Rajasthan High Court - Jodhpur
Amri Devi & Ors vs Kailash Kumar & Ors on 17 October, 2016
Author: Arun Bhansali
Bench: Arun Bhansali
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IN THE HIGH COURT OF JUDICATURE FOR
RAJASTHAN AT JODHPUR
:JUDGMENT:
S.B.CIVIL MISC. APPEAL NO. 1422/2013
Appellants-Claimants:
1. Amri Devi w/o Late Shri Man Singh, aged 33 years
2. Nirma Kanwar D/o Late Shri Man Singh, aged 14
years.
3. Chagni Kanwar D/o Late Shri Man Singh, aged 12
years.
All by caste Rawat Rajput, R/o Arjun Sagar,
Jhijhardi Kantaliya, presently R/o village Khodiya,
Tehsil Sojat, District Pali (Raj.)
Appellants No.2 & 3 are minor through their
natural guardian mother Smt. Amri Devi, appellant
No.1.
Versus
Respondents:
1. Kailash Kumar s/o Shri Dhanveer @ Dalveer by
caste Aheer, R/o Khera Najabgarh, Police Station
Chavla, New Delhi. ....(Driver of offending vehicle)
2. Dhanveer @ Dalveer S/o Sher Singh, by caste
Aheer, R/o Village Khera Najabgarh, Police Station
Chavla, New Delhi.....(Owner of offending vehicle)
3. Shri Ram General Insurance Company Limited,
Branch Office Encroachment-8, IIP RIICO
Industries Area, Sitapur, Jaipur. ...(Insurance Co.)
DATE OF JUDGMENT : 17th October, 2016
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PRESENT
HON'BLE MR.JUSTICE ARUN BHANSALI
Mr.V.R.Choudhary, for the appellants.
Mr.Jagdish Vyas, for the respondent.
BY THE COURT:
This appeal under Section 173 of the Motor Vehicles Act, 1988 ('the Act') has been filed by the appellants-claimants aggrieved against the judgment and award dated 3/6/2013 passed by the Motor Accident Claims Tribunal, Sojat, District Pali ('the Tribunal'), whereby, the application for compensation ('the application') filed by the appellants has been dismissed by the Tribunal on coming to the conclusion that the appellants have failed to prove that the accident occurred from the alleged offending vehicle, and the issues pertaining to the merits on defence raised by the Insurance Company & quantum of compensation were not decided by the Tribunal. The application was filed by the claimants wife and two daughters of Man Singh inter alia with the averments that Man Singh was serving with Mementos & Souvenirs Manufacturing Company; on 3/5/2011 at about 11.00 p.m. Man Singh was going on road near Naharpur Rupa Flyover for boarding a Bus when the 3/16 offending TATA Eicher Canter No.DL-01/M-2683, which was being driven rashly & negligently struck Man Singh from behind resulting in grievous injuries to him, he was admitted to Sunrise Hospital, Gurgaon and as his condition became serious, he was brought to Mathura Das Mathur Hospital, Jodhpur ('MDM, Hospital'), where during treatment he died on 10/5/2011; after conclusion of social rituals the claimant wife went to Gurgaon; tried to find out from the police and on no action having been taken, FIR was lodged. The police after investigation filed the challan against non- claimant No.1. It was alleged that the respondent no.1 by driving the vehicle rashly & negligently committed the accident and, therefore, the claimants were entitled to compensation to the tune of Rs.44,63,000/- as the deceased was aged 35 years and used to earn Rs.7,550/- per month as salary.
The application was opposed by the non-claimant nos.1 and 2, owner & driver of the vehicle, inter alia denying the fact of accident, however, claimed that the Insurance Company was liable to make payment of compensation in case they were found liable for payment of compensation.
