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2018 DIGILAW 183 (GAU)

UNITED INDIA INSURANCE CO. LTD v. RUBUL BARUAH

2018-01-31

KALYAN RAI SURANA

body2018
JUDGMENT & ORDER : 1. Heard Mr. M.K. Choudhury, the learned Senior Counsel, assisted by Mr. A. Borthakur, the learned Counsel for the appellant as well as Mr. N. Bhatra, the learned Counsel appearing for the respondent No.1/ Claimant. None appears on call for the respondent No.2, i.e. the owner of the offending vehicle and, as such, the appeal has been heard ex parte against the said respondent. 2. This appeal under Section 173 of the Motor Vehicles Act, 1988 is directed against the judgment and award dated 10.09.2007 passed by the learned Ad-hoc Additional District Judge No.2 (FTC), Kamrup, Guwahati, in MAC Case No. 364/2005. 3. The case of the respondent No.1/ claimant as per the claim petition is that on 21.12.2002 at about 5.00 p.m., he was proceeding towards Joysagar to Amguri as a pillion rider on motorcycle bearing registration No. AS-05-A-3677, which was owned and driven by the respondent No.2. It was claimed that due to bad condition of road, and also for rash and negligent driving by the respondent No.2, the motorcycle turned down on the road side ditch near Samuguri and as a result of the accident, the respondent No.1 suffered fracture injury on his right leg. The respondent No.1 claimed a compensation of Rs.15,00,000/-. The appellant contested the case by filing their written statement and took usual plea of putting the onus of proving the valid licence and validity of the insurance policy. It took a plea of reserving its right to take all defence under the provisions of Section 149 (2) of the Motor Vehicles Act, 1988. The respondent No.2 in his written statement had taken a stand that he was not driving in a rash and negligent manner and that his motorcycle was insured with the appellant and, as such, he denied his liability for paying any compensation. 4. The following issues were framed for trial by the learned tribunal:- (i) Whether the claimant Rubul Baruah sustained bodily injury in the Motor vehicle accident that took place on 21.1.2002 due to the use of the vehicle No. AS- 050K-3677? (ii) Whether the said accident occurred due to rash and negligent driving of the driver of the offending vehicle No. 25-K-3677? (iii) Whether the claimant is entitled to get compensation for the bodily injury sustained by him if so, to what extent and by whom payable? 5. (ii) Whether the said accident occurred due to rash and negligent driving of the driver of the offending vehicle No. 25-K-3677? (iii) Whether the claimant is entitled to get compensation for the bodily injury sustained by him if so, to what extent and by whom payable? 5. The respondent No.1 examined himself as PW-1 and exhibited the following documents, viz., Police Report (Ext.1) , Letter by O.C., Amguri P.S. (Ext.2) , Disability Certificate (Ext.3) , Income Certificate (Ext.4) , Tenancy Certificate (Ext.5) , Newspaper cutting (Ext.6) , Discharge Certificates [Ext.7 (1) to 7 (9) ], Prescriptions [Ext.8 (1) to Ext.8 (61) ], Medical vouchers and cash memos [Ext.9 (1) to Ext.9 (110)], Medical Reports [Ext.10 (1) to Ext.10 (16) ], X Ray Plates [Ext.11 (1) to Ext.11 (7)] Educational Certificates [Ext.12 (1) to Ext.12 (3) , Letter to Principal of Homeopathic College, Mudhina (Ext.13) , Student Registration Card (Ext.14) , (illegible) Certificate (Ext.15) . The appellant had examined their investigator as DW-1 and had proved his investigation report as Ext.A. 6. In respect of issue No.1 and 2, the learned Tribunal had held that the respondent No.1 had stated that he was riding as a pillion rider and the offending vehicle was being driven in a rash and negligent manner and the motorcycle had become upside down on the road, and that the appellant had recorded a total failure to demolish the said version of PW-1. In light of Accident Information Report (Ext.1), it was held that the accident had occurred due to the said two-wheeler and the respondent No.1 sustained injuries as a result of rash and negligent driving of the said motorcycle and, as such, the issues were decided in favour of the respondent No.1. In respect of issue No.3, it was assumed that the respondent No.1 was earning Rs.5,000/- per month. His expenditure was computed at Rs.1,65,000/- and the respondent No.1 was found to be entitled to a sum of Rs.50,000/- towards pain and suffering and, as such, the respondent No.1 was found to be entitled to a total award of Rs.3,05,000/- with interest @ 6% per annum from date of filing of the claim petition till payment, further directing the appellant to pay the awarded amount within 60 days. 7. 