Calcutta High Court (Appellete Side)
Pampa Dan & Ors vs National Insurance Co. Ltd. & Ors on 4 March, 2020
Author: Rajasekhar Mantha
Bench: Rajasekhar Mantha
1
63 04.03.2020 FMA 433 of 2012
AN Ct. No. 14 with
CAN 1284 of 2015
with
CAN 6772 of 2016
Pampa Dan & Ors.
-vs.-
National Insurance Co. Ltd. & ors.
Mr. Krishanu Banik
... for the appellant
Mr. Sanjay Paul
... for the respondent No. 1
Mr. P. K. Pahari ... for the respondent No. 2 This appeal is a classic example of the consequence of blind reliance being placed on evidence in criminal proceedings to prove a claim under the Motor Vehicles Act, 1988.
The instant appeal is directed against the judgment and order dated 26.11.2010 passed by the learned 5th Motor Accident Claims Tribunal in MACC No. 49/07. The claim petition was rejected by the learned Tribunal.
The brief facts of the case are that on 05.05.2007 at about 9.15 AM the victim was returning home pillion riding on his motor cycle bearing No. WB 40 H 4820. When he reached Kanghosha village, the offending tractor and trailer loaded with sand was coming from Karalaghat towards Jamalpur at high speed and being driven in a rash and negligent manner, dashed the motor cycle. The victim died on the spot.
2On the same date, on the basis of a written complaint Jamalpur P.S. Case No. 45/07 was registered inter alia under Section 304A of the Indian Penal Code. The articles that were seized by the police on the date of accident were the motor cycle, the offending tractor and the trailer. It is specifically recorded in the complaint as well as in the F.I.R. and the seizure list that neither the tractor nor the trailer bore any number plates.
Three days later, on 08.05.2007, a second seizure list is prepared by the Jamalpur P.S. under the signature of the Assistant A.S.I. The owner of the vehicle who claims that he was out of station on 05.05.2007, appears before the Police and produced a R.C. Book, insurance policy, tax token, which he claims was of the offending tractor and the trailer. These were seized by the Police.
A chargesheet was filed by the Jamalpur P.S. inter alia U/s. 304A of the Penal code on 12.06.2007. In the chargesheet, it is specifically mentioned that the offending tractor and the trailer had a M. V. Registration Number.
The claim petition was filed in 2007. The learned Tribunal received oral and documentary evidence in the form of written complaint, F.I.R., seizure list, chargesheet and the documents relating to the vehicle. The insurance certificate of both the offending tractor and the trailer were also exhibited.
PW 1 was the wife of the deceased, claimant No.1 but is admittedly not an eye witness.
PW 2, Abdul Qadir, was an eye witness. Gulzar Hossain, PW 3 was the owner of the vehicle, Sadananda Banerjee and Mandira Bosak represented PW 4 and PW 5 the employer of the deceased to 3 prove his income.
The learned court below went through the evidence carefully and found that the F.I.R. clearly stated that the offending tractor and the trailer did not bear any number plates.
The complaint referred to the registration number of the motor cycle but did not mention the registration number of the offending tractor and the trailer. The F.I.R. did not note the Chasis numbers of the offending tractor and the trailer. The seizure list dated 05.05.2007 clearly recorded that the offending tractor and the trailer seized were without registration numbers.
It is only three days later on 08.05.2007, that when Gulzar Hossain, PW 3 produced certain papers relating to WB 41B 9139 and WB 41B 1152 that it was recorded in the second seizure list that the same belonged to the offending tractor and the trailer respectively.
The second seizure list dated 08.05.2007 could not have conclusively proved that R.C. Book, Tax token and insurance policy produced on that day belonged to offending tractor and the trailer involved in the motor accident.
The claimants could easily have correlated the Chasis No. of the offending tractor and the trailer with the R.C. Book and the insurance certificate which has not been done in the instant case.
The learned counsel appearing on behalf of the appellant claimants would strenuously argue before this court that the learned Tribunal committed error by insisting on a strict proof of the incident and the accident as is required in criminal proceedings. 4
He submits that going by the preponderance of probabilities, the learned Tribunal ought to have accepted the chargesheet filed by the Jamalpur P.S. against the owner and driver of the vehicle. He submitted that the evidence of the eye witness PW 2 and the owner of the vehicle should have been accepted by the Tribunal.
