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Madhya Pradesh High Court

Iffco Tokiyo General Insurance Company ... vs Diwakar Singh on 14 March, 2023

Author: Gurpal Singh Ahluwalia

Bench: Gurpal Singh Ahluwalia

                                                          1
                               IN THE HIGH COURT OF MADHYA PRADESH
                                            AT JABALPUR
                                                   BEFORE
                                HON'BLE SHRI JUSTICE GURPAL SINGH AHLUWALIA
                                              ON THE 14 th OF MARCH, 2023
                                             MISC. APPEAL No. 1363 of 2021

                          BETWEEN:-
                          IFFCO TOKIYO GENERAL INSURANCE COMPANY LTD.
                          THROUGH MANAGER 1ST FLOOR CHOURASIYA
                          COMPLEX, NEAR SAFARI HOTEL, IN FRONT OF BUS
                          STAND, REWA ROAD SATNA, DISTRICT SATNA (M.P.)

                                                                                      .....APPELLANT
                          (BY SHRI ROHIT JAIN - ADVOCATE)

                          AND
                          1.    DIWAKAR SINGH S/O RAMNARESH SINGH, AGED
                                ABOUT 32 YEARS, OCCUPATION: NOT KNOWN
                                VILLAGE       NAKAILA, POLICE    STATION
                                BARAUNDHA, DISTRICT SATNA (M.P.)

                          2.    RAHUL SINGH S/O SHRI DHIRENDRA SINGH,
                                AGED ABOUT 26 YEARS, OCCUPATION: NOT
                                KNOWN VILLAGE CHANPURWA, POLICE STATION
                                CIVIL     LINES, TAHSIL RAGHURAJNAGAR,
                                DISTRICT SATNA (M.P.)

                          3.    CHANDRAKANT        PANDEY   S/O   SHRI
                                SATYANARAYAN PANDEY, AGED ABOUT 45
                                YEAR S , OCCUPATION: NOT KNOWN VILLAGE
                                BELHA,     POLICE   STATION MAJHAGWAN,
                                DISTRICT SATNA (M.P.)

                                                                                   .....RESPONDENTS
                          (BY SHRI KAPIL PATWARDHAN - ADVOCATE FOR RESPONDENT NO.1)

                                This appeal coming on for admission this day, th e court passed the
                          following:
                                                           ORDER

This Miscellaneous Appeal under Section 173 of Motor Vehicles Act has Signature Not Verified been filed against the award dated 6/3/2021 passed by 5th Additional Motor Signed by: MONIKA CHOURASIA Signing time: 3/20/2023 10:39:09 AM 2 Accident Claims Tribunal Satna, Distt. Satna (M.P.) in MACC No.494/2018.

2. Since the appellant has disputed the very factum of accident therefore, the claim of the claimant is that deceased Rambabu Pandey was sitting as a pillion rider along with the driver of the motorcycle namely Rahul Singh. The motorcycle was owned by Chandrakant Pandey, who is younger brother of deceased Rambabu Pandey. It is the case of the claimant that the driver of the motorcycle namely Rahul Singh by driving the motorcycle in a rash and negligent manner dashed the pedestrian Diwakar Singh as a result that the motorcycle slipped and the deceased Rambabu Pandey fell down. The pillion rider Rambabu Pandey sustained severe injuries and ultimately, he was shifted to hospital where he succumbed to injuries on the very same day.

3. Challenging the very factum of the accident it is submitted by the counsel for the appellant that in fact the offending vehicle was planted at a later stage after due deliberations. It is submitted by Shri Jain that in the merg intimation which was given with regard to the death of the injured (Ex.P/7) it was mentioned that Pushpendra Kumar Pandey, the real son of the deceased had informed that the deceased had fallen down from the motorcycle. By relying upon the MLC issued by Birla Hospital, District Satna (Ex.P/6), it is submitted that even in the said MLC the number of the offending motorcycle was not given, although, it was mentioned that the deceased had fallen down from the motorcycle. It is further submitted that although the accident took place on 27/2/2018 but the FIR was lodged on 3/4/2018. The owner of the motorcycle was the real brother of the deceased and therefore, there was no occasion for the owner of the motorcycle not to come forward and inform about the accident. It is submitted that the claimants after due deliberation have planted Signature Not Verified Signed by: MONIKA CHOURASIA Signing time: 3/20/2023 10:39:09 AM 3 the vehicle at a later stage in their merg statements. It is submitted that the registration of the offence and filing of the charge sheet against the accused would only show that there was some evidence to connect the person with the alleged crime but on the basis of filing of a challan in the Court, it cannot be presumed that such person was involved in commission of the crime. To buttress his contention, the counsel for the appellant has relied upon the judgement passed by the Division Bench of this Court in the case of National Insurance Company Ltd vs. Setu Bai and ors. reported in ILR 2008 MP 2367.

