Delhi District Court
Batulan (Mother Of The Deceased) vs Sh. Mahesh (Driver) on 16 April, 2022
IN THE COURT OF Dr. KAMINI LAU : JUDGE (MACT)01
(CENTRAL) TIS HAZARI COURTS, DELHI
MACT No. 842/2017
CNR No. DLCT010122352017
1. Batulan (Mother of the deceased)
W/o Jamil Khan
2. Jamil Khan (Father of the deceased)
S/o Late Husaini Khan
Both Residents of :
Alhaipur Chursen,
Hathras, Uttar Prdesh204101.
......Petitioners
Versus
1. Sh. Mahesh (Driver)
S/o Sh. Kalicharan
R/o Gram Kaimar
Kumar Gangcholi Khas,
Hathras, Uttar Pradesh.
2. Sh. Balveer Singh (Owner)
S/o Sh. Bani Ram,
R/o Veer Nagar, Sahpau,
Hathras204101, U.P.
3. National Insurance Company Ltd. (Insurer)
803A, 8th Floor, Konnectus Tower,
Tower3, Opp. New Delhi Railway Station,
Bhav Bhuti Marg, New Delhi110002.
......Respondents
Batulan & Anr. Vs. Mahesh & Ors., MACT No. 842/2017 Page No.1 of 40
Judgment dated 18.04.2022
Date of filing of claim petition: 24.08.2017
Arguments concluded on: 11.04.2022
Date of Judgment: 18.04.2022
JUDGMENT:
(1) The present Claim Petition has been preferred under Section 166 & 140 of the Motor Vehicle Act, 1998 (in short MV Act) by the parents of the deceased claiming a compensation of Rs.50,00,000/ (Rupees Fifty Lacs only) in respect of death of Allah Noor who had suffered fatal injuries in a motor vehicular accident which took place on 30.06.2017 at about 11:40 AM at Road from Pekwara to Chursen, Vahad, Gram Pekwara, P.S. Chandapa, District Hathras, Uttar Pradesh.
BRIEF FACTS:
(2) The Facts in Brief as emerged from the claim petition are that on 30.06.2017 at about 11:40 AM, Allah Noor (since deceased) alongwith his sisterinlaw namely Afsana was going on a motorcycle bearing registration No. UP86M4097 from Hathras to Chursen and when they reached the road from Pekwara to Chursen, the offending motorcycle bearing registration No. UP86W2887 came from the opposite side on wrong side of the road at a very high speed, rashly and negligently and hit the motorcycle of Allah Noor. As a result of the Batulan & Anr. Vs. Mahesh & Ors., MACT No. 842/2017 Page No.2 of 40 Judgment dated 18.04.2022 impact, Allah Noor and his sisterinlaw sustained grievous injuries after which both the injured were taken to Bagla Hospital from where the injured Allah Noor was referred to Safdarjung Hospital, Delhi where he expired on 13.07.2017 due to the injuries sustained by him in the accident. It is pleaded that at the time of the accident, the deceased Allah Noor was 20 years old and was doing a private job and was earning Rs.20,000/ per month. The petitioners who are the parents of the deceased Allah Noor are claiming a compensation to the tune of Rs.50 Lacs on account of the death of the deceased. (3) A detailed common written statement/ reply to the claim petition has been filed on behalf of the respondent no.1 Mahesh and respondent no.2 Balveer Singh wherein preliminary objection has raised that the petition is not maintainable against the respondent no.1 and 2 since they have been falsely implicated in the said case FIR in collusion with the police. It is further pleaded that the accident had taken place at a lonely and deserted place where no one was present near the place of accident and both the riders were unconscious, then who wrote the number of the vehicle. It is also pleaded that there is discrepancy in the vehicle number as the vehicle which met with the accident are different in the FIR and the charge sheet. It is further pleaded that the present petition is also not maintainable on the ground of territorial jurisdiction since the petitioners are not residents of Delhi nor they have ordinarily staying at Delhi within the Territorial Jurisdiction of this Tribunal but due to their malafide, ulterior and guilty Batulan & Anr. Vs. Mahesh & Ors., MACT No. 842/2017 Page No.3 of 40 Judgment dated 18.04.2022 intention, they have filed the present petition to cause financial as well as physical and mental harassment to the respondents. It is further pleaded that the present petition has been filed on the basis of the false and fabricated facts by concealing the true facts from this Court and hence, the petitioners are not entitled for any relief in the present petition. It is also pleaded that the averments in the petition do not satisfy the ingredients of invoking the applicability of Section 166 and 140 of Motor Vehicles Act, 1988. It is further pleaded that the present petition is liable to be dismissed on the ground that the accident has not occurred due to the vehicle of the respondents nor the respondent no.1 was driving the vehicle with negligence without obeying the traffic rules. On merits, the respondents no.1 and 2 have denied all the averments made by the petitioners in the claim petition.
(4) A detailed written statement/ reply has been filed on behalf of the respondent no.3 National Insurance Company Ltd. wherein preliminary objection has raised that the petition is not maintainable in the eyes of law as no cause of action has accrued to the claimants to file the present petition against the respondent no.3. It is pleaded that the alleged accident took place in Chandapa, District Hathras, Uttar Pradesh; the respondent no.1 resides at Gram Kaumar Gangcholi Khas, Hathras, Uttar Pradesh; respondent no.2 resides at Veer Nagar, Sahpau, Hathras, Uttar Pradesh and the Insurance Policy has been procured by the insured from 37/1, Delhi Agra Bye Pass Road, Opposite Bhagwan Cinema, Agra, Uttar Pradesh and hence, the present compensation Batulan & Anr. Vs. Mahesh & Ors., MACT No. 842/2017 Page No.4 of 40 Judgment dated 18.04.2022 application under Section 166 & 140 of the Motor Vehicles Act 1988 is not maintainable in the eyes of law as this Court/ Tribunal has no jurisdiction to try, entertain and decide the present compensation application. It is further pleaded that without admitting the accident and without prejudice to the contentions of the respondent no.3 i.e. National Insurance Company, as per the contents of the FIR bearing No. 0245 dated 13.07.2017 registered at PS Chandpa, District Hathras, Uttar Pradesh relied upon the petitioner, the offending vehicle in accident has been shown to be UP86P6082 (TVS Motorcycle), whereas in the claim petition in para No.9, 15 & 29 shows vehicle involved as UP86W2887 and hence, the present case is not maintainable because actual vehicle involved in the accident is motorcycle bearing registration No. UP86W6082 and not motorcycle bearing registration No. UP86W2887. It is pleaded that the occurrence of the alleged accident on the alleged date resulting in the alleged death of the alleged victim, as per the facts mentioned in the claim petition, appears to be misconceived and baseless and cannot be believed to be true unless substantiated with the help of relevant FIR, Charge Sheet, MLC, Postmortem Report & Seizure Memos, Mechanical Inspection Reports, Superdarinama in respect of the vehicle allegedly involved. It is further pleaded that the entire negligence on the part of the alleged victim/ deceased, cannot be ruled out because the facts of the alleged accident as stated in the claim petition reveals that the said alleged victim had met the alleged accident while in the process of Batulan & Anr. Vs. Mahesh & Ors., MACT No. 842/2017 Page No.5 of 40 Judgment dated 18.04.2022 riding the motorcycle.
(5) On merits, it is pleaded by the respondent no.3 that the vehicle bearing registration No. UP86W2887 is not involved in the present accident as per the contents of the FIR bearing No.0245 dated 13.07.2017, P.S. Chandpa, District Hathras, Uttar Pradesh, and hence, this claim petition is not maintainable and is liable to be dismissed. However, the vehicle having Chasis No. MBLHA7153H9D14206 & Engine No. HA11EMH9D14597 was insured with the National Insurance Co. Ltd. for the period from 26.04.2017 to midnight of 25.04.2018 in the name of respondent no.2 i.e. Sh. Balveer Singh R/o Veer Nagar, Sahpau, Agra, Uttar Pradesh, vide Insurance Policy No. 390102/31/17/6200421309 subject to various Terms, Conditions and Limitations of Policy. It is also pleaded that the insured had not intimated the registration number of the vehicle under said policy.
