Vimla and Others vs Swarn Singh and Others

J.K. Ranka, J—The instant appeal is directed against the award dated 6.4.2005 passed by Motor Accident Claims Tribunal, Laxmangarh, District Alwar, in Claim Case No. 38/33/2003.

The brief facts noticed are that on 20.10.2002 at about 12:00 noon one Rajaram, who was sitting on the back seat of the motorcycle of Swarn Singh bearing No. RJ5-4M-1944, was going with him to Halka Ghat from Barodamev. As alleged, Swarn Singh was driving the motorcycle in high speed, in rash and negligent manner, consequent whereto, Swarn Singh lost balance and the motorcycle fell down and Rajaram received injuries. Later, during the course of his treatment, Rajaram died on 6.11.2002 in the S.M.S. Hospital, Jaipur. Claim was filed before the Tribunal, however, the Tribunal disbelieving the version of claimants, rejected the claim, which has been assailed herein.

Learned counsel for the appellants contended that the finding recorded by the Tribunal is perverse. He contended that though the Tribunal accepts that the accident had taken place, but has come to the conclusion that deceased Rajaram, who died on 6.11.2002, did not receive grievous injuries, and even on the day of the accident he was dropped at his residence by Swarn Singh, but the learned counsel contends that merely because Swarn Singh dropped Rajaram at his home is no basis to arrive at the conclusion that Rajaram did not die because of the said accident. He further contended that the Post Mortem Report (Ex. 7) which is a prime document, clearly states that the injury caused was on account of accident on road, and Rajaram died on account of the injuries suffered. He further contends that the Medical Jurist of the S.M.S. Hospital has given an opinion that the cause of death of Rajaram is "coma due to head injury, and it is sufficient to cause death in the ordinary course of nature". He further contended that Inquest Report, which is also placed on record, also proves that on account of the said accident the deceased received injuries and thereafter died in the hospital. He further contended that all other evidence lead to an irresistible conclusion that deceased Rajaram got seriously injured and consequently died later. He further contended that the deceased had taken treatment from local doctors and when his condition became serious, he was referred to the S.M.S. Hospital, he was admitted in the hospital and later he died. Learned counsel also relied on the judgment rendered by Madhya Pradesh High Court in the case of Hajarilal and Others Vs. Lakhanpratap and Others, (2006) 4 ACC 548 : (2006) ACJ 1019 : (2005) 3 MPLJ 17 , and contends that the order of Tribunal deserves to be quashed and set aside and the matter may either be decided by this court on merits, or restored to the Tribunal for allowing just and fair compensation.

Per contra, learned counsel for the respondent-Insurance Company contended that it is a mere version or a story which has been built inasmuch as there is no evidence of even falling from the motorcycle, as alleged. She contended that no FIR was lodged and it is a mere claim in the Post Mortem Report about injuries caused on account of accident. She further contended that criminal complaint was lodged on 7.1.2003 and thereafter FIR was registered, which was almost two-and-a-half months later from the alleged accident. She also contended that the wife of the deceased was examined and she in her cross-examination has categorically stated that even after the accident Rajaram came to the residence on his own and was hale and hearty, and was leading a normal life and he being a Patwari, a government servant, attended office regularly thereafter also. She further contended that even eye-witness Murari Lal also observed that he used to go to his office regularly. She contended that cause of death is certainly not on account of fall from the motorcycle and contended that the Tribunal has rightly concluded that a story has been built.

I have considered the arguments advanced by the parties, and in my view the evidence on record clearly indicates that though the deceased may have got injured, but not because of the injuries sustained by him while sitting on the motorcycle. Admittedly, wife of the deceased and Murari Lal, both in their cross-examination clearly admitted that after the accident Rajaram was dropped by Swarn Singh himself at his residence and that Rajaram used to go to his office every day. Wife of the deceased has also stated that she did not go to any doctor with him and that Rajaram during the intervening period was also doing his day to day affairs on his own and was normally behaving in every respect. She showed her ignorance as to whether Rajaram visited any local doctor. She has in her cross-examination clearly indicated that she did not have any prescription for treatment of illness of her husband during 20.10.2002 till 5.11.2002 when he was admitted in the S.M.S. Hospital. She further stated that it was never felt necessary for admitting her husband in hospital from 20.10.2002 till 5.11.2002 and after coming from office he used to stay at home only. She admitted that no report of any accident was filed. She further stated that on account of pain in the head, he was referred to S.M.S. Hospital.

