Jharkhand High Court
National Insurance Company Ltd. vs Usha Veena Rani Minz And Anr. on 20 August, 2007
Equivalent citations: [2007(4)JCR10(JHR)], AIR 2008 (NOC) 310 (JHAR.) = 2007 (3) AIR JHAR R 565, 2007 (3) AIR JHAR R 565, 2008 A I H C 568, (2007) 4 JLJR 122, (2007) 4 JCR 10 (JHA), (2007) 59 ALLINDCAS 901 (JHA), (2008) 2 ACC 42, (2008) 1 TAC 40
Author: D.G.R. Patnaik
Bench: M.Y. Eqbal, D.G.R. Patnaik
JUDGMENT D.G.R. Patnaik, J.
1. This appeal by the insurance company is directed against the judgment and award dated 7.8.2003 passed by the Motor Vehicle Accident Claims Tribunal, Ranchi, in Compensation Case No. 22 of 1977.
2. The claimant Usha Veena Rani Minz/respondent No. 1 had filed a claim application on 8.3.1977 impleading the respondent No. 2 alone as the opposite party and seeking compensation for the injuries claimed to have been sustained by her allegedly involving the mini bus of the respondent No. 2. The claim petition was disposed of by an ex parte judgment and award whereby Rs. 10,000/- was awarded to the claimant against the owner of the alleged offending vehicle. The owner opposite party filed a petition for setting aside the ex parte judgment and for restoration of the claim petition. The petition was rejected and it was only pursuant to the order of the High Court that the claim petition was restored to its original file. Thereafter, the claimant appeared in the case on 27.2.1997. The matter continued to liner till the case was received in the Tribunal on 25.4.2003. The Insurance Company was also impleaded as opposite party No. 2 on 3.6.2002. Later, the claimant filed a petition on 23.6.2003 seeking amendment in the claim application for encashment of the amount of compensation from Rs. 10,000/-to Rs. 1,00,000/- (rupees one lakh) and the prayer was promptly allowed by the Tribunal. After conducting enquiry, the Tribunal passed the impugned award dated 7.8.2003 allowing the claim of the claimant and awarded compensation amount of Rs. 40,000/- by way of pecuniary and non-pecuniary damages to the claimant and directed the Insurance Company (opposite party No. 2) to pay the amount of compensation with interest at the rate of 9% per annum from 7.6.2003.
3. The case of the claimant, in brief, is that on 21.9.1976, she was travelling as a passenger in the mini bus bearing registration No. BHN 5892. At about 9.00 a.m., when the bus reached Kanta Toli Bridge, it met with an accident causing multiple injuries to the claimant including fracture of her right leg. She was admitted to the Sadar Hosptial, Ranchi, for treatment of her injuries on the same day. She was discharged from Hospital three months later on 24.12.1976 with advice to take complete rest for ten weeks. She has claimed that on account of the injures, she has been rendered disabled since she has not been able to restore her original normal gait and her disability has caused an obstacle in her marriage negotiation. She has also claimed that she was a student of 2nd year in Electronics in the Ranchi Government Women's Polytechnic and her studies had suffered on account of the injuries. She has claimed that the accident occurred on account to rash and negligent driving of the offending vehicle by its driver and had sought initial liability or payment of compensation against the owner of the vehicle (respondent No. 1). The National Insurance Company was impleaded on, the basis of the information provided by opposite party No. 1 that the vehicle was covered under Insurance policy with the aforesaid insurer.
4. The owner of the vehicle, respondent No. 1 had contested the claim of the claimant stating that no such accident as alleged by the claimant, ever occurred and that as a matter of fact, the vehicle was never used for public transport. Rather, it was used only for the purpose of conveyance of the staff of the Usha Martin Company and on the date of the accident, the vehicle was comprehensively insured under the Insurance Company between 10.10.1975 to 9.10.1976.