ISSUES SETTLED:
(6) On the basis of the pleading of the parties, vide order dated 20.08.2018 passed by the Ld. Predecessor of this Tribunal, the following issues were settled:
i. Whether the deceased Allah Noor had died due to injuries sustained by him in an accident which took place on 30.06.2017 within the jurisdiction of P.S. Chandapa Hathras, U. P. due to rash and negligent driving of vehicle bearing registration No. UP 86W 2887 by respondent Batulan & Anr. Vs. Mahesh & Ors., MACT No. 842/2017 Page No.6 of 40 Judgment dated 18.04.2022 no.1?
ii. Whether the petitioners are entitled to any compensation, if so, to what amount and from whom?
iii. Relief.
(7) Further, keeping in view the fact that the accident had taken place at Hathras, Uttar Pradesh and the petitioners as well as the respondents no.1 and 2 are residents of Hathras, Uttar Pradesh, vide order dated 27.01.2020 this Court/ Tribunal has settled an Additional/ Preliminary Issue as under:
Whether this Court has the Territorial Jurisdiction to try the present petition?
EVIDENCE:
(8) In order to prove their case, the LRs of the deceased have examined two witnesses. The mother of the deceased i.e. Batulan has examined herself as PW1 and Afsana Begum i.e. sister in law/ Bhabhi of the deceased has been examined as PW2. In so far as the respondents are concerned, they have not led any evidence pursuant to which their evidence was closed by the Ld. Predecessor of this Court vide order dated 06.05.2019.
(9) For the sake of convenience, the testimonies of the witnesses examined by the petitioners, are put in a tabulated form as under: Batulan & Anr. Vs. Mahesh & Ors., MACT No. 842/2017 Page No.7 of 40 Judgment dated 18.04.2022 S. Witness Deposition No.
1. Smt. Batulan PW1 Smt. Batulan is the mother of the deceased Allah (PW1) Noor in the present case who in her examinationinchief by way of affidavit Ex.PW1/A has corroborated what she has earlier stated in the claim petition. She has placed her reliance on the following documents.:
1. Photocopy of her Aadhar Card which is Ex.PW1/1.
2. Photocopy of Aadhar Card of father of the deceased which is Ex.PW1/2.
3. Photocopy of Aadhar Card of the deceased Allah Noor which is Ex.PW1/3.
4. Photocopy of PAN Card of deceased Allah Noor which is Ex.PW1/4.
5. Treatment records and bills which are Ex.PW1/5 (Colly).
6. Certified copy of criminal case documents which are Ex.PW1/6 (Colly).
In her cross examination by the Ld. Counsels for the respondents she has deposed as under: That at the time of accident, she was at home. That since the accident had not taken in her presence, she cannot tell the manner in which the accident had taken place.
That deceased was her son who was working at the shop of motorcycle but she is not aware of the name of the owner.
That she has not filed any document to show that the deceased was earning Rs.20,000/ per month. That the witness has denied the suggestion that the deceased was unemployed due to which reason she is unable to disclose the name of his employer. That she has four children including deceased Allah Noor who was her first child.
That first two child are married but deceased Allah Noor was unmarried and was just 20 years old.
That her husband is a farmer and she is residing in her own house.
Batulan & Anr. Vs. Mahesh & Ors., MACT No. 842/2017 Page No.8 of 40 Judgment dated 18.04.2022 That one of her married son is living separately while another is living with them.
That both her married sons are financially independent.
That the witness has denied the suggestion that due to the death of Allah Noor they have not suffered any financial loss.
That the witness has denied the suggestion that she has filed a false affidavit in order to claim compensation from this Tribunal.
That the witness also denied the suggestion that she has not spent a sum of Rs.3 Lacs on the treatment of Allah Noor.
That Allah Noor was illiterate and they all including deceased are permanent residents of Hathras and the deceased was working at Hathras only.
2. Ms. Afsana PW2 Ms. Afsana Begum is the sisterinlaw/ Bhabhi of the Begum (PW2) deceased Allah Noor in the present case who in her examinationinchief by way of affidavit Ex.PW2/A has stated on the following aspects:
1. That on 30.06.2017 at about 11:40 AM she along with Allah Noor was going on a motorcycle from Hathras to Chursen.
2. That Allah Noor was driving the motorcycle whereas she was sirring on the pillion seat.
3. That when they reached village Kemer Pekwara, when a motorcycle No. UP86W2887 came from the opposite side on the wrong side at a very high speed and hit their motorcycle as a result of which they both fell down on the road and sustained injuries.
4. That they both were removed to Medical Hospital Aligarh.
5. That she sustained minor injuries and was discharged from the hospital on the next date.
6. That Allah Noor sustained serious head injuries and was further referred to Mannat Hospital, Aligarh where he remained admitted for 12 days.
Batulan & Anr. Vs. Mahesh & Ors., MACT No. 842/2017 Page No.9 of 40 Judgment dated 18.04.2022
7. That thereafter he was referred to Safdarjung Hospital, Delhi where he expired on 13.07.2017.
8. That the accident was caused due to rash and negligent driving on the part of the driver of motorcycle No. UP86W2887.
9. That her statement was recorded by the police.
In her cross examination by the Ld. Counsels for the respondents the witness has deposed as under: ➢ That she does not know any Habib Khan.
➢ That Allah Noor was his real 'Devar'.
➢ That she is not aware who lodged the FIR and probably it was got lodged by her Jaith Shakir. ➢ That at the time of accident only she and Allah Noor were on the motorcycle.
➢ That neither of them were wearing helmets at the time of the accident.
➢ That they were going from Hathras to their village Hussain.
➢ That they left from Hathras at 11:30 AM while the accident had taken place at 11:45 AM.
➢ That the accident had taken place at a distance of 56 KM from Hathras.
➢ That she cannot tell what was the approximate speed of Allah Noor.
➢ That there was no road divider on the road.
➢ That earlier Allah Noor was riding on his right side but later on he was driving the motorcycle at his left side.
➢ That at the time of the accident, he was driving the motorcycle at his right hand side.
➢ That the offending motorcycle being driven in the central of the road and same was being driven in zigzag manner.
➢ That she had seen the offending motorcycle before the accident and at that time, it was close to their motorcycle but at some distance.
➢ That Allah Noor had also seen the motorcycle. ➢ That she cannot tell what was the proximate speed of the offending motorcycle but it was high speed. ➢ That after seeing the offending motorcycle, Allah Noor did not take any action as he was moving at Batulan & Anr. Vs. Mahesh & Ors., MACT No. 842/2017 Page No.10 of 40 Judgment dated 18.04.2022 slow speed.
➢ That the witness has denied the suggestion that the accident had taken place due to the negligence of Allah Noor as he was driving the motorcycle at the fast speed without helmet and due to that reason he sustained head injury.
➢ That after the accident police came to the spot. ➢ That police recorded her statement in the hospital of Aligarh on 30.06.2017.
➢ That she is not aware whether the police registered the FIR on 30.06.2017 or later on.
➢ That she is not aware of the make of the offending motorcycle.
➢ That registration number of the offending motorcycle is 6082 [Note: the witness again stated UP86W 2887].
➢ That the witness has denied the suggestion that the accident had taken place by the motorcycle bearing No. UP86P6082 TVS make.
➢ That the registration no. UP86P6082 is mentioned in the FIR.
➢ That she remained admitted in the hospital for two days.
➢ That her treatment documents are at home and she can file the same [Note: No such documents were filed even thereafter].
➢ That the witness has denied the suggestion that she had not sustained any injury and due to that reason she has not filed the documents on record.
➢ That police did not take her to the place of accident to prepare the site plan.
➢ That at the time of accident there was no traffic on the road.
➢ That the witness has denied the suggestion that since deceased was his relative she has been planted as a witness to claim compensation from the Tribunal.
