Gujarat High Court
Oriental Insurance Co Ltd., Registered ... vs Legal Heirs Of Lakhubhai Umedsinh ... on 17 April, 2023
Author: A.S. Supehia
Bench: A.S. Supehia
NEUTRAL CITATION
C/FA/2148/2011 JUDGMENT DATED: 17/04/2023
undefined
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/FIRST APPEAL NO. 2148 of 2011
With
CIVIL APPLICATION (FOR WITHDRAWAL/DISBURSEMENT OF AMOUNT)
NO. 1 of 2018
In
R/FIRST APPEAL NO. 2148 of 2011
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE A.S. SUPEHIA Sd/-
and
HONOURABLE MR. JUSTICE DIVYESH A. JOSHI Sd/-
==========================================================
1 Whether Reporters of Local Papers may be allowed No
to see the judgment ?
2 To be referred to the Reporter or not ? Yes
3 Whether their Lordships wish to see the fair copy No
of the judgment ?
4 Whether this case involves a substantial question No
of law as to the interpretation of the Constitution
of India or any order made thereunder ?
==========================================================
ORIENTAL INSURANCE CO LTD., REGISTERED OFFICE AT ORIENTAL
Versus
LEGAL HEIRS OF LAKHUBHAI UMEDSINH JADEJA, DINESHBA LAKHUBA
& 7 other(s)
==========================================================
Appearance:
MR R G DWIVEDI(6601) for the Appellant(s) No. 1
MR. HEMAL SHAH(6960) for the Defendant(s) No. 1,2,3,4
RULE SERVED for the Defendant(s) No. 7,8
SERVED BY AFFIX. (R) for the Defendant(s) No. 5,6
==========================================================
CORAM:HONOURABLE MR. JUSTICE A.S. SUPEHIA
and
HONOURABLE MR. JUSTICE DIVYESH A. JOSHI
Date : 17/04/2023
Page 1 of 16
Downloaded on : Sun Sep 17 18:35:02 IST 2023
NEUTRAL CITATION
C/FA/2148/2011 JUDGMENT DATED: 17/04/2023
undefined
ORAL JUDGMENT
(PER : HONOURABLE MR. JUSTICE DIVYESH A. JOSHI)
1. The present appeal under Section 173 of the Motor Vehicles Act, 1988 is at the instance of the appellant-Insurance Company and is directed against judgment and award dated 9th May, 2011 passed by the Motor Accident Claims Tribunal (Main), Rajkot in M.A.C.P. No.649 of 2001 by which the learned Tribunal partly allowed the claim petition filed by the opponent Nos.1 to 6 herein (original claimants).
2. The facts giving rise to the present appeal may be summarized as under:
2.1 The appellant-Oriental Insurance Company Ltd. is the original respondent No.3 in the main proceedings (for the sake of convenience and brevity, the original respondent No.3 shall hereinafter be referred to as the appellant). The opponent Nos. 1 to 6 are the original plaintiffs (shall hereinafter be referred to as "the respondent Nos.1 to 6") and the respondent Nos.7 and 8 are the original defendant Nos.1 and 2 (shall hereinafter be referred to as the respondent Nos.1 and 2). The Code of Civil Procedure shall hereinafter be referred to as "the Code"
and the Motor Vehicles Act, 1988 shall hereinafter be referred to as "the M.V. Act".
2.2 On 19.02.2001, the deceased was coming towards Rajkot on his Hero Honda Motorcycle being its registration No.GJ-17-B- 1346. When he reached at the place of incident, the driver of the truck bearing its registration No.GJ-3-U-6365 came in a rash and negligent manner and dashed with the motorcycle of Page 2 of 16 Downloaded on : Sun Sep 17 18:35:02 IST 2023 NEUTRAL CITATION C/FA/2148/2011 JUDGMENT DATED: 17/04/2023 undefined the deceased, due to which, the deceased sustained severe injuries and taken to the hospital for treatment where he succumbed to the said injuries. Thereafter, a complaint also came to be registered in this regard. On the strength of the registration of the complaint, the investigation was ensued and, thereafter, charge-sheet came to be submitted before the competent court.
