Madhya Pradesh High Court
R.P. Gautam vs R.N.M. Singh And Anr. on 30 August, 2007
Equivalent citations: AIR2008MP68, AIR 2008 MADHYA PRADESH 68, 2008 (2) ABR (NOC) 329 (M. P.) = AIR 2008 MADHYA PRADESH 68, 2008 A I H C 662 2008 (1) AJHAR (NOC) 276 (M. P.) = AIR 2008 MADHYA PRADESH 68, 2008 (1) AJHAR (NOC) 276 (M. P.) = AIR 2008 MADHYA PRADESH 68, 2008 (1) AJHAR (NOC) 276 (M. P.) = AIR 2008 MADHYA PRADESH 68 2008 A I H C 662, 2008 A I H C 662
Author: U.C. Maheshwari
Bench: U.C. Maheshwari
JUDGMENT U.C. Maheshwari, J.
1. The appellant/claimant has come forward with this appeal being aggrieved by the award dated 5-2-1999 passed by 6th Additional Motor Claims Tribunal, Bhopal in M.C.C. No. 158/97 dismissing his claim in respect of injuries sustained by him in vehicular accident.
2. The appellant/claimant filed his claim contending that on 15-4-1996 at about 5.45 p.m. when he was standing with his moped at some auto garage of Rachna Nagar Bhopal. At the same time he was dashed by Scooter bearing registration No. M.P.04-A.D. 9978 driven by respondent No. 1 in rash and negligent manner, he fell down and sustained injuries in the lower part of right leg. He was taken to hospital where his MLC report was prepared and fracture of tibia bone was suspected for which he remained admitted there. Subsequently he took the treatment of Dr. Nirbhay Shrivastava and Dr. A. Banerjee between 27-7-1996 to 31-3-1997. He suffered three surgical operations during the treatment of such fracture and spent a huge amount in it. He sustained permanent disability in his leg. The respondent No. 1 was the registered owner of offending vehicle while the same was insured with respondent No. 2. With these pleadings the claim for compensation of Rs. 3,00,000/- was filed.
3. In reply of respondent No. 1 by admitting the collusion of his scooter with the Luna of appellant, it is stated that appellant sustained some simple injury in it. He took him to the hospital and provided preliminary treatment. Such incident was happened due to fault of the appellant himself. Thus, he is not liable to indemnify the claim of the appellant. On holding any liability the same be saddled against respondent No. 2 the insurer as the scooter was insured with it.
4. In reply of respondent No. 2 the averments of the claim petition are denied. It insured the Scooter of respondent No. 1 bearing registration No. M.O.D. 3543 and not the scooter bearing registration No. M.P.04-A.D.-9978. The incident was the cause and consequence of rash and negligent driving of Luna by the appellant. In any case it is a case of contributory negligence of rider of both the vehicles and they are equally responsible for the incident. Thus, the liability to indemnify the claim could not be saddled against it.
5. After framing the issues, the Tribunal recorded the evidence, on appreciation of the same the claim of the appellant has been dismissed in entirety. Hence, this appeal.
6. Shri K.N. Agrawal, learned Counsel for the appellant assailed the impugned award on the ground that his claim has been dismissed mainly on the ground that soon after the incident or subsequent to it for more than one year he did not lodge the FIR at the concerning police station. While the registration of criminal case or lodging the first information report is not the condition precedent for entertaining or awarding the claim under the Motor Vehicles Act. It is settled proposition that every case is decided on its own merits. Mere in the lack of registration of the offence or its investigation by the police the claim ought not to have been dismissed by the Tribunal. The available evidence should have been considered with proper approach by keeping in view the surrounding circumstances, documents, produced and proved by the appellant but contrary to it in the lack of registration of the offence and by disbelieving the report in writing given by the appellant on 3-5-1997, the claim has been dismissed. While the MLC report prepared on 15-4-1996 by the treating doctor in which aforesaid injuries sustained by the appellant were mentioned, was proved on record but the same has not been considered by the Tribunal. He also proved the papers relating to subsequent treatment. Besides this the nexus of such injury with the alleged accident was proved by examining the eye-witnesses of the incident. In such premises the Tribunal committed error in holding that there is no nexus between accident and the aforesaid injury sustained by the appellant. He further said that appellant sustained the permanent disability in his right leg; the same has been proved by the treating doctors. With these submissions he prayed for awarding the claim of the appellant by setting aside the impugned award.