In so far as the respondents are concerned, they have not led any evidence and their evidence was closed by the Ld. Predecessor of this Court/ Tribunal vide order dated 06.05.2019.
Batulan & Anr. Vs. Mahesh & Ors., MACT No. 842/2017 Page No.11 of 40 Judgment dated 18.04.2022 FINDINGS & OBSERVATIONS:
(10) I have heard the arguments advanced before me and considered the material on record. My findings on the various issues are as under:
Issue No. 1A: Whether this Court has the territorial jurisdiction to try the present petition?
(11) Onus of proving this issue was upon the petitioners. Perusal of the record shows that the accident in the present case had taken place on 30.06.2017 at about 11:40 AM at Road from Pekwara to Chursen, Vahad, Gram Pekwara, PS Chandapa, Distt. Hathras, Uttar Pradesh. Both the petitioners who are the parents of the deceased, are stated to be residents of Alhaipur Chursen, Hathras, Uttar Pradesh; the respondent no.1 Mahesh is a resident of Gram Kaimar Kumar Gangcholi Khas, Hathras, Uttar Pradesh and the respondent no.2 Balveer Singh is a resident of Veer Nagar, Sahpau, Hathras, Uttar Pradesh. According to the Ld. Counsel for the respondent no.3 National Insurance Co. Ltd. the Policy in the present case is a tieup policy and the same is issued from the dealer end. It is submitted that the dealer for the said Policy is Atmaram Auto Enterprises, Agra and the said dealer is mapped to Agra Saath Office. This being the background, the above issue relating to territorial jurisdiction was framed by this Court/ Tribunal on 27.01.2020.
Batulan & Anr. Vs. Mahesh & Ors., MACT No. 842/2017 Page No.12 of 40 Judgment dated 18.04.2022 (12) I have gone through the copy of Insurance Policy placed on record and I may note that the present claim petition has been filed before this Court/ Tribunal claiming that the office of the Insurance Company is situated within the jurisdiction of this Court/ Tribunal though according to the respondent no.3, the Insurance Policy has been issued from Agra, Uttar Pradesh. However, by application of the principles laid down by the Hon'ble Apex Court in the case of Malati Sardar Vs. National Insurance Company Ltd. & Ors. in Civil Appeal No. 10 of 2016 arising out of SLP (Civil) No.27243 of 2015 decided on 05.01.2016, I hold that this Court/ Tribunal has the jurisdiction to try the present claim petition.
(13) Issue is accordingly disposed off. Issue No.1: Whether the deceased Allah Noor had died due to
injuries sustained by him in an accident which took place on 30.06.2017 within the jurisdiction of P.S. Chandapa Hathras, U. P. due to rash and negligent driving of vehicle bearing registration No. UP 86W 2887 by respondent no.1?
Issue no.2: Whether the petitioners are entitled to any compensation, if so, to what amount and from whom?
(14) Both the above issues are clubbed together for the sake of convenience involving common discussion.
(15) The case of the petitioners is that on 30.06.2017 at about 11:40 AM, Allah Noor (since deceased) alongwith his sisterinlaw/ Batulan & Anr. Vs. Mahesh & Ors., MACT No. 842/2017 Page No.13 of 40 Judgment dated 18.04.2022 Bhabhi namely Afsana was going on a motorcycle bearing registration No. UP86M4097 from Hathras to Chursen and when they reached the road from Pekwara to Chursen, the offending motorcycle bearing registration No. UP86W2887 came from the opposite side on wrong side of the road at a very high speed, rashly and negligently and hit the motorcycle of Allah Noor. As a result of the impact, Allah Noor and his sisterinlaw sustained grievous injuries after which both the injured were taken to Bagla Hospital from where the injured Allah Noor was referred to Safdarjung Hospital, Delhi where he expired on 13.07.2017 due to the injuries sustained by him in the accident. (16) On the other hand the respondents no.1 and 2 namely Mahesh and Balveer Singh claimed that they have been falsely implicated in the present case since the accident had taken place at a lonely and deserted place where no one was present and both the riders were unconscious and there was no one else who could have noted down the number of the offending motorcycle. According to the respondents there is a discrepancy in the vehicle number since the number of the vehicle which is shown to have caused the accident is different in the FIR and shown differently in the charge sheet. The case of the respondents no.1 and 2 is that the accident was not caused by the vehicle of the respondents nor the respondent no.1 was driving the vehicle with negligence without following the traffic rules. (17) In so far as the respondent no.3 National Insurance Co. Ltd. is concerned, they have not only raised an objection firstly with regard Batulan & Anr. Vs. Mahesh & Ors., MACT No. 842/2017 Page No.14 of 40 Judgment dated 18.04.2022 to the manner in which the case has been brought to Delhi by over stretching the Territorial Jurisdiction but also secondly, claimed that the Motorcycle No. UP86W2887 has been wrongly involved in the alleged accident dated 30.06.2017. It has been pointed out that as per the contents of the FIR No.245/2017 registered at PS Chandpa, District Hathras, Uttar Pradesh, the offending vehicle in accident is UP 86P6082 (TVS Motorcycle), whereas in the claim petition in para No.9, 15 & 29 shows that the vehicle involved was UP86W2887 and hence, the present petition is not maintainable because actual vehicle involved in the accident is motorcycle bearing registration No. UP86W6082 and not motorcycle bearing registration No. UP86W2887. (18) I have considered the arguments advanced before me by the Ld. Counsels and have gone through the records of the case. (19) I may observe that after due consideration to the manner in which the claimants have stealthily invoked the jurisdiction of this Tribunal of by seeking application of the principles laid down in the case of Malati Sardar Vs. National Insurance Company Ltd. & Ors. (Supra) and upon noticing the discrepancy in the number of the offending vehicle, this Tribunal vide order dated 17.01.2022 directed the Claimants/ Petitioners to explain why this claim petition be not put in the doubtful/ suspicious category. This was done in terms of the observations made by the Hon'ble Apex Court in the case of Shafiq Ahmed Vs. ICICI Lombard General Insurance Co. Ltd. Special Leave Petition (Civil) No. 1110 of 2017 vide detailed orders dated 16.09.2021 Batulan & Anr. Vs. Mahesh & Ors., MACT No. 842/2017 Page No.15 of 40 Judgment dated 18.04.2022 & 16.12.2021. The relevant portion of the order dated 17.01.2022 is reproduced as under:
"...... The accident in the present case took place on 30.06.2017 at about 11:40 AM at Road from Pekwara to Chursen, Vahad, Gram Pekwara, PS Chandapa, Distt. Hathras, Uttar Pradesh. Both the petitioners who are the parents of the deceased, are stated to be residents of Alhaipur Chursen, Hathras, Uttar Pradesh; the respondent no.1 Mahesh is a resident of Gram Kaimar Kumar Gangcholi Khas, Hathras, Uttar Pradesh; the respondent no.2 Balveer Singh is a resident of Veer Nagar, Sahpau, Hathras, Uttar Pradesh. According to the Ld. Counsel for the respondent no.3 National Insurance Co. Ltd. the Insurance Policy has been issued from Hathras, Uttar Pradesh.
It was in this background that an issue with regard to the territorial jurisdiction was framed by this Court vide order dated 27.01.2020.
Of late, it has been noticed that some Advocates have started filing petitions of outstation matters and that too in bulk before different courts by stretching and expanding the jurisdiction of Motor Accident Claim Tribunals on the pretext that the office of the insurance company is situated within the jurisdiction of the court. In a similar practice, in Uttar Pradesh a large number of Advocates were found involved in filing of fake claims pleas and in this regard cognizance was taken by the Hon'ble High Court of Allahabad against such malpractices and an SIT was constituted to investigate the fraud and in this regard the case of Shafiq Ahmed Vs. ICICI Lombard General Insurance Co. Ltd. Special Leave Petition (Civil) No. 1110 of 2017, CC No. 23628 of 2016 arising out of impugned final judgment and order dated 07.10.2015 in Crime No. 49 of 2015 passed by the Hon'ble Court of Jurisdiction of Allahabad, Lucknow Bench, is relevant. In the said case the Hon'ble Supreme Court has taken a note of the Status Report filed by the SIT in its order dated 16.12.2021 according to which out of total 1376 cases of suspicious claims received by the SIT, after completing enquiry of 247 cases of suspicious claims till date, total 198 accused persons have been primafacie found guilty of cognizable offence and accordingly total 92 criminal cases have been registered in various districts. In fact that total 92 criminal cases in various districts have been registered till date, of which, 28 advocates have been named as accused persons in 55 cases Batulan & Anr. Vs. Mahesh & Ors., MACT No. 842/2017 Page No.16 of 40 Judgment dated 18.04.2022 and Charge Sheets against 11 advocates in 25 cases have been forwarded to the concerned trial Court till date.