2.3 The respondent Nos.1 to 6-original claimants have filed the claim petition before the Motor Accident Claims Tribunal at Rajkot being Motor Accident Claim Petition No.649 of 2001.
2.4 Thereafter, the trial was commenced, and at the end of the trial, after completion of recording of evidence and the arguments, the Tribunal has passed the impugned judgment and award.
2.5 Being aggrieved and dissatisfied with the impugned judgment and award dated 9th May, 2011, the appellant is here before this Court with the present appeal.
3. Learned advocate Mr. Tiwari appearing for the appellant- Insurance Company has vehemently submitted that the judgment and award passed by the Tribunal is contrary to law and the view adopted by the Tribunal is erroneous, arbitrary and illegal and, therefore, the impugned judgment and award is required to be quashed and set aside. Learned advocate Mr. Tiwari has further submitted that the Insurance Company has filed an application under Section 170 of the M.V. Act to raise certain defenses against the claim petition which was allowed Page 3 of 16 Downloaded on : Sun Sep 17 18:35:02 IST 2023 NEUTRAL CITATION C/FA/2148/2011 JUDGMENT DATED: 17/04/2023 undefined by the concerned Tribunal and, therefore, the Insurance Company is entitled to raise defense as per the relevant provisions of law. Mr. Tiwari has also submitted that the record itself shows and suggests that the deceased was driving the motorcycle, and due to his own fault, his motorcycle was slipped, due to which, he sustained grievous injuries. Mr. Tiwari has further submitted that, thereafter, immediately the deceased was taken to the hospital and the person who took him to the hospital has made a statement before the medical officer of the hospital that the deceased himself was driving the motorcycle and due to his own fault, his motorcycle was slipped and he sustained injuries. Mr. Tiwari has submitted that pursuant to the said information, a Janvajog entry was also registered before the concerned police station. Learned advocate Mr. Tiwari has submitted that it is an admitted position of fact that throughout, during the course of treatment, the deceased was in an unconscious statement of mind and, therefore, the Investigating Agency has never got the opportunity to record the statement of the deceased, and during the said position, he has passed away. The Insurance Company has raised defense about the false implication of the driver and the truck in the alleged incident and the said fact has been proved by the Insurance Company by raising certain queries to the Investigating Officer. If the Hon'ble Court would thoroughly re-appreciate the evidence of the Investigating Officer, then the entire picture would be crystallized. The said witness was cross-examined by the learned advocate for the Insurance Company in a threadbare manner, and it clearly reveals from the evidence of the said witness that the Investigating Officer has not given due weightage to certain Page 4 of 16 Downloaded on : Sun Sep 17 18:35:02 IST 2023 NEUTRAL CITATION C/FA/2148/2011 JUDGMENT DATED: 17/04/2023 undefined evidences, upon which, he could have thrown some light, and by not doing so, the Investigating Officer has committed grave error in carrying out the investigation.
4. Learned advocate Mr. Tiwari has further submitted that the medical officer of the Madhuram Hospital was also examined by the Insurance Company in his defense and the said witness has categorically stated that the person who brought the deceased to the hospital has made a specific statement that at the time of occurrence of the incident, the deceased himself was driving the motorcycle and due to his own fault, his motorcycle was slipped due to which he sustained severe bodily injuries. Mr. Tiwari has also submitted that both, the owner of the truck and the deceased belong to Darbar community and on the basis of the evidences available on record, the entire story of the truck being dashed with the motorcycle of the deceased is created. Learned advocate Mr. Tiwari has further submitted that considering the aforesaid factual aspect as well as the ground reality, the appellant- Insurance Company has clearly established its case by leading cogent and convincing evidence that the involvement of the truck was not, at all, there at the time of alleged incident, and with a sole intention to dupe the Insurance Company with connivance with the relative of the deceased and the Investigating Officer, false and fabricated complaint was registered and statements of the witnesses were recorded. Learned advocate Mr. Tiwari, therefore, prays that the Insurance Company is required to be absolved from the said charge.
