Research › Search › Judgment

Gauhati High Court · body

2017 DIGILAW 1351 (GAU)

New India Insurance Co. Ltd. v. Hananiah Rabha

2017-10-24

KALYAN RAI SURANA

body2017
JUDGMENT AND ORDER : Heard Mr. K.K. Bhatta learned counsel appearing for the appellant. None appears on call for the respondent. 2. The respondent Nos. 1 to 6 are the claimants in MAC Case No.1998/03 which was tried by the Court of learned Additional Judge (FTC) No.2-cum-Member MACT, Kamrup, Guwahati. The respondent No.7 is the owner of the offending vehicle and the respondent No.8 is the driver of the offending vehicle. 3. The case of the claimants is that on 10.09.2003 at about 5 p.m., the deceased Munin Rabha was on his way from Ouphula towards Chhaygaon on his bicycle on the N.H. No.37 and on reaching Kharkhari a truck bearing registration No. AS-01-N-9895 came at a very high speed and hit the deceased from behind. As a result of the accident the deceased suffered multiple injuries. He was immediately taken to Chhaygaon PHC for treatment. However, he succumbed to his injuries. The claimant filed the claim petition stating that the deceased was 29 years of age at the time of his death and he had left behind his wife and 5 minor children. It was claimed that the deceased was earning Rs.6500/- per month. 4. One bystander namely Shri Madan Kalita alias Kamal Kalita (PW6) who had seen the road accident had rushed to the Chhaygaon Police Station and had narrated the incident to the police personnel at Chhaygaon Police Station. On the basis of the statement a GD entry being numbered 193/2003 dated 10.09.2003 was made in respect of the said information. 5. In course of the trial the claimant examined 6 (six) witnesses. The claimant No.1 namely Smt. Hananiah Rabha was examined as PW1, Shri. Hiren Mali, an eye witness was examined as PW2, one Sri. Lalit Sarma who was working as the SI of Chhaygaon police department was examined as PW3, one Ghana Kanta Deka who was also attached to Chhaygaon Police Station as SI was examined as PW4, Mr. Madan Das who was an eye witness was examined as PW5 and Shri. Madan Kalita who had informed the police of the accident was an eye witness was examined as PW6. The PW1 had proved the accident information report as Exhibit-1 and Exhibit-2. The post-mortem report was proved as Exhibit-3. A certificate issued by the Gaon Burha to show the income of the deceased was proved as Exhibit-4 (under objection). The PW1 had proved the accident information report as Exhibit-1 and Exhibit-2. The post-mortem report was proved as Exhibit-3. A certificate issued by the Gaon Burha to show the income of the deceased was proved as Exhibit-4 (under objection). The certificate issued by the Circle officer to show the income of the deceased was proved as Exhibit-5 (under objection). In the cross-examination she had stated that she was not an eye witness to the accident. 6. PW2 has said that his evidence that the offending truck bearing registration No. AS-01-N-9895 had caused the accident dealing injuries sustained by the deceased. He stated that he along with 2/3 people had put the deceased in an Auto and took him to the Chhaygaon PHC. However, the hospital declared the injured as dead on arrival. The dead body was taken back to the house of the deceased on the next day. Thereafter the next day, post mortem was conducted on the dead body. He had stated that the offending vehicle was seen by him at the police station on the next day. 7. The PW3 stated that on 10.09.2003 one Madan Kalita had come to Chayygaon Police Station and informed the officer-in-charge of the accident. The officer-in-charge had directed that the investigation would be conducted by Shri. G. Deka the ASI of the police station. He proved the GD entry being numbered 193/2003 dated 10.09.2003 as Exhibit-6. In his cross-examination, the said SI of police had stated that from the GD entry he could not say that which vehicle was involved in the accident. He admitted that no FIR was lodged in respect of the said accident. He stated that on preliminary enquiry when rash and negligent driving is found to have caused the accident, an FIR is required to be lodged but he could not say as to why in the particular case the FIR was not lodged. 8. PW4 who had investigated the case had stated in his evidence that he found the offending vehicle and it was seized which was registered as AS-01-N-9895. He stated that he had visited the place of occurrence but he did not produce any record or case diary. He stated that he had issued accident information report marked as Exhibit 1 and 2 and his signature was proved as Exhibit-1(1) and Exhibit-2(1). He stated that he had visited the place of occurrence but he did not produce any record or case diary. He stated that he had issued accident information report marked as Exhibit 1 and 2 and his signature was proved as Exhibit-1(1) and Exhibit-2(1). In his cross-examination PW4 had stated that he was transferred from Boko Police Station to Chhaygaon Police Station in February, 2004. He stated that exhibit 1 was filled up by him on the basis of record and he signed Exhibit-1 on 19.09.2003. He also stated that he had made correction in column 9 of Exhibit-1 on 16.10.2004 and he also stated that exhibit 2 was issued by him on 16.10.2004. He stated that he had appeared on receiving summons from the Court but no date was mentioned in the summons for record of evidence and he had appeared on being informed by the learned counsel for the claimant. He admitted that he was directed to bring the record but he did not do so. He also admitted that there was no mention of the vehicle number in GD Entry No.193 of 2003 (Exhibit-6). He stated that he had issued Exhibit-1 and Exhibit-2 on the basis of Exhibit-6. He further stated that in Exhibit-6 there is no mention of the name or any particulars of the driver, owner, and number of the vehicle. Also he stated that on receipt of information they made GD entry and after making preliminary investigation if a prima-facie case was found, they registered a case after filing of FIR. He admitted that in connection with this accident no false case was registered. A very disturbing statement was made by PW4 in his cross-examination to the effect that he did not maintain any record of CD and he further stated that he had issued Exhibit-1 and Exhibit-2 (the Accident information report) without any record. 