Reliance is placed in this regard in a decision in the case of Banya Sarkar Vs. Sipra Guha Roy reported in (1992) ACJ 572 particularly paragraph 8 thereof. Reliance is also placed on another decision in the case of Sunita Vs. State Road Corporation of Rajasthan reported in AIR 2009 Supreme Court 994 particularly paragraph 31 thereof where the age old principle that the degree of proof in criminal proceeding is not applied to proceedings under the said Act of 1988 and that it is only the preponderance of probabilities that needs to be followed. The appellant also placed the decision of Kusumlata & Ors. Vs. Satbir & Ors. reported in (2011) 3 SCC 646 in support of the above proposition.
In the facts of the instant case however, it is seen that the basic proof that the insurance documents and registration certificates belonged to the offending vehicles is not there. This requirement is elementary even going by the principle of preponderance of probabilities.
A cursory look at the Chasis No. of the offending tractor and the trailer and comparing them with the same Chasis No. with the insurance policy would have been sufficient proof to fasten a liability on the insurance company.
5
In the absence of proof of such elementary and basic fact, this court is of the clear view that the learned Tribunal has not committed any error in rejecting the claim of the appellants against the insurance company.
In this regard, a decision relied upon by the appellant that the criminal proceedings are not conclusive proof of the guilt or otherwise of the driver or the accident in which the vehicle was involved, would lend credence to the conclusion drawn by the learned Tribunal and this court.
The learned counsel appearing on behalf of the petitioner would next rely upon the decision of the Hon'ble Supreme Court in the case of Kusum Lata Vs. Satvir reported in (2011) 3 SCC 907 to reiterate the principle that the strict degree of proof in a criminal proceeding does not apply to proceedings under the said Act of 1988.
The learned counsel appearing on behalf of the petitioner would next rely upon a decision of the Hon'ble Division Bench of this Court in the case of National Insurance Co. Ltd. Vs. Sarmistha Sikdar reported in (2018) 4 TAC 295, in support of the proposition that the non-mentioning of the Registration number of an offending vehicle in an F.I.R. is not fatal to a proceeding under the Act of 1988.
The vital distinguishing factor in the said case is that the eye witness had identified the vehicle number and that there was only one i.e. the one prepared seizure list on the date of incident. The offending vehicle in that case in fact bore valid number plates. The absence of the vehicle registration No. in the F.I.R., therefore, was held not to be fatal to the claim against the insurance company. The 6 said case is, therefore, distinguishable on facts.
Counsel for the appellant next relied upon an unreported decision of a Division Bench of this Court in the case of National Insurance Co. Ltd. Vs. Smt. Runu Singh & Ors. dated 4th July, 2017 in FMA 3896 of 2015. That was a case of a difference in registration numbers of the offending vehicle, in the FIR and the eyewitness account. In the instant case admittedly the offending tractor and trailer did have number plates in the first place. The said decision, therefore, cannot come to the aid of appellant.
In the instant case, it is mentioned in the F.I.R. and in the seizure list that the offending tractor and the trailer did not bear any Registration Number plate. Eyewitness PW 2, therefore, could not have mentioned the registration number of the offending vehicle. He was, therefore, a tutored witness.
This Court and the Court below have not applied any strict degree of proof as in criminal proceedings. What is seen is a complete contradiction in evidence and absence of even an elementary proof of necessary facts. Preponderance of probabilities is applied after the basic ingredients of the claim are on record.
The appellants are not remediless. In view of the clear and unequivocal evidence of PW 3 the owner of the offending tractor and trailer they have remedies against him for any claim in tort for damages.
For the reasons stated hereinabove, the instant appeal must fail and is hereby dismissed. In view of the above, the application being CAN 1284 of 2015 and CAN 6772 of 2016 are also 7 disposed of.
The lower court records may be returned to the learned court below forthwith. The paperbook already filed be kept with the record.
There will be no order as to costs.
Urgent certified photostat copy of this order, if applied for, shall be given to the parties as expeditiously as possible on compliance of all necessary formalities.
(Rajasekhar Mantha, J.)