The Insurance Company had also contested the claim on the ground that the claimant has not adduced any evidence to confirm that the accident had occurred at all and has likewise, not adduced any evidence to confirm that she has suffered injuries whatsoever, or the nature of the injuries, if any, and in respect of the expenses were incurred in treatment of her purported injuries. The Insurance Company had also pleaded that the claim was barred by limitation and that even otherwise, since the date of accident relates to the period when the old Motor Vehicle Act was in force, the liability of the Insurer was limited.
5. In the present appeal, the Insurance Company has challenged the impugned judgment and award of the Tribunal mainly on the ground that the claimant has utterly failed to prove that the accident as alleged by her, had occurred and that she had suffered any injury in the manner and of the nature claimed by her. Learned Counsel for the appellant has invited attention to the evidence adduced by the claimant and has pointed out that no report concerning any such accident was lodged with the police and neither has any independent witness been produced to testify that any such accident involving the vehicle under reference, had occurred in the manner claimed by the claimant. Learned Counsel further submits that the claim of the respondent that she had suffered fracture of her leg is also not supported by any cogent and reliable evidence and, in fact, the evidence adduced by her is totally inconsistent and contradictory to her own statement.
6. The claimant has adduced her own oral evidence besides the evidence of one witness. Reiterating the narration as given by her in her claim application, she has claimed that on the alleged date of occurrence, she was travelling in the bus and on account of the brake suddenly applied by the driver, after the bus dashed against a water tap, she fell off the bus and became unconscious. She found herself at the hospital and was informed by the doctor that she had sustained fracture in her leg. She had to undergo surgical operation and treatment in the hospital for two months. She has claimed to have spent Rs. 5,000/- (five thousand) for treatment of her injuries.
7. The witness examined by the claimant is not an eye-witness to the alleged occurrence. He confines his evidence stating that he saw a crowd and when he went near, he found two ladies in injured condition being on the ground and he saw that the mini bus took away one of the ladies and he later came to learn that the name of the lady was Usha Veena Rani Minz (claimant) and she was admitted to the hospital. Significantly, neither of the witnesses has claimed that any FIR was lodged at the police station in respect of the above accident. Absence of an FIR may not always be considered as fatal to the claim for compensation if there are other cogent and convincing evidences to confirm that the accident did occur involving the motor vehicle in which the injury was caused to a third party. In the instant case, the evidence offered by the claimant is by way of her own testimony with partial support from the testimony of one witness. In order to test the veracity of the oral evidence, the same has to be read as a whole.
The claimant in her claim application has stated that she was thrown out of the vehicle whereafter the driver of the bus drove back the vehicle and in the process the wheels of the bus ran over the right leg of the claimant causing fracture of her right leg. In her evidence, however, she does not mention the occurrence in such detail. The evidence of AW 1 also does not give any such detail of the occurrence as alleged.
8. To prove the injuries sustained by her, the claimant has filed a Discharge Slip purportedly issued by the hospital authorities though the same has not been proved in evidence. The document is certainly not an injury report indicating any opinion of a doctor regarding the nature of injuries. This document, denoted as a discharge slip, was drawn on 27.7.2003 purportedly issued by the Superintendent of the Sadar Hospital, Ranchi. It is significant to note that in column (vi), the disease has been described as" fracture of left leg and knee, whereas the claim of the claimant is that she had sustained fracture on her right leg. The claimant has not offered any explanation as to the glaring discrepancy in respect of the injury which the claimant has claimed to have allegedly suffered. Such inconsistency in the evidence totally contradicts the claimant's claim that she sustained such injury for which she could have a right to claim compensation.
9. Even though the provisions of the Motor Vehicles Act relating to compensation to a victim who has suffered injuries in a motor vehicle accident, is a beneficial Legislation, but the benefit thereof can be availed only if the claimant lays a firm and reasonable foundation for his or her claim. In the instant case, the claimant has not been able to clearly establish that she had suffered any injury as a result of any accident involving the motor vehicle belonging to the respondent No. 1. The finding of the Tribunal on the issue of maintainability of the claim petition and the related issues are misconceived and perverse, since the findings are not based upon proper appreciation of the evidence.
10. For the reasons discussed above, I find merit in this appeal. Accordingly, this appeal is allowed impugned judgment.
M.Y. Eqbal, J.
11. I agree.