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2014 DIGILAW 1464 (MP)

Mohammad Azad @ Ajju v. Mahesh

2014-11-12

ALOK VERMA

body2014
ORDER Verma J. -- 1. Being aggrieved by award passed by the learned Motor Accident Claims Tribunal, Dhar dated 29.6.2005 in Claim Case No.48/04 whereby the learned Tribunal dismissed the application of the present appellant filed under section 166 of Motor Vehicles Act. This miscellaneous appeal is filed by the present appellant challenging the aforesaid award. 2. The case of the present appellant before the Tribunal was that on 9.2.2014, the present appellant was going to his residence situated at Bagdun from Eisher Chauraha, Pithampur in tempo bearing registration No.MTT-7950 as paid passenger in the vehicle. The vehicle was belonging to respondent No.2, which was driven by respondent No.1. The respondent No.1 was driving the vehicle rashly and negligently due to which the vehicle overturned and the present appellant suffered injuries in his both the legs, hands and face. The appellant sustained fracture in his right leg. After the accident, he was taken to Lekhi Hospital at Pthampur. Next day i.e. on 10.2.2004 he was treated by Dr. Tiwari at Mhow and on 19.2.2004, he was admitted to Anand hospital at Indore. He was discharged from Anand hospital on 20.9.2004. On being discharged from the hospital he lodged an FIR before the Police Station Pithampur where the crime was registered on 1.3.2004. Due to the injuries sustained in the accident the appellant claims the compensation of Rs.5,00,000/- from the respondents. 3. The respondents No.1 and 2 denied the assertion made by the present appellant. According to them, the vehicle was never involved in the accident. Some other unknown vehicle hit the appellant but as the vehicle of respondents No.1 and 2 normally plies on the route, registration number of the vehicle was given to the police. The respondent No.3 asserted before the Tribunal that respondent No.1 was not having valid and effective license at the time of accident. No permanent disability was caused to the appellant. There is no liability of the Insurance Company as there was breach of conditions and the insurance policy. Accordingly, the respondent prays that the insurance company be absolved of the liability of payment of amount of compensation. 4. The learned Tribunal after hearing both the parties passed the impugned award wherein the learned Tribunal held that the vehicle bearing registration No.MTT-7950 was not involved in the accident, however, the present appellant sustained 48% permanent disability due to a road accident. 4. The learned Tribunal after hearing both the parties passed the impugned award wherein the learned Tribunal held that the vehicle bearing registration No.MTT-7950 was not involved in the accident, however, the present appellant sustained 48% permanent disability due to a road accident. The Tribunal held that it was not proved that the respondent No.1 was not having effective and valid driving license at the time of accident and further held that the present appellant is entitled to receive an amount of Rs.94,679/- and interest thereon due to the injuries suffered by him in the accident. However, since the Tribunal held that the present vehicle was not involved in the accident the Tribunal the Tribunal dismissed the application and no compensation was awarded to the present appellant from the present respondent. 5. Aggrieved by such findings of the Tribunal the present appeal is filed challenging the inference of the Tribunal that the vehicle was not involved in the accident. The respondent No.3 challenged the findings of the Tribunal that it was not proved before the Tribunal that the respondent No.1 was not having a valid and effective driving license at the time of accident. 6. The moot question for decision of this appeal is whereter due to delay in lodging of the FIR it can be inferred that the present vehicle was not involved in the accident. It was falsely stated by the present appellant in the FIR that the vehicle belonging to respondent No.2 was involved in the accident. It is a trite law that delay in filing of FIR is not fatal either in criminal cases or in claim cases provided sufficient and cogent reasons for delay in filing the FIR are given. According to the present appellant, the delay in filing of FIR was due to the fact that he remained admitted in the hospital after the incident i.e. on 9.2.2014 and only discharged on 29.2.2004 (year 2004 was a leap year). Next day he lodged the FIR which is marked as (Ex.P/1). The vehicle was seized by the police vide seizure memo (Ex.P/2) to show that he remained admitted in Lekhi Hospital at Pithampur, the discharge ticket (Ex.P/8) is filed. A discharge ticket of Anand Hospital at Indore is (Ex.P/10) in which the date of discharge is 29.2.2004. The learned Tribunal did not find his explanation natural. The vehicle was seized by the police vide seizure memo (Ex.P/2) to show that he remained admitted in Lekhi Hospital at Pithampur, the discharge ticket (Ex.P/8) is filed. A discharge ticket of Anand Hospital at Indore is (Ex.P/10) in which the date of discharge is 29.2.2004. The learned Tribunal did not find his explanation natural. According to the Tribunal he should have informed the vehicle number of the vehicle involved to the Doctor who was treating him. The doctor also should have informed the police that he was admitted in the hospital after the road accident. The learned Tribunal also observed that the family members should have reported the matter to the police. On the basis of this, the Tribunal inferred that if the number of vehicle was known to the present appellant he would have informed the same to the doctor treating him or he could have lodged a report by post. However, I find that the learned Tribunal decided the issue on imagination and surmises throughout. It is reported in the medical papers that the present appellant was admitted after a road accident, it was duty of the doctors treating him to inform the police about the admission of the present appellant in the Nursing Home. If the doctor failed to perform their duties, the appellant should not have been made to suffer due to the omission on the part of the doctors. 