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2024 DIGILAW 1621 (ALL)

Preeti Pandey v. Mohit Khandelwal

2024-07-05

VIPIN CHANDRA DIXIT

body2024
JUDGMENT : Hon'ble VIPIN CHANDRA DIXIT, J. 1. Heard Sri S.D. Ojha and Sri Som Dutt Pandey, learned counsels for the claimants-appellants and Sri Shreyas Srivastava, learned counsel for respondent no.1, who is owner of the vehicle and Sri Anubhav Sinha, learned counsel appearing on behalf of respondent no.2, New India Assurance Company Ltd. No one is present on behalf of respondent no.3, driver of the vehicle. 2. This First Appeal From Order has been filed on behalf of claimants-appellants against the judgment and order dated 04.09.2018 passed by Additional District Judge, Court No.10/Motor Accidents Claims Tribunal, Allahabad in MACP No.178 of 2016 (Smt. Preeti Pandey and others vs. Mohit Khandelwal and others), by which claim petition filed by claimants-appellants was rejected. 3. Brief facts of the case are that the claimants-appellants have filed claim petition under Section 140 and 166 of Motor Vehicle Act, 1988 claiming compensation of Rs.54,62,000/-along with 12 per cent interest on account of death of Sunil Kumar Pandey, who died in the road accident on 26.12.2015. It was the case of claimants before the claims tribunal that on fateful day 26.12.2015 at 2:45 p.m. the deceased Sunil Kumar Pandey with his motorcycle along with Padam Sharma was standing left patri of the road near culvert (pullia) at Kichha Road, P.S. Rudrapur, District Udhampur when the offending car hit the deceased and his motorcycle from back side. The accident was caused by driver of offending car bearing no.UK06V-7805 which was being driven by its driver very rashly and negligently. The FIR was lodged on 28.12.2015 at 9:30 pm in Police Station Rudrapur, Udham Singh Nagar against the driver of offending car and case was registered as Case Crime No.542 of 2015 under Sections 279, 304A IPC. The Investigating Officer after due investigation has submitted charge sheet against the driver of the insured car. The claimants had produced one Padam Sharma as PW2, who was an eye witness of the accident to prove the factum of accident. 4. The claim petition was contested by owner of vehicle as well as insurer of vehicle denying rash and negligent driving of driver. The factum of accident was not disputed by the owner and insurer of offending car. 5. 4. The claim petition was contested by owner of vehicle as well as insurer of vehicle denying rash and negligent driving of driver. The factum of accident was not disputed by the owner and insurer of offending car. 5. The claims tribunal has framed four issues for determination as rash and negligent driving of car driver, validity of driving licence of car driver, insurance of car and quantum of compensation and liability of payment. 6. The claims tribunal after considering the evidence and materials, which are available on record has dismissed the claim petition vide judgment and order dated 04.09.2018, which is impugned in the present appeal. 7. The claims tribunal has recorded the findings while deciding the issue no.1 that the first information report was lodged after two days of the accident on 28.12.2015 whereas, the accident occurred on 26.12.2015 and the claimants failed to explain the delay in lodging the first information report. The claims tribunal has further recorded the finding that the owner of the vehicle is resident of District Bareilly whereas the vehicle was insured at the office of insurance company at Allahabad as such there must be some connection of owner to Allahabad. The claimants are also resident of Allahabad and it appears that the claimants with the collusion of owner of vehicle has planted the insured car in the accident only to get compensation from the respondent insurance company. The claims tribunal has dismissed the claim petition on the ground that the involvement of insured car in the accident was not proved. 8. It is submitted by learned counsel for the appellants that the claims tribunal has recorded a perverse finding of fact while dismissing the claim petition. The FIR was lodged just after two days of the accident and the delay has already been explained by the claimants before the claims tribunal. The informant who appeared as PW2 before the claims tribunal has stated that he was busy in providing medical assistance to the deceased. He immediately brought the deceased to Narayan Trauma Centre, Bilaspur Road, Rudrapur. Looking at the critical position he was referred to Braj Lal Hospital, Haldwani, where he died during the course of treatment. After death, the body of the deceased was brought to Allahabad and after returning from Allahabad, he lodged the first information report. He immediately brought the deceased to Narayan Trauma Centre, Bilaspur Road, Rudrapur. Looking at the critical position he was referred to Braj Lal Hospital, Haldwani, where he died during the course of treatment. After death, the body of the deceased was brought to Allahabad and after returning from Allahabad, he lodged the first information report. The Investigating Officer after due investigation found that the accident was caused by car bearing no.UK06V7805 which was being driven by its driver very rashly and negligently, has submitted charge sheet against the driver of offending car. The presence of informant PW2 Padam Sharma at the place of accident was fully established. It is further submitted that the claims tribunal has recorded a perverse findings of fact that the vehicle was insured by New India Assurance Co. Ltd. at Allahabad whereas