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Madhya Pradesh High Court · body

2008 DIGILAW 604 (MP)

NATIONAL INSURANCE COMPANY LTD. v. SETUBAI

2008-04-22

A.M.SAPRE, R.S.GARG

body2008
Judgment R.S.Garg, J. ( 1. ) The appellant Insurance Company being aggrieved by the judgment and award dated 10.10.2006 passed by Shri I.S.Shrivastava Member MACT Indore in Claim Case No. 144/2005 awarding a sum of Rs. 5,47,000/-as compensation in favour of respondent No. 1 to 6 has filed this appeal. ( 2. ) The short facts necessary for disposal of the present appeal are, that, a FIR Ex.P/1 was lodged by one Salim Khan at Police Station Dewas informing the Police that while he was going towards Dewas on a Motorcycle a Truck bearing Registration No. U.P.-80/S-9912 had hit another Motorcycle as a result of which the Motorcyclist fell. It was found that the Motorcyclist died on the spot. Thereafter the complainant chased the Truck but the driver of the truck could avoid his apprehension. ( 3. ) On the basis of this FIR the Police reached the spot prepared certain Panchnamas and also recorded the statements of number of the persons. On completion of the investigation, the Police filed challan with a submission that Truck No. U.P. 80/S-9912 was not involved in the accident but in fact Bus No. M.P.09-S/1732 was involved in the accident. The respondent No.1 to 6/ original claimants filed a claim petition before the learned Member Motor Accident Claims Tribunal claiming compensation of Rs. 15,00,000/-with a submission that Bus No. M.P.09-S/1732 was involved in the accident. It was submitted that non-claimant No. 1 and 2 were the driver and the owner of the bus while the bus was insured with the present appellant/non-claimant No.3. Notices were issued to the parties but the owner and the driver did not appear in the Court. It appears that the present appellant Insurance Company made an application under Section 170 of the Motor Vehicles Act seeking permission to defend the claim on all possible grounds which were even available to the driver/owner of the bus. Undisputedly the application was allowed and as the owner and the driver were ex-parte, the Court granted permission in favour of the Insurance Company to contest the claim petition on all grounds. ( 4. ) From the side of the claimant Setubai (P.W. 1) widow of the deceased, Hukum Khati (P.W.2) an alleged witness, Tarun Bansal (P.W.3) the employer of the deceased and Rajusingh (P.W.4) son of the deceased were examined. They were, allowed to be cross-examined. ( 4. ) From the side of the claimant Setubai (P.W. 1) widow of the deceased, Hukum Khati (P.W.2) an alleged witness, Tarun Bansal (P.W.3) the employer of the deceased and Rajusingh (P.W.4) son of the deceased were examined. They were, allowed to be cross-examined. Number of documents were filed by the original claimants in support of their claim. However, the present appellant Insurance Company did not produce any witness nor did produce any document in support of their defence. The learned Trial Court after hearing the parties held that Truck No. U.P.80-S/9912 was not involved in the accident but in fact the bus driven and owned by the respondent No. 1 and 2 was involved in the accident. After holding that the bus No. M.P.09-S/1792 was involved in the accident, the learned Court below awarded a sum of Rs. 5,47,000/-in favour of the original claimants/respondents No. 1 to 6. The Insurance Company being aggrieved by the said award has filed this appeal. ( 5. ) Shri Baheti learned Counsel for the appellant after taking us through the evidence and the documents filed by the other side submitted that the Court below erred in holding that the bus No. M.P.09-S/1732 was involved in the accident. It is submitted by him that it was for the claimants to show and prove before the Court that under what circumstances involvement of Truck No. U.P.80-S/9912 was shown in the FIR. It is also submitted by him that the learned Court below erred in not appreciating that the claimants did not even plead that the truck was not involved in the accident but the accident was caused because of rash and negligent driving of the bus. It is also submitted by him that the learned Court below erred in holding that because a challan has been filed by the Investigating Agency against the driver of Bus No. M.P.09-S/1732, therefore, involvement of the bus in the accident was sure and certain. It is submitted by him that the four witnesses examined by the claimants do not say nor do they explain that under what circumstances the truck was shown to have caused the accident and later on under what circumstances the involvement of the bus was shown. It is submitted by him that the four witnesses examined by the claimants do not say nor do they explain that under what circumstances the truck was shown to have caused the accident and later on under what circumstances the involvement of the bus was shown. It is also submitted by Shri Baheti that the learned Court below erred in not appreciating that Salim the person who lodged the FIR and the Investigating Officer were required to be examined by the claimants to show that under what circumstances involvement of the truck was shown and on what basis the Investigating Officer came to the" conclusion that the bus in dispute was involved in the accident. It is submitted by Shri Baheti that the Court below committed an absolute illegality in making the award in favour of the