9. PW5 had stated that he did not lodge any FIR but the police had recorded his statement. In his cross-examination it was denied that he was giving false evidence. He however, stated that sometime after the occurrence of the accident, the truck had left 5 minutes later and thereafter the police had arrived. 10. PW6 had also stated that after the accident the truck had left after sometime. He had admitted that the police had heard him and he had recorded his statement. He however, stated that sometime after the occurrence of the accident, the truck had left 5 minutes later and thereafter the police had arrived. 10. PW6 had also stated that after the accident the truck had left after sometime. He had admitted that the police had heard him and he had recorded his statement. He denied that the truck causing the accident could not be caught and therefore, the case was registered on the basis of another truck. 11. The appellant did not examine any witness. In course of trial, the learned Tribunal had formulated two issues:- 1. Whether the victim Late Munin Rabha died as a result of the injuries sustained by him in the alleged road accident dated 10.09.2003 at about 5 p.m. at Kharkhari, involving the Tata Truck bearing registration No. AS-01-N-9895 and whether the said accident took place due to the rash or negligent driving of the driver of the said offending vehicle? 2. Whether the claimants are entitled to get any compensation and if yes, to what extent and from whom amongst the opposite parties, the compensation amount will be payable? 12. In respect of issue No.1, the learned Tribunal had held that the accident occurred due to rash and negligent driving of the truck No. AS-01-N-9895 and relied on the Chhaygaon Police Station GD entry No.193/03 dated 10.09.2003 (Exhibit-6). 13. Relying on the evidence of the witnesses, issue No.1 was decided in affirmative and in favour of the claimant. In respect of issue No.2 by referring to the evidence of PW1 as well as the certified copy issued by the Gaonburha (Exhibit-4) and certificate issued by the Circle officer, Chhaygaon Revenue officer (Exhibit-5), the learned Tribunal determined the income of the deceased at Rs.3500/- per month and after deducting 1/4th of the income for personnel expenses, the loss of dependency was calculated at Rs.27000/- per annum. On the basis of the age of 26 years as recorded in the post-mortem report (Exhibit-2), the learned Tribunal applied the multiplier of 17 and the loss of dependency was computed to Rs.4,59,000/- (Rs. Four lakh fifty nine thousand only). The claimants were held entitled to funeral expenses of Rs.2000/-, for loss of estate Rs.5000/- and Rs.5000/- for loss of consortium and therefore, the total compensation was computed at Rs.4,71,000/- (Rs. Four lakh seventy one thousand only). Four lakh fifty nine thousand only). The claimants were held entitled to funeral expenses of Rs.2000/-, for loss of estate Rs.5000/- and Rs.5000/- for loss of consortium and therefore, the total compensation was computed at Rs.4,71,000/- (Rs. Four lakh seventy one thousand only). The claimant was further held to be entitled to interest @ 6% per annum from the date of filing of the claim petition till payment. 14. Assailing the impugned judgment and award, the learned counsel for the appellant has submitted that it was admitted in the cross-examination by PW4, that the ASI of police had investigated the case that the registration No. of the truck, its owner and driver of the particulars were not mentioned in the GD entry No. 193/03, there was no way the police could have made such entry in Exhibit-1 and Exhibit-2 the accident information report. It is further submitted that Exhibit-1, the accident information report was prepared on 19.09.03 and was signed by the PW4 and his signature was marked as Exhibit-1(1). However, as per the admission made in the cross-examination, the PW4 was transferred to Chhaygaon Police Station in the month of February, 2004 and, as such, the entry made in Exhibit-1 was a manufactured one, because he could not have signed at Ext. 1(1) on 19.09.2003, when he was posted in the said Police Station only in February, 2004. 15. The learned counsel for the appellant had relied on that part of the cross-examination of PW4 where he had admitted that no record or CD was maintained of the particular case and that the PW4 had admitted having issued Exhibit-1 and Exhibit-2 without any record. 16. Relying on the said evidence of the police, the learned counsel for the appellant submits that the entire case was a set up case and a manufactured one. There being no entry of the offending vehicle in the GD entry No.193/03, any evidence to the contrary of entry in Exhibit-1 and Exhibit-2 by referring to the offending vehicle bearing registration No. AS-01-N-9895 stood excluded by the primary evidence of the accident being the GD Entry (Exhibit-6), where the vehicle number is not mentioned. It is, therefore, submitted that as the involvement of the vehicle bearing registration No. AS-01-N-9895 was not proved because of lack of FIR or the seizure list, no liability can be shifted on the appellant for payment of compensation. 