as per insurance policy the issuing office of insurance policy is Bareilly. The copy of insurance policy has been annexed as Annexure 6 of the affidavit filed in support of the appeal. Lastly it is submitted that the claims tribunal has misread the insurance policy which was issued by the Office of Insurance Company at Bareilly and perverse findings of fact has been recorded that the insurance policy was issued by the Allahabad Office and there was some connection of the owner of vehicle to District Allahabad. The claims tribunal has rejected the claim petition only on the presumption that there must be some relation of owner with the claimants where as there was no evidence or material before the claims tribunal that there was any connection of claimants with the owner of the vehicle as the claimants are residents of Allahabad whereas, the owner is resident of District Bareilly. The claims Tribunal has also failed to consider that the independent agency has already submitted charge sheet against the driver of offending car. Lastly it is submitted that the claim petition was dismissed on the ground of non involvement of insured car whereas the owner as well as insurer of car have not denied the involvement of car in the accident but only rash and negligent driving of car driver was denied. 9. Lastly it is submitted that the claim petition was dismissed on the ground of non involvement of insured car whereas the owner as well as insurer of car have not denied the involvement of car in the accident but only rash and negligent driving of car driver was denied. 9. On the other hand, learned counsel appearing on behalf of owner of the vehicle has denied the involvement of car in the accident and it is submitted that the accident was caused by some unknown vehicle and his car has been planted by the claimants. Similarly, the insurance company has also denied the involvement of car and it is submitted by learned counsel of insurance company that the claims tribunal has recorded the finding that the driver of offending car was not having valid and effective driving license and the insured car was plied in violation of terms and conditions of Insurance Policy and as such the insurance company is not liable to pay any compensation to the claimants. 10. Considered the rival submission of learned counsel for the parties and perused the records. 11. The claim petition filed by claimants claiming compensation on account of death of Sunil Kumar Pandey, who died in a road accident, which occurred on 26.12.2015 was dismissed by claims tribunal mainly on two grounds- a) Delay of two days in lodging the first information report. b) Collusion of claimants with the owner of insured car. 12. So far as delay in lodging the first information report, it has been explained by the informant that he was accompanying with the deceased at the time of accident. The deceased had received grievous injuries in the accident. He brought the deceased to the hospital and after the death, brought the dead body to Allahabad. After returning from Allahabad, the first information report was lodged by him. There is only two days delay and delay has been properly explained by the informant before the claims Tribunal. The Investigating Officer after due investigation has submitted charge sheet against the driver of offending car. The claimants had produced Padam Sharma as PW2, who was an eye witness of the accident and had proved the factum of accident as well as involvement of insured car in the accident. 13. The Hon’ble Apex Court in the case of Ravi versus Badrinarayan & Ors. The claimants had produced Padam Sharma as PW2, who was an eye witness of the accident and had proved the factum of accident as well as involvement of insured car in the accident. 13. The Hon’ble Apex Court in the case of Ravi versus Badrinarayan & Ors. reported in AIR 2011 Supreme Court 1226 has held that the delay in lodging the first information report would not be fatal and claim petition under the Motor Vehicle Act need not be dismissed on that ground. Relevant paragraph nos.20 and 21 are reproduced herein below : “20. It is well-settled that delay in lodging FIR cannot be a ground to doubt the claimant's case. Knowing the Indian conditions as they are, we cannot expect a common man to first rush to the Police Station immediately after an accident. Human nature and family responsibilities occupy the mind of kith and kin to such an extent that they give more importance to get the victim treated rather than to rush to the Police Station. Under such circumstances, they are not expected to act mechanically with promptitude in lodging the FIR with the Police. Delay in lodging the FIR thus, cannot be the ground to deny justice to the victim. In cases of delay, the courts are required to examine the evidence with a closer scrutiny and in doing so; the contents of the FIR should also be scrutinized more carefully. If court finds that there is no indication of fabrication or it has not been concocted or engineered to implicate innocent persons then, even if there is a delay in lodging the FIR, the claim case cannot be dismissed merely on that ground. 