7. Challenging the judgment and award, the learned Senior Counsel for the appellant has submitted that the accident had occurred on 21.12.2002, but the as per Accident Information Report (Ext.1) , ejahar was lodged on 19.01.2004, i.e. after a year of the alleged accident. Referring to the extract copy of Amguri PS G.D.E. No. 351 dated 19.01.2004, it is submitted that though the said entry was not exhibited, but the same was filed along with the written argument submitted by the respondent No.1, which discloses that the G.D. Entry was made only because the respondent No.1 wanted to make insurance claim. Hence, it is apparent that there was no police investigation because the police did not seize the offending vehicle or got it inspected by Motor Vehicle Inspector. It is submitted that the respondent had stated in his cross examination that the police had not registered a case on the basis of his FIR. It is further submitted that the delay was not duly explained and moreover, the information about the accident could have been reported to the police by anyone if the respondent No.1 was not in a position to personally lodge the FIR. It was also submitted that the respondent No.2 had submitted a photocopy of the cover note of the insurance of the offending motorcycle, but the said document was not proved by leading evidence as the owner of the said motorcycle never entered the witness box. In the said connection, it is submitted that the insurance policy had 11 digit insurance policy number, and not 6 digit number of "110526", as such, without framing any issue on whether the offending vehicle was insured with the insurer at the time of the accident, the award was wrongly passed in the present case. 8. It is also submitted that in the claim petition, it was projected that the motorcycle fell down in road side ditch, but in his evidence- in- chief, the motorcycle had skidded of the road. Moreover, as per the investigators report by DW-1, as per Amguri P.S., by had opined that the respondent No.1 was the driver of the offending vehicle. Thus, according to the learned Senior Counsel for the appellant, this was a fit and proper case for allowing the appeal by reversing the judgment and award passed by the learned Tribunal in this case. 9. Thus, according to the learned Senior Counsel for the appellant, this was a fit and proper case for allowing the appeal by reversing the judgment and award passed by the learned Tribunal in this case. 9. Per contra, the learned counsel for the respondent No.1/ claimant has submitted that the grounds now urged at the time of hearing of this appeal, inter-alia, (i) lack of insurance, and (ii) doubting the genuineness of the accident, were not pleaded in the written statement and the same is being urged for the first time. It is submitted that the grounds of delay was duly explained before the police and also in the evidence of the respondent No.1 to the effect that as the respondent No.1 was under treatment for about 11/2 years at various hospitals and nursing homes in places like Patna, Delhi, Dibrugarh and, as such, only when he got strength to go to police station, the respondent No.1 could lodge the ejahar before the police and that it is a matter of record that the police did not receive their complaint or registered any case on the basis of the ejahar, but subsequently only on 19.01.2004, the Amguri P.S. had recorded the General Diary Entry (GDE) in respect of the accident. It is submitted that the police had certified that the case was accidental and had provided the Accident Information Report (Ext.1) , based on which the present compensation case was filed., as such, the claim cannot be doubted for any reason whatsoever and the delay in informing the police about the accident cannot be fatal. 10. The learned counsel for the respondent No.1 has referred to the cross examination of DW-1, wherein he had admitted that in Ext.A, the registered owner of the vehicle is shown Pradip Bora. It is further submitted that the DW-1 had obtained an accident information report (Ext.B) , bearing signature of the Officer-In- Charge of Amguri P.S. In the said report, the police had disclosed that the owner and the driver of motorcycle bearing Registration No. AS-05-A-3677 was Sri Rubul Boruah. However, in the investigators report dated 29.07.2004 (Ext.A), the DW-1 had clearly made clear admissions to the following effect- (i) DW-1 had admitted that "It is perceived during investigation that the fact as mentioned in the petition of Dr. However, in the investigators report dated 29.07.2004 (Ext.A), the DW-1 had clearly made clear admissions to the following effect- (i) DW-1 had admitted that "It is perceived during investigation that the fact as mentioned in the petition of Dr. Rubul Baruah, a resident of Khanikar Gaon under Amguri Police Station in MACT No. 542/04 regarding accomplishment of the accident of the Motor Cycle bearing registration No. AS05A-3677 on 21.12.2002 at around 5.00 P.M over the road near Samuguri is true." (ii) DW-1 had admitted that the " (1) Accident of the occupant of the vehicle (M/Cycle) bearing Registration No. AS-05-A-3677 had been accomplished on 21.12.2008." 