Tripura High Court
Smti. Gouri Sarkar vs Shri Shyamal Sarkar on 16 March, 2017
Author: Chief Justice
Bench: Chief Justice
THE HIGH COURT OF TRIPURA
AGARTALA
MAC APP. NO.74/2014
Smti. Gouri Sarkar,
Wife of Late Bishwanath Sarkar,
Resident of Village-Jalilpur, Bamutia,
P.S.-Lefunga, District-West Tripura.
.... Appellant.
-: Vrs. :-
1. Shri Shyamal Sarkar,
Son of Late Nidhan Sarkar,
Resident of Gandhigram, P.S.-Airport,
District-West Tripura,
[Owner of TR-01-A-3597, Auto Rickshaw].
2. The Divisional Manager,
New India Assurance Company Ltd.,
4, Mantribari Road, P.S.-West Agartala,
P.O. & Sub-Division-Agartala,
District-West Tripura, PIN-799001;
[Insurer of TR-01-A-3597, Auto Rickshaw].
..... Respondents.
BEFORE HON'BLE THE CHIEF JUSTICE Counsel for the appellant : Mr. Sankar Lodh, Advocate.
Counsel for the respondents : Mr. A. Gon Choudhury, Advocate.
Date of hearing : 02-03-2017.
Date of Judgment & Order : 16-03-2017
JUDGMENT & ORDER
This appeal is directed against the judgment dated 13-5-2014 passed by the learned Member, Motor Accident Claims Tribunal, West Tripura in T.S.(MAC) No. 387 of 2012 dismissing the claim petition.
2. The material facts of the case, as pleaded by the appellant, are that she is the mother of the deceased Makhan Sarkar and that on the midnight of 30/31-1-2012, the deceased (Makhan Sarkar) along with his relative, MAC APP. NO.74/2014 Page 1 of 9 Nikhil Choudhury, were returning to their house from Charipara by a motor bike bearing registration No. TR-01-C-5943 after attending a party driven by the said Nikhil Choudhury. On reaching Drop Gate Traffic Point, Nikhil Choudhury stopped the bike to attend to nature's call. When the deceased got down from the motor bike to approach the road side, an auto-rickshaw bearing registration No. TR-01-A-3597, coming from the opposite direction at a high speed dashed against him. As a result, he sustained grievous injuries on his head. He was then taken to AGMC & GBP Hospital and got him admitted there. Considering his serious conditions, he was referred and taken to SSKM Hospital, Kolkata, but due to non-availability of bed, he had to be admitted to Desun Hospital and Heart Institute, Kolkata on 1-2- 2012. He was operated upon the same day 2/3 times but he succumbed to his injuries on 2-2-2012. Post mortem examination was conducted on his dead body, which was taken to Agartala on 4-2-2012. He was 29 years old at the time of death and used to earn an income ₹15,000/- per month as a businessman dealing with garments at Bamutia Bazaar. The appellant, therefore, claimed compensation of ₹48,17,000/- for the death of her son.
3. The claim petition was contested by the respondent No. 1 (owner of the motor bike) by filing his written statement. He admitted the accident, but denied that his driver, who drove his auto-rickshaw, was guilty of rash and negligent driving. His case is that when the auto-rickshaw was just crossing Drop Gate Traffic Point, a motor bike coming from the opposite direction suddenly stopped near the said Traffic Point. At that time the pillion rider, got down from the bike and tried to cross the road running without giving any signal, which made his driver lost control and, in the process, hit the pillion driver first and thence the motor bike. According to the respondent No. 1, the accident occurred due to the contributory negligence of the victim also. It is also pleaded by the answering respondent that the auto-rickshaw was insured with the respondent No. 2 and had valid documents at the time of the accident and the respondent No. 2 was, MAC APP. NO.74/2014 Page 2 of 9 therefore, liable to satisfy any liability for the accident and not him. The respondent No. 2 contested the claim petition and filed its written statement. It disputed the claims of the claimant and denied any liability in the accident. In the light of the pleadings of the parties, the Tribunal framed the following issued:
1. Did the deceased sustain any injury on 31-01-12 at about 0025 hours near Drop Gate Traffic Point, Agartala in a road traffic accident sustaining grievous injuries resulting in his death on 1-2-2012 at CNMC and Hospital, Kolkata due to rash and negligent driving by the driver of the auto-rickshaw bearing No. TR-01-A-3597?
2. Is the claimant entitled to be compensated under the provisions of the MV Act, 1988? If so, to what extent and who shall be liable to pay the same?
4. To establish her claim, the appellant examined herself and the said Nikhil Choudhury (PW-2) and exhibited documents relating to police case (Exbt.1 series), treatment papers, post mortem report, etc. From the side of the insurer, the Deputy Manager was examined while documents relating to police case, namely, Exbt. A series, were exhibited. At the conclusion of the trial, the Tribunal rejected the claim petition. Aggrieved by this, this appeal has been preferred.