17. It is, therefore, submitted that as the involvement of the vehicle bearing registration No. AS-01-N-9895 was not proved because of lack of FIR or the seizure list, no liability can be shifted on the appellant for payment of compensation. 17. Considered the argument advanced by the learned counsel for the appellant and also perused the records received from the MACT. Also, considered the statement made by the PW4 in his cross-examination that Exhibit-1(1) was his signature. It is seen that when the PW4 admits that he had joined Chhaygaon Police Station only in the month of February, 2004 the said police personnel could not have signed the Exhibit-1 as the Officer-in-charge of Chhaygaon Police Station on 19.09.2003. Moreover, having issued Exhibit 1 on 19.09.2003, the same police personnel (PW4) ought not to have issued Exhibit 2 on 16.10.2004. 18. The oral evidence of PW5 and PW6 was that the offending vehicle had left the place of accident and the police had come only thereafter. Under such circumstances, if the offending vehicle was not seized the police, the police personnel from Chhaygaon Police Station viz., PW3 and PW4 have not given any explanation as to how they received or collected information as regard to the particulars of the owner, driver, driving license and insurance policy. In the opinion of this Court, for collecting such information, the police has to read the insurance policy and the driving license, therefore, the duty was cast on them to seize the documents upon lodging an FIR, or even on the basis of GD Entry No.193/03, having investigated the accident. These two police personnel were aware of their duty to provide the family of the victim an Accident Information Report in the form prescribed by law. 19. It is seen that PW3 and PW4, both police personals were attached to the Chhaygaon Police Station, PW3 being the Officer-in-charge of the said Police Station and PW4 being the Investigating officer in the case, had categorically stated that they have found the offending vehicle was driven in a rash and negligent manner. 20. On considering the provision of Section 279 of the India Penal Code (IPC for short), it is found that the offence under section 279 IPC is a cognizable offence. 20. On considering the provision of Section 279 of the India Penal Code (IPC for short), it is found that the offence under section 279 IPC is a cognizable offence. Therefore, having not registered a FIR the manner in which it is required to be done, this Court is of the view that the manner in which the PW3 and PW4 had conducted themselves is required to be investigated by the Director General of Police or his designated subordinate. 21. As this Court finds that a person has lost his life due to rash and negligent driving of a truck, the dereliction of duty on the part of the police personals could not be over looked because when the involvement of the insured vehicle is not proved because of the categorical admission of PW4 that the entries made in the Exhibit-1 and Exhibit-2 (Accident Information Report) was not done on the basis of any record, under such evidence on record, the appellant cannot be made liable to pay the awarded compensation. 22. Under the circumstances, this Court is of the view that when the employees of the State specifically Shri. Lalit Sarma who was at the relevant time working as a S.I. of Police, attached to Chhaygaon Police Station and Shri. Ghana Kanta Deka was at the relevant time was attached with Chhaygaon Police Station as A.S.I. of police, had not lodged any FIR and did not maintain any record or case diary of the cognizable offence of section 279 IPC, although one person had died in a road accident, the State is required to bear the liability of paying such compensation to the claimant. 23. Accordingly, this Court is of the view that the claimant would be at liberty to file a Civil suit against the State of Assam represented by the Chief Secretary or the Secretary of the concerned Home Department, Government of Assam, for deficiency on the part of the police officers for not maintaining the Case diary with all the relevant particulars and for not lodging a FIR in the present case although the predecessor-in-interest of the claimant had lost his life due to rash and negligent driving of a truck, which construes a cognizable offence under section 279 IPC. 24. 24. This Court is of the further view that the Motor Accident Claims Tribunal, as well as this Court, acting as an Appellate Court is not empowered to fix liability of paying compensation to the State. Therefore, by exonerating the appellant from the liability of paying any compensation, as the involvement of the insured vehicle was not proved, this Court is of the view that the claimant would be entitled to file a Civil Suit for recovery of such compensation from the State for dereliction of duty on the part of the police officers which has resulted in denial of compensation which was awarded in their favour by the learned Tribunal. 25. As the claimants are unrepresented, the Registry is directed to send a copy of the order to the Director General of Police, Assam, as well as to the claimants. The claimants are at liberty to approach the competent Civil Court within a period of 3 (three) months from the date of service of the copy of the order of this appeal. And if any suit being instituted within the time allowed, the limitation shall stand extended as the respondent Nos. 1 to 6 should be entitled to benefit under section 14 of the Limitation Act, 1983 for pursuing their remedy before the competent Motor Accident Claims Tribunal for their compensation as well as for the period of time spent during the pendency of this appeal. 26. This appeal stands allowed on the terms as indicated above. 27. Let the LCR be returned forthwith. 28. Registry may refund the statutory deposit back to the appellant.