11. It is submitted that the motor accident claim cases can be decided on the basis of preponderance of probabilities and strict rules of pleadings and evidence is not required in such cases. But, the nature of adjudication in MACT cases is in the nature of enquiry by the Tribunal so that just and proper compensation can be determined. Hence, it is submitted that the appeal be dismissed with cost because the evidence of the respondent No.1/ claimant could not be demolished during cross examination. 12. Considered the submissions made by the learned Senior Counsel for the appellant and the learned Counsel appearing for the respondent No.1. Perused the materials on record including the records received from the learned Tribunal. 13. On the basis of the submissions made, the following points of determination arise for the decision in this appeal:- (i) Whether it was required to frame any issue as to whether the offending vehicle was duly insured with the insurer i.e. the appellant herein? (ii) Whether the judgment and award passed by the learned Tribunal was sustainable on facts and in law? Point of determination No. (i) :- a. There are two accident information reports on record. The Accident Information Report dated 15.04.2004 signed by ASI Bipul Dutta of Amguri P.S. is marked by PW-1 as Ext.1. The Accident Information Report dated 26.07. (year illegible) signed by Officer- In- Charge of Amguri P.S. is marked by DW-1. As per the entries made in Ext.1, the owner of the offending motorcycle is named as Pradip Bora, but as per the contents of Ext.B, the owner of the same motorcycle was shown as Sri Rubul Boruah. The Accident Information Report dated 26.07. (year illegible) signed by Officer- In- Charge of Amguri P.S. is marked by DW-1. As per the entries made in Ext.1, the owner of the offending motorcycle is named as Pradip Bora, but as per the contents of Ext.B, the owner of the same motorcycle was shown as Sri Rubul Boruah. b. There is no doubt that it is well settled that the nature of adjudication in a MAC case is that of an enquiry and it is a summary procedure, where strict rules of pleading or evidence is not required to be adhered to and, as such, in appropriate cases, compensation may be awarded under the principles of preponderance of probability. However, when a dispute of above nature crops up in a given case like the present case in hand, the learned tribunal is required to play the role of a seeker of truth and not that of an umpire like in a normal civil suit because the intention of the beneficial provisions of awarding compensation as contained in Motor Vehicles Act, 1988 is that just and fair compensation may be awarded to the victims of a road accident. Under the circumstances, the learned Tribunal is required to call for record and/or summon the then Officer- In- Charge of Amguri P.S. and to examine him for clarification so as to satisfy itself as to which version regarding name of owner of offending vehicle noted in the two contradictory and/or conflicting Accident Information Reports are true. c. Moreover, the accident had allegedly occurred on 21.12.2002, but the GDE No.351 is recorded on 19.01.2004. As per the Extract copy of GDE, which though not proved, reflects that the said GDE was made because the respondent No.1 wanted to file a insurance claim. Thus, the intention of the respondent No.1 appears not to inform the police about the accident, but to create an evidence to submit a compensation claim and, as such, the case required greater degree of circumspection by the learned Tribunal before accepting that there was a road accident involving the offending motorcycle. Thus, the intention of the respondent No.1 appears not to inform the police about the accident, but to create an evidence to submit a compensation claim and, as such, the case required greater degree of circumspection by the learned Tribunal before accepting that there was a road accident involving the offending motorcycle. The police appears to have done no investigation at all because it would be a fruitless venture because the accident allegedly took place on a road and unless the exact spot of accident is identified, there would be no evidence of accident available for the police to lay their hands on the busy NH-31 after one year of the accident. Admittedly, there is no eye-witness to the accident. Hence, it appears from the entries made in Extract copy of GDE No. 351, that the police had made a report on the basis of information provided by the respondent No.1. It is not that this Court is doubting the correctness of the claim, but what was required of the learned Tribunal was a fair enquiry to arrive at a truth. This comment is made because there are two contradictory Accident Information Report on record and no effort was made to find out as to which of the two reports could be believable and which one was required to be discarded. d. Coming