7. In the case, so far as oral evidence is concerned. Rashid AW/2 was also examined. According to this witness, he was travelling along with the present appellant in the tempo bearing registration No.MTT-7950. This witness supports the evidence of the present appellant that the tempo was overturned due to rash and negligent driving by respondent No.1. This witness is himself a driver. He also asserted that all the passengers suffered injuries in the accident and his statement was recorded by the police. The learned Tribunal disbelieved both the appellants and this witness without taking into consideration that no evidence is produced by the respondents No.1 and 2 or respondent No.3 to prove their assertion in their reply that the vehicle was not involved in the accident. The learned Tribunal disbelieved both the appellants and this witness without taking into consideration that no evidence is produced by the respondents No.1 and 2 or respondent No.3 to prove their assertion in their reply that the vehicle was not involved in the accident. The burden to prove that the vehicle was not involved in the accident was on the respondents No.1 and 2 but they failed to discharge their burden and without taking this facts into consideration, the learned Tribunal disbelieved the appellant and his witness Rashid AW/2. 8. The appellant admittedly remained admitted in the various Hospital till 29.2.2004. He sustained serious injuries in his right leg. In such a circumstances, expecting that he would first take care of lodging the FIR is expecting too much from an injured person. On the contrary, the respondents did not care to adduce any evidence to substantiate the pleadings. The respondent No.1 who was driving the vehicle could not muster the courage to examine himself before the Court and submit himself to cross-examination. In such a circumstances, in my opinion, the learned Tribunal erred in holding that due to delay in filing of FIR the statements of the appellant and Rashid (AW/2) that the vehicle bearing registration No.MTT-7950 was involved in the accident was unbelievable. As such, I find that the evidence of the appellant and witness Rashid AW/2 should be believed and it must be held that the vehicle was involved in the accident and, therefore, it is held accordingly. 9. The learned counsel for the respondent No.3 argues that the respondent No.1 was not having a valid and effective license at the time of accident. The learned counsel for the appellant argues that the respondent No.3 did not file any cross appeal and as such he is not entitled to agitate this issue in the appeal. However, if this issue would have decided in favour of respondent No.3 and does not affect the present status of the application of the appellant then the matter could have been agitated in the appeal. However, since no evidence is adduced by the respondent No.3 before the lower Court, it cannot be said that findings of the Tribunal was erroneous in this regard. Accordingly, I find that there is no force in the argument of the respondent No.3. 10. However, since no evidence is adduced by the respondent No.3 before the lower Court, it cannot be said that findings of the Tribunal was erroneous in this regard. Accordingly, I find that there is no force in the argument of the respondent No.3. 10. This brought me to the point of claim of compensation, the learned Tribunal held that he is entitled to receive Rs.44,679/- for expenses he incurred in getting himself treated for which he has produced various bills and cash memo, Rs.10,000/- for pain and suffering, Rs.5,000/- for nutritious diet and for persons attending him and for Rs.35,000/- for immediate and future loss of income. I do not find the amount of compensation as assessed by the Tribunal excessive. The Tribunal also took various counts into consideration. Accordingly, it is held that for the injuries, the appellant suffered in the accident he is entitled to receive a compensation of Rs.94,679/- as compensation. 11. Accordingly, this appeal is allowed. The findings of the Tribunal so far as it relates to issue No.1 is set aside. The application filed by the present appellant before the Tribunal under section 166 Motor Vehicles Act is allowed. It is ordered that :- (a) The respondents to pay as compensation to the appellant an amount of Rs.94,679/-. (b) The amount mentioned to clause (a) shall carry an interest @ 8% per annum from the date of filing of the application till amount is deposited in the Tribunal. (c) The respondents are jointly and severally liable for the payment of the amount. (d) The amount of compensation shall be paid to the appellant by an account payee cross cheque. (e) The respondents shall bear the cost of the application, throughout Advocate fee is fixed as Rs.2,000/-. Jitendra Verma for appellant; M. Jindal for respondent No.3/Insurance Company.