21. The purpose of lodging the FIR in such type of cases is primarily to intimate the police to initiate investigation of criminal offences. Lodging of FIR certainly proves factum of accident so that the victim is able to lodge a case for compensation but delay in doing so cannot be the main ground for rejecting the claim petition. In other words, although lodging of FIR is vital in deciding motor accident claim cases, delay in lodging the same should not be treated as fatal for such proceedings, if claimant has been able to demonstrate satisfactory and cogent reasons for it. There could be variety of reasons in genuine cases for delayed lodgement of FIR. In other words, although lodging of FIR is vital in deciding motor accident claim cases, delay in lodging the same should not be treated as fatal for such proceedings, if claimant has been able to demonstrate satisfactory and cogent reasons for it. There could be variety of reasons in genuine cases for delayed lodgement of FIR. Unless kith and kin of the victim are able to regain a certain level of tranquillity of mind and are composed to lodge it, even if, there is delay, the same deserves to be condoned. In such circumstances, the authenticity of the FIR assumes much more significance than delay in lodging thereof supported by cogent reasons.” 14. A Division Bench of this Court in the case of Smt. Sumitra Kaur and another vs. New India Assurance Company Ltd. through Divisional Manager and another reported in 2012 (4) T.A.C. 799 (All.) has held that registration of first information report is not necessary to decide the claim petition filed under the Motor Vehicles Act, if the claimants have proved the involvement of vehicle as well as rash and negligent driving of offending vehicle by producing cogent evidence. The claims tribunal may decide the claim petition on merits and non-registration of first information report will not defeat the case of the claimants. Relevant paragraphs 7 and 8 are reproduced here-in-below: “7. Power conferred to Tribunal under Section 168 of the Motor Vehicles 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. 8. Under U.P. Motor Vehicle Rules, 1998 it has been provided that how the Tribunal shall record evidence and deal with the case. Lodging the first information report or inquest report is not necessary. What is required for the Tribunal is that it must ascertain the involvement of the victim in the accident and genuineness of claim. In case the Tribunal is satisfied from the evidence on record that accident occurred and the victim suffered injuries then even if no first information report has been lodged and post-mortem is made available it may award the compensation.” 15. In case the Tribunal is satisfied from the evidence on record that accident occurred and the victim suffered injuries then even if no first information report has been lodged and post-mortem is made available it may award the compensation.” 15. A similar view was also taken by Karnataka High Court in the case of Meenakshamma vs. B. Hanumanthappa and another reported in 1997(1) T.A.C. 50 (Kant) that non-registration of criminal case regarding the accident does not give rise to any adverse inference that no such motor accident occurred. Relevant paragraph 6 is reproduced here-in-below: “6. Sri O. Mahesh -learned Counsel for respondent No. 2 contended that an adverse inference will have to be drawn for non-registration of a criminal case against the driver in a given case. This contention cannot be accepted. The claim is a summary civil proceedings wherein the claimant is required to prove the rash and negligent driving of the vehicle by independent evidence. Hence, non-registration of a police case regarding the accident does not give rise to any adverse inference that no such motor accident occurred. The further contention of the learned Counsel for respondent No. 2 that the Medical Officer, who is duty bound to report the lego-medical case to the police, has not reported the same and this circumstance also is adverse to the claim of the claimant has no merit. It is not unusual for a Medical Officer of the hospital in not reporting the lego-medical case to the police. The failure on the part of the Medical Officer to exercise the basic/primary duty to report the lego-medical case to the police is also no circumstance to deny the claim of the claimant if the evidence on record establishes the claim from other acceptable evidence. The Tribunal on consideration of the evidence of PWs.1 and 3 has held that the accident was due to negligent driving of the tiller causing injuries, to the claimant. I find from the discussion made above that the finding is based on evidence and there is no ground to deviate from the finding.” 16. Similarly in the case of Sunita and Ors. Versus Rajasthan State Road Transport Corporation and Anr. reported in AIR 2019 Supreme Court 994, it has been held by Hon’ble Apex Court that strict principles of evidence and standards of proof like in a criminal trial are inapplicable in motor accident claims cases. Similarly in the case of Sunita and Ors. Versus Rajasthan State Road Transport Corporation and Anr. reported in AIR 2019 Supreme Court 994, it has been held by Hon’ble Apex Court that strict principles of evidence and standards of proof like in a criminal trial are inapplicable in motor accident claims cases. The relevant paragraph no.28 is reproduced herein below : “28. Clearly, the evidence given by Bhagchand withstood the respondents’ scrutiny and the respondents were unable to shake his evidence. In turn, the High Court has failed to take note of the absence of cross examination of this witness by the respondents, leave alone the Tribunal’s finding on the same, and instead, deliberated on the reliability of Bhagchand’s (A.D.2) evidence from the viewpoint of him not being named in the list of eye witnesses in the criminal proceedings, without even mentioning as to why such absence from the list is fatal to the case of the appellants. This approach of the High Court is mystifying, especially