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The non-claimant Insurance Company also filed its reply inter alia raising objections about the driver being not in possession of valid & effective driving licence, non-compliance of provisions of Section 64VB of the Insurance Act , lack of valid permit and fitness certificate. It was alleged that the accident had occurred on 3/5/2011, however, FIR was lodged on 26/5/2011, though the injured died on 10/5/2011 and, therefore, the accident appears to be false and baseless; regarding compensation claimed, it was submitted that the amount of compensation claimed was excessive. Further submissions were made that the death did not occur on account of accident but on account of negligence of doctors at Sunrise Hospital, Gurgaon and MDM, Hospital, Jodhpur and, therefore, the Insurance Company was not liable.
The Tribunal framed four issues, on behalf of claimants Amri Devi was examined as A.W.1 and Lakhan Singh was examined as A.W.2 and in all 51 documents were exhibited, on behalf of non-claimants no evidence was produced.
After hearing the parties, the Tribunal came to the conclusion that A.W.1 Amri Devi was not the eye 5/16 witness and, therefore, her statement qua the accident was meaningless; FIR was not lodged on 3/5/2011 i.e. the date of accident and was lodged on 26/5/2011 by Amri Devi wife of the deceased; in the FIR it was not indicated as to who informed Amri Devi about the accident by the driver of the alleged vehicle and how she came to know about the number of the vehicle; FIR should have been lodged immediately on death of Man Singh on 10/5/2011; Lakhan Singh, who claimed to be with the deceased at the time of accident has not lodged any report and, therefore, it was not believable that accident occurred from the said vehicle; no Post- mortem report was available. Further, as Post-mortem was not done, it cannot be said that Man Singh died on account of the injuries received from the accident, else the doctors would have insisted for Post-mortem, merely because of filing challan by the police against the driver of the vehicle, it cannot be concluded that the accident occurred from the said vehicle and consequently came to the conclusion that the accident did not occur from the said vehicle in question. The other issues pertaining to liability of the Insurance Company and the quantum of compensation, as 6/16 noticed hereinbefore, were not decided by the Tribunal. It is submitted by the learned counsel for the appellants that the Tribunal committed grave error in coming to the conclusion that the accident did not occur from the offending vehicle. It was submitted that there was sufficient explanation regarding the delay in lodging the FIR and the fact that the injuries were received by the deceased Man Singh out of the accident is evident from the discharge summary of the Sunrise Hospital, Gurgaon, Ex.15, (C-2/22 & C-2/32), which is a medico legal report of the said hospital, wherein, it has been indicated as case of 'RTA Head Injury', the term RTA means Road Traffic Accident and, therefore, the assumption of the Tribunal that it was not proved that the injuries were suffered by the deceased on account of road accident is wholly baseless. It was submitted that grave injustice has been caused to the appellants by rejection of the claim on account of incorrect findings by the Tribunal and, therefore, the same deserves to be set aside. Reliance was placed on Prem Kanwar & Ors. vs. Aadam & Ors. : 2007 R.A.R. 310 (Raj.), Hari Singh vs. Duli Chand & Ors. : 2008-09 (Supp.) R.A.R. 513 (Raj.) 7/16 and Kali & Ors. vs. Shri Balwan Singh & Ors. : 2008-09 (Supp.) R.A.R. 116 (Raj.).
Learned counsel for the respondent Insurance Company vehemently opposed the submissions made by counsel for the appellant. It was submitted that a bare look at the FIR reveals that the claimant Amri Devi did not indicate the source of her information regarding the accident having occurred from the particular vehicle. The evidence of Lakhan Singh is not believable in view of the fact that he, even if was accompanying Man Singh, chose not to lodge any report. Further there were serious gaps in the evidence led by the claimants and nowhere it has been proved that the accident occurred from the insured vehicle and, therefore, the Tribunal was justified in coming to the conclusion that the claimants had failed to prove the involvement of the vehicle.
Reliance was placed on Mataji Bewa & Ors. vs. Hemanta Kumar Jena & Anr. : 1994 ACJ 1303, RSRTC Vs. Balbeer Singh & Anr. : 2009 R.A.R. 146 (Raj.) and United India Insurance Co. Ltd. vs. Pawan Tikkiwal & Ors. : 2008 R.A.R. 56 (Raj.) I have considered the submissions made by 8/16 learned counsel for the parties and have perused the entire record of the Tribunal.