In the above case, the Hon'ble Supreme Court passed a detailed order dated 05.01.2017 reference of which was also made in the order dated 16.09.2021 wherein the Hon'ble Apex Court expressed its serious concerns of the alarming situation in which fake and fabricated claims may be filed under Motor Vehicles Act in all States/ Union Territories pursuant to which directions were issued and the Registrars of all the High Courts were directed to ascertain from the Motor Accident Claim Tribunals such doubtful cases which primafacie may require investigation and to prevent filing of such fabricated cases. The relevant portion of the same is quoted as under:
"...... From the order passed by the High Court of Judicature at Allahabad, it was noticed that 64 fake claim cases were pending in various Districts in the State of U.P. It was also found and noticed that 29 fake claim cases were decided in which compensation of Rs. 1.23 Crores has been paid and claims for over Rs. 6 Crores are still pending. This Court noted that the situation is really alarming and similar scenario cannot be ruled out elsewhere in other States/Union Territories also. Therefore, this Court directed to issue notice to all the States/Union Territories and Insurance Companies as to what steps can be taken to rule out the filing of the fake cases and what remedial measures can be taken. This Court also directed to issue notice to all the High Courts through Registrars to ascertain from MACTs such doubtful cases which prima facie may require investigation and to prevent filing of such fabricated cases....".
In the light of the observations & directions of the Hon'ble Supreme Court and keeping in view the peculiar circumstances of the present case wherein an attempt has been made to invoke the jurisdiction of this Court by expanding the same on application of the case of Malati Sardar Vs. National Insurance Company Ltd. & Ors. in Civil Appeal No. 10 of 2016 arising out of SLP (Civil) No.27243 of 2015 decided on 05.01.2016, despite the accident having taken place at Hathras, Uttar Pradesh and the parties particularly the petitioners are residing outside the jurisdiction of this Court, this Tribunal will have no option but to place this claim Batulan & Anr. Vs. Mahesh & Ors., MACT No. 842/2017 Page No.17 of 40 Judgment dated 18.04.2022 petition in doubtful/ suspicious category in order to rule out any foulplay. The principle of convenience of victims, if applied, primafacie does not appear to be compatible with the facts of the present case. [Reference in this regard is made to the orders of the Hon'ble Apex Court dated 05.01.2017, 16.09.2021 & 16.12.2021 in the case of Shafiq Ahmed Vs. ICICI Lombard General Insurance Co. Ltd. (Supra)].....".
(20) It is necessary to mention here that in the case of Shafiq Ahmed Vs. ICICI Lombard General Insurance Co. Ltd. (Supra) vide order dated 16.12.2021 the Hon'ble Supreme Court while dealing with large number of claim petitions involving fraud and fake claims, has taken a serious note of the malpractices and the modusoperandi of the same, as noticed in claim petitions seeking fake compensations involving large scale siphoning of the insurance amount, which observations I quote as under:
"..... 7. We have also heard at length Shri Atul Nanda, learned Senior Advocate and Shri Vishnu Mehra, learned Advocate appearing on behalf of the two insurance companies and learned counsel appearing on behalf of the State of Uttar Pradesh/SIT on the modus operandi of the advocates for filing fake cases under Motor Vehicles Act and Workmen Compensation Act. Separate notes have been filed pointing out the modus operandi in instituting the fake compensation petitions. Some of the modus operandi adopted are as under:
i) Nonroad accident injurydeath converted into road accident claims;
ii) fraudulent implantation of vehicle;
iii) false implantation of driver;
iv) claimant implantation;
v) multiple claims at various for a at different territorial
locations for compensation out of injury/ death caused arising out of the same accident. Often the claim applications are filed both before various MACT Tribunals as well as the authorities under the Employees Compensation Act, 1923;
Batulan & Anr. Vs. Mahesh & Ors., MACT No. 842/2017 Page No.18 of 40 Judgment dated 18.04.2022
vi) fake/fabricated insurance policies; and
vii) fake/ fabricated income documents/ medical documents for exaggerated compensation.
7.1 Investigating Officer of SIT has also filed a short note on modus operandi in instituting fake compensation petitions, which are based on rich experience during investigation/ enquiry of the Criminal Cases/ FIRs/ Complaints, which are as under:
1. CASES OF HIT AND RUN Such road accidents which are occurred from unknown vehicles, alleged eyewitnesses are prepared therein, on the basis of their affidavit/statements, facts are brought in the light showing accident committed by some other insured vehicle and petition is instituted against owner/driver/insurance company of the aforementioned vehicle.
In the cases of such road accident which have been committed by unknown vehicles, for the purpose of institution of the compensation petitions, in a well designed planning, documents related to vehicle/driver are obtained from some advocates and documents of such vehicles/driver used in some other compensation petitions/cases are used in institution of false petitions.
Such road accidents which are occurred from some unknown vehicles, in that accidents are shown to have been committed by such vehicles which are old and their vehicle owners remain first registered owners. Advocates purchase such aforementioned vehicles as old vehicles, they do not get such vehicles registered in their own names whereas the actual/registered owners of those vehicles have already died. Despite of death of original owner, fake General Power of Attorneys are executed/prepared in the names of such deceased vehicle owners through their companions advocates. Aforementioned vehicles are shown in such road accident, which were occurred from unknown vehicles. Aforementioned vehicles have been shown in accident in many such cases and compensations petitions have been instituted. In the cases of such road accidents wherein First Information Reports are registered against unknown vehicles and when those unknown vehicles are not traced and local Investigating Officers submit their Final Report in the cases before the Hon'ble Courts. In such accidents if a person has died while travelling in those vehicles and second person has injured, then holding that injured person himself to be driver of the aforementioned vehicle, showing his negligence, by impleading as opposite party to the insurance Batulan & Anr. Vs. Mahesh & Ors., MACT No. 842/2017 Page No.19 of 40 Judgment dated 18.04.2022 company of his own vehicle for receiving compensation, compensation petitions are also filed for receiving amount of compensation.
2. CASES OF KNOWN VEHICLES WITHOUT INSURANCE If road accident is occurred with known vehicle and not insured at that time, in connivance with owner or driver of other insured vehicle in place of that vehicle, compensation petitions are instituted by showing aforementioned road accident of the said insured vehicle.
3. CASES OF FICTIONAL ACCIDENT AND FALSE PETITIONS Such false compensation petitions have also come into light wherein name and address of the petitioner could not be ascertained and imaginary story is created on behalf of such petitioner and false Claim petitions are instituted.
4. CASES RELATED TO CONNIVANCE OF VEHICLE OWNER/VEHICLE DRIVER/ADVOCATE For the purpose of earning illegal money, some actual vehicle owners and actual drivers of vehicles in connivance with advocates, submits registration certificates of their vehicles and Driver Licences in the unknown motor accident cases for filing fake petitions.
5. IMPLEADING NAME AND ADDRESS OF FAKE PERSONS IN ACTUAL ACCIDENTS Persons of fake names and addresses showing as drivers/cleaners in place of actual and correct injured persons (driver/cleaner) involved in the actual accident cases, compensation petitions are instituted in the W.C.A. courts by showing them injured in the aforementioned accidents.