Page 5 of 16 Downloaded on : Sun Sep 17 18:35:02 IST 2023NEUTRAL CITATION C/FA/2148/2011 JUDGMENT DATED: 17/04/2023 undefined
5. Mr. Tiwari has further submitted that earlier, the matter was argued at length before the previous Bench, and at that point of time, a Coordinate Bench was insisted upon him to place before the Court the judgment of a criminal matter so that upon perusal of the said judgment, the Court can discuss what had actually transpired during the trial and, therefore, he has filed civil application for leading additional evidence which was allowed by the Hon'ble Court and the judgment of the Trial Court was made part and parcel of this proceedings. Learned advocate Mr. Tiwari has further submitted that the prosecution has miserably failed to lead evidence against the accused and due to lack of evidence, the driver has been acquitted by the Trial Court. If the Hon'ble Court would make a cursory glance upon the contents of the said judgment, then the entire picture would be crystallized that the story of involvement of the truck is nothing but an afterthought and concocted one.
6. Learned advocate Mr.Hemal Shah appearing for the respondent Nos.1 to 4 has submitted that the judgment and award passed by the Tribunal is just, proper and reasonable and, therefore, no interference is warranted at the end of this Court. Mr. Shah has submitted that after considering all the evidences and materials available on record, the Tribunal has passed the impugned judgment and award. The Tribunal has very exhaustively dealt with each and every point raised by the insurance company. Learned advocate Mr. Hemal Shah has submitted that the proceedings before the Claims Tribunal and the criminal trial are separate and distinct. It is a settled proposition of law that in the criminal trial, prosecution has to prove its case beyond reasonable doubt, whereas in the civil Page 6 of 16 Downloaded on : Sun Sep 17 18:35:02 IST 2023 NEUTRAL CITATION C/FA/2148/2011 JUDGMENT DATED: 17/04/2023 undefined litigation the evidence is to be appreciated on the basis of principle of preponderance of probability. The scale of leading evidence in both the proceedings are totally different. Therefore, to evaluate the evidence available in two different proceedings, cannot be considered by one and same accident. Learned advocate Mr. Hemal Shah has further submitted that after the occurrence of the incident, the deceased was taken to the hospital for treatment and throughout during his treatment, he remained in Coma and after some time he had passed away and, therefore, a complaint came to be registered. It is true that before registration of the complaint, a Janvajog entry was registered before the concerned police station. However, before any investigation was commenced on the basis of the said Janvajog entry, the deceased expired and complaint has been registered. It is found out from the record that the Investigating Officer had immediately drawn the Panchnama of the place of occurrence as also the Inquest Panchnama. The driver of the truck fled from the place of occurrence along with the truck. After registration of the complaint, investigation was ensued and at the end of the investigation, the Investigating Officer has filed charge-sheet against the driver of the truck and all the documents and materials have been collected by the Investigating Officer which is made part and parcel of the present proceedings. During the course of the investigation, it was revealed that one person had witnessed the said incident and he has given the number of the truck involved in the accident. Not only that, the Investigating Officer has recorded the statement of the driver and owner of the vehicle, and in their statements, they have specifically stated that the driver of the truck was Page 7 of 16 Downloaded on : Sun Sep 17 18:35:02 IST 2023 NEUTRAL CITATION C/FA/2148/2011 JUDGMENT DATED: 17/04/2023 undefined involved in the said incident. To substantiate his submissions, learned advocate Mr. Shah has relied upon the following decisions;
(i) In the case of New India Insurance Co. Ltd. vs. Lalitaben Prakashbhai Charaniya, reported in 2021 JX (Guj.) 565;
(ii) In the case of Mangla Ram vs. Oriental Insurance Co. Ltd., reported in AIR 2018 SC 1900.
