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2006 DIGILAW 1356 (MP)

SAJJAN SINGH TOMAR v. BRIJMOHAN BAIRAGI

2006-11-30

DIPAK MISRA, S.C.SINHO

body2006
ORDER Dipak Misra, J. This batch of appeals being interconnected was heard analogously and is disposed of by this singular order. For the sake of clarity and convenience the facts stated in MA No. 1545/2001 are exposited herein first and thereafter the basic facts in other appeals shall be adumbrated. On 27-5-2000 the claimant-Appellant (hereinafter referred to as 'the claimant') along with his mother. Smt. Hanskunwar and sister. Pavan was proceeding towards the Village. Mastukhedi on his motorcycle bearing Registration No. MP-05/B-2318. When they reached at Badarkha turning. NH-12. a red coloured tanker bearing Registration No. MP-09/KB-7647 came from the behind, being rashly and negligently driven and dashed against the motorcycle as a consequence of which the mother and the sister of the claimant sustained grievous injuries and died on the spot. As pleaded, the claimant also sustained multiple injuries and he was taken to the Hamidia Hospital. Bhopal. After having primary treatment at Hamidia Hospital he was shifted to Ashaniketan Hospital. Bhopal. He underwent certain operations and was compelled to remain in the hospital from 10-6-2000 to 5-01-2001. The claimant suffered permanent disability, as set forth by him, to the extent of 45%, as an iron rod was inserted in his right leg. That apart there was multiple fractures on his left hand. At the relevant point of time, he was preparing for the Pre-Engineering Test and was in the prime of youth and due to the accident he has suffered immense mental trauma, an irredeemable one. Because of the aforesaid accident an action u/s 166 of the Motor Vehicles Act, 1988 (for brevity 'the Act') was initiated claiming compensation of Rs. 10,50,000/-. At the relevant point of time, he was preparing for the Pre-Engineering Test and was in the prime of youth and due to the accident he has suffered immense mental trauma, an irredeemable one. Because of the aforesaid accident an action u/s 166 of the Motor Vehicles Act, 1988 (for brevity 'the Act') was initiated claiming compensation of Rs. 10,50,000/-. In the claim petition it was contended that the accident had occurred by the offending vehicle bearing Registration No. MP-09/KB-7647; that the driver of the vehicle was driving the same in a rash and negligent manner which ultimately became the causitive factor for the accident; that a charge-sheet was submitted u/s 173 of the Code of Criminal Procedure for the offence punishable u/s 304A of the Indian Penal Code before the competent court showing involvement of the driver of the aforesaid vehicle; that the driver was arrested and was eventually charge-sheeted; that the vehicle was released by way of 'zimanama': that the claimant had spent huge amount in his treatment; and that keeping in view the injuries sustained and deprivation of quality of life and the permanent disablement suffered by him the compensation as claimed was allowable to the claimant-Appellant. The owner and the driver entered contest and took the plea that the vehicle in question was not involved in the accident inasmuch as there was non-mention of the registration number of the vehicle in question in the first information report which goes a long way to show non-involvement of the vehicle in the accident. It was also the stand of the owner and the driver that after seven months from the date of the accident the driver was taken into custody and that would nullify the stand taken by the claimant that the vehicle was involved in the accident. Additionally, it was put forth that even if in the ultimate eventuate liability is fastened on the owner and the driver the insurance company would be liable to indemnify the owner as the driver of the vehicle in question did have a valid licence at the relevant point of time. A further stand was taken to the effect that the driver was not present at the spot and the claim put forth by the claimant was exorbitant. A further stand was taken to the effect that the driver was not present at the spot and the claim put forth by the claimant was exorbitant. The insurance company resisted the claim petition and filed its written statement contending, inter alia, that the driver of the vehicle did not have a valid driving licence at the time of the occurrence of the accident; that the motorcyclist had committed breach of terms and conditions of the insurance policy while driving the motorcycle and thereby had contributed in causation of the accident; and that the insurance company under the terms and conditions of the insurance policy was not liable to indemnify the owner. The claimant in furtherance of its case examined himself and some other witnesses. The owner also examined the driver. Certain documents were brought on record and marked as exhibits. The Tribunal on the basis of the material brought on record came to hold that the vehicle in question was not involved in the accident and to arrive at the said conclusion it relied upon the first information report wherein there was non-mention of the registration number of the vehicle in question. Being of this view it rejected the claim. At this juncture it is worthwhile to mention that in M.A. No. 1544/2001 Sayan Singh Tomar and two others put forth a claim for the death of Ku. Pavan, daughter of Sajjan Singh. M.A. No. 1546/2001 has been filed by Tribhuvan Singh for grant of damages caused to his vehicle. M.A. No. 1549/2001 has been filed by Sajjan Singh Tomar and two others for grant of compensation for the death of his wife, Smt. Hanskunwar. Be it noted though four claim cases were instituted but the Tribunal has passed a singular and composite award rejecting all the claim petitions solely on the ground that the vehicle in question was not involved in the accident. Questioning the correctness and soundness of the award it is submitted by