6. CASES RELATED TO HANDICAPPED/ DECEASED PERSONS DUE TO OTHER REASONS During course of enquiry/investigation, such fake compensation petitions have also come into light wherein petitioner has become handicapped due to some other reason (like chopping off hand from thrasher machine), and second copy of fake handicapped certificates of their being disabled/ handicapped obtained again showing date of accident after date of fake accident and fake compensation petitions have also been instituted. Despite not being injured in the road accidents, after death or injured for any other reasons, his family members or he himself showing him or that person to be the driver/cleaner/labourer who died or injured, compensation petitions are instituted in fake Batulan & Anr. Vs. Mahesh & Ors., MACT No. 842/2017 Page No.20 of 40 Judgment dated 18.04.2022 manner.
7. CASES RELATED TO FILING SAME CASE IN MORE THAN ONE COURTS In one road accident, wherein a person has died or injured, his family members or he himself submits compensation petition in the M.A.C.T. court related to aforementioned road accident. If decision of the court is not in his favour, then the same petitioner changes the story and again submits his petition before the W.C.A. court (Workmen's Compensation Act).
After institution of compensation related to a road accident in a court and after receiving its compensation amount, again same accident is shown with other vehicle which is insured with other insurance company and second Claim petition is instituted in the W.C.A. court of any other district for receiving compensation amount again.
8. CASES RELATED TO AFFIXING PHOTOGRAPH OF A SAME PERSON IN THE COMPENSATION AMOUNT CHEQUE DISTRIBUTION REGISTER IN MORE THAN ONE PETITIONS Some compensation petitions were instituted in the W.C.A. Court in the names of different persons. After judgement of the aforementioned court, photograph of the same person is affixed in more than one case/petition, on the Cheque Distribution Register for receiving cheque related to compensation amount and compensation amount was received and thereafter, entire aforementioned amount was got transferred by the concerned advocate in his own bank account or in the bank accounts of his family members.
9. CASES TO GET THE PETITIONS DISMISSED AFTER TRANSFER OF FAVOURING DEPUTY LABOUR COMMISSIONER, RESUBMITTING THE PETITIONS AT HIS NEWLY POSTED PLACE During investigation/enquiry of the compensation petitions, it is also found that petitions related to occurrence of accidents instituted in the W.C.A. court of concerned District. When Deputy Labour Commissioner of W.C.A. court of aforementioned District transferred to some other district, then some advocates of aforementioned district get their compensation petitions dismissed, and thereafter they instituted new petitions again in aforementioned district where the then Deputy Labour Commissioner was transferred by showing fake address in the petitions.
Batulan & Anr. Vs. Mahesh & Ors., MACT No. 842/2017 Page No.21 of 40 Judgment dated 18.04.2022
10. INSTITUTION OF PETITIONS IN OTHER DISTRICT INSTEAD OF INSTITUTING PETITIONS IN THE DISTRICT OF ACCIDENT SPOT/PLACE During investigation/enquiry of the compensation petitions, it is also found that some compensation petitions were not instituted in the court of district of place/spot of accident, rather they were instituted in the court of other district by mentioning only temporary address instead of mentioning original address of the petitioner. It is also pertinent to mention here that this temporary address also remains incomplete.
11. CASES RELATED TO FAKE VAKALATNAMA During investigation/enquiry of the compensation petitions related to road accidents, this fact has also come into light that actual/main advocate who has filed the claim petition, does not submit his own Vakalatnama in the concerned court, he submits Vakalatnama on behalf of such Advocate, who does not file the compensation petitions by mentioning his mobile number on the compensation petitions.
During investigation/enquiry of the compensation petitions related to road accidents, this fact has also come into light that advocate who has submitted compensation petition in the concerned court, he mentioned name of such fake person in place of name of Advocate, whose whereabouts could not be ascertained. Whereas such case was pursued by the advocate who submitted this petition in camouflage manner. ...".
(21) Before proceeding further, I may now observe that it was only after the Hon'ble Allahabad High Court and the Hon'ble Apex Court took cognizance of the fake and fraudulent claims, that suddenly there has been a spurt in filing of claim petitions in Motor Accident Claim Tribunal in Delhi relating to accidents which have taken place in other states particularly Uttar Pradesh and Haryana. It is this which makes it obligatory for the Tribunals in Delhi to carefully scrutinize these cases so as to rule out any foul play.
Batulan & Anr. Vs. Mahesh & Ors., MACT No. 842/2017 Page No.22 of 40 Judgment dated 18.04.2022 (22) This being the background, the observations made by the Hon'ble Supreme Court in the case of Jai Prakash Vs. M/s. National Insurance Co. Ltd. reported in 2010 (2) SCC 607 become relevant wherein the Hon'ble Apex Court had earlier mandated that the statute must be meticulously followed [which has now been reaffirmed in the case of Bajaj Allianz General Insurance Co. Ltd. Vs. Union of India & Ors. in Writ Petition (Civil) No. 534/2020 vide orders dated 16.03.2021 & 16.11.2021], relevant portion of which is quoted as under:
"..... 4.2) The Legislature tried to reduce the period of pendency of claim cases and quicken the process of determination of compensation by making two significant changes in the Act, by Amendment Act 54 of 1994, making it mandatory for registration of a motor accident claim within one month of receipt of first information of the accident, without the claimants having to file a claim petition. Subsection (6) of section 158 of the Act provides:
"As soon as any information regarding any accident involving death or bodily injury to any person is recorded or report under this section is completed by a police officer, the officerincharge of the police station shall forward a copy of the same within thirty days from the date of recording of information or, as the case may be, on completion of such report to the Claims Tribunal having jurisdiction and a copy thereof to the concerned insurer, and where a copy is made available to the owner, he shall also within thirty days of receipt of such report, forward the same to such Claims Tribunal and insurer".
Subsection (4) of Section 166 of the Act reads thus: "The Claims Tribunal shall treat any report of accidents forwarded to it under subsection (6) of section 158 as an application for compensation under this Act".
Rule 150 of Central Motor Vehicle Rules, 1989 prescribes the form (No.54) of the Police Report required to be submitted under Batulan & Anr. Vs. Mahesh & Ors., MACT No. 842/2017 Page No.23 of 40 Judgment dated 18.04.2022 section 158(6) of the Act. 4.3) This Court in General Insurance Council v. State of A.P. [2007 (12) SCC 354] emphasised the need for implementing the aforesaid provisions. This Court directed:
"It is, therefore, directed that all the State Governments and the Union Territories shall instruct all police officers concerned about the need to comply with the requirement of Section 158(6) keeping in view the requirement indicated in Rule 150 and in Form 54, Central Motor Vehicles Rules, 1989. Periodical checking shall be done by the Inspector General of Police concerned to ensure that the requirements are being complied with. In case there is non compliance, appropriate action shall be taken against the erring officials. The Department of Road Transport and Highways shall make periodical verification to ensure that action is being taken and in case of any deviation immediately bring the same to the notice of the State Governments/Union Territories concerned so that necessary action can be taken against the officials concerned."
4.4) But unfortunately neither the police nor the Motor Accidents Claims Tribunals have made any effort to implement these mandatory provisions of the Act. If these provisions are faithfully and effectively implemented, it will be possible for the victims of accident and/or their families to get compensation, in a span of few months. There is, therefore, an urgent need for the concerned police authorities and Tribunals to follow the mandate of these provisions.
Problem (iv)
5. Courts have always been concerned that the full compensation amount does not reach and benefit the victims and their families, particularly those who are uneducated, ignorant, or not worldlywise. Unless there are builtin safeguards they may be deprived of the benefit of compensation which may be the sole source of their future sustenance. This court has time and again insisted upon measures to ensure that the compensation amount is appropriately invested and protected and not frittered away owing to ignorance, illiteracy and susceptibility to exploitation. [See Union Carbide Corporation v. Union of India 1991 (4) SCC 584 and General Manager, Kerala State Road Transport Corporation v. Susamma Thomas 1994 (2) SCC 176]. But in spite of the directions in these cases, the position continues to be far from unsatisfactory and in many cases unscrupulous relatives, agents and touts are taking away a big chunk of the compensation, by ingenious methods.