7. Mr. Shah has submitted that in the aforesaid decisions, the Apex Court as well as this Court has crystallized the position of law in a very clear terms. He has also submitted that in the criminal trial, the prosecution has miserably failed to lead evidence to prove the charge levelled against the accused and due to non-availability of sufficient evidence, the accused was acquitted from the charges levelled against him. In the operative part of the order, the court below has very specifically stated that the owner of the vehicle has denied the suggestions put forward to him about involvement of his driver in the said accident. Admittedly, the owner of the vehicle was not there at the place of the incident when the incident took place and, therefore, the evidence of the said witness would fall under the category of hearsay evidence and it is a weak kind of evidence. Therefore, the Trial Court has not given more weightage to the evidence of the said witness while passing the order of acquittal. Learned advocate Mr. Shah has further submitted that if the Hon'ble Court would Page 8 of 16 Downloaded on : Sun Sep 17 18:35:02 IST 2023 NEUTRAL CITATION C/FA/2148/2011 JUDGMENT DATED: 17/04/2023 undefined make a cursory glance upon the evidence available on record, in that event, it is found out that at the time of delivering judgment and award, the Tribunal has discussed each and every aspect of the matter in a threadbare manner and, therefore, the judgment and award passed by the Tribunal is just, fair and reasonable and, as such, in the absence of any perversity being found in the impugned judgment and award, no interference is warranted at the end of this Court at this juncture.
8. Having heard the learned counsel appearing for the parties and having considered the contentions canvassed by the learned advocates appearing for the rival parties as well as re-appreciating the materials on record, it appears that the present first appeal is filed by the Insurance Company by raising the important issue of planting the truck in the accident subsequently in connivance with the claimants. The entire case of the Insurance Company is solely based upon the non- involvement of the driver of the truck which was insured by the Company. Learned advocate appearing for the Insurance Company has canvassed his arguments solely on the basis of sequence of events of incident occurred and presented in the claim petition which creates doubt about the involvement of the driver of the truck. The injured victim had sustained head injuries and gone into Coma. He was not in a fit statement of mind and could not be able to understand what is happening in the surrounding area. He was taken to the hospital for the purpose of treatment by a third person and the said person has specifically given history before the concerned officer of the Page 9 of 16 Downloaded on : Sun Sep 17 18:35:02 IST 2023 NEUTRAL CITATION C/FA/2148/2011 JUDGMENT DATED: 17/04/2023 undefined hospital that the deceased himself was driving the motorcycle and all of a sudden the motorcycle was slipped, due to which, the deceased sustained head injuries. Therefore, he was taken to the hospital for the purpose of treatment and immediately a Janvajog entry in that regard was registered. However, after the sad demise of the injured victim, a different story was created and, on the basis of the same, in connivance with the driver and owner of the truck, a false and frivolous complaint came to be lodged. It is clearly found out from the materials available on record that after the death of the injured victim, immediately complaint was registered and the Investigating Officer has ensued the investigation which ultimately culminated into registration of the charge-sheet. The Investigating Officer has recorded statements of the driver and owner of the vehicle as well as the eyewitnesses who were there at the time of incident. All those evidences were very much available with the Investigating Officer, and on the strength of the said documents, he has filed the charge-sheet. The record itself shows and suggests that the driver himself appeared before the Investigating Officer and surrendered. It is well settled that the delay in lodging the first information report cannot be a ground to doubt the claimants case. Knowing the Indian conditions as they are, we cannot be expect a common man to first rush to the police station immediately after the occurrence of the incident. Human nature and family responsibilities occupy the mind of kith and kin to such an extent that they give more importance to get the victim treated rather than to rush to the police station and, under such circumstances, one cannot expect to act Page 10 of 16 Downloaded on : Sun Sep 17 18:35:02 IST 2023 NEUTRAL CITATION C/FA/2148/2011 JUDGMENT DATED: 17/04/2023 undefined mechanically with promptitude in lodging the first information report with the police. Therefore, delay in lodging the FIR thus, cannot be the ground to deny justice to the victim.
