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2019 DIGILAW 1065 (JHR)

Oriental Insurance Company Ltd. v. Renu Mishra

2019-05-15

S.N.PATHAK

body2019
JUDGMENT : Dr. S.N. Pathak, J. 1. This appeal arises out of Award/Judgment dated 12.12.2014, passed by Principal District Judge - cum - P.O., M.A.C.T., Lohardaga in Compensation Case No. 27/2011 whereby and whereunder Tribunal has awarded a sum of Rs. 18,53,500/- to the claimants/respondent nos. 1 to 4 along with interest @6% per annum from the date of institution of the case till its realisation, payable by the Appellant/Insurance Company within a period of two months from the date of Award, failing which Insurance Company shall be liable to pay interest @9% per annum from the date of Judgment/Award. 2. Claim application was preferred by claimants under Sections 166 of the M.V. Act, 1988 for grant of compensation of Rs. 32,50,000/- along with interest @18% per annum from the date of filing till realization of the claim amount on account of death of Braj Kishore Mishra, who was husband of claimant/respondent no. 1 and father of respondent nos. 2 to 4. According to Claim Application, on 09.05.2010, Braj Kishore Mishra (deceased) and Rajesh Kumar Mishra (O.P. No. 1/respondent no. 5), who are the full brother, were returning from their paternal village Buty on a motorcycle bearing no. JH 07B 0806, being driven by the O.P. No. 1 (respondent no. 5 herein). When they reached near Kushwaha Hotel, Lohardaga, it turned turtle in which both of them received injuries. However, the pillion rider received grievous injuries and was brought to the house and thereafter taken to Apollo Hospital, Irba, Ranchi for treatment where he succumbed to the injuries on 10.05.2010. It is claimed that deceased was the sole bread earner of the family and was a practicing Advocate at Lohardaga Civil Court and was earning approx. Rs. 30,000/- per month. It is further alleged that during treatment, an amount of Rs. 6,50,000/- was spent in Apollo Hospital which was claimed along with pecuniary loss of Rs. 25,00,000/-. It is alleged that since after the accident the family members were busy with treatment of the deceased and after the death they were busy with rituals and as such matter could not be reported to the police. However, on 01.07.2010 the same was reported to Senha Police Station and Station Diary entry was made as Station Diary No. 204, dated 11.07.2010. 3. The opposite party no. 1/respondent no. However, on 01.07.2010 the same was reported to Senha Police Station and Station Diary entry was made as Station Diary No. 204, dated 11.07.2010. 3. The opposite party no. 1/respondent no. 5 has filed written statement stating therein that he along with his deceased brother were returning on the motorcycle being driven by him. He was having valid Driving Licence and the vehicle was insured under a valid policy being Policy No. 332903/31/2010/3924, which was valid from 08.03.2010 to 07.03.2010. It is further alleged that the Insurance Company is liable to pay the compensation. 4. The opposite party no. 2/appellant has also filed written statement denying the allegations that they are liable to pay amount of compensation. It is alleged that there is no documentary proof regarding accident such as F.I.R., Post-mortem report or any like documents which may show that the deceased got injured in an accident on the alleged date and succumbed to his injuries as claimed by the claimants. It has also been alleged that the insurance policy of the vehicle was also not admitted as the same was never filed. It was further alleged that the deceased was self responsible for the alleged accident and as such claim application is liable to be dismissed. 5. The learned Tribunal, after hearing the parties, framed following issues. (I) Whether the claim application as framed is maintainable? (II) Whether the claimants have got valid cause of action for filing the case? (III) Whether the case suffers from non-joinder of necessary parties? (IV) Whether the death of the deceased was caused in motor vehicle accident due to rash and negligent driving of the vehicle no. JH08B - 0806 on 09.05.2010? (V) Whether on the date of accident i.e. 09.05.2010 the vehicle in question was insured with Oriental Insurance Co. Ltd. during the period 08.03.2010 to 07.03.2011? (VI) Whether the deceased was an Advocate earning Rs. 30,000/- per month? (VII) Whether any amount was incurred towards treatment of deceased B.K. Mishra, Advocate in Apollo Hospital, Ranchi? (VIII) Whether deceased B.K. Mishra died on 10.06.2010 during his treatment in Apollo Hospital, Ranchi? (IX) Whether the applicants are entitled to compensation and if so, to what extent and from whom? 6. After framing of issues, claimants adduced witnesses whereas the opposite party no. 2/appellants have not examined a single witness in support of their respective contention. (VIII) Whether deceased B.K. Mishra died on 10.06.2010 during his treatment in Apollo Hospital, Ranchi? (IX) Whether the applicants are entitled to compensation and if so, to what extent and from whom? 6. After framing of issues, claimants adduced witnesses whereas the opposite party no. 2/appellants have not examined a single witness in support of their respective contention. The documents produced by the claimants have also been marked and exhibited with the records. 