original claimants. ( 6. ) Shri Saraf learned Counsel for the respondent No.1 to 6 however, placing reliance upon a judgment of the Himachal Pradesh High Court in the matter of National Insurance Co. Ltd. V. Rattani Devi and others 2006 ACJ 717 submitted that if the involvement of a motor vehicle is found by a Court and the said finding is not challenged by the owner or the driver of the vehicle then the Insurance Companies would be forbidden from challenging such findings. It is also submitted by him that the burden to examine the first informant Salim Khan and the Investigating Officer was upon the Insurance Company and as they did not examine those two witnesses, the Trial Court was justified in, holding that the claimants could successfully prove their claim. It is also submitted by him that once the Investigating Agency found that the driver was prima facie answerable to the charge levelled against him for commission of a crime then that in itself would be sufficient to fix liability upon the driver and consequently upon the owner and the Insurance Company. ( 7. ) We have heard the parties at length and have also perused the records. ( 8. ) At this stage at least it is not disputed before us that Ex.P/1 the FIR was lodged by one eye witness Salim and he had clearly mentioned that Truck No.U.P.-80-S/9912 was involved in the accident. ( 7. ) We have heard the parties at length and have also perused the records. ( 8. ) At this stage at least it is not disputed before us that Ex.P/1 the FIR was lodged by one eye witness Salim and he had clearly mentioned that Truck No.U.P.-80-S/9912 was involved in the accident. If this was the first information at the first point of time, then unless such fact is disputed or is explained by the claimants; the fact would remain a fact that the truck was involved in commission of the accident. True it is that the Insurance Company did ask the Court below that they wanted to examine Salim and the Investigating Officer as their witnesses but even if they did not examine them as their witnesses, the lapse on their part would not affect their interest adversely nor would permit the Court to draw adverse inference against them. The burden to prove that the bus was involved in commission of the crime was basically upon the claimants. On one side the claimants had filed the FIR which showed involvement of the truck in the accident and at the same time, they wanted to convey to the Court that in fact the truck was not involved in the accident but the bus in dispute caused the accident. What was the investigation, who were the witnesses, what evidence came to be recorded by the Investigating Officer, what persuaded him to give a report contrary to the FIR was required to be explained by the Investigating Officer. When the claimants wanted to rely upon the challan/charge sheet then the burden was upon them to examine the Investigating Officer to prove that on what particular evidence he recorded a finding that the truck was not involved in the accident and in fact the bus had caused the accident. The non-examination of the Investigating Officer would give a first dent to the claim of the original claimants .Non-examination of Salim who had lodged FIR as an eyewitness would again give another dent to the reliability of the claim because it was always for the claimants to prove before the Court that the FIR contained certain incorrect statements which were later on corrected. Even at that point of time, statement of Salim which were recorded by the Investigating Officer were required to be produced on record to prove that he had resiled from the FIR and stated before the Police that the truck was not involved in commission of the offence. ( 9. ) None of the witnesses have said rather explained as to what was the reason which persuaded Salim to make the FIR involving the truck. We could well understand the plea of the present claimants that under some misapprehension the truck was shown as the cause of the accident but unfortunately not even a single witness comes before the Court and says that under some mistake or misapprehension the truck was shown as cause of the accident. ( 10. ) P.W.-2 Hukum Khati has appeared before the Court as an eye-witness, unfortunately we do not know whether he was examined as an eye-witness at the time of the investigation by the Police. It is not known to us that Hukum Khati immediately after the accident ever lodged any FIR or appeared before the Police for recording of his statements or at any point of time, informed the Police that the bus was involved in the accident. In the examination-in-chief which is typed and prepared by the Counsel he has shown the involvement of the bus but however, in the cross-examination in paragraph 5 he made a statement that he could remember number of the truck. From tins statement of the witness it would appear that in fact a truck was involved in the accident. ( 11. ) Learned Counsel for the respondent claimants placed reliance upon paragraph 10 of the judgment of the learned Court below. We are sorry to record that the contents of paragraph 10 of the judgment show absolute non application of mind on the part of the learned Court below. The learned Court below had ignored the FIR and its contents simply observing that it was not the positive evidence. The learned Court below failed to appreciate that Ex.P/1 was a document which was filed by the claimants and they placed reliance upon it. If