Jharkhand High Court
Jitendra Kumar Pandey vs Ravi Kumar Vishwakarma on 20 September, 2019
Author: Kailash Prasad Deo
Bench: Kailash Prasad Deo
1
IN THE HIGH COURT OF JHARKHAND AT RANCHI
CIVIL MISCELLANEOUS APPELLATE JURISDICTION
MA No. 738 of 2017
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Jitendra Kumar Pandey ...............Appellant Versus
1. Ravi Kumar Vishwakarma
2. Vikash Kumar Gupta
3. National Insurance Company Limited ...............Respondents.
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CORAM: HON'BLE MR. JUSTICE KAILASH PRASAD DEO For Appellant :Mr. A.K. Mishra, Advocate :Mr. Ajit Kumar Dubey, Advocate For Respondent no. 1 :Mr. Rakesh Ranjan, Advocate For Respondent no. 3 :Mr. Alok Lal, Advocate :Mr. Santosh Kumar, Advocate .......
08/20.09.2019 The claimant is the appellant before this Court. The appeal has been preferred against the order dated 20.11.2017 passed in Motor Vehicle Claim Case No. 38/2012 passed by learned District Judge, IV-cum-Motor Vehicle Accident Claim Tribunal, Palamau at Daltonganj whereby the claim application has been dismissed as the Tribunal has decided issue no. 1 and 3 against the claimant.
2. Learned counsel for the appellant Mr. Abhay Kumar Mishra has submitted that I.A. No. 4765/19 has been preferred under section 107 (1)(d) read with Order 41 Rule 27 of the C.P.C. for adducing additional evidence before the court.
Learned counsel for the appellant has submitted that original certificate issued from the hospital has been brought on record as Annexure-1 series and the fardbeyan of Deepak Kumar Pandey recorded by A.S.I. P.K. Sinha of Chandwa Police Station on 23.01.11 at 12.30 P.M. at Gurunanak Hospital, Ranchi, I.C.U. Room near bed no. 17 has been brought on record as Annexure-2. The documents are relevant and necessary for proper adjudication of the case which could not be filed before the learned Tribunal inadvertently, as such, for proper adjudication of the case the matter may be remitted to the Tribunal for de novo trial. To buttress his argument learned counsel for the appellant has relied upon the judgment of Jai Prakash vs. National Insurance Company Limited; (2010) 2 SCC 607 whereby a direction has been issued to the Police Authorities, Claim Tribunals, Insurance Companies to ensure that all accident victims get compensation. Learned counsel for the appellant has further relied upon the case of Vimla Devi and Ors. vs. National Insurance Company Limited and Anr.; (2019) 2 SCC 186 para-18 of 2 which is profitably quoted here:-
"18. The object of Section 158(6) read with Section 166(4) of the Act is essentially to reduce the period of pendency of claim case and quicken the process of determination of compensation amount by making it mandatory for registration of motor accident claim within one month from the date of receipt of FIR of the accident without the claimants having to file a claim petition. (See Jai Prakash v. National Insurance Co. Ltd.)."
As such, this Court may set aside the impugned order and remand the matter before the learned Tribunal to reconsider the same afresh.
3. Learned counsel for the respondent National Insurance Company Limited has opposed the prayer and has submitted that the accident is of the year, 2011, the claim petition was filed in the year, 2012 which was decided in the year 2017 and thereafter, such plea is going to be taken by the claimant when his claim application has been dismissed on contest.
4. Mr. Alok Lal appearing for the respondent no. 3 has submitted that nothing has been brought on record to justify the prayer made for adducing the additional evidence as the matter has not been brought before the learned Tribunal, as such, this Court may not allow such evidence to be recorded as an additional evidence, as such, this appeal may be dismissed.
