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Allahabad High Court · body

2017 DIGILAW 334 (ALL)

Oriental Insurance Co. Ltd. v. Indra

2017-01-24

PANKAJ MITHAL, SHASHI KANT

body2017
JUDGMENT Pankaj Mithal & Shashi Kant, J. Heard Sri Arvind Kumar, learned counsel for the appellant and Sri Nigmendra Shukla, learned counsel appearing for the claimant-respondents. Respondent no.5 is the owner of the vehicle and he is not the contesting party in this appeal, inasmuch as, the contest in appeal is between the Insurance Company and the claimant-respondents. The respondent no.6 is a formal party, inasmuch as, he is the son of the deceased. 2. The appeal has been preferred against the judgment and award dated 23.7.2012 of the Motor Accident Claims Tribunal whereby a sum of Rs.18,71,500/- with 6 percent simple interest per annum from the date of filing the claim petition till its payment has been awarded to the claimant-respondents. 3. The claimant-respondents allege that the deceased, who was riding a scooter, met with an accident on 14.08.2002 with truck UP 15L 1099, which was insured with the appellant-Insurance Company. In the said accident, the deceased Rajbir sustained fatal injuries and ultimately died on 20.4.2006 after remaining in coma continuously ever since the accident. 4. Sri Arvind Kumar, learned counsel appearing for the appellant- Insurance Company submits that no accident had taken place with the alleged truck rather the accident was with the U.P. Roadways bus. His second submission is that the accident had taken place on 14.8.2002 but the FIR was lodged after two years on 27.12.2004. The FIR was not even lodged by one of the alleged eye witnesses. Lastly, he submits that death of the deceased occurred after four years of the accident and there is no evidence to corelate the death with the injuries received by him in the accident. 5. The facts of the case, as unfolded in the impugned judgment and order of the Tribunal do reveals that the deceased, after the accident on 14.08.2002, had remained hospitalized and died on 20.4.2006 after continuous hospitalisation. 6. Ordinarily, after any motor accident, a first information report is practically lodged with the police in every case but it is not mandatory. Even in case there is no FIR, the Tribunal can proceed and decide the claim petition on the basis of the evidence produced before it. Therefore, delay in lodging or non lodging of FIR by itself is not material to affect the decision of the claim petition on merits. 7. Even in case there is no FIR, the Tribunal can proceed and decide the claim petition on the basis of the evidence produced before it. Therefore, delay in lodging or non lodging of FIR by itself is not material to affect the decision of the claim petition on merits. 7. The accident is alleged to have been witnessed by Bacchu Singh and Yash Pal, who were on another scooter and were about half a kilometer behind the scooter of the deceased. They have seen the accident and in connection with it, one of them Bacchu Singh was examined as a witness. He categorically stated that the accident had taken place due to rash and negligent driving of the offending truck that had hit the scooter from behind. Thus, this witness has categorically stated that the accident had taken place with the aforesaid truck. 8. The non-examination of the other eye witness Yash Pal is of no consequence and his examination would have only resulted in the duplication of the evidence. 9. From the side of the appellant-Insurance Company, driver of the aforesaid truck was not produced as a witness who would have been the best person to deny the accident. The appellant-Insurance Company has produced DW-2 Saleem, who is also one of the eye witnesses to the accident. He has stated that the accident took place with U.P. Roadways bus but his evidence was not accepted by the Tribunal as he was unable to give any material details regarding the accident or the details of the bus. 10. This apart, in view of the evidence of the two eye-witnesses, one from the side of the claimant-respondents and the other from the side of the appellant-Insurance Company, it becomes the case of oral evidence versus oral evidence. In such situation, it is always safe and appropriate to place more reliance upon the evidence of claimant-respondents rather than that of defence unless evidence of the defence on the face of it appears to be more categorical and authentic. 11. In these circumstances, we do not consider it to be a fit case for disturbing the finding of the Tribunal that the accident had taken place with the truck UP15L 1099, which was insured with the appellant- Insurance Company. 12. 11. In these circumstances, we do not consider it to be a fit case for disturbing the finding of the Tribunal that the accident had taken place with the truck UP15L 1099, which was insured with the appellant- Insurance Company. 12. Now, coming to the second argument that the death of the deceased had occurred after four years of the accident and there is no nexus between the injuries he received in the accident and his death. 13. In this regard, evidence of Dr. Ashutosh Jain, PW-3 is relevant and material. He has categorically stated that he had been attending the deceased for the last two years, who had sustained fatal injuries in a road accident. He was in a coma and continued as such from the time of the accident and ultimately succumbed to the injuries received by him in his head. He has also proved the documents relating to medical treatment, prescription etc. of the deceased. The aforesaid evidence is sufficient enough to corelate the death of the deceased with the injuries received by him in the accident. 14. There is no material or evidence on record to show that the deceased was not in coma or hospitalized or that he had recovered from the injuries and had died subsequently in the normal course or otherwise. 15. In these circumstances, we do not find any merit in this appeal and the same is dismissed with no order as to costs.