7. Shri Gulab Sohane, learned Counsel for respondent No. 2 justified the impugned award and said that the same is based on proper appreciation of evidence and also in conformity with law. The Tribunal has not committed any error in dismissing the claim. Thus, it does not require any interference at this stage and prayed for dismissal of this appeal.
8. Having heard I have carefully examined the record of the Tribunal and also the impugned award. It appears from the reply of respondent Nos. 1 and 2 that some vehicular accident took place between his Scooter and Luna of appellant on the aforesaid date in which the appellant sustained the injury in his leg. Accordingly, the factum of accident in between the parties was an admitted fact on record.
9. In order to prove such injuries, the MLC report (Ex.P. 16) prepared by treating doctor on 15-4-1996, was produced and proved on record. In such initial report the compound fracture of tibia in his right leg was suspected and mentioned. The history of sustaining the injury is mentioned the vehicular accident. Besides this MLC report the prescription of dated 15-4-1996 and 15-5-1996 (Ex. P. 2 & Ex. P. 3) and the certificate (Ex. P5) of Doctor Anil Dubey dated 15-5-1996 contending that he sustained the fracture of tibia (compound) one and half month back, operated and nailing was carried out have been proved on record. Regarding subsequent treatment of such injury the discharge cards were also produced as (Ex.P.7, Ex.P.8 and Ex. P.9) showing the different period in which the appellant remained admitted in the hospital. Besides this the various bills of medicine and prescription papers were also produced and marked on record from Ex. P. 10, Ex. P. 15 and Ex. P. 17 to Ex.P. 202, it shows that the appellant sustained such injuries in the aforesaid accident, which has been admitted by the respondent No. 2 in his reply.
10. In respect of such accident a report in writing dated 2-5-1997 (Ex. P. 1) given by the appellant to the Station House Officer, P.S. Govindpura, Bhopal has also been produced and proved on record. Although it appears from the record that on such report no such offence was registered against the respondent No. 1.
11. Apart from, the above by examining as many as five witnesses the appellant proved his case. The appellant R.P. Gautam (A.W. 1) while deposing aforesaid all circumstances regarding accident, sustaining the injuries and treatment stated that due to such injury he sustained permanent disability in his leg. He explained the reasons for giving the report (Ex. P. 1) at belated stage to the police that he remained under treatment and was also bed ridden therefore he could not lodge the report immediately. He might have remained under impression that report had been sent to police by the concerning doctor who prepared the MLC report. Rais Mohd. (A.W.2), the shopkeeper of the same vicinity the eye-witness of the incident supported his testimony regarding incident. The same is also further supported by a chance witness Sudhir Kumar Bajpai (A.W.3) who was passing from such place behind the scooter driven by the respondent No. 1. The alleged injuries have been proved by Dr. Nirbhay Shrivastava and Dr. Banerjee who carried out the treatment of the appellant. They also proved the papers relating to the treatment given by them to the appellant. Accordingly the case of the appellant has been proved by ocular evidence and also by medical evidence. On going through the cross-examination of all these witnesses I have not found any adverse though stated by them in their chief.
12. Besides the above non-applicant/respondent No. 1 R.N.M. Singh deposed that number of Scooter has been changed by the authority on changing the rules but the scooter was the same and he proved the registration, his driving licence and insurance of such scooter.
13. It is settled proposition of law that every civil case is decided on it's own facts and evidence without influencing the papers and decision of the criminal case. In such premises registration of the offence and police investigation is not a condition precedent for awarding the claim. Besides this due to one reason or another if the first information report of vehicular accident is not lodged with the police or the same was given at later stage and police neither registered the offence nor investigated the same, it does not mean that right of the victim for compensation who suffered the vehicular accident is washed away. The victim remains entitled for compensation on proving the facts and circumstances regarding such accident and factum of injuries sustained by him, he could not be deprived from such right, provided by the Motor Vehicles Act, although such compensation may be awarded only on proving all relevant facts with all probabilities.