Batulan & Anr. Vs. Mahesh & Ors., MACT No. 842/2017 Page No.24 of 40 Judgment dated 18.04.2022 Reports of Amicus Curiae
6. In this background, to find some solutions, on 9.9.2008, this Court requested Shri Gopal Subramaniam, to assist the Court as Amicus Curiae. The learned amicus curiae with his usual thoroughness and commitment has examined the issues and submitted a series of reports and has also made several suggestions for consideration. He has also referred to and relied on a series of zealous directions issued by a learned Single Judge of the Delhi High Court to expedite and streamline the adjudication of motor vehicle claims and disbursement of compensation.
7. Having considered the nature of the problems and taking note of the several suggestions made by the learned Amicus Curiae and after hearing, we propose to issue a set of directions to the police authorities and Claims Tribunals. We also propose to make some suggestions for implementation by Insurance Companies and some suggestions for the consideration of the Parliament and the Central Government.
Directions to Police Authorities
8. The Director General of Police of each State is directed to instruct all Police Stations in his State to comply with the provisions of Section 158(6) of the Act. For this purpose, the following steps will have to be taken by the Station House Officers of the jurisdictional police stations:
(i) Accident Information Report in Form No. 54 of the Central Motor Vehicle Rules,1989 (`AIR' for short) shall be submitted by the police (Station House Officer) to the jurisdictional Motor Vehicle Claims Tribunal, within 30 days of the registration of the FIR. In addition to the particulars required to be furnished in Form No. 54, the police should also collect and furnish the following additional particulars in the AIR to the Tribunal:
(i) The age of the victims at the time of accident;
(ii) The income of the victim;
(iii) The names and ages of the dependent family members.
(ii) The AIR shall be accompanied by the attested copies of the FIR, site sketch/ mahazar/photographs of the place of occurrence, driving licence of the driver, insurance policy (and if necessary, fitness certificate) of the vehicle and postmortem report (in case of death) or the Injury/Wound certificate (in the case of injuries). The names/addresses of injured or dependent family members of the deceased should also be furnished to the Batulan & Anr. Vs. Mahesh & Ors., MACT No. 842/2017 Page No.25 of 40 Judgment dated 18.04.2022 Tribunal.
(iii) Simultaneously, copy of the AIR with annexures thereto shall be furnished to the concerned insurance company to enable the Insurer to process the claim.
(iv) The police shall notify the first date of hearing fixed by the Tribunal to the victim (injured) or the family of the victim (in case of death) and the driver, owner and insurer. If so directed by the Tribunal, the police may secure their presence on the first date of hearing.
9. To avoid any administrative difficulties in immediate implementation of sections 158(6) of the Act, we permit such implementation to be carried out in three stages. In the first stage, all police stations/claims Tribunals in the NCT Region and State Capital regions shall implement the provisions by end of April 2010. In the second stage, all the police stations/claims Tribunals in district headquarters regions shall implement the provisions by the end of August 2010. In the third stage, all police stations/Claims Tribunals shall implement the provisions by the end of December, 2010. The Director Generals shall ensure that necessary forms and infrastructural support is made available to give effect to Section 158 (6) of the Act.
10. Section 196 of the Act provides that whoever drives a motor vehicle or causes or allows a motor vehicle to be driven in contravention of the provisions of Section 146 shall be punishable with imprisonment which may be extended to three months, or with fine which may extend to Rs. 1000/, or with both. Though the statute requires prosecution of the driver and owner of uninsured vehicles, this is seldom done. Thereby a valuable deterrent is ignored. We therefore direct the Director Generals to issue instructions to prosecute drivers and owners of uninsured vehicles under Section 196 of the Act.
11. The Transport Department, Health Department and other concerned departments shall extend necessary co operation to the DirectorGenerals to give effect to Section 158 (6).
Directions to the Claims Tribunals
12. The Registrar General of each High Court is directed to instruct all Claims Tribunals in his State to register the reports of accidents receive under Section 158 (6) of the Act as applications for compensation under Section 166 (4) of the Act and deal with them without waiting for the filing of claim applications by the injured or by the family of the deceased. The Registrar General shall ensure that necessary Registers, forms and other support is Batulan & Anr. Vs. Mahesh & Ors., MACT No. 842/2017 Page No.26 of 40 Judgment dated 18.04.2022 extended to the Tribunal to give effect to Section 166 (4) of the Act.
13. For complying with section 166(4) of the Act, the jurisdictional Motor Accident Claims Tribunals shall initiate the following steps:
(a) The Tribunal shall maintain an Institution Register for recording the AIRs which are received from the Station House Officers of the Police Stations and register them as miscellaneous petitions. If any private claim petitions are directly filed with reference to an AIR, they should also be recorded in the Register.
(b) The Tribunal shall list the AIRs as miscellaneous petitions. It shall fix a date for preliminary hearing so as to enable the police to notify such date to the victim (family of victim in the event of death) and the owner, driver and insurer of the vehicle involved in the accident. Once the claimant/s appear, the miscellaneous application shall be converted to claim petition. Where a claimant/s file the claim petition even before the receipt of the AIR by the Tribunal, the AIR may be tagged to the claim petition.
(c) The Tribunal shall enquire and satisfy itself that the AIR relates to a real accident and is not the result of any collusion and fabrication of an accident (by any `Police Officer Advocate
- Doctor' nexus, which has come to light in several cases).
(d) The Tribunal shall by a SUMMARY ENQUIRY ascertain the dependent family members/legal heirs. The jurisdictional police shall also enquire and submit the names of the dependent legal heirs.
(e) The Tribunal shall categories the claim cases registered, into those where the insurer disputes liability and those where the insurer does not dispute the liability.
(f) Wherever the insurer does not dispute the liability under the policy, the Tribunal shall make an endeavour to determine the compensation amount by a summary enquiry or refer the matter to the Lok Adalat for settlement, so as to dispose of the claim petition itself, within a time frame not exceeding six months from the date of registration of the claim petition.
(g) The insurance companies shall be directed to deposit the admitted amount or the amount determined, with the claims tribunals within 30 days of determination. The Tribunals should ensure that the compensation amount is kept in Fixed deposit and disbursed as per the directions contained in General Manager, KSRTC v. Susamma Thomas [1994 (2) SCC 176].
(h) As the proceedings initiated in pursuance of Section 158(6) and 166(4) of the Act, are different in nature from an application by the Batulan & Anr. Vs. Mahesh & Ors., MACT No. 842/2017 Page No.27 of 40 Judgment dated 18.04.2022 victim/s under Section 166(1) of the Act, Section 170 will not apply.
The insurers will therefore be entitled to assist the Tribunal (either independently or with the owners of the vehicles) to verify the correctness in regard to the accident, injuries, age, income and dependents of the deceased victim and in determining the quantum of compensation.
14. The aforesaid directions to the Tribunals are without prejudice to the discretion of each Tribunal to follow such summary procedure as it deems fit as provided under Section 169 of the Act. MANY TRIBUNALS INSTEAD OF HOLDING AN INQUIRY INTO THE CLAIM BY FOLLOWING SUITABLE SUMMARY PROCEDURE, AS MANDATED BY SECTION 168 AND 169 OF THE ACT, TEND TO CONDUCT MOTOR ACCIDENT CASES LIKE REGULAR CIVIL SUITS. THIS SHOULD BE AVOIDED. THE TRIBUNAL SHALL TAKE AN ACTIVE ROLE IN DECIDING AND EXPEDITIOUS DISPOSAL OF THE APPLICATIONS FOR COMPENSATION and make effective use of Section 165 of the Evidence Act, 1872, to determine the just compensation...."
(23) Here, I may note that the petitioner no.1 Batulan had appeared before this Court/ Tribunal and her statement was recorded wherein she stated that her husband is bed ridden but she has not brought his treatment papers. According to her, Habib Khan is her Dever and she has filed this case in Delhi because Office of Insurance Company is situated within the jurisdiction of this Court. Despite grant of opportunity, no explanation/ clarification offered on the aspect as to why this Claim Petition be not put in the Doubtful/ Suspicious category in terms of the observations of the Hon'ble Apex Court in the case of Shafiq Ahmed Vs. ICICI Lombard General Insurance Co. Ltd. (Supra).