7. After examining records of the case, learned Tribunal discussed the issues in details and claim application filed by the claimant has been allowed on contest against opposite party no. 2 and the opposite party no. 2/Insurance Company (appellant) has been directed to pay compensation amount to the applicants as already mentioned hereinabove. 8. Mr. G.C. Jha, learned counsel appearing on behalf of the appellant - Insurance Company has assailed the impugned Judgment mainly on the ground that the same suffers from illegality and infirmity. Learned counsel submits that there is no documentary proof regarding accident. The claimants have not lodged any F.I.R. to this effect and only Station Diary Entry has been made after few days of alleged incident. There was no Post-mortem report or any like documents which may show that the deceased got injuries in an accident on the alleged date and succumbed to his injuries as claimed by the claimants. Learned counsel further submits that the insurance policy of the vehicle was also not admitted as the same was never filed. Learned counsel further argues that assessment of income of the deceased is not as per the exhibits. The Insurance Company has not admitted the accident which is corroborated from paragraphs-5 to 8 of the written statement. It has been argued that findings of the Tribunal are erroneous and not based on any evidence and as such it is perverse. Even if Sanha was lodged, the same was lodged after lapse of 61 days of the death. It was further contended that owner of the vehicle is the own brother even then no FIR was lodged. Neither there was any chargesheet nor any postmortem. The judgments relied upon by the Tribunal in favour of the claimants are not at all applicable. It is totally a false case and has been concocted to get compensation by any means. It was further contended that owner of the vehicle is the own brother even then no FIR was lodged. Neither there was any chargesheet nor any postmortem. The judgments relied upon by the Tribunal in favour of the claimants are not at all applicable. It is totally a false case and has been concocted to get compensation by any means. Learned counsel submits that even if it is presumed that the deceased die of an accident, he himself was responsible for the alleged accident and as such claim application is liable to be dismissed. Learned counsel places reliance on the Judgments reported in 2003(1) JCR 622 Jhr. and 2014 JLJR 433 . 9. Mr. Ashok Kumar Pandey, learned counsel appearing for the claimants vehemently opposes contention raised by Mr. G.C. Jha and submits that admittedly F.I.R. has not been lodged as the family members were busy with treatment of the deceased and after death of the victim, they were busy with rituals. There was no male members in the family and the widow and minor daughters were not in a position to come out of sudden trauma. However, the Station Diary entry was made at their instance. The evidence on record as well as the documents exhibited before the learned Tribunal clearly speaks about the alleged incident. It has further been argued that the Sanha which was lodged on 01.07.2010 numbered as 204/2010, was exhibited. The evidences of the eye witnesses were considered by the Court below and cause of death which is apparent from the death certificate, was the accident due to motor vehicle. Series of medical documents were brought on record. The clerk of the deceased was the material witness and was examined and has proved that deceased was a reputed practitioner. Further it has been argued that it is a beneficial legislation and the Courts should not be hypothetical. Supporting the Judgment, learned counsel submits that Motor Vehicles Act is a social piece of legislation and has been enacted with the intent and object to facilitate the claimants/victims to get redress for the loss of losing of family member or for injuries at an early date. Learned counsel has relied on the decision of the Hon'ble Apex Court in the case of Bimla Devi and others Vs. Satbir Singh and others reported in (2013) 14 SCC 345. 10. Learned counsel has relied on the decision of the Hon'ble Apex Court in the case of Bimla Devi and others Vs. Satbir Singh and others reported in (2013) 14 SCC 345. 