to the evidence of DW-1 as well as the Investigators report (Ext.A) , proved by the DW-1, the same reveals another interesting facet. The document marked as Ext.A is a forwarding letter dated 15.09.2005 by DW-1 to the Senior Divisional Manager of the appellant. The contents of the said letter is reproduced below:- "To, The Sr. Divisional Manager, The United India Insurance Co. Ltd., Jorhat Davison Jorhat Sub: Submission of R.C. Book & D/L of Sri Pradip Kr. Borah towards MACT Case No.542/04 sued by Dr. Rubul Baruah, resident of Khanapara, P/S- Dispur, Guwahati in the MACT Court at Kamrup, Guwahati. Sir, In response to your instruction for submission by collecting the R/C Book of the vehicle No. AS 05A-3677 and the driving license of Sri Pradip Kr. Borah in connection with the MACT Case No.542/04 in the MACT Court at Guwahati, I have the honour to furnish herewith the same for your needful action. Enclosed: 01. Xerox copy of R/C Book of the vehicle bearing Registration No. AS 05 A-3677 2. Borah in connection with the MACT Case No.542/04 in the MACT Court at Guwahati, I have the honour to furnish herewith the same for your needful action. Enclosed: 01. Xerox copy of R/C Book of the vehicle bearing Registration No. AS 05 A-3677 2. Xerox copy of Driving Licence of Sri Pradip Kr. Bora 3. Professional fee Bill in duplicate. Sd/- (illegible) . Sri Biman Chandra Khound Investigator." e. Therefore, it is clear that along with the said letter, the Investigators Report dated 29.07.2004 was not enclosed. The forwarding letter is marked as Ext.A. The first three pages of the report is not marked as an exhibit, however, the signature of the investigator (DW-1) contained in the last and fourth page of the report (at page51 of LCR) is marked as Ext.A (1) . Therefore, this is a classic case of perfunctory recording of evidence- in- chief by the learned Tribunal because the Investigators report containing mark of Ext.A (1) had no connection with Forwarding letter dated 15.09.2004, which is self evident from the said letter quoted above. f. The learned tribunal could have directed the DW-1 to produce the enclosures mentioned in Ext.A, which would have cleared any ambiguity in the entries made in the two Accident Information Reports (i.e. Ext.1 and Ext.B). One of the enclosures to the said letter was copy of R/C book, which contained the vehicles engine and chassis number, which could have been thrown some light because the photocopy of the Insurance Cover Note discloses that Engine No. was N-3202M-04612 and Chassis No. was N-3202F-046233. Moreover, the learned Tribunal could have directed the appellant to submit an affidavit sworn by a responsible officer to disclose that insurance cover note bearing No. 110525 was not issued by the appellant. The learned Counsel for the respondent No.1 had submitted that when a new vehicle is purchased, and before registration number is allotted to it, insurance is done on the basis of recording of Engine and Chassis No. in the Insurance Cover Note, which may be a possibility, but this Court cannot make a definite comment on the same. g. There is another reason for proper adjudication in cases of this nature where GD entries made after a considerable lapse of time, which is more than one year in this case. g. There is another reason for proper adjudication in cases of this nature where GD entries made after a considerable lapse of time, which is more than one year in this case. It is quite possible for any scheming person suffering any sort of injury to get a information entered in Police Stations GDE that a particular vehicle had hit him on road and project a false claim for compensation. Once again it is reiterated that this Court is not doubting this particular claim, but such eventualities cannot be ruled out and, as such, in such cases, the learned Tribunal is required to take a pro-active role to find out the truth. h. In this regard, paragraph 11 of the case of Raj Kumar Vs. Ajay Kumar, .. is quoted below, which reflects that the Honble Supreme Court is of the view that the Motor Accident Claims Tribunal is expected to find out the truth for the purpose of determining a fair compensation. "11. The Tribunal should not be a silent spectator when medical evidence is tendered in regard to the injuries and their effect, in particular the extent of permanent disability. Sections 168 and 169 of the Act make it evident that the Tribunal does not function as a neutral umpire as in a civil suit, but as an active explorer and seeker of truth who is required to `hold an enquiry into the claim' for determining the `just compensation'. The Tribunal should therefore take an active role to ascertain the true and correct position so that it can assess the `just compensation'. While dealing with personal injury cases, the Tribunal should preferably equip itself with a Medical Dictionary and a Handbook for evaluation of permanent physical