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2010 DIGILAW 726 (ORI)

ANITA CHAND v. MANAS RANJAN MOHAPATRA

2010-10-28

SANJU PANDA

body2010
JUDGMENT : Sanju Panda, J. - The Appellants have challenged the award dated 7.4.2009 passed by the Second Additional District Judge-cum-MACT, Cuttack in MAC No. 587 of 2005 dismissing the claim application filed by them. The facts, leading to the present appeal, are as follows: The claimants are widow, minor children and mother of the deceased Sanja Kumar Chand who died in a motor vehicle accident on 12.6.2005. The claimants in their claim application stated that while the deceased was going to Jagannath Temple at Pahala after parking his vehicle on the left side of the road, the offending vehicle bearing registration number OSX 0227 came in a high speed and caused the accident. The deceased sustained severe head injuries. After the accident, the deceased was shifted to SCB Medical College and Hospital, Cuttack where he succumbed to the injuries. On the written report, Balianta PS Case No. 82 of 2005 was registered Under Sections 279/304-A IPC. After completion of investigation, charge sheet was filed by the Investigating Officer against the driver of the offending vehicle. They further stated that the deceased was a Senior Journalist and earning Rs. 6000 per month from Ashirbad Prakashan Pvt. Ltd. and contributing Rs. 5000 per month to his family members as the claimants were depending on him. They claimed a compensation of Rs. 8 lakhs for loss of dependency and other claims. 2. Respondent No. 2-lnsurance Company after receipt of notice appeared in the case and filed its written statement admitting the fact of accident. However, it took a plea that the accident was not caused due to fault of the driver of the offending vehicle and the vehicle was not involved in the accident. The claimants filed the claim application and falsely involved the vehicle in connivance with the local police. 3. The owner of the offending vehicle also filed written statement taking a plea that the accident occurred due to fault of the deceased and the vehicle had a valid insurance policy. Therefore, the liability, if any, should be indemnified by the Insurance Company. 4. The Tribunal on the above pleadings framed four issues which are as follows: Issues 1. Whether the rash and negligent driving of the driver of the vehicle bearing registration No. OSX 0227 (Car), the accident took place and in that accident, one Sanjay Kumar Chand succumbed to the injuries? 2. 4. The Tribunal on the above pleadings framed four issues which are as follows: Issues 1. Whether the rash and negligent driving of the driver of the vehicle bearing registration No. OSX 0227 (Car), the accident took place and in that accident, one Sanjay Kumar Chand succumbed to the injuries? 2. Whether the Petitioners are entitled to get compensation? If so, what would be the extent? 3. Whether all the Ops or any of the OP is/are liable to pay the compensation? 4. To what relief, if any, the Petitioners are entitled? 5. The claimants in support of their case adduced oral as well as documentary evidence. However, the Insurance Company did not examine any witness but filed two documents, i.e., certified copy of the inquest report and letter regarding confirmation of remuneration of the deceased which were marked Exts. A and B. Analyzing the evidence adduced by the parties and the issues framed by the Tribunal, it came to the conclusion that the long delay in lodging the FIR without reasonable explanation indicated that the vehicle number was introduced in the body of the FIR with a close connivance with the local police. The vehicle was seized after a long lapse of time and no reasons had been assigned as to why the vehicle was seized four months after lodging the FIR. The informant of the G. R. Case was not examined as a witness by the claimants to prove the factum of accident though the deceased died due to vehicular accident and the involvement of the offending vehicle was doubtful. On these grounds, the Tribunal dismissed the claim application filed by the claimants. 6. Leaned Counsel appearing for the Appellants submitted that the claimants filed claim application Under Section 166 of the Motor Vehicles Act and the strict rules of pleadings should not be made applicable to the accident claim cases. The proceeding being summary in nature, the Tribunal has to ascertain whether a person died due to motor accident and the claimants have to establish their case on preponderance of probability and the standard of proof beyond reasonable doubt could not have been applied. As such, the award passed by the Tribunal is liable to be set aside. The proceeding being summary in nature, the Tribunal has to ascertain whether a person died due to motor accident and the claimants have to establish their case on preponderance of probability and the standard of proof beyond reasonable doubt could not have been applied. As such, the award passed by the Tribunal is liable to be set aside. He further submitted that since the claimants proved the monthly income of the deceased and that the offending vehicle caused the accident, the Tribunal should have allowed the claim application by granting compensation as claimed by the claimants. 7. Learned Counsel appearing for the Insurance Company submitted that P.W.2 who was examined to prove the accident admittedly was not a charge-sheet witness. Therefore, rightly the Tribunal rejected his evidence. Further, the informant who is the elder brother of the deceased stated at the time of inquest that the deceased died being dashed by an unknown vehicle and signed the inquest report. However, he lodged the FIR after 25 days from the date of accident. Since both the parties relied on the said inquest report, the Tribunal rightly disbelieved that the vehicle in question was not involved in the accident as alleged by the claimants and rejected the claim application. Therefore, the award need not be interfered with. Alternatively, Learned Counsel for the Insurance Company submitted that if this Court holds that the offending vehicle had caused the accident, the contribution of the deceased towards his family should be determined at Rs. 4000 per month and accordingly compensation is to be calculated. 