Vinod Patel And Others vs Ajay Singh And Others

Ratnesh Chandra Singh Bisen, J

These misc. appeals arise out of same award hence are being decided by a common order.

Misc. Appeal No.5856/2018 has been filed by the claimant/appellant for being aggrieved by the award passed on 22.09.2018 passed by Member Accident Claims Tribunal, Sagar in MACC No.3900054/2015, whereby for the injuries sustained by the injured Vinod Patel, compensation of Rs.11,13,400/- was awarded alongwith interest. The cross-appeal registered as M.A. No.368/2019 has been preferred by the Insurance Co. for setting aside the award as well as for reduction of the amount of compensation awarded in the case.

The brief facts necessary for the adjudication of these miscellaneous appeals are that the claimant was travelling towards Sagar along with Kamlesh Patel on Motorcycle No. MH-15-5966. While they were proceeding on the National Highway, the offending vehicle, namely Ambassador Car No. MP-15-A/3777, suddenly came at a high speed and, being driven rashly and negligently by Respondent No. 1, dashed against the motorcycle. As a result of the accident, the claimant fell on the road and sustained multiple grievous injuries. He was immediately shifted to the hospital for treatment. Due to the accidental injuries, his backbone was fractured along with several other bones of his body. Consequently, he is unable to perform his daily activities or labour work. He is also unable to move from one place to another without assistance. The claimant remained admitted in several hospitals and underwent multiple surgeries relating to his backbone and other injuries. In consequence of the injuries sustained, a disability certificate was issued by the Medical Board, Sagar, which has been exhibited as Ex. P/328. According to the said certificate, the claimant has suffered 80% permanent disability of the body. The claimant, therefore, filed a claim petition before the Claims Tribunal on the ground that he had become incapable of working and had also suffered loss in agricultural income.

Learned counsel for the appellant in M.A. No. 5856/2018 submitted that the appellant/claimant has suffered 80% permanent disability as certified by the Medical Board vide Ex. P/328, and therefore he is entitled to adequate compensation from the respondents. It was further submitted that the claimant is unable to walk without the assistance of another person. During the course of treatment and surgeries, he had to frequently visit hospitals with the assistance of attendants and helpers, and therefore he is entitled to compensation towards attendant charges as well. It was further argued that the appellant is a married person having minor children and, due to the disability suffered by him, the entire family has been adversely affected, entitling him to further compensation. It was contended that the learned Tribunal awarded an inadequate amount of compensation, and therefore the present appeal has been preferred seeking enhancement of compensation. Learned counsel for the claimant, Shri Manan Agrawal, further submitted that this is a case involving 80% permanent disability, and therefore the delay of 53 days in lodging the FIR is immaterial. He further argued that if Kamlesh Patel was a material witness, it was open to the Insurance Company to examine him.

The claimant suffered grievous injuries, including paraplegia, in a motor accident dated 23.01.2015 caused due to the rash and negligent driving of the insured Ambassador car. The Tribunal has rightly held that the offending vehicle was involved in the accident and has accordingly awarded compensation. The plea raised by the Insurance Company regarding false implication and non-involvement of the vehicle is not maintainable, as no such plea was raised before the Tribunal. A new plea cannot be permitted to be raised for the first time at the appellate stage. Reliance placed on Exhibit D/4 (hospital statement) is misconceived, as the said statement was allegedly recorded when the claimant was in a critical medical condition. The same cannot override the medico-legal case (MLC) records indicating the involvement of a four-wheeler, the sworn testimony of the claimant, and the police charge-sheet filed against the driver of the offending vehicle. It was further submitted that the delay in lodging the FIR has been sufficiently explained on account of the claimant's prolonged hospitalization and severe disability, and mere delay cannot defeat a genuine claim. The driver and owner of the offending vehicle did not enter the witness box; therefore, an adverse inference is liable to be drawn against them. The police have filed a charge-sheet against the driver, which further corroborates the claimant's case. It was also argued that the Insurance Company failed to prove any breach of policy conditions, absence of a valid driving licence, or absence of permit, and therefore the liability has rightly been fastened upon it. Learned counsel further contended that the Tribunal erred in assessing the disability at 60%, whereas the medical evidence clearly establishes at least 80% permanent disability and, functionally, the same amounts to 100% loss of earning capacity. The claimant's monthly income was wrongly assessed at Rs. 4,500/-. Being an agriculturist, his income ought reasonably to have been assessed at Rs. 7,500/- to Rs. 8,000/- per month. It was further submitted that the medical expenses amounting to Rs. 5,45,588/- have been duly proved and deserve to be reimbursed in full. Compensation awarded towards attendant charges, transportation, and future medical care is grossly inadequate and requires substantial enhancement. Similarly, the amount awarded under the heads of pain and suffering, loss of amenities, and other non-pecuniary damages is disproportionately low considering the permanent disability of the claimant and deserves to be suitably enhanced.