Batulan & Anr. Vs. Mahesh & Ors., MACT No. 842/2017 Page No.28 of 40 Judgment dated 18.04.2022 (24) On the basis of the claim petition, various documents placed on record and the evidence adduced, certain glaring aspects have emerged which I enumerate as under:
➢ Firstly, the complete set of chargesheet of the criminal case has not been placed on record and only Sixteen pages of the certified copies have been placed on record. A perusal of the same shows that the accident had taken place on 30.06.2017 at 11:40 AM whereas the FIR was registered on 13.07.2017 at 9:45 AM i.e. after a delay of Fourteen Days. The said FIR was registered on the basis of complaint of one Habib Khan S/o Hussaini Khan relevant portion of which is reproduced as under:
".... Nivedan yeh hai ki dinank 30.06.2017 ko samay karib 11:40 baje din me mera bhatija Allahnoor putr Shri Jamil Khan niwasi Chursen thana Chandpa Hathras apni motorcycle No. UP86M4097 se apni bhabhi Afsana ke sath Hathras se vapas Chursen aa raha tha. Jab veh gram Pekwara se nikal kar Chursen ki taraf chla tabhi samne se ek motorcycle UP86P6082 TVS ke chalak naam pata agyat ne apni motorcycle ko tezi or laparwahi se chalakar mere bhatije ki motorcycle me takkar marr di jis,sey mera bhatija va uski bhabhi gambhir roop se ghayal ho gaye. Dono logon ko Bagla Hospital lekar gaye jahan doctron ne mere bhatije Allaahnoor ki gambhir halat dekhte huey Aligarh refer kar diya. Gambhir sthiti ko dekhte huey Delhi Safdurjung hospital le gaye jahan daurane upchaar mere bhatije Allahnoor ki dinank 13.07.2017 ko mrityu ho gayi..."
Batulan & Anr. Vs. Mahesh & Ors., MACT No. 842/2017 Page No.29 of 40 Judgment dated 18.04.2022 No explanation is forthcoming with regard to the long delay of Fourteen Days in lodging of the FIR which is despite the fact that as per the complaint Afsana Begum the sister in law/ Bhabhi of the deceased was allegedly present with the deceased Allah Noor and is the eye witness of the accident. A doubt with regard to the credibility of this assertion has arisen since no medical record of Afsana Begum is placed on record to confirm her presence at the spot. The possibility of her being introduced as an eye witness cannot be ruled out.
➢ Secondly, the testimony of Afsana Begum (PW2) the alleged eye witness does not inspire confidence of this Court/ Tribunal. According to her, she had sustained minor injuries and remained admitted in the hospital for two days. A specific suggestion was made to her that she did not sustain any injury in the accident due to which reason she has not filed the documents on record, which suggestion she has denied. However, no such medical record relating to her treatment or admission at any hospital has been placed on record showing that she had sustained any kind of injuries. ➢ Thirdly, I note that when the witness Afsana Begum (PW2) was crossexamined and was questioned regarding the registration number of the offending motorcycle. She initially deposed that the number of the offending vehicle is 6082 but Batulan & Anr. Vs. Mahesh & Ors., MACT No. 842/2017 Page No.30 of 40 Judgment dated 18.04.2022 again stated while correcting herself that it was UP86W 2887. It is this conduct of the witness Afsana Begum (PW2) as noticed during her crossexamination that raises suspicion on her testimony being reliable.
➢ Fourthly, this witness Afsana begum (PW2) in her cross examination testified that she is not known to any Habib Khan. This is despite the fact that Habib Khan is the real uncle/ chacha of the deceased. What makes her testimony more suspicious is that when questioned as to who had lodged the FIR, she responded that the FIR was probably lodged by her Jeth Shakir. Being a member of the same family and an eye witness to the accident as claimed by her, she should have been aware of the person who lodged the FIR, which is not the case. Hence, the possibility of Afsana Begum (PW2) having been planted as a witness being closely related to the deceased cannot be ruled out.
➢ Fifthly, the above complaint was lodged by Habib Khan the paternal uncle/ Chacha of the deceased on 13.07.2017 after the death of the deceased. Habib Khan is not an eye witness to the accident and no explanation is forthcoming as to how he came to know about the details of the alleged offending vehicle i.e. motorcycle bearing No. UP86P6082 (TVS).
➢ Sixthly, the said Habib Khan had also filed an application before the SHO Police Station Chandpa, Janpad Hathras Batulan & Anr. Vs. Mahesh & Ors., MACT No. 842/2017 Page No.31 of 40 Judgment dated 18.04.2022 informing him that earlier he had wrongly mentioned the details of the offending motorcycle i.e. UP86P6082 (TVS) in his complainant but the actual offending vehicle is motorcycle bearing No. UP86W2887 and the name of driver is Mahesh S/o Kali Charan, R/o Village Kaimar, PS Chandpa, Hathras, UP. An attested copy of the said application is present on record as filed by the claimants but I note that the said application does not bear any date. There is also nothing on record to show the source from which Habib Khan came to know about the details of the alleged offending vehicle being motorcycle No. UP86W2887. I also note that this Habib Khan has not appeared before this Court/ Tribunal to explain these discrepancies. An adverse inference is drawn against the petitioners for the same.
➢ Seventhly, the first information given to the local police in the form of Daily Diary or General Diary has not been placed on record which would reveal the details of the person who had informed the police at the first instance. Had Afsana Begum (PW2) been present at the spot, she would have first inform the police or PCR informing them of the details of the alleged offending vehicle, which is not the case. Going by the statement of Afsana begum (PW2), she had sustained minor injuries in the accident meaning that she was conscious at the time of accident. There is nothing on record Batulan & Anr. Vs. Mahesh & Ors., MACT No. 842/2017 Page No.32 of 40 Judgment dated 18.04.2022 to show that any call was made by Afsana Begum (PW2) to the police or any information was given to the police by the hospital authorities where the injured was first taken i.e. Bagla Hospital and Medical Hospital at Aligarh where treatment was provided. No such Daily Diary/ General Diary has been placed on record confirming any information regarding accident received by the local police, which is liable to be read against the petitioner.
➢ Eighthly, Afsana Begum (PW2) has in her crossexamination specifically deposed that both she and the deceased Allah Noor were not wearing Helmets. Assuming and going by the version given by the alleged eye witness Afsana Begum (PW2) she has admitted the Contributory Negligence attributed to them. Also, according to Afsana Begum (PW2), initially Allah Noor was driving the motorcycle on his right hand side but later on he was driving the motorcycle on his left hand side. The certified copy of the site plan shows that there was no divider on the road and both the motorcycles were coming opposite directions to each other as also claimed by Afsana Begum (PW2) who has stated that the offending motorcycle was coming from opposite direction. Now going by the testimony of Afsana Begum (PW2) that the deceased was initially driving his motorcycle on his right side and then on left hand side actually goes to show that the deceased perhaps was driving the motorcycle in a zigzag manner and hence, the Batulan & Anr. Vs. Mahesh & Ors., MACT No. 842/2017 Page No.33 of 40 Judgment dated 18.04.2022 possibility of the accident having taken place solely on account of the rashness and negligence of the deceased cannot be ruled out.
➢ Ninethly, the certified copy of the MLC of the injured/ deceased prepared at the first hospital has not been placed on record. According to the complainant Habib Khan, the injured was first taken to Bagla Hospital from where he was referred to Aligarh Hospital and then referred to Safdurjung Hospital, Delhi whereas according to Afsana Begum (PW2) they both were removed to Aligarh Hospital. There is a material contradiction in the first information given to the police by Habib Khan and the version of Afsana Begum (PW2). The first MLR/ MLC of the injured/ deceased Allahnoor prepared either at Bagla Hospital or Aligarh Hospital has not been placed on record which would reveal the details of the person who had shifted the injured/ deceased to the hospital and the history given to the first attending doctor. The material documentary evidence in the form of first MLC has been withheld from this Court/ Tribunal for which an adverse inference is drawn.