10. I have heard counsel for the parties and perused the records. The contention raised by the appellant/Insurance Company has already been dealt with by the learned Tribunal in para-12 and 15 of the impugned Award. In this regard it is relevant to quote para-12 of the Award: "12. In civil cases pleadings are of vital importance. The applicants in their pleading have described the manner, date and time of accident, though in the instant case there is some peculiarities i.e. to say that there is no F.I.R., there is no P.M. report, there is no document which could show or tell regarding accident except the assertion of the applicants and the oral testimony of the witnesses. But in the pleading particularly that of O.P. No. 2 which I have already referred but again want to refer for clarity that in para 2 of the written statement. It is the own statement of the O.P. that deceased was self responsible for alleged accident. Thus direction or impliedly the accident is admitted. There is only one accident which happened on 09.05.2010 thus that accident is not disputed by O.P. No. 1. So far O.P. No. 1 is concerned, he has not denied the assertion in the plaint thus he has admitted also. The law on this point is very clear that the facts admitted need not be proved. 15. It is held in 2008(4) TAC 156 P & H that registration of an F.I.R. is not a criteria to proof an accident. The case has to be decided on the preponderance of evidence. Similarly in 2007 ACJ 2824 it was held that statement recorded in F.I.R. can not be raised to pedestal higher than that of a statement on oath. In 2007 ACJ 52 it has been considered that F.I.R. is not a substantive piece of evidence it is only a corroborative evidence. F.I.R. in an accident claim is desirable but its existence or non-existence can not be made a basis for success of a claim by a injured person and it was held that existence of F.I.R. if sine qua non for initiation of a claim application and it is held no. F.I.R. in an accident claim is desirable but its existence or non-existence can not be made a basis for success of a claim by a injured person and it was held that existence of F.I.R. if sine qua non for initiation of a claim application and it is held no. Similarly in 1999(1) TAC 510 (PAT) it was held that no adverse interference can be drawn out of the failure of non lodging report to the police in the accident. Similar view has been expressed in 1990(1) TAC 339 which is followed also in 1999(1) TAC 510. Thus considering the decisions aforesaid, I am not convinced with the argument advanced by learned counsel for the O.P. that since there is no report to the police. The case of the applicant can not be viewed otherwise. On such consideration it can also not be said that the case of applicant is based on wrong and false assertion. Rather if the view, which has been held in the decisions above, it is mandate of law that the tribunal has to adjudge regarding accident and its related corollary. It has also been considered that there may be numerous circumstances for non lodging of the case and for that one can not be denied justice which the claimant is entitled. S discussed above that in civil cases pleading play very vital role and with reference to the pleading of O.P. No. 2 where it is the categorical statement that the deceased died because of his own fault while moving on the vehicle thus death due to vehicular accident has never been disputed and only because claimants who are widow and daughters of the deceased, since remained in such helpless condition in the treatment of the deceased thus F.I.R. could not be lodged moreover in the circumstances it was not known when the deceased was under treatment that he will die and the applicants have to file case for compensation this can not be thought before. So far non commission of post-mortem, all these normally are done by police to ascertain the cause of death and when a case is registered for any offence either homicidal or suicidal or accident but people in general have a tendency to any how get rid of post-mortem. So far non commission of post-mortem, all these normally are done by police to ascertain the cause of death and when a case is registered for any offence either homicidal or suicidal or accident but people in general have a tendency to any how get rid of post-mortem. In the instant case as already stated with reference to the pleadings that the accident was not disputed, the accident caused the deceased to get it treated at hospital, Ranchi where he died. One argument can be raised that deceased might have died because of medical negligence but the reason behind is accident and it all because of accident the deceased succumbed to the injuries and that is the opinion of the doctor also in the certificate granted it to be a road traffic accident. Thus in any way these issues are decided in favour of the applicant and against the O.P. Thus the points raised by learned counsel has already been replied by the learned Tribunal itself and need not be repeated again. 