Per contra, learned counsel appearing for the Insurance Company submitted that the claimant, Vinod Patel, admitted in paragraph 12 of his cross-examination that Kamlesh Patel and other villagers had informed him that the accident was caused by an Ambassador car. It was further contended that although the claimant sought to examine Kamlesh Patel and other alleged eyewitnesses to the accident, none of them were ultimately examined before the Tribunal. On this basis, it was argued that the claim petition is liable to be dismissed. Shri Dinesh Kaushal, learned counsel appearing for Respondent No. 3, submitted that the accident allegedly occurred on 23.01.2015, whereas the FIR was registered only on 17.03.2015, despite the assertion that it had been lodged by the father of the injured on the date of the accident itself. It was further submitted that Kamlesh Patel, who was allegedly the pillion rider on the motorcycle, was not examined before the Tribunal. Likewise, the father of the injured was also not examined on behalf of the claimant. Learned counsel further submitted that ASI Rajesh, who investigated the crime, was examined on behalf of the Insurance Company. During investigation, ASI Rajesh recorded the statement of the injured Vinod Patel under Section 161 of the Code of Criminal Procedure, wherein the claimant allegedly stated that the vehicle involved in the accident was a Bolero. The said statement has been exhibited as Ex. D/4. It was argued that since the FIR was registered against an Ambassador car bearing registration No. MP-15/A-3777, the claimant's case becomes doubtful and unreliable. In support of his submission, learned counsel for the Insurance Company has relied on order dated 17.01.2020 passed in M.A. No.1069/2016 (National Insurance Company Ltd. Vs. Smt. Himanshi and others), order dated 19.12.2023 passed in M.A. No.2175/2023 (Branch Manager, New India Assurance Company, Lmt. Vs. Smt. Tara Yadav & Others ) and Take Singh Vs. Kalyan Singh and another, 2007 (III) MPWN 110 . Therefore, according to the learned counsel, the Tribunal ought to have dismissed the claim petition instead of allowing the same.

Heard learned counsel for both the parties and perused the record.

As regards the submission concerning the delay of 54 days in lodging the FIR, it is appropriate to note that the claimant, Vinod Patel, was driving his motorcycle along with Kamlesh Patel on 23.01.2015 at about 7:00 PM. When the claimant reached a U-turn on the fore-lane road, the Ambassador Car, driven rashly and negligently by respondent No.1, came from behind at a high speed and dashed against the motorcycle. As a result of the accident, the claimant sustained grievous injuries and was initially admitted to the District Hospital, Sagar. Thereafter, he remained under continuous treatment and was admitted at hospitals in Nagpur from 24.01.2015 to 03.02.2015 and again from 13.02.2015 to 20.02.2015.

Subsequently, he was admitted to Apex Hospital, Bhopal from 24.02.2015 to 03.03.2015 and again from 11.03.2015 to 17.03.2015, and thereafter remained admitted in a hospital at Nagpur from 18.03.2015 to 31.03.2015.