in light of this Court’s observation [as set out in Parmeshwari (supra) and reiterated in Mangla Ram (supra)] that the strict principles of proof in a criminal case will not be applicable in a claim for compensation under the Act and further, that the standard to be followed in such claims is one of preponderance of probability rather than one of proof beyond reasonable doubt. There is nothing in the Act to preclude citing of a witness in motor accident claim who has not been named in the list of witnesses in the criminal case. What is essential is that the opposite party should get a fair opportunity to cross examine the concerned witness. Once that is done, it will not be open to them to complain about any prejudice caused to them. If there was any doubt to be cast on the veracity of the witness, the same should have come out in cross examination, for which opportunity was granted to the respondents by the Tribunal.” 17. Similar view was taken by Hon’ble Apex Court in the case of Anita Sharma & Ors. Versus The New India Assurance Co. Ltd. & Anr. reported in 2021 (1) SCC 171 . The relevant paragraph no.22 is reproduced herein below: “22. Similar view was taken by Hon’ble Apex Court in the case of Anita Sharma & Ors. Versus The New India Assurance Co. Ltd. & Anr. reported in 2021 (1) SCC 171 . The relevant paragraph no.22 is reproduced herein below: “22. Equally, we are concerned over the failure of the High Court to be cognizant of the fact that strict principles of evidence and standards of proof like in a criminal trial are inapplicable in MACT claim cases. The standard of proof in such like matters is one of preponderance of probabilities, rather than beyond reasonable doubt. One needs to be mindful that the approach and role of Courts while examining evidence in accident claim cases ought not to be to find fault with non-examination of some best eyewitnesses, as may happen in a criminal trial; but, instead should be only to analyze the material placed on record by the parties to ascertain whether the claimant’s version is more likely than not true. A somewhat similar situation arose in Dulcina Fernandes v. Joaquim Xavier Cruz, (2013) 10 SCC 646 wherein this Court reiterated that: “7. It would hardly need a mention that the plea of negligence on the part of the first respondent who was driving the pickup van as setup by the claimants was required to be decided by the learned Tribunal on the touchstone of preponderance of probabilities and certainly not on the basis of proof beyond reasonable doubt. (Bimla Devi v. Himachal RTC [ (2009) 13 SCC 530 )” 18. It is well settled law that strict proof of evidence are not applicable in the case of motor accident and the claim petition under the Motor Vehicle Act would not be dismissed on the ground of delay in lodging the first informant report. 19. The claims tribunal has recorded perverse findings of fact that there was collusion in between the claimants and owner of the vehicle as the owner is resident of Bareilly but the vehicle was insured at Allahabad and the claimants are also resident of Allahabad whereas, from the bare perusal of insurance policy, it is apparent that the vehicle was insured by the Bareilly office. The finding recorded by the claims tribunal in this regard is against the evidence and materials which are available on record and it appears that the claims tribunal without examining the evidence in proper manner and without application of judicial mind has recorded the incorrect finding that the vehicle was insured from Allahabad. The claims Tribunal has also erred in holding that the involvement of car was not proved whereas, the involvement of car was not denied either by the owner or by the insurance company before the claims Tribunal and only negligence of driver was denied. The claimants has fully established the involvement of the car in the accident and the opposite parties have not led any evidence in rebuttal and even the driver of car was not produced to deny the involvement of car. 20. In view of the above discussion, the order impugned dated 04.09.2018 passed by the claims Tribunal is without application of judicial mind and the finding recorded by the claims Tribunal with regard to non-involvement of insured car in the accident is perverse and is against the evidence and materials which are available on record. The claims Tribunal has committed gross illegality in dismissing the claim petition. The court is of the view that the claimants have fully proved the involvement of insured car in the accident as well as rash and negligent driving of driver of insured car by producing cogent evidence. The issue no.1 is decided in favour of claimants/appellants. 21. The first appeal from order filed by the claimants-appellants is allowed. The judgment and order dated 04.09.2018 passed by the Additional District Judge, Court no.10/Motor Accidents Claims Tribunal, Allahabad in MACP No.178 of 2016 is set aside. The matter is remanded back to the concerned claims Tribunal to decide the claim petition as fresh. The claims Tribunal is directed to decide issue nos. 2, 3 and 4 regarding validity of driving licence, insurance of offending car, quantum of compensation and liability of payment, as fresh after affording opportunity of hearing to the parties concerned expeditiously preferably within a period of six months from the date of production of certified copy of this order without granting any undue adjournment to either of the parties. 22. Office is directed to remit back the record of claims tribunal immediately to the concerned claims Tribunal.