8. The Counsel for both the parties filed their respective written note of submissions. This Court considered the rival submissions of the parties and went through the written note of submissions and the LCR. It appears that the claimants in support of their claim examined three witnesses. P.W.2 is a witness to the occurrence. The Tribunal disbelieved him as his name was not reflected as a witness in the charge sheet and the FIR was lodged at a belated stage where the informant introduced the registration number of the vehicle for the first time. Therefore, a doubt arose in the mind of the Tribunal. The fact remains that an earning member of the family died and as per the customs, the bereaved family first performed the obsequies and thereafter they took steps to lodge the FIR. Therefore, a doubt arose in the mind of the Tribunal. The fact remains that an earning member of the family died and as per the customs, the bereaved family first performed the obsequies and thereafter they took steps to lodge the FIR. Hence, in such a situation, it cannot be said that the FIR was lodged at a belated stage. 9. Law is well settled that the claim application Under Section 166 of the Motor Vehicles Act is to be treated differently from a criminal case as held by the Apex Court in the case of Om Parkash Batish Vs. Ranjit @ Ranbir Kaur and Others. The Apex Court in the said case further held that the claim application filed under the Motor Vehicles Act is summary in nature and he provisions of Code of Civil Procedure or Evidence Act are not strictly applicable to such proceedings. The Tribunal must take care to see that the innocent victims do not suffer and the Court should not succumb to the niceties, technicalities etc. 10. The Apex Court in the case of Bimala Devi and Ors. v. Himachal Road Transport Corporation and Ors. reported in AIR 2009 SCW 4290 has held that it was necessary to be borne in mind that the 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 touch stone of preponderance of probability. The standard of proof beyond reasonable doubt could not have been applied. 11. Therefore, it cannot be said that the claimants did not prove that the offending vehicle caused the accident only on the basis of the inquest report and the FIR which was lodged after 25 days from the date of accident. The FIR, inquest report and the final form are not substantive pieces of evidence. Therefore, the claim case cannot be doubted because of any irregularity in those documents. Since the Insurance Company has not proved that there was a connivance of the claimants and the owner of the offending vehicle with the local police, the Tribunal should not have come to a conclusion that in connivance with the local police, the claimants filed the claim application as the FIR was lodged at a belated stage. Since the Insurance Company has not proved that there was a connivance of the claimants and the owner of the offending vehicle with the local police, the Tribunal should not have come to a conclusion that in connivance with the local police, the claimants filed the claim application as the FIR was lodged at a belated stage. As such, the said finding of the Tribunal is set aside by this Court. 12. Further P.W.2 who is a laundry owner and his laundry is situated near the place of accident. He is an eye-witness to the occurrence. In his deposition, he has clearly stated about the manner and mode of the accident and his version was not diminished by the Insurance Company by cross-examining him. The FIR which is not a substantive piece of evidence should not be given preference over the evidence of an eye-witness as held by the Tribunal. The Tribunal should not have drawn adverse inference as it was not trying a criminal case. 13. The charge sheet was submitted by the Investigating Officer Under Sections 279/304-A IPC against the driver of the offending vehicle which attained its finality. Therefore, it can safely be concluded that the accident was caused by the offending vehicle bearing registration number OSX 0227. Since the vehicle in question has a valid insurance policy covering the date of accident, the insurer is liable to indemnify the liability of the insured. 14. This Court called for the LCR. Since all the materials are available on record, this Court being the Appellate Court determines the compensation amount instead of remanding the matter to the Tribunal. Taking into consideration the monthly income of the deceased as it transpires from the LCR, the contribution towards the family was assessed at Rs. 4000. From the postmortem report, it appears that the deceased was aged about 35 years on the date of occurrence. Therefore, this Court by applying 16 multiplier calculates the compensation at Rs. 6,40,000 which shall be paid by the Insurance Company to the claimants without further delay. 15. This Court directs that out of Rs. 6,40,000, Rs. 2,00,000 (rupees two lakhs) each shall be kept in fixed deposit in the names of Appellant Nos. 2 and 3 minors till they attain majority, Rs. 6,40,000 which shall be paid by the Insurance Company to the claimants without further delay. 15. This Court directs that out of Rs. 6,40,000, Rs. 2,00,000 (rupees two lakhs) each shall be kept in fixed deposit in the names of Appellant Nos. 2 and 3 minors till they attain majority, Rs. 1,50,000 (rupees one lakh fifty thousand) be kept in fixed deposit in the name of Appellant No. 1 for a period of two years and Rs. 50,000 (rupees fifty thousand) be kept in fixed deposit in the name of Appellant No. 4 for a period of one year in any nationalized Bank. The rest amount shall be disbursed to the claimants on proper identification. The total amount shall carry interest at the rate of 6 (six) per cent per annum from today till the date of payment. The aforesaid exercise shall be completed within one month from today. Further the Court-fees shall be realised from the awarded amount. The appeal is accordingly allowed. Final Result : Allowed