In view of the aforesaid facts, it is evident that the injured claimant remained continuously occupied with medical treatment and hospitalization. Therefore, the delay of 54 days in lodging the FIR stands sufficiently explained and, merely on that basis, the claim petition cannot be rejected. In this regard, the Hon'ble Supreme Court in Ravi vs. Badrinarayan and Others, (2011) 4 SCC 693, in paragraphs 15 to 19, has held as under :

"15. Under the aforesaid facts and circumstances, it is amply proved that the aforesaid truck was involved in the road accident, which had caused injuries to Ravi. No doubt, it is true that there has been delay in lodging the FIR but the same has already been explained by Suresh. The explanation offered by him is not only satisfactory; it inspires confidence as cogent and valid reasons have been assigned therein. Not only this, a consistent stand has been taken by Suresh right from the beginning till the lodging of the F.I.R. The reasons for delay are as under :

(i) Ravi was seriously injured, thus it was more important for Suresh to get him treated first.

(ii) Police had arrived at the hospital, where injury report was prepared in which it was mentioned that injuries were caused on account of road accident at 9.00 a.m. on 7.10.2001.

(iii) The categorical admission made by Prahlad Singh, owner of the truck, that vehicle in question was involved in the accident on 7.10.2001, when the same was being driven by Badrinarayan and this information was conveyed to him on phone the very same day.

(iv) FIR could not be lodged immediately as other persons in the locality pressurised Suresh that it could be sorted out amicably since Badrinarayan, the driver of the vehicle, was his neighbour.

(v) Suresh was not aware of the niceties of law that lodging of FIR was condition precedent before filing the Claim Petition.

All these facts find place in the formal FIR which was registered on 26.01.2002 at the instance of Suresh.

The cumulative effect of the aforesaid events clearly established that the accident had taken place on 7.10.2001 at about 8.30 in the morning on account of rash and negligent reversing of the truck by driver Badrinarayan, owned by Respondent No. 2, Prahlad Singh. Under these circumstances, it cannot be said that delay in lodging the FIR could have proved fatal to the claim case filed by Ravi. Narration of the aforesaid events would show the bona fides of Suresh. As mentioned hereinabove, a consistent stand has been taken right from the beginning till the lodging of the FIR. The chronological events narrated hereinabove inspire confidence and it does not smack of a concocted case which has been filed against the driver and the owner of the vehicle only with an intention to get compensation.

1 7 . It is well-settled that delay in lodging the 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."

Similarly, the Hon'ble Supreme Court in Geeta Dubey and Others vs. United India Insurance Co. Ltd. and Others, 2024 SCC OnLine SC 3779, in paragraph 20, has observed as under :

"20. Firstly, it is well settled that in claim cases, in case the accident is disputed or the involvement of the vehicle concerned is put in issue, the claimant is only expected to prove the same on a preponderance of probability and not beyond reasonable doubt. [See Sajeena Ikhbal and Others, V. Mini Babu George, 2024 SCC OnLine SC 2883]. We also deem it appropriate to extract the following paragraphs from the judgment of this Court in Bimla Devi & Ors. V. Himachal Road Transport Corporation, (2009) 13 SCC 530. Repelling similar contentions raised challenging the accident and the involvement of the vehicle in question, this Court held as follows :

"14. Some discrepancies in the evidence of the claimant's witnesses might have occurred but the core question before the Tribunal and consequently before the High Court was as to whether the bus in question was involved in the accident or not. For the purpose of determining the said issue, the Court was required to apply the principle underlying the burden of proof in terms of the provisions of Section 106 of the Evidence Act, 1872 as to whether a dead body wrapped in a blanket had been found at the spot at such an early hour, which was required to be proved by Respondents 2 and 3.

In a situation of this nature, the Tribunal has rightly taken a holistic view of the matter. It was necessary to be borne in mind that strict proof of an accident caused by a particular bus in a particular manner may not be possible to be done by the claimants. The claimants were merely to establish their case on the touchstone of preponderance of probability. The standard of proof beyond reasonable doubt could not have been applied. For the said purpose, the High Court should have taken into consideration the respective stories set forth by both the parties.