A bare look at the material indicates that the accident occurred on 3/5/2011, the injured was admitted to Sunrise Hospital at Gungaon, whereafter, the injured was shifted to MDM Hospital, Jodhpur on 6/5/2011, where he was admitted at 6.40 a.m. and the injured died on 10/5/2011 at 9.45 p.m. A look at the discharge summary of the Sunrise Hospital, Gurgaon (Part of Ex.15) indicates that a Medico Legal Report has been prepared and it is specifically indicated therein as "Alleged A/O RTA". Further, on the Bed Head Ticket of MDM Hospital, Jodhpur also it is clearly indicated as "H/O RTA". The term RTA is understood as road traffic accident which is regularly used by the hospitals in cases of accident. In view of specific indication in the Medico Legal Report of the Sunrise Hospital, Gurgaon and the Bed Head Ticket of MDM Hospital, Jodhpur, as noticed hereinbefore, the finding of the Tribunal that it was not indicated by the doctors of MDM Hospital, regarding the injuries having been suffered by the deceased on account of road accident, is on its face perverse. The Tribunal, merely on account of the fact 9/16 that Post-mortem was not done, without looking into the record of the case has recorded a baseless findings regarding non-indication of the injuries suffered by the deceased on account of road traffic accident.
So far as the evidence of the claimant regarding involvement of the vehicle is concerned, the claimant Amri Devi appeared in the witness box and specifically stated in her statement that the driver of the vehicle was Kailash Kumar, which aspect was informed to her by Lakhan Singh, who was residing in Delhi & indicated the number of vehicle and produced 51 documents including the copy of challan filed against the driver of the vehicle. In cross examination by the counsel for the owner and driver, she denied having information as to whether her husband met with the accident while crossing the road and reported that Lakhan Singh informed her that the vehicle struck the deceased from the back and again reiterated that Lakhan Singh gave the number of the vehicle. In the cross examination done by the counsel for the Insurance Company, the only question asked to Smt. Amri Devi was as to whether the death occurred on account of negligence of doctors at Jodhpur, to which she answered in negative 10/16 and reported that the same occurred on account of injuries suffered by the deceased. Lakhan Singh also appeared in the witness box and indicated that he was walking with Man Singh when the truck struck him, he was taken to Sunrise Hospital, Gurgaon from where he was shifted to Jodhpur. In the cross examination, he denied that he was related to Man Singh, regarding the fact that why he did not report the accident, he stated that he admitted the injured to the hospital, informed the family members and left. The said witness was cross examined by the counsel for the Insurance Company and was asked whether the accident occurred while crossing the road on account of Man Singh's own mistake, which suggestion was denied by him, he explained, as family members were not present, he did not lodge the FIR and denied that on account of his relationship he was giving false statement. From the statement of two witnesses, it is apparent that so far as the Insurance Company is concerned, the suggestion given to the wife of the deceased was whether the death occurred on account of negligence of doctors at Jodhpur and the suggestion given to Lakhan Singh was whether the accident occurred 11/16 on account of negligence of the deceased himself and that the witness was giving false statement. Not a single question was put to either of the witnesses regarding false involvement of the vehicle in question. Counsel for the owner and driver of the vehicle also did not question the false implication of the vehicle to either of the witnesses.
In view thereof, insofar as the oral evidence available on record is concerned, it cannot be said that the oral evidence given by Smt. Amri Devi wife of the deceased and Lakhan Singh, eye witness, has been in any manner discredited by way of cross examination.