14. Therefore, it is held that first information report or police investigation is not always condition precedent for awarding the claim. Claim could be awarded if the same is proved by admissible evidence with all probabilities. The claim case or its victim could not be left in every case on the mercy of the police. The Court is empowered to examine and adjudicate the case on available evidence, even in those cases in which the police neither registered the offence nor investigated the same. In a vehicular accident it could not be expected from the victim that before taking treatment he will go and lodge the report with the police. In such matter priority is always given to the treatment. All these circumstances must be considered with justice oriented approach. Although in the case at hand the appellant gave a report in writing (Ex. P. 1) to the police at belated stage. Such report is also having some endorsement regarding its receipt. In view of the aforesaid MLC report in which the history of the case, motor vehicle accident is mentioned the report appears to be bona fide. The same is also supported by the discharged cards of hospitals and papers of treatment. In such premises merely on account of non-registration of the offence his case could not be thrown away. Even after registration of the offence the papers of such investigation could not be treated as substantive evidence for claim case.
15. On earlier occasion this question was considered and answered by this Court in the matter of Mahila Dhanvanti and Ors. v. Kulwant Mahendra Singh and others , in which it was held as under:
10...It is well-settled proposition of law that evidence recorded in criminal Court and the findings arrived at thereon should not be used in claim cases. Such evidence for the purposes of claim cases is inadmissible.
11. The fact that the deceased, at the time of accident, was travelling on the trolley or was going as a pedestrian, playing Dhapli, has to be judged on the evidence adduced before the Tribunal which is not only proved by the claimants, but is admitted by the driver himself. It is not the case of the Insurance Company that the owner/driver have colluded with the claimants so as to get the compensation from the Insurance Company. Even if, for argument's sake it is assumed that the driver has stated so to save the owner and himself from liability, there is material on record that the findings arrived at by the Tribunal by rightly not taking into consideration the FIR and the statement of the Investigating Officer as no eyewitness to the occurrence was examined and no other independent legal and cogent evidence was produced to support the plea of Insurance Company, the interference in appeal in the finding recorded by the Tribunal is not warranted. Accordingly, the cross objections have no merits and are dismissed.
The aforesaid principle is further followed by this Court in the matter of Laxmi wd/o Lt. Ashok Gontia and Anr. v. Nandlal Tahalramani and Ors. reported in 1999 (1) MPLJ 24O.
16. In view of aforesaid discussion, it has been established that appellant being sufferer of alleged vehicular accident sustained the compound fracture of tibia bone in his right leg for which he remained under treatment and undergone surgical operations in that regard. The same have been proved by ocular as well as by medical evidence.
17. As per deposition of Dr. Nirbhay Shrivastava (A.W. 4) and his certificate Ex P. 12 due to said injury the appellant sustained 10% permanent disability in his right leg. Therefore it is held that in the alleged incident the appellant sustained 10% permanent disability in his right leg for which he is entitled for awarding the claim.
18. Coming to the question for awarding the compensation to the appellant, he was 62 years old on the date of filing the claim petition as mentioned in the cause title of the claim petition.
19. It is apparent on record that bills of the medicine and receipt of every bills have not been proved by examining the concerning witnesses and even on various bills the name of treating doctor is also not mentioned. Besides this in support of the bill relevant prescription have neither been produced nor proved on record. Even the x-ray report or its place is neither produced nor proved on record. In such circumstances the expenses of the treatment shown by the appellant appears to be very higher side. Besides this looking to the nature of injuries the expenses mentioned by the appellant appears to be higher side.
Keeping in view the nature of injury and deposition of doctor, duration of treatment and it's expenses, I deem fit to award Rs. 25,000/- for treatment and medicines.
20. It is apparent on record that appellant being retired person did not sustain loss of his earning, he might have been receiving his pension, but he deserves for compensation regarding physical pain and mental agony suffered by him due to aforesaid injury and also on account of aforesaid 10% permanent disability in his leg.
Considering the age of the appellant along with the nature of injury and it's evidence, I deem fit to award his claim regarding permanent disability and all it's connected heads for Rs. 30,000/-.
21. In view of the aforesaid circumstances by setting aside the impugned award this appeal is allowed and the claim of the appellant is awarded against respondents jointly and severally for Rs. (25,000 + 30,000) =-55,000/- (Rs. Fifty five thousand). The same shall carry interest @ 6% per annum from the date of filing the claim petition. The same is to be deposited within 60 days from the date of this award, failing which the appellant shall be entitled for the interest @ 9% p.a.
22. Appeal is allowed in part ass indicated above. There shall be no order as to costs.