The judgment of the High Court to a great extent is based on conjectures and surmises. While holding that the police might have implicated the respondents, no reason has been assigned in support thereof. No material brought on record has been referred to for the said purpose."

In light of the law laid down by the Hon'ble Supreme Court, this Court is of the considered opinion that the claim of the claimant cannot be rejected solely on the ground that the FIR was lodged after a delay of 54 days.

So far as the contention of the Insurance Company that the claimant, in his statement (Ex.D/4), had stated that the accident was caused by a Bolero vehicle, whereas the charge-sheet was subsequently filed against the driver of the Ambassador Car, and therefore the claim petition deserves dismissal on account of such contradiction, is concerned, the same is not acceptable. Considering the nature of injuries sustained by the claimant and the prolonged period of hospitalization, it is apparent that the claimant had suffered serious injuries and was not in a proper physical and mental condition at the relevant time. Therefore, if by inadvertence or confusion the claimant mentioned "Bolero" instead of "Ambassador Car" in Ex.D/4, the same cannot be made a ground to reject the claim petition. Such an error is natural in the circumstances of the case.

It is also pertinent to mention that, under Section 162 of the Code of Criminal Procedure, the statement recorded by the Investigating Officer during investigation cannot be used except for the purposes contemplated under the said provision. Section 162 Cr.P.C. reads as under :

"162. Statements to police not to be signed: Use of statements in evidence.-(1) No statement made by any person to a police officer in the course of an investigation under this Chapter, shall, if reduced to writing, be signed by the person making it; nor shall any such statement or any record thereof, whether in a police diary or otherwise, or any part of such statement or record, be used for any purpose, save as hereinafter provided, at any inquiry or trial in respect of any offence under investigation at the time when such statement was made :

Provided that when any witness is called for the prosecution in such inquiry or trial whose statement has been reduced into writing as aforesaid, any part of his statement, if duly proved, may be used by the accused, and with the permission of the Court, by the prosecution, to contradict such witness in the manner provided by section 145 of the Indian Evidence Act, 1872 (1 of 1872); and when any part of such statement is so used, any part thereof may also be used in the re-examination of such witness, but for the purpose only of explaining any matter referred to in his cross examination.

(2) Nothing in this section shall be deemed to apply to any statement falling within the provisions of clause (1) of section 32 of the Indian Evidence Act, 1872 (1 of 1872); or to affect the provisions of section 27 of that Act.

Explanation.-An omission to state a fact or circumstance in the statement referred to in sub-section (1) may amount to contradiction if the same appears to be significant and otherwise relevant having regard to the context in which such omission occurs and whether any omission amounts to a contradiction in the particular context shall be a question of fact."

Upon perusal of Section 162 Cr.P.C., it is clear that such statement can ordinarily be used only for contradiction in criminal proceedings, and that too in the manner provided by law. Except with the permission of the Court, such statements cannot be relied upon in other proceedings. In this regard, reference may be made to the judgment of the Hon'ble Supreme Court in Raghunandan vs. State of U.P. , (1974) 4 SCC 186.

The learned Tribunal has duly appreciated the entire oral and documentary evidence adduced on behalf of the claimant in paragraphs 9 to 25 of the award. After the accident, FIR was registered at Police Station Surkhi and, upon investigation, a prima facie case was found against non-applicant No.1, Ajay Singh, for offences punishable under Sections 279, 337 and 338 of the IPC. This circumstance also lends support to the case of the claimant.

It is further noteworthy that non-applicant No.1/driver Ajay Singh, who was the best witness to the incident, did not enter the witness box before the Tribunal. Had he appeared and deposed that the accident did not occur due to rash and negligent driving of his vehicle, or that the claimant himself was negligent in driving the motorcycle, the same could have been considered by the Tribunal. However, in the absence of his testimony, an adverse inference is liable to be drawn against the respondents that, had he been examined, his evidence would not have supported their case. This circumstance also corroborates the version of the claimant.

