P.) is available in the case.

As discussed above it is clear that learned Tribunal has not properly appreciated the material available on record. Though, it was the duty of claimant herself to adduce all evidence to prove her case in all respect. Though, learned Tribunal has extended ample opportunity to the claimant to adduce evidence in support of her claim, but it reveals from the record that on 25/08/2022 counsel for the appellant/claimant has closed the evidence on behalf of claimant, hence it appears that counsel for the appellant did not perform his duty properly to substantiate the claimant's case by adducing material witnesses before the Tribunal.

Looking to the fact that the Motor Vehicle Act is a beneficial legislation and technicalities may not be given such importance which may frustrate the basic purpose, therefore, this Court is of the considered opinion that one more opportunity should be given to the appellant/claimant to examine eyewitness and medical evidence to prove the factum of accident by offending vehicle and to prove the nature of injury caused to her in the alleged incident. Opportunity of adducing evidence should also be given to the non-applicant Nos. 1 & 2 to support their pleadings and to rebut the case of claimant.

Accordingly, the matter is remitted back to the Claims Tribunal with a direction to give maximum two more opportunities to the appellant/claimant to examine doctor and eyewitnesses of the incident. Similarly opportunity is also given to the non-applicant Nos. 1 & 2 to adduce any evidence in support of their pleadings. It is also pertinent to mention here that if parties of the case pray to call any witness through summon, then Claim Tribunal may issue summon to the witnesses. After recording the statement of witnesses, the learned Tribunal shall decide the claim petition afresh on merit expeditiously as early as possible. It is made clear that any observation made in this order will not influence the Claim Tribunal in any manner.

However, it is observed that in case appellant succeeds in establishing the involvement of offending vehicle in the accident, then appellant shall not be entitled for interest for the period from the date of this order till the date of award passed by Tribunal in compliance of this order.

With the aforesaid observation, impugned award dated 20/10/2022 passed by 7th MACT, Sagar in MACC No.335/2020 is hereby set aside with the aforesaid directions.

Parties are directed to appear before the learned Tribunal on 08/07/2024. Claimant is directed to serve certified copy of this order to the non-applicant Nos. 1 & 2 by registered A. D. post.

Cost of this appeal will be borne by appellant/claimant herself.

Record of the Tribunal be sent back to the concerned Tribunal alongwith copy of this order for information and necessary action.

Certified copy as per rules.