5. Unfolding his submissions, Mr. S. Lodh, the learned counsel for the appellant, submits that the Tribunal committed gross error in not considering the evidence of PW-2, who was the eye-witness to the accident. He further argues that the learned Member is not correct in his approach by ignoring the evidence of the appellant (PW-1) simply on the ground that she could not disclose the source of her information. He, therefore, prays that the impugned judgment is liable to be interfered with and due compensation be awarded to the mother of the deceased. To fortify his submissions, the learned counsel relies on the decision of this Court in Puspa Das and ors. V. Sankar Deb and ors., (2014) 2 TLR 14. On the MAC APP. NO.74/2014 Page 3 of 9 other hand, Mr. A. Gon Choudhury, the learned counsel for the insurer, has argued that the Tribunal is correct in rejecting the claim petition since the vehicle TR-01/A-3597 (auto-rickshaw) shown by the appellant in her claim petition was not at all involved in the accident; the claim petition is based on false and concocted story to grab compensation not due to the appellant. He, therefore, submits that there is absolutely no merit in this appeal, which is liable to be dismissed with costs.
6. Before proceeding further, it will be apposite to refer to and reproduce below the findings of the Tribunal:
"11. What emerges from the above is that claimant was not an eye witness to the accident. She also could not disclose from whom she came to know about the accident. The complaint before the court of the learned Chief Judicial Magistrate, West Tripura, Agartala which was treated as FIR of the police case was filed by her son Sri Tapan Sarkar. He not being examined as a witness, going by the ratio of the judgment of the Hon'ble Parent High Court, the same shall not come for consideration. So, the basis of the claim application itself is lost. This leaves us with the deposition of Sri Nikhil Choudhury whose evidence can only be used as corroborative evidence and nothing more. Claimant thus fails to prove that Makhan Sarkar sustained any injury in any accident involving the auto rickshaw in question. Issue No. 1 is thus decided in the negative.
12. In view of the decision of Issue No. 1, the decision of Issue No. 2 becomes redundant."
7. After perusing the impugned judgment, the pleadings of the parties and other materials on record, the first and foremost point for consideration MAC APP. NO.74/2014 Page 4 of 9 in this appeal turns on the question as to whether the auto-rickshaw bearing registration No. TR-01-A-3597 knocked down the deceased while he was alighting from a motor bike and running across the road, which caused him grievous injuries and eventually resulted in his death? To prove her case, the appellant examined herself as PW-1 and the said Nikhil Choudhury as PW-2. In her cross-examination, she admitted that she did not witness the accident and that she could not say from whom she learnt the manner in which the accident had occurred. True, in motor accident claim cases, witnesses, much less eye witnesses, are difficult to come by. 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 these cases, but it may not be construed that a complete go-by is to be given to the Evidence Act,─ See Bimla Devi v. Satbir Singh, (2013) 14 SCC 345. What is of paramount importance is that false claims should not be entertained and must be rejected, for which Tribunals should always be on guard.
8. To corroborate her evidence, the appellant examined the said Nikhil Choudhury as PW-2, who claimed that he was the eye witness to the accident. According to him on the night of 30-1-2012, he along with the deceased had gone to their relative's house (this witness is admittedly the relative of the deceased) at Chiripara, Amtali for joining a family party; that on returning home at about 0.25 AM of 31-1-2012 riding in a motor bike bearing registration No. TR-01-C-5943, he stopped the bike to enable the deceased to attend to nature's call; that all of a sudden, the deceased, who was standing on the left side of the road, was suddenly hit by the auto- rickshaw bearing registration No. TR-01-A-3597 coming from the opposite side in high speed and driven rashly and negligently; that as a result of this accident, the deceased grievous sustained bleeding injury on his head and he was, with the help of local people, taken to a hospital. The deceased ultimately succumbed to his injuries at Kolkata on 2-2-2012. MAC APP. NO.74/2014 Page 5 of 9
9. The insurer-respondent also adduced examination-in-chief of OPW-1 (Ajoy Kumar Saha, the Deputy Manager of New India Assurance Com. Ltd., Agartala Division) by affidavit to rebut the evidence of the claimant- appellant. In his evidence, this witness testified that the insurer collected the Final Report in respect of West Agartala Police Station Case No. 222 of 2012 U/s 279/304-A IPC concerning the alleged accident and the same revealed that initially UD case was registered on 3-2-2013 U/s 174 CrPC. However during investigation of the UD case, the brother of the deceased lodged a complaint case with the learned Chief Judicial Magistrate, West Tripura, which was ultimately registered as West Agartala Police Case No. 222 of 2012 dated 18-8-2012. The police investigated the case and recorded the statements of available witnesses U/s 161 CrPC and seized the documents of the two motor bikes bearing registration No. TR-01-L-6731 and TR-01-C-5943.