It is well settled that in claim proceedings under the Motor Vehicles Act, the standard of proof is not as stringent as that required in criminal trials. In motor accident claim cases, where the occurrence of the accident or involvement of the offending vehicle is disputed, the claimant is only required to establish the case on the touchstone of preponderance of probabilities and not beyond reasonable doubt. In this regard, reference may be made to Sajeena Ikhbal vs. Mini Babu George , 2024 SCC OnLine SC 2883, as well as Geeta Dubey and Others vs. United India Insurance Co. Ltd. and Others, 2024 SCC OnLine SC 3779, particularly paragraph 20 thereof.

In view of the aforesaid discussion, M.A. No.368/2019 filed by the Insurance Company being devoid of merits, deserves to be and is hereby dismissed.

So far as M.A. No.5856/2018 preferred by the claimant Vinod Patel seeking enhancement of compensation is concerned, on perusal of the award passed by the Tribunal, it is apparent that although the Tribunal has awarded a sum of Rs.5,00,000/- towards medical expenses, the claimant had produced medical bills amounting to Rs.5,45,588/-. Likewise, the Tribunal has awarded only Rs.10,000/- towards special diet, which appears to be grossly inadequate considering the prolonged hospitalization and continuous treatment undergone by the claimant. Under the head of attendant and care charges, only Rs.25,000/- has been awarded. The Tribunal has further assessed the monthly income of the claimant at Rs.4,000/-.

Further, as per the permanent disability certificates Ex.P/10 and Ex.P/328, the claimant suffered permanent disability. Although Ex.P/10 assessed the permanent disability at 70%, the subsequent disability certificate Ex.P/328 assessed the same at 80%. However, despite the aforesaid medical evidence, the learned Tribunal assessed the disability of the claimant at only 60%, which does not appear to be justified in the facts and circumstances of the case. Accordingly, the permanent disability of the claimant is considered at 70% instead of 60%. On perusal of the award, it further appears that the Tribunal failed to consider future prospects in light of the law laid down by the Hon'ble Supreme Court in National Insurance Company Ltd. v. Pranay Sethi (2017) 16 SCC 680. Therefore, the claimant is entitled to an addition of 40% towards future prospects. The annual income of the claimant has been assessed at Rs.54,000/-. Adding 40% towards future prospects, i.e., Rs.21,600/-, the total annual income comes to Rs.75,600/- (Rs.54,000/- + Rs.21,600/-). The age of the injured claimant was 33 years at the time of the accident; therefore, the applicable multiplier would be 16. Accordingly, the loss of future earning capacity is calculated as Rs.75,600/- Ã- 16 Ã- 70% = Rs.8,46,720/-. Further, under the head of medical expenses, the compensation is enhanced from Rs.5,00,000/- to Rs.5,45,588/-. Under the head of special diet, the amount is enhanced from Rs.10,000/- to Rs.40,000/-, and under the head of attendant and transportation charges, the amount is enhanced from Rs.25,000/- to Rs.50,000/-.

Accordingly, the compensation awarded by the Tribunal is enhanced by a further sum of Rs.4,00,000/- (Rupees Four Lakhs only), over and above the amount already awarded by the Tribunal. The enhanced amount shall carry interest at the same rate as awarded by the Tribunal from the date of filing of miscellaneous appeal i.e. 18.12.2018 till its actual realization. The remaining terms and conditions of the award passed by the Tribunal shall remain unchanged.

The M.A. No.5856/2018 is partly allowed, subject to the following directions :

(i) Respondent No.3 shall deposit the enhanced amount within 60 days from the date of this order, failing which the appellant shall be at liberty to initiate execution proceedings ;

(ii) The appellant shall pay requisite court fees, if any ;

(iii) Upon deposit, the appellant shall be entitled to withdraw the amount along with accrued interest in accordance with law.

The record be transmitted to the Tribunal forthwith.

Pending applications, if any, stand disposed of.