5.1 Murari Lal, who is also stated to be an eye-witness, has stated that though he was witness to the accident but he stated that no blood came out on account of fall of Rajaram from the motorcycle, and although the motorcycle was in a position to drive properly but only the light was broken. He further states that Rajaram was given first aid. He also states that after the accident Rajaram went with him to a place called Ghat and Murari Lal was driving the motorcycle and Rajaram was sitting as a pillion rider with him and Swarn Singh was on another motorcycle. He admitted that there is a Government hospital in Barodamev and there were two doctors known, namely Dr. Gopal and Dr. Daulat but after the doctors examined Rajaram, he was dropped at his residence. He further stated that Rajaram used to go to his office regularly and even after 20.10.2002 he went to his office for ten-twelve days. He further stated that they did not file any complaint in the police and that Rajaram was speaking properly and behaving normally that is why no report was lodged in police station.

5.2 Statement of one Ramkishan was also recorded. He stated that though he saw the accident and some people gathered after the accident, but neither he noted the number of the motorcycle nor any report was lodged as Rajaram did not receive any grievous injury.

The material which has come on record is that criminal complaint was filed almost after two-and-a-half months of the incident on 7.1.2003 and on the basis of the said criminal complaint, FIR was lodged on 17.1.2003. It may be observed that the deceased Rajaram died in the hospital on 6.11.2002 and thereafter also almost two months passed in filing of the criminal complaint and later the FIR. It can be appreciated that reasonable time may have been taken by the family members in the formalities after the body was carried to the village, but such a reasonable time could have been, say 15-20 days in facts and circumstances of a case, but in my view the claimants have not been able to prove the abnormal delay of almost two months even after the death. Even if one goes by date of the accident i.e. 20.10.2002, the delay is more than two-and-a-half months. It may be Post Mortem Report does mention that the cause of injury might be on account of road accident but that is on the version of the family members of Rajaram, who were present at the time when Post Mortem Report was prepared. Before the police also the same claim was alleged that it is on account of road accident but even the police report, which has been prepared by the police authorities on 7.11.2002, does not state any thing about the alleged accident caused by Swarn Singh. It simply mentions that Rajaram died because of a road accident. On further investigation the family members simply mentioned that Rajaram died on account of injuries received by him in a road accident, but then they did not make allegations against any one in this regard (Ex. 8), or even Swarn Singh.

The Inquest Report (Ex. 9) also simply observes that the cause of death is on account of some road accident and that is also based on the version as conveyed to the police authorities. Even Swarn Singh, who was driving the motorcycle and it is claimed that claimants had good relations with him, did not appear as a witness or chosen not to appear.

From the evidence which has come on record and referred to hereinbefore, in my view though certainly Rajaram had died on account of some unfortunate accident for some injury but certainly I concur with the view expressed by the Tribunal that cause of death is certainly not on account of the alleged accident where the deceased is said to be travelling with one Swarn Singh, particularly in view of the statement of wife Smt. Vimla and other statements on behalf of the claimants led before the Tribunal. In my view, the order of the Tribunal is just and proper and I do not find any infirmity or perversity in the order impugned.

However, the counsel for the appellants contended that for the amount of Rs. 50,000/- which was initially awarded under Section 140 of the Motor Vehicles Act under the head of "no fault liability" to the claimants, at least to this extent the claim may be upheld in the light of judgment of Hon''ble Apex Court in the case of Indra Devi and Others Vs. Bagada Ram and Another, (2010) ACJ 2451 : AIR 2010 SC 2913 : (2010) 13 SCC 249 : (2010) 10 SCR 347 : (2010) AIRSCW 4924 : (2010) 6 Supreme 383 . In view of the judgment of Hon''ble Apex Court, the claim insofar as amount of Rs. 50,000/- is concerned, is allowed and it is held that the claimant-appellants will not be liable to refund the said amount on account of "no fault liability". With this modification, the appeal stands partly allowed. No costs.