10. According to OPW-1, the statements of the witnesses revealed that the deceased along with a co-rider (PW-2) was proceeding to Amtali in the bike bearing registration No. TR-01-C-5943 at night and when they reached AD Nagar Police Traffic Point, their back dashed against the back side of the motor bike bearing registration No. TR-01-L-6731 thereby causing serious injuries to the deceased. OPW-1 further testified that the staff of the Fire Station of AD Nagar took the deceased to GB Hospital, Agartala by their own vehicle and the Police of AD Nagar Reserve also appeared on the spot just after the accident and recorded the statements of the appellant and the brother of deceased, who, however, did not make any statement regarding the involvement of the said auto-rickshaw in the alleged accident. The police, after investigation, ultimately came to the conclusion that the deceased died in the accident due to his own rash and negligent driving of the bike thereby making out a prima facie case of Sections 279/304-A IPC, but the case had to be returned in FR due to the death of the deceased. He MAC APP. NO.74/2014 Page 6 of 9 further deposed that the father of the deceased was learnt to have filed a complaint against the co-rider Shri Ashish Baishya suspecting him for the death of his son and asked for proper investigation. Some documents including copies of the statements of the witnesses U/s 161 CrPC, FR, etc. were exhibited by him.
11. Thus, from the evidence adduced by both the parties, it becomes crystal clear that the appellant did not file any complaint about the accident to the police immediately. The complaint petition was filed before the learned Chief Judicial Magistrate, West Tripura only in the month of July 2012 though the accident admittedly had taken place on 31-1-2012. The insurer, in its pleading, has raised the possibility of a false claim being foisted upon the Tribunal. What looms large is the lack of professionalism on the part of the learned counsel for the insurer while conducting the trial. What is disturbing in this case is that the insurer has alleged that this was rather a case of collision between two motor bikes bearing registration number TR-01/C-5943 and TR-01/L-6731, the former driven by the deceased and the other driven by a third party, namely, one Sujit Bhattacharjee and that the bike driven by the deceased was not insured while he also did not have a valid driving license in his own name. It is the case of the insurer that the auto-rickshaw in question was wrongly and deliberately included in the said accident just to establish that the same dashed against the bike from which the appellant stepped out to attend to nature's call; this was done to grab money from the insurer on the basis of a false claim petition. These are serious allegations, and if the same are subsequently proved, the claimant may not be entitled to any compensation at all. It may also be interesting to note that there were witnesses including staff of the Fire Service Department and police personnel who immediately arrived at the spot and recorded the statement of the complainant, who allegedly did not, however, disclose at that time the involvement of the auto-rickshaw in the accident. There are also many allegations which are MAC APP. NO.74/2014 Page 7 of 9 mentioned by OPW-1, which raised reasonable ground for suspicion that the claim petition is based on false and concocted story and that the claim petition filed by the appellant in collusion with PW-2 to enrich themselves at the expense of public money.
12. It is most unfortunate that the insurer, due to lack of sincerity or competence or both on the part of their counsel, could not properly prove its case that the claim petition is based on false and concocted story. Normally, when the claimant is able to create a high degree of probability in his case, the onus shifts to the respondent. It is then for the respondent to discharge her onus. In the absence thereof, the burden of proof on the claimant would stand discharged, which would amount to proof of her case. Since considerable amount of public money is likely to be incurred should the appellant succeed in her claim petition, it will be just, fair and expedient to remand the case to the Tribunal for adduction of more evidence by the insurer to prove its case that the claim petition is collusive and is based on false and fabricated story to grab undue compensation from it. It shall be open to adduce more witnesses who were on the spot at the time of, or just after the accident, whose statements were recorded by the IO of the case, and other documentary evidence including police papers, which are available on record, but were yet to be exhibited, in accordance with the procedure laid down by law to establish its case. The appellant cannot be permitted to reap windfall or bonanza at public expense where none is due. It is also made clear that the Presiding Officer of the Tribunal while conducting the trial should not simply sit and watch the proceedings like a moron; he should take proactive part in the proceeding, if necessary, by invoking Section 165, Evidence Act, wherever found necessary. His paramount consideration should be two-fold:- to ensure that the claimant receives due and just compensation and not a bonanza or a source of profit or a pittance and, conversely, to ensure that false claim petition should be MAC APP. NO.74/2014 Page 8 of 9 detected and must be rejected by awarding exemplary cost to any unscrupulous claimant for future deterrence.
13. For what has been stated in the foregoing, this appeal is disposed of by issuing the following orders/directions:
(a) The impugned judgment dated 13-5-2014 is hereby set aside;
(b) The case is remanded to the file of the learned Member, Motor Accident Claims Tribunal for further trial;
(c) The insurer/respondent is at liberty to adduce further evidence to substantiate its case that the claim petition is based on a false and manufactured story, and is also collusive;
(d) It shall also be open to the appellant to lead further evidence to improve her case, if so advised, or rebut the further evidence of the insurer;
(e) The depositions already recorded heretofore shall form a part of the record and should not be discarded;
(f) An attempt will be made by the Tribunal to dispose of the case within six months from the date of receipt of this judgment;
(g) If the insurer is unable to adduce more evidence in the course of the fresh trial, the appellant shall be deemed to have made out her case whereupon due compensation will be awarded to her in accordance with law.
(h) Transmit the L.C. record forthwith.
CHIEF JUSTICE MAC APP. NO.74/2014 Page 9 of 9