9. In claim cases, under the Motor Vehicles Act, summary procedure is required to be contemplated to prove the respective versions of the parties. Therefore, the victims, who are under a duty to prove the accident, need not prove the same beyond reasonable doubt just like the prosecution in a criminal trial. The Court has to make a decision basing on the evidence forthcoming before it as to whether the version put forth by the victims in proof of the accident is probable and has to see whether there is any reliable and dependable evidence to record finding as to whether a particular vehicle was involved in the accident.
10. It is undisputed fact that driver of the vehicle was a party in the proceedings. If Insurance Company is of the opinion that the driver of the truck was, at all, not involved in the commission of the crime and the driver of the truck has been subsequently arraigned as an accused in connivance with the owner of the truck and the claimants, in that event, the Insurance Company has to lead evidence to that effect. The Insurance Company has not taken due care to bring the driver in the witness box and lead evidence to that effect. If Insurance Company has tried to prove his case at a belated stage during the proceedings of the present first appeal by way of preferring civil application for adducing additional evidence and produced copy of the judgment delivered by the Page 11 of 16 Downloaded on : Sun Sep 17 18:35:02 IST 2023 NEUTRAL CITATION C/FA/2148/2011 JUDGMENT DATED: 17/04/2023 undefined trial court in a criminal matter, and during the course of hearing, strong reliance was being placed upon the contents of the said judgment. It is an admitted position of fact that the proceedings before the criminal court and the claims tribunal are distinct and different. The criteria to consider the evidence laid before two different authorities is quite different and dissimilar. Therefore, the record itself shows and suggests that the Insurance Company is miserably failed to lead evidence prove its case and the learned Tribunal has considered the evidence available on record in its true spirit and proper perspective after considering all the materials and documents available against them in a threadbare manner. It is settled proposition of law that if the death is caused by something owned or controlled by the negligent party, then he is directly liable otherwise the principle of 'res ipsa loquitur' meaning thereby 'the things speak for itself' would apply. The negligence means failure to exercise required degree of care and caution expected from a prudent driver. Negligence is the omission to do something which a reasonable man, guided upon the considerations, which ordinarily regulate conduct of human affairs, would do, or doing something which a prudent and reasonable man would not do. Negligence is not always a question of direct evidence. It is an inference to be drawn from proved facts. Negligence is not an absolute term, but is a relative part. It is rather a comparative term. What may be negligence in one case may not be so in another. Where there is no duty to exercise care, negligence in the popular sense, has no legal consequence. Where there is a duty to exercise care, reasonable care must be taken to avoid acts or Page 12 of 16 Downloaded on : Sun Sep 17 18:35:02 IST 2023 NEUTRAL CITATION C/FA/2148/2011 JUDGMENT DATED: 17/04/2023 undefined omissions which would be reasonably foreseen likely to cause physical injury to person. The degree of care required, of course, depends upon facts of each case. It is also an admitted position of fact that the respondent had opposed the claim petition and denied the liability but did not lead any evidence on the relevant issue to dispel the relevant fact. In the numerous case laws, the Supreme Court as well as our own High Court has held that at the time of considering the claim petition, the Tribunal is required to hold an enquiry and act not as criminal court so as to find whether the claimants have established the occurrence beyond shadow of any reasonable doubt. In the enquiry, if there is a prima facie evidence of the occurrence, there is no reason to disbelieve such evidence. The statements coupled with the facts of registration of FIR and trial of the accused in a criminal court are sufficient to arrive at a conclusion that the accident has taken place. The claimants are not required to rove the case as it is required to be done in a criminal trial. The court must keep this distinction in mind. Strict proof of an accident caused by a particular vehicle in a particular manner may not be possible to be done by the claimants. The claimants should have to merely establish their case on the touchstone of preponderance of probability. The standard of proof beyond reasonable doubt could not have been applied. It is prima facie safe to conclude in claim cases that the accident has occurred on account of rash or negligent driving of the driver, if the driver is facing the criminal trial on account of rash or negligent driving. The driver of the offending vehicle has not appeared in the witness box to deny the accident having been Page 13 of 16 Downloaded on : Sun Sep 17 18:35:02 IST 2023 NEUTRAL CITATION C/FA/2148/2011 JUDGMENT DATED: 17/04/2023 undefined caused by him, therefore, we are inclined to draw an adverse inference against him. Not only that, the driver has also not filed any complaint to higher authorities about his false implication in the criminal case and, therefore, it cannot be accepted that the driver has been falsely implicated in this case. Therefore, as stated earlier, charge-sheet has also been filed against the driver of the truck and, therefore, we do not find that the Tribunal has committed any error much less the error of law could be said to have been committed by the Tribunal in coming to the conclusion that the very vehicle was involved in the accident and the driver of the truck has rashly and negligently plight the said truck.