Further, so far as the submission of learned counsel for the Insurance Company regarding non- indication of name of Lakhan Singh in the FIR is concerned, the said aspect has to be examined in the context of the facts which have come on record, wherein, the accident occurred on 3/5/2011, on 6/5/2011 despite the fact that the injured was at Gurgaon near Delhi and on account of obvious circumstances instead of taking him to another recognized hospital at Delhi, he was brought to Jodhpur and he succumbed to injuries at Jodhpur on 12/16 10/5/2011, whereafter, the young widow moved out of the house within 15 days and travelled all the way to Gurgaon for lodging the FIR, to expect her to be precise and indicate the source of her information, is rather expecting too much from her in the circumstances in which she was placed at the time when the FIR was lodged. The delay in lodging the FIR at Gurgaon by the wife of the deceased after 15 days from the date of accident in the circumstances that the deceased came from a rural background and belonging to Rawat Rajput community is obvious, where the movement of widows even otherwise is much restricted and, therefore, expecting her to lodge FIR immediately after the death of her young husband is clearly unreasonable. In view thereof, the delay in lodging the FIR is well explained and, therefore, the Tribunal committed an error in not taking into consideration the above facts for the delay in lodging the FIR, which are evident from the record of the case.
A look at the names and residence of the driver and owner of the vehicle in question also rules out any possibility of fixed up involvement inasmuch as the owner and driver of the vehicle belong to Delhi and are 13/16 of different community altogether from the claimants, though it was not even the case of the non-claimants, which is evident from the cross examination, as noticed hereinbefore. The number of the vehicle was clearly indicated in the FIR and after investigation the police has filed challan against the driver of the vehicle for rash and negligent driving, which though by itself may not be sufficient, in the present circumstances of the case, support the plea raised by the claimants regarding the involvement of the vehicle, as the oral evidence led by them has remained unchallenged.
So far as the judgments cited by the learned counsel for the Insurance Company are concerned, in the case of Mataji Bewa (supra) there was change of version from what was indicated in the charge sheet and the oral statement of the parties and in that context it was observed that the contents of the charge sheet cannot be treated as evidence in a claim proceeding, the said case, on facts, has no application to the present case.
In the case of Balbeer Singh (supra), based on the facts of the said case the Court came to the conclusion that, though the challan was filed, from the material available on record there was contributory negligence, 14/16 the said judgment also does not help the cause of the respondents.
In the case of Pawan Tikkiwal (supra) again there was discrepancy in the statement recorded under Section 161 Cr.P.C. and the plea sought to be raised after six months of the said statement, which was not believed by the court and, therefore, the said judgment also has no application to the facts of the present case.
This Court in the case of Hari Singh (supra) came to the conclusion that delay in filing FIR was explained and in the discharge certificate it was indicated that the injuries were sustained on account of road traffic accident, the matter was remanded back by this Court.
In the case of Prem Kanwar (supra) also as the truck number was given in the FIR and charge sheet was filed, the matter was remanded back to the Tribunal and in the case of Kali (supra), as the driver of the offending vehicle was challaned, the matter was remanded back to the Tribunal.
In the over all facts and circumstances of the case and the oral and documentary evidence available on record, the finding recorded by the Tribunal regarding non involvement of the vehicle only on account of delay in lodging the FIR and allegedly not indicating about 15/16 the injuries having been suffered by the deceased on account of the road accident, which determination is factually incorrect, the finding recorded by the Tribunal cannot be sustained and same is, therefore, reversed. It is held that the accident occurred due to rash & negligent driving of driver of the Canter.
As the Tribunal has dismissed the application based on its finding on issue no.1 on account of non involvement of the vehicle in question and other issues have not been decided, the matter is remanded back to the Tribunal to decide the issue nos. 2, 3 and 4 based on the evidence available on record. Looking to the nature of the case and the fact that the accident occurred way back in the year 2011, the Tribunal is directed to decide the matter within a period of four months from the date the record of the case is received by it along with the copy of this order.
In view of the above discussion, the appeal is allowed. The finding of the Tribunal on issue no.1 is reversed, the impugned judgment dated 3/6/2013 is, therefore, set aside, the matter is remanded back to the Tribunal for deciding the issue nos. 2, 3 and 4 based on the material available on record. The needful 16/16 may be done by the Tribunal within a period of four months from the date the record is received by it. The record be sent back to the Tribunal forthwith.
(ARUN BHANSALI), J.
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