➢ Tenthly, the petitioners have placed on record a paper bearing the stamp of JNMC Hospital, AMU Aligarh claiming it to be referral of deceased to higher center. A perusal of the alleged referral paper shows that it bears the name of patent as Noor Batulan & Anr. Vs. Mahesh & Ors., MACT No. 842/2017 Page No.34 of 40 Judgment dated 18.04.2022 Mohd. aged 19 years (not Allah Noor) and does not bear the name and designation of the doctor who had referred the injured/deceased to higher center. Further, the certificate issued by Mannat Hospital, Aligarh which is Ex.PW1/5 shows that the name of the patent was Allah Noor aged 22 years. The said certificate specifically bears an endorsement that it is not valid for Medico Legal purposes. Also, there is a material contradiction with regard to the name and age of the injured in both the above certificates allegedly issued by AMU Aligarh and Mannat Hospital, Aligarh. I also notice that both the above documents do not mention the details of the person who had brought the injured/ deceased to the hospital along with the history so provided. Also, no doctor has been examined by the petitioners to prove the said medical record. ➢ Eleventhly, the MLR prepared at Safdurjung Hospital shows that the patent Allah Noor was brought to the hospital on 12.07.2017 by one Nadim Khan with alleged history of TRA on 30.06.2017 at 1:00 PM. Again there is a material contradiction in the time of accident. As per the FIR the time of accident is 11:45 AM whereas time of accident given in the MLC is 1:00 PM for which no explanation is forthcoming. Further, there is no answer forthcoming as to who is this Nadim Khan who brought the injured/ deceased Allah Noor to Safdurjung Hospital.
Batulan & Anr. Vs. Mahesh & Ors., MACT No. 842/2017 Page No.35 of 40 Judgment dated 18.04.2022 ➢ Twelfthly, the petitioners have not placed on record the material documents i.e. statements of witnesses including eye witnesses recorded by the Investigating Agency reflected on Page 3 & 4 of the chargesheet namely Mustak S/o Babu Khan, Suresh Singh S/o Netrapal Singh and Afsana W/o Pappu. Further, the first statement/ complaint made by Habib Khan has also not been placed on record. It is these statements which would have revealed the sequence of events but the same have been withheld from this Court/ Tribunal for which an adverse inference is drawn against the petitioners. ➢ Thirteenthly, the relevant documents i.e. Mechanical Inspection Reports of the accidental as well as alleged offending motorcycle; Seizure memo of the offending motorcycle; Case Diaries; Statements of witnesses etc. have been concealed from this Court/ Tribunal for which an adverse inference is likely to follow.
➢ Fourteenthly, I also note that as per the certified copy of the chargesheet it was dispatched on 30.09.2017 whereas the present claim petition has been filed before this Court/ Tribunal on 24.08.2017 i.e. even before the filing of the chargesheet which raises a finger of suspicion towards the petitioners.
Batulan & Anr. Vs. Mahesh & Ors., MACT No. 842/2017 Page No.36 of 40 Judgment dated 18.04.2022 ➢ Lastly, there is absence of material on record to confirm the satisfactory compliance of provisions of Section 158(6) of Motor Vehicles Act. Neither the status of the Criminal Case instituted before the concerned court at Hathras, Uttar Pradesh has been placed on record nor the status of the proceedings in compliance of provisions of Section 158(6) of Motor Vehicles Act (before the competent Court/ Tribunal) has been placed before this Tribunal [Reference is made to the judgment in the case of Jai Prakash Vs. National Insurance Co. Ltd. reported in 2010 (2) SCC 607 Para 12]. An adverse inference is liable to be drawn against the claimants in this regard.
(25) It is writ large from the above that the present claim petition has been filed before this Court/ Tribunal by overstretching the jurisdiction and by concealing the material documents. The material/ vital documents in the form of first Daily Diary/ General Diary; first MLC of the injured/ deceased; statements of various witnesses recorded by the Investigating Agency; Mechanical Inspection Reports; Seizure memos; Case Diaries etc. have been withheld and concealed from this Court/ Tribunal. Rather, there is a desperate attempt on behalf of the petitioners to introduce and implicate another vehicle i.e. motorcycle bearing No. UP86W2887 in place of the offending vehicle was initially shown as motorcycle bearing No. UP86P6082 (TVS). The possibility of the petitioners having swapped an insured vehicle Batulan & Anr. Vs. Mahesh & Ors., MACT No. 842/2017 Page No.37 of 40 Judgment dated 18.04.2022 with uninsured vehicle cannot be ruled out or else there was no reason why the claim petition was filed in a District/ State other than the District/ State where the accident took place or where the claimants reside.
(26) In this regard, I may also observe that despite the same the petitioners could not justify their convenience before this Tribunal situated almost 200 Kms away from their residence. The observations made by the Hon'ble Apex Court in the case of Shafiq Ahmed Vs. ICICI Lombard General Insurance Co. Ltd. (Supra) cannot be ignored. Firstly, there is an unexplained delay of Fourteen Days in registration of FIR with no justification forthcoming as to how the complainant Habib Khan who is not an eye witness has come to know of the details of the accident. Secondly, initially the number of the alleged offending motorcycle was given as UP86P6082 (TVS) which was later on changed to UP86W2887 without any evidence to connect the same with the accident in question and hence, the possibility of swapping the offending vehicle cannot be ruled out. Thirdly, the alleged eye witness Afsana Begum appears to have been introduced. Fourthly, the other alleged eye witnesses to the accident as shown in the chargesheet (page 3 and 4) namely Mustak and Suresh Singh have not been examined before this Court/ Tribunal nor the Investigating Officer of the case has been examined. Lastly, an incomplete charge sheet has been filed without placing on record the certified copy of first MLC/ MLR, statements of witnesses recorded under Section 161 Batulan & Anr. Vs. Mahesh & Ors., MACT No. 842/2017 Page No.38 of 40 Judgment dated 18.04.2022 Cr.P.C., Mechanical Inspection Reports, Seizure Memos, Case Diaries etc. which vital documents have been withheld from this Court/ Tribunal and raises a suspicion/ doubt in the mind of the Court/ Tribunal. It is not open for this Court/ Tribunal to carry out a parallel trial and give any findings on facts, on the basis of incomplete material, since the same is likely to come in the way of trial of the criminal case pending before the concerned court at Hathras, Uttar Pradesh.
(27) This being the background, I hold that the petitioners have not been able to prove that the deceased Allah Noor had expired due to the injuries sustained by him in an accident which took place on 20.06.2017 within the jurisdiction of P.S. Chandpa, Distt. Hathras, U.P. due to rash and negligent driving of motorcycle bearing registration No. UP86W 2887 by respondent no.1 Mahesh. Accordingly I hold that the petitioners are not entitled to any compensation.
(28) Both the issues are accordingly decided against the petitioners.
RELIEF:
(29) In view of my findings on the various issues, I hereby hold that the petitioners are not entitled to any relief. (30) The Claim Petition is hereby Dismissed.
(31) A copy of this Judgment is directed to be sent to the Registrar General, High Court of Delhi, New Delhi with a request to forward the same to the SIT constituted at Uttar Pradesh under the directions of the Batulan & Anr. Vs. Mahesh & Ors., MACT No. 842/2017 Page No.39 of 40 Judgment dated 18.04.2022 Allahabad High Court (since the accident took place at Uttar Pradesh) and to the Court of Ld. Judicial Magistrate and competent Court/ Tribunal where report under Section 158(6) of Motor Vehicles Act has been filed.
(32) File be consigned to Record Room.
Announced in the open court (Dr. KAMINI LAU)
Dated: 18.04.2022 PO (MACT01), Central
Tis Hazari Court, Delhi
Batulan & Anr. Vs. Mahesh & Ors., MACT No. 842/2017 Page No.40 of 40
Judgment dated 18.04.2022