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2013 DIGILAW 448 (ALL)

Viresh Kumar v. National Insurance Co. Ltd.

2013-02-06

RAJIV SHARMA, SAEED-UZ-ZAMAN SIDDIQI

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Saeed-Uz-Zaman Siddiqi, J.— This instant FAFO has been preferred by the claimant vide judgment and award dated 13.11.2009, passed in MACP No. 68 of 2008 by the Motor Accident Claims Tribunal/Additional District Judge (Court No. 5), Lakhimpur Kheri, by which a minor boy of eight years of age filed the claim petition, through his father Krishna Kumar Singh on 26.03.2008, on account of injuries suffered on his body due to accident dated 03.07.2007 at 8.00 pm on Tundla Firozabad Highway, Mohalla Raja Ka Tal within P.S. Tundla, District- Firozabad Near Pankaj Glass Factory, when he was going back to the house of his father's sister and was hit by motor Car (maruti van) bearing Registration No. UP 25 X 9232, going from opposite direction and rashly and negligently driven by its Driver which resulted in fracture in right hand, injuries in chest, forehead, causing acute pain in the whole body, in which both the hands of the injured became senseless. The insured was admitted in Shanti Nursing Home for first aid by his father and other people present at the place of occurrence, from where he was shifted to District Hospital Firozabad where he was examined and treated upon. He was referred to Raj Chest Clinic, Firozabad, where he remained admitted for seventeen days and Rs.2,00,000/- was spent on his treatment. The claimant was a student of Class- III and due to accident, he became weak, which ultimately resulted adversely in his studies. The claimant claimed Rs.2,00,000/- towards treatment, Rs.1,00,000/- towards mental and physical pain, Rs.6,00,000/- towards future loss, Rs.50,000/- towards weakness caused in the body and Rs. 50,000/- towards diet totalling Rs.10,00,000/-. The claim petition was thus preferred against the owner and insurer of the offending vehicle. The owner contested the case, inter alia, on the grounds that no accident ever took place and the owner has no knowledge about the alleged FIR. That his vehicle was never challaned by the Police nor it was released by the Court, nor any bail application has been moved before any Court. That the compensation has been excessively claimed. That the registration of case Crime No. 393 of 2007 under Section 279/338 IPC is not in the knowledge of the owner. In either case, the vehicle was insured with the opposite party No. 2, which is liable to pay damages, if any. That the compensation has been excessively claimed. That the registration of case Crime No. 393 of 2007 under Section 279/338 IPC is not in the knowledge of the owner. In either case, the vehicle was insured with the opposite party No. 2, which is liable to pay damages, if any. The Insurance Company-Opposite party No. 2 also denied the factum of accident and contested the case, inter alia, on the ground that the claim petition is not maintainable. That the offending vehicle was not being driven by a person having a valid and effective driving license on the date of accident, nor it was being plied with in accordance with the conditions of the Insurance Policy. That the Insurance, Driving License, Registration is not valid and, as such, the Insurance Company is not liable to pay damages. The protection of Section 147/149/170/158 (6) Motor Vehicle Act has been taken in the written statement. It was also pleaded that the compensation has been claimed excessively. On the basis of the pleadings of the parties, the learned Tribunal framed issues on 08.04.2009, recorded the evidence of the parties and determined under Issue No. 1 that for want of lodging of the FIR, the factum of accident is not proved. Hence, this appeal has been preferred. We have heard learned counsel for both the parties and have gone through the records. This is a settled principle of law that the case has to be decided on the strength of its own records and evidence led by the parties. It is settled proposition of law that lodging of an FIR is not a condition precedent to prefer a claim petition. The claimant's version is that the accident took place on 03.07.2007. The FIR to this occurrence was lodged on 28.08.2007. Though there is a delay in lodging the FIR, yet the injuries were examined on 06.07.2007 by the Emergency Medical Officer, Dr. Vinay Kumar of District Hospital, Firozabad. These facts find place in the discussions made by the learned Tribunal under issue No. 1, yet it has been held that since the Police has submitted final report, which was not accepted by the Magistrate concerned, directions were issued to the Police to re-investigate the matter. Vinay Kumar of District Hospital, Firozabad. These facts find place in the discussions made by the learned Tribunal under issue No. 1, yet it has been held that since the Police has submitted final report, which was not accepted by the Magistrate concerned, directions were issued to the Police to re-investigate the matter. On this score, the findings of the Tribunal are perverse in view of the fact that the Tribunal while finding faults and lapses of the claimant has lost sight of the fact of the mental condition of the claimant, who has suffered injuries including fracture and the age of the claimant. The Tribunal has also observed that the delay in lodging the FIR has not been satisfactorily explained by the claimant on the ground that his sister and sister's husband were present at the time of accident and they have sufficient time to lodge an FIR. However, the sister and her husband have not been examined by the claimant as witnesses, who has preferred this claim petition. However, he has examined himself as P.W.1. He has stated in the cross-examination that since his son was examined by the Emergency Medical Officer, the prescription was not prepared. He has further stated that he remained busy in the treatment of his injured son. But all these facts have been ignored by the learned Tribunal, though this witness has been examined by the Opposite party at length. We refrain ourselves from discussing the evidence, in detail, because it will prejudice the rights of the parties as the evidence has to be re-discussed in a pragmatic manner by the Tribunal itself and, as such, we have no option left except to remand the matter to the Tribunal. While remanding the case, it has been observed that the learned Tribunal has not, at all, discussed the documents filed by the claimant, including X-ray plate, receipts of B.D.G. Hospital and Research Centre, Shanti Nursing Home and acupuncture Centre, Raj Chest Clinic and Department of Radiology, SNM District Hospital, Firozabad. Accordingly, the FAFO is allowed and the impugned order is hereby set aside. The matter is remanded to the Tribunal to decide the matter in light of above, in accordance with law, expeditiously. _____________