4. It is further submitted that Aditya Pandey, who was examined as DW-2 has stated in paragraph 11 of his cross examination that he did not went to the police station to lodge the FIR but claimed that since the condition of his uncle was serious therefore, the report was not lodged. He denied the suggestion that since he had not seen the incident therefore, the report was not lodged.

5. Per contra, it is submitted by the counsel for the claimants that once a merg intimation with regard to the death of the deceased due to fall from a motorcycle was already given to the police, therefore, there was no occasion to lodge a separate FIR. If the police was lethargic in conducting the merg enquiry, then the same cannot be made a basis for disbelieving the witnesses. Furthermore, generally the owner of the vehicle would hesitate in coming forward in lodging the FIR against himself or against his driver, for the simple reason that he would not like to involve in the legal complications.

6. Heard the learned counsel for the parties.

7. The contention of counsel for the appellant that the offending motorcycle was falsely planted at a later stage is based on the fact that the registration number of the offending motorcycle was not mentioned in the merg intimation Signature Not Verified Signed by: MONIKA CHOURASIA Signing time: 3/20/2023 10:39:09 AM 4 (Ex.P/7) as well as in the history informed to the doctor in pre MLC (Ex.P/5). From the pre MLC (Ex.P/5) as well as the merg intimation (Ex.P/7), one thing is clear that it was mentioned that the deceased has suffered injuries on account of his fall from the motorcycle. The merg intimation regarding death of the deceased was given to the police on 27/2/2018 itself. If the police thereafter was lethargic in conducting the merg enquiry then for the same, the claimants cannot be blamed. It is well established principle of law that mere delay in lodging the FIR is not sufficient to dislodge the case of the claimant as held by the Supreme Court in the case of Ravi vs. Badrinarayan reported in AIR 2011 SC 1226. In the case in hand, it is not the case of the appellant that no information at all was given to the police. Merg intimation to the police was given on the very same day. However, it was a lethargic attitude of the police which resulted in delay in lodging the FIR. The Supreme Court in the case of Gohar Mohammad Vs. Utter Pradesh State Road Transport Corporation & Others by judgment dated 15.12.2022 passed in C.A. No. 9322/2022 has held as under:-

"62.Accordingly, this appeal is decided with the following directions:

i) The appeal filed by the owner challenging the issue of liability is hereby dismissed confirming the order passed by the High Court and MACT.

ii) On receiving the intimation regarding road accident by use of a motor vehicle at public place, the SHO concerned shall take steps as per Section 159 of the M.V. Amendment Act.

iii) After registering the FIR, Investigating Officer shall take recourse as specified in the M.V. Amendment Rules, 2022 and submit the FAR within 48 hours to the Claims Tribunal. The IAR and DAR shall be filed before the Claims Tribunal within the time limit subject to compliance of the provisions of the Rules.

iv) The registering officer is duty bound to verify the registration of the vehicle, driving licence, fitness of vehicle, permit and other ancillary issues and submit the report in coordination to the police officer before the Claims Tribunal.

v) The flow chart and all other documents, as specified in the Rules, shall either be in vernacular language or in English language, as the case may be and shall be supplied as per Rules. The Investigating Officer shall inform the victim(s)/legal representative(s), driver(s), owner(s), insurance companies and other stakeholders with respect to the action taken following the M.V. Amendment Rules and shall take steps to produce the witnesses on the date, so fixed by the Tribunal.

vi) For the purpose to carry out the direction No. (iii), distribution of police stations attaching them with the Claim Tribunals is required.

Therefore, distribution memo attaching the police stations to the Claim Tribunals shall be issued by the Registrar General of the High Courts from time to time, if not already issued to ensure the compliance of the Rules.

vii) In view of the M.V. Amendment Act and Rules, as discussed hereinabove, the role of the Investigating Officer is very important. He is required to comply with the provisions of the Rules within the time limit, as prescribed therein. Therefore, for effective implementation of the M.V. Amendment Act and the Rules framed thereunder, the specified trained police personnel are required to be deputed to deal with the motor accident claim cases. Therefore, we direct that the Chief Secretary/Director General of Police in each and every State/Union Territory shall develop a specialized unit in every police station or at town level and post the trained police personnel to ensure the compliance of the provisions of the M.V. Amendment Act and the Rules, within a period of three months from the date of this order.