Mrs. Manjit Chakkal, learned Counsel for the Appellants that the Tribunal has been totally guided by the fact that there was non-mentioning of the registration number of the vehicle in the first information report and hence, the Respondents had been able to establish non-involvement of the vehicle in question in the accident. Manjit Chakkal, learned Counsel for the Appellants that the Tribunal has been totally guided by the fact that there was non-mentioning of the registration number of the vehicle in the first information report and hence, the Respondents had been able to establish non-involvement of the vehicle in question in the accident. It is urged by her that witnesses in court have, in categorical and unequivocal manner have deposed about the accident caused by the vehicle in question and nothing has been elicited in the cross-examination and hence, there was no justification on the part of the Tribunal to discard their testimony. The learned Counsel further urged that the first information report by which the criminal law was set in motion cannot be the pivotal factor in a proceeding instituted u/s 166 of the Act but the Tribunal has precisely done so which makes the award vulnerable in law. Mr. Rakesh Jain, learned Counsel along with Miss Noopur Jain for the insurer has submitted that the finding of the Tribunal cannot be found to be erroneous inasmuch as the onus was on the claimants to prove the involvement of the vehicle in question in the accident, and that onus having not been discharged the Tribunal is absolutely justified in arriving at the conclusion as regards the non-involvement of the vehicle in question. On a scrutiny of the award it is noticeable that the Tribunal in 10. In motor accident cases where the litigant persons are illiterate, if the Tribunal finds that the evidence led is not sufficient to establish the involvement of the vehicle which caused the accident in our opinion, it would be proper for the Tribunal giving a helping hand by directing the party to lead evidence in accordance with the requirement of law. as it is well settled that a Court or Tribunal is not to act as an umpire watching a battle of wits between the parties from a distance through telescope. The Court is charged with the responsibility of guiding the procedure and apprising the parties whenever necessary of their duties. As legal procedure is full of traps: if a litigant happens to stumble, the Courts should discharge its responsibility except when this is the result of the attempt to be clever and over-reach the Court of to do something inequitable to the other side. In the latter the party concerned should be dealt with severely. As legal procedure is full of traps: if a litigant happens to stumble, the Courts should discharge its responsibility except when this is the result of the attempt to be clever and over-reach the Court of to do something inequitable to the other side. In the latter the party concerned should be dealt with severely. See - Puny Kalu and Another Vs. Sankar Kalu, , and Shantilal Badrichand Mahajan v. Champalal Radhabai and others, 1962 MPLJ 596 , followed in Smt. Kusum Kali's case (supra). On a perusal of the aforesaid paragraph it is plain as noon day that role of the Tribunal is not to act as an umpire watching a battle of wits between the parties from a distance through telescope. The Court is charged with the responsibility of guiding the procedure and apprising the parties whenever necessary of their duties. In the aforesaid decision in paragraph 9 while dealing with the impact of the first information report and plea of alibi the Division Bench speaking through S.K. Dubey, J. expressed the opinion as under: 9... Merely because the registration number if not mentioned in the first information report, testimony of the witnesses cannot be discarded as it is well settled that the first information report is not a substantive peace of evidence. It is not an encyclopedia. The object of first information report from the point of view of the information is to set the Criminal Law in motion. From the point of view of investigating authorities, it is to obtain information about the alleged criminal activity so as to be able to take suitable steps for tracing and bringing to book the guilty party. See - Sheikh Hasib alias Tabarak Vs. The State of Bihar, . In Misc. Appeal No. 465 of 1996, Smt. Kusum Kali and 4 others v. Bhailal Tiwari and 2 others, decided on 4-11-1996, where the registration number was not mentioned in the first information report, this Court has observed that mere non-mention of number in the first information report would not be fatal, if otherwise it is established that the vehicle was involved in the accident. In view of the aforesaid and taking into consideration the cumulative effect of the reasons ascribed by the Tribunal, we are of the considered opinion, that dismissal of the claim in a cryptic manner that the vehicle was not involved in the accident is not correct. The reasons given by the Tribunal as we perceive, are not adequate. The Tribunal should have tried to find out whether the vehicle was really involved in the accident, for that the records of the criminal case should have been called for. At this juncture we may state that the Tribunal has not computed the compensation and only dismissed the case. We are conscious that there was nothing on record to discard the evidence of the claimants and the only ground that has weighed with the Tribunal is that registration number of the vehicle in question was not mentioned in the FIR. The evidence given by the driver has not been able to establish the plea of alibi that he was not at the spot. Regard being had to the facts and circumstances of the case, we are inclined to set aside the award passed by the Tribunal and remit the matter for fresh adjudication. In the result, the appeals are allowed to the extent indicated above. There shall be no order as to costs. Appeal allowed Final Result : Allowed