11. In this context, we feel it appropriate to refer to the practice adopted by many Tribunals in the State. Whereever a crime has been registered in respect of the accident and the investigation has culminated in filing of the charge-sheet by the police, such charge-sheet is filed and the same is reckoned as sufficient to establish negligence on the part of the indictee. The practice has not received formal judicial approval and hence some Tribunals insist on oral evidence in support of negligence invariably. This consumes a log of judicial time and the heavily over worked Tribunal spends its time on unnecessary oral evidence of negligence. We would certainly not want the Tribunals to be prisoners of the conclusions of police officers. If the Tribunal finds it suspicious, it can insist for better evidence. But as a general rule it can safely be accepted that production of the police charge sheet is prima facie sufficient evidence of negligence for the purpose of a claim Page 14 of 16 Downloaded on : Sun Sep 17 18:35:02 IST 2023 NEUTRAL CITATION C/FA/2148/2011 JUDGMENT DATED: 17/04/2023 undefined under S.166 of the Motor Vehicles Act. A system cannot feed itself on a regular diet of distrust of the police. Prima facie, charge sheet filed by a police officer after due investigation can be accepted as evidence of negligence against the indictee. If any one of the parties do not ready and agreeable to accept such charge sheet, the burden must be on such party to adduce oral evidence or documentary evidence. If any oral or documentary evidences are adduced by any party, In a case where charge sheet is filed, the Tribunals should give further opportunity to others also to adduce oral evidence and in such a case the charge sheet will pale into insignificance and the dispute will have to be decided on the basis of the evidence. In all other cases such charge sheet can be reckoned as sufficient evidence of negligence in a claim under S.166 of the Motor Vehicles Act. We mean to say that on production of such charge sheet the shifting of burden must take place. It is not as though we are not conscious of the dangers and pit falls involved in such an approach. But we feel that adoption and recognition of such practice would held to reduce the length of the long queue for justice before the Tribunals. The judicial recognition of the practice will help the Tribunals to ensure the optimum use of judicial time at their disposal for productive ventures.
12. We do not intend to say that collusive charge sheets need be accepted. Wherever on the facts of a given case the Tribunals feel that the police charge sheet does not satisfy their judicial conscience, the Tribunals can record that the charge sheet cannot be accepted and can call upon the Page 15 of 16 Downloaded on : Sun Sep 17 18:35:02 IST 2023 NEUTRAL CITATION C/FA/2148/2011 JUDGMENT DATED: 17/04/2023 undefined parties, at any stage, to adduce oral evidence of the accident and the alleged negligence and in that case, the issue of negligence must be decided on the other evidence, ignoring the charge sheet.
13. As far as the quantum and awarding of compensation on other different heads are concerned, the same does not require any modification.
14. In the result, the appeal fails and is hereby dismissed. No order as to costs.
15. In view of the order passed in the main matter, the connected civil application does not survive and is disposed of accordingly. Registry shall transmit the Record & Proceedings along with the paper-book back to the Tribunal forthwith.
(A. S. SUPEHIA, J) (DIVYESH A. JOSHI,J) R.S. MALEK Page 16 of 16 Downloaded on : Sun Sep 17 18:35:02 IST 2023