viii) On receiving FAR from the police station, the Claims Tribunal shall Signature Not Verified Signed by: MONIKA CHOURASIA Signing time: 3/20/2023 10:39:09 AM 6 register such FAR as Miscellaneous Application. On filing the IAR and DAR by the Investigating Officer in connection with the said FAR, it shall be attached with the same Miscellaneous Application. The Claims Tribunal shall pass appropriate orders in the said application to carry out the purpose of Section 149 of the M.V. Amendment Act and the Rules, as discussed above.

ix) The Claim Tribunals are directed to satisfy themselves with the offer of the Designated Officer of the insurance company with an intent to award just and reasonable compensation. After recording such satisfaction, the settlement be recorded under Section 149(2) of the M.V. Amendment Act, subject to consent by the claimant(s). If the claimant(s) is not ready to accept the same, the date be fixed for hearing and affording an opportunity to produce the documents and other evidence seeking enhancement, the petition be decided. In the said event, the said enquiry shall be limited only to the extent of the enhancement of compensation, shifting onus on the claimant(s).

x) The General Insurance Council and all insurance companies are directed to issue appropriate directions to follow the mandate of Section 149 of the M.V. Amendment Act and the amended Rules. The appointment of the Nodal Officer prescribed in Rule 24 and the Designated Officer prescribed in Rule 23 shall be immediately notified and modified orders be also notified time to time to all the police stations/stakeholders.

xi) If the claimant(s) files an application under Section 164 or 166 of the M.V. Amendment Act, on receiving the information, the Miscellaneous application registered under Section 149 shall be sent to the Claims Tribunal where the application under Section 164 or 166 is pending immediately by the Claims Tribunal.

xii) In case the claimant(s) or legal representative(s) of the deceased have filed separate claim petition(s) in the territorial jurisdiction of different High Courts, in the said situation, the first claim petition filed by the claimant(s)/legal representative(s) shall be maintained by the said Claims Signature Not Verified Signed by: MONIKA CHOURASIA Signing time: 3/20/2023 10:39:09 AM 7 Tribunal and the subsequent claim petition(s) shall stand transferred to the Claims Tribunal where the first claim petition was filed and pending. It is made clear here that the claimant(s) are not required to apply before this Court seeking transfer of other claim petition(s) though filed in the territorial jurisdiction of different High Courts. The Registrar Generals of the High Courts shall take appropriate steps and pass appropriate order in this regard in furtherance to the directions of this Court.

xiii) If the claimant(s) takes recourse under Section 164 or 166 of the M.V. Amendment Act, as the case may be, he/they are directed to join Nodal Officer/Designated Officer of the insurance company as respondents in the claim petition as proper party of the place of accident where the FIR has been registered by the police station. Those officers may facilitate the Claims Tribunal specifying the recourse as taken under Section 149 of the M.V. Amendment Act.

xiv) Registrar General of the High Courts, States Legal Services Authority and State Judicial Academies are requested to sensitize all stakeholders as early as possible with respect to the provisions of Chapters XI and XII of the M.V. Amendment Act and the M.V. Amendment Rules, 2022 and to ensure the mandate of law.

xv) For compliance of mandate of Rule 30 of the M.V. Amendment Rules, 2022, it is directed that on disputing the liability by the insurance company, the Claims Tribunal shall record the evidence through Local Commissioner and the fee and expenses of such Local Commissioner shall be borne by the insurance company.

xvi) The State Authorities shall take appropriate steps to develop a joint web portal/platform to coordinate and facilitate the stakeholders for the purpose to carry out the provisions of M.V. Amendment Act and the Rules in coordination with any technical agency and be notified to public at large."

So far as the conduct of the owner of the motorcycle in remaining silent by not disclosing the accident to the police is concerned, the said conduct of the owner cannot be said to be an unnatural one. The owner of a vehicle would like to hide the factum of accident so that he is not involved in any legal complication.

8. Aditya Pandey (AW/2) has specifically stated that he had seen the incident. There is no reason to disbelieve his evidence, only on the ground that his merg statement was recorded by the police belatedly. Furthermore, the injured Diwakar Singh (PW/1) has specifically stated that he was dashed by the offending vehicle. There was no occasion for him not to narrate the truth by falsely alleging against driver of offending motorcycle.

9. As the claims tribunal did not commit any error by holding that the accident was caused by the offending motorcycle bearing registration no.MP- 19-MR-8815, this Court is of the considered opinion that the insurance company has been rightly held jointly and severally liable alongwith the owner and driver of the vehicle to pay compensation amount.

10. No other argument is advanced by the counsel for the parties.

11. Ex-consequenti, the award dated 6/3/2021 passed by 5th Additional Motor Accident Claims Tribunal Satna, Distt. Satna (M.P.) in MACC No.494/2018 is hereby affirmed.

12. The Appeal fails and is hereby dismissed.

(G.S. AHLUWALIA) JUDGE m/-