5. Heard, learned counsel for the appellant, learned counsel for the respondent, perused the materials brought on record including the interlocutory application No. 4765/2019 for adducing the additional evidence. It appears that fardbeyan of Deepak Kumar Pandey was recorded by the A.S.I. P.K. Sinha of Chandwa Police Station on 23.01.2011 at 12.30 P.M. at Gurunanak Hospital, Ranchi in I.C.U. Room near bed no. 17 where it has been categorically stated that brother of the informant Jitendra Kumar Pandey along with Sailesh Kumar Mehta went to meet the informant Deepak Kumar Pandey who was working in a private Company. All three including the driver were coming in the Company's Bolero vehicle on 20.01.2011 bearing registration No. JH 02Q 5183 which met with an accident in saving a child and these four sustained injuries and the vehicle was also damaged. The injured were brought on ambulance initially at Primary Health Centre, Chandwa, from where they were referred to the RIMS, Ranchi but they were admitted at Gurunanak Hospital for better treatment. The document shows that the same was registered as SDE no. 596/11 dated 23.01.2011. The medical certificate issued from the Primary Health Centre, Chandwa has also been brought on record in the interlocutory application whereby the Incharge Medical Officer has issued 3 certificate regarding treatment to Deepak Kumar Pandey, Sailesh Kumar Mehta, Ravi Kumar Vishkarma as well as Jitendra Kumar Pandey on 20.01.2011 and subsequently referred them to the RIMS, Ranchi for better treatment. The Apex Court in the case of Jai Prakash (supra) has considered these aspects of the matter and discussed the issue in detail in para-12 of the judgment which is reproduced hereunder:
"12. 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 police authorities concerned and the Tribunals to follow the mandate of these provisions."
It was also considered that neither the Police nor the Motor Accident Claim Tribunal has made any effort to implement these mandatory provisions of the act. Direction has been issued to the Police Authorities which are referred in para-16 to 19 and the same are reproduced here:-
"Directions to the Police Authorities
16. 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 (`AIR', for short) in Form No. 54 of the Central Motor Vehicle Rules,1989 shall be submitted by the police (Station House Officer) to the jurisdictional Motor Accidents 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 post-mortem 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 Tribunal.
(iii) Simultaneously, copy of the AIR with annexures thereto shall be furnished to the insurance company concerned to enable the insurer to process the claim.4
(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.
17. To avoid any administrative difficulties in immediate implementation of Section 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 the State Capital regions shall implement the provisions by the 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 Directors General shall ensure that necessary forms and infrastructural support is made available to give effect to Section 158(6) of the Act.
18. 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 Directors General to issue instructions to prosecute drivers and owners of uninsured vehicles under Section 196 of the Act.
19. The Transport Department, Health Department and other concerned departments shall extend necessary cooperation to the Directors General to give effect to Section 158(6).
The direction has also been issued to the claim tribunals in para-20 to 22 which are quoted hereunder:
Directions to the Claims Tribunals
20. The Registrar General of each High Court is directed to instruct all Claims Tribunals in his State to register the reports of accidents received 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 extended to the Tribunal to give effect to Section 166(4) of the Act.
21. For complying with section 166(4) of the Act, the jurisdictional Motor Accidents 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 5 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 a fixed deposit and disbursed as per the directions contained in Kerala SRTC v. Susamma Thomas.
(h) As the proceedings initiated in pursuance of Sections 158(6) and 166(4) of the Act are different in nature from an application by the 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 dependants of the deceased victim and in determining the quantum of compensation.
22. 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 Sections 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. Certain suggestions have also been given to the Insurance Company in several paragraphs. It appears that though this judgment was passed by the 6 Hon'ble Apex Court in the year, 2009 but the same has not been followed in letter and spirit. Motor Vehicle Act, 1988 is a benevolent legislation and the direction issued by the Hon'ble Supreme Court in the case of Jai Prakash (supra) has not been followed, as such, this Court deems fit in the facts and circumstaces of the case that this claim application is fit to be remanded to the court below so as to follow the judgment in the case of Jai Prakash (supra). The parties are at liberty to adduce their evidence.
6. The impugned order dated 20.11.2017 is hereby set aside with a liberty to the parties to adduce their evidence in accordance with law. The Tribunal is directed to decide this case afresh after due notice to the parties preferrably within a period of six months in the light of the judgment of Jai Prakash (supra).
7. I.A. No. 4765/19 is disposed of.
8. The Registrar General of this Court is directed to circulate the copy of the judgment of Jai Prakash vs. National Insurance Company Limited; (2010) 2 SCC 607 to all the Claim Tribunals/Chairman-cum-Secretary of the District Legal Services Authorities/Superintendent of Police of all the districts with a direction to circulate the same to the Officer-in-charge/Station house Officer of each police station in the State of Jharkhand for compliance of the same.
(Kailash Prasad Deo, J.) pallavi/