11. The Hon'ble Supreme Court in the case of Sumitra Kaur and Another Vs. New India Assurance Company Lte. And another reported in (2012) 0 Supreme (All) 1820 it has been held that "Power conferred to Tribunal under Section 168 of the Motor Vehicle Act is an independent power whereby the Tribunal has been required to hold an inquiry with regard to accident and award of compensation. This should be done after providing opportunity of hearing to both parties. Even where no first information report is lodged, the Tribunal has ample power to hold an inquiry and admit or reject the claim petition keeping in view the evidence on record." In the case of Bimla Devi vs. Satbir Singh reported in (2013) 14 SCC 345, the Hon'ble Supreme Court has held that in para-8 as under: "8. Thus, looking to the matter from all angles, we are of the considered opinion that one more opportunity should be given to the appellants so that they may be able to prove the factum of the accident and if they are able to do successfully, then they may also be able to get just, adequate and proper compensation. Only on account of hyper technicality and niceties of law, the claimants should not be thrown out at the threshold. That is not the purpose for which the Claims Tribunals are established. 9. Only on account of hyper technicality and niceties of law, the claimants should not be thrown out at the threshold. That is not the purpose for which the Claims Tribunals are established. 9. No doubt, it is true that the claim case has not been contested in a proper and legal manner, but that should not be sufficient to throw the claim petition, so as to deny the claimants of their just compensation. It is always desirable, rather a necessity in law, that the matter, as far as possible, be decided on merits and in accordance with law. According to us, that has not been done, may be on account of several mistakes committed by the appellants. 10. In claim cases, it is difficult to get witnesses, much less eyewitnesses, thus extremely strict proof of facts in accordance with provisions of the Evidence Act may not be adhered to religiously. Some amount of flexibility has to be given to those cases, but it may not be construed that a complete go-bye is to be given to the Evidence Act." 12. From rival submissions of the parties it transpires that the main contention of the learned counsel appearing for the Insurance Company that since there was no FIR, no chargesheet, post-mortem report was not brought on record, the claimants are not entitled for compensation. The said contention of learned counsel for the Insurance Company is not tenable in the eyes of law. The existence of FIR is sina qua non for initiation of a claim application. FIR is not a substantive piece of document rather it is only a corroborative evidence. Although lodging of an F.I.R. in an accident claim is desirable, but its existence or non-existence cannot be made a basis for the success of a claim filed by the claimants. In absence of FIR and investigation, it was incumbent upon the Tribunal to adjudge regarding accident and related corollary. Justice cannot be denied if the claimants are found entitled for. It is categorical statement of the opposite party no. 2 that the deceased died because of his own fault while moving on the vehicle. Thus, the death due to vehicular accident has never been disputed and only because the claimants, who are widow and daughters of the deceased, since remained in such helpless condition due to death of the deceased, thus the FIR could not be lodged. 13. 2 that the deceased died because of his own fault while moving on the vehicle. Thus, the death due to vehicular accident has never been disputed and only because the claimants, who are widow and daughters of the deceased, since remained in such helpless condition due to death of the deceased, thus the FIR could not be lodged. 13. In the instant case, the accident was not disputed and it was all because of the accident the deceased succumbed to the injuries. The Doctor has also opined that death was due to road traffic accident. It was also admitted that at the relevant time the offending vehicle was insured with the opposite party no. 2. The deceased was a practicing advocate of the Civil Court and was working for several years and was renowned civil lawyer, which is apparent from the pleadings and corroborated by the evidence of his registered clerk since 1975. His professional earning cannot be disputed. The learned Tribunal has rightly taken into consideration the multiplied based on the Judgment in the case of Sarla Verma and several other Judgments including the recent Judgment reported in 2011(1) T.A.C. 4 (SC), the amount of compensation calculated by the Tribunal requires no interference. The appeal filed by the Insurance Company merits dismissal. 14. The other points raised by the learned counsel for the appellant/Insurance Company is also not sustainable in the facts and circumstances of the case. Accordingly, this appeal is dismissed. The appellant/Insurance Company is directed to pay compensation amount awarded by the Tribunal to the claimants/respondent nos. 1 to 4. If the awarded amount has already been deposited, the same shall be disbursed to the claimants, if not already disbursed, in accordance with law within a period of eight weeks from the date of receipt/production of a copy of this order. Insurance Company is permitted to withdraw statutory amount deposited at the time of filing instant appeal. 15. As a sequel of the aforesaid observations, no interference is warranted in the order of the Tribunal. The appeal merits dismissal. 16. Let the lower court record be returned to the court concerned.