the claimants wanted to explain the contents then they were obliged to inform the Court that under some misapprehension wrong details of the offending vehicle were given in the FIR. The learned Court below failed to appreciate that Ex.P/1 was a document which was filed by the claimants and they placed reliance upon it. If the claimants wanted to explain the contents then they were obliged to inform the Court that under some misapprehension wrong details of the offending vehicle were given in the FIR. The learned Court below in our considered opinion committed an absolute illegality in observing that as the Police had filed challan against the driver of the bus and as the driver of the bus has not taken any steps against filing of the challan it has to be presumed that the bus and the driver of the bus were involved in the accident. The approach of the learned Court below in our considered opinion is absolutely perverse. Filing of the challan against a particular person would only show that there was some evidence to connect the person with the alleged crime but on the basis of filing of the challan a Court would not be entitled to presume or record a finding that such person was involved in commission of the crime. If the approach of the learned Court below is accepted as a principle of law then the ceremonial trial would not be required and simply on the basis of filing of the challan an accused would stand convicted. Filing of the challan against a particular person would only clothe a Court to go for atrial. In our system after giving due opportunity of hearing to the parties a Court is required to record a finding that whether the person had authored the crime or not. Filing of the challan would not gag the mouth of the Court in delivering a judgment in favour of the accused. In the present case the learned Court below simply observed that because the driver and the owner have not challenged the contents of the challan before any Superior Court or under Section 482 of the Code of Criminal Procedure it would be justified to hold that the bus and the driver were involved in the offence. ( 12. ) In dealing paragraph 10 the learned Court below observed that at the time of the investigation it was found that the truck was not involved in commission of the accident. ( 12. ) In dealing paragraph 10 the learned Court below observed that at the time of the investigation it was found that the truck was not involved in commission of the accident. Unfortunately the learned Court below erred in not appreciating that it was a simple opinion of the Investigating Officer that a particular vehicle was involved or not involved in commission of the offence. For proving such prima - facie opinion the claimants were obliged to examine the Investigating Officer which they failed to examine. It is to be seen from the evidence that out of four witnesses barring Hukum Khati none of the others were present on the spot. Hukum Khatis statement prima facie does not appear to be reliable because he no where stated that immediately after the accident or after the arrival of the Police he informed the Police that a truck was not involved in the causing the accident but it was the present bus which caused the death of the deceased. The findings recorded by the Learned Court below are absolutely wrong. It is also to be seen from paragraph 10 of the judgment that the learned Court below was alive to the fact that some of the witnesses had admitted that a truck was involved in commission of the accident but the Court below very conveniently brushed aside these admissions observing that the witnesses were not eye-witnesses. P.W.2 Hukum Khati claimed to be an eye-witness and was also referring to a truck in paragraph 5 of his statement. Paragraph 11 of the judgment on which further reliance was placed by the learned Counsel for the claimants simply shows that the Court below was placing its absolute reliance upon the statement of Hukum Khati. In our opinion P.W.2-Hukum Khati was not a witness to the incident. ( 13. ) For the reasons stated aforesaid, we are of the opinion that the learned Court below was not justified in placing reliance upon the statement of Hukum Khati. In our opinion Hukum Khati cannot be taken to be an eye-witness or the witness of the occasion. He is absolutely unreliable. ( 14. ) Once we ignore the statements of Hukum Khati then there is no evidence on the record to connect the present bus with the alleged accident. ( 15. In our opinion Hukum Khati cannot be taken to be an eye-witness or the witness of the occasion. He is absolutely unreliable. ( 14. ) Once we ignore the statements of Hukum Khati then there is no evidence on the record to connect the present bus with the alleged accident. ( 15. ) For the reasons stated aforesaid, we are unable to hold that the findings recorded by the learned Court below are based on proper appreciation of the evidence or can be upheld in our appellate jurisdiction. The findings recorded by the learned Court below are, hereby, set-aside and instead it is held that the respondent No.1 to 6/ original claimants failed in connecting the bus with the alleged accident and the death of deceased Kalusingh in the said accident. ( 16. ) The appeal is, accordingly, allowed. The award made by the learned Court below is set-aside and the claim petition filed by the claimants is dismissed. However, the parties shall bear their own costs throughout. Appeal allowed.