impairment (for example the Manual for Evaluation of Permanent Physical Impairment for Orthopedic Surgeons, prepared by American Academy of Orthopedic Surgeons or its Indian equivalent or other authorized texts) for understanding the medical evidence and assessing the physical and functional disability. The Tribunal may also keep in view the first schedule to the Workmen's Compensation Act, 1923 which gives some indication about the extent of permanent disability in different types of injuries, in the case of workmen. If a Doctor giving evidence uses technical medical terms, the Tribunal should instruct him to state in addition, in simple non-medical terms, the nature and the effect of the injury. If a Doctor giving evidence uses technical medical terms, the Tribunal should instruct him to state in addition, in simple non-medical terms, the nature and the effect of the injury. If a doctor gives evidence about the percentage of permanent disability, the Tribunal has to seek clarification as to whether such percentage of disability is the functional disability with reference to the whole body or whether it is only with reference to a limb. If the percentage of permanent disability is stated with reference to a limb, the Tribunal will have to seek the doctor's opinion as to whether it is possible to deduce the corresponding functional permanent disability with reference to the whole body and if so the percentage." Point of determination No. (ii) 14. In view of the discussions in the preceding paragraph, the point of determination No. (ii) is answered by holding that the learned the judgment and award passed by the learned Tribunal is not sustainable on facts and in law. Hence, this appeal stands allowed and resultantly, the impugned judgment and award dated 10.09.2007 passed by the learned Ad- hoc Additional District Judge No.2 (FTC) , Kamrup, Guwahati, in MAC Case No. 364/2005 is set aside. However, as this is a claim for compensation, projected to be arising out of road traffic accident, this is found to be a fit and proper case for remanding the matter back to the learned Tribunal for fresh adjudication in accordance with law. 15. Presently, as many as four MAC Tribunals have been set up in Guwahati, instead of remanding the matter back to the Court of the learned Ad-hoc Additional District Judge No.2 (FTC) , Kamrup, Guwahati, which is a regular court having civil and criminal jurisdiction, it is deemed appropriate now to remand the matter to the Court of the learned MACT-1, Kamrup (Metropolitan) , Guwahati, authorizing the said learned Tribunal to transfer the case to any other three co-ordinate learned MACTs for disposal. The appellant and the respondent No.1, who are represented by their respective counsels, are directed to appear before the learned MACT-1 on 26.03.2018 without any further notice for appearance and seek further instructions from the said learned tribunal. 16. On receipt of records, the learned Tribunal in session of the matter, shall afford reasonable opportunity to the parties to lead fresh evidence to prove their respective stand. 16. On receipt of records, the learned Tribunal in session of the matter, shall afford reasonable opportunity to the parties to lead fresh evidence to prove their respective stand. If the parties fail to assist the learned Tribunal, it shall be within the competence of the learned Tribunal to call for any record and to summon either the present and/or the then Officer- In- Charge of Amguri P.S. to give evidence and to produce all records pertaining to GDE No. 351 dated 19.01.2004 so as to arrive at the truth. 17. The learned Tribunal shall note that in course of hearing of this appeal, it had come to light that documents tendered and exhibited by PW-1 were not available with the LCR. Therefore, pursuant to order dated 22.11.2007, the learned Registrar (Vigilance) of this Court had conducted an enquiry and the enquiry revealed that the said documents were lost. However, some documents were collected from the appellants file. The learned Tribunal may consider reconstruction of some portion of documentary evidence on the basis of documents submitted along with enquiry report, if so desired. Moreover, as per the submissions made in the Bar at the time of hearing of this appeal, it appears that there is no dispute in so far as quantification of two out of three components of compensation is concerned, viz., (i) loss of income of Rs.90,000/-, and (ii) medical expenditure and transportation cost of Rs.1,65,000/- is concerned. Hence, it appears that on remand, the matter can be decided on the basis of materials now on record. Therefore, the documents (marked with flag-C) as collected during the above mentioned enquiry (without the enquiry report) may also be transmitted along with the LCR. 18. The Appeal stands allowed on terms as indicated above. There shall be no order as to cost. 19. Send back the LCR.