Madhya Pradesh High Court
National Insurance Company Ltd. vs Rammilan Yadav on 28 August, 2019
Author: Vivek Agarwal
Bench: Vivek Agarwal
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THE HIGH COURT OF MADHYA PRADESH
M.A. No. 3496/2018
(NATIONAL INSURANCE COMPANY LIMITED Vs RAMMILAN YADAV & OTHERS)
Gwalior, Dated : 28-08-2019
Shri B.N. Malhotra, learned counsel for the appellant/Insurance
Company.
Shri G.S. Chauhan, learned counsel for the respondents No. 1 to
6. This Miscellaneous Appeal has been filed by the Insurance Company being aggrieved by award dated 18.05.2018 passed by the Motor Accident Claims Tribunal, Datia, in Claim Case No.121/2017.
Learned counsel for appellant/Insurance Company submits that this is a case of false implication of a vehicle where the claimants, the owner and the driver of the offending vehicle have supported each other with a design to defraud the Insurance Company. It is submitted that insured motor cycle has been implicated after 39 days of the incident. It is also submitted that award has been passed on the higher side and said claim needs to be watered down, if not rejected outrightly against the Insurance Company.
Learned counsel for the appellant has drawn attention of this court to the fact that FIR (Exhibit P-2) was lodged against an unknown motor cycle. There is a clear recital that after having dinner, deceased had left for Jhansi from Datia in the night and some vehicle had hit his motor cycle when he reached from Datia to Jhansi Road, as a result motor cycle of Veerendra fell down and Veerendra sustained greivous 2 THE HIGH COURT OF MADHYA PRADESH M.A. No. 3496/2018 (NATIONAL INSURANCE COMPANY LIMITED Vs RAMMILAN YADAV & OTHERS) injury on his head and forehead, which resulted in his death.
It is submitted that incident had taken place on 24.01.2017 and FIR was lodged on 24.01.2017 which is against unknown persons. Thereafter, Final Report (FR) was submitted by the Investigating Officer on 09.03.2017 in which it has been added that during investigation it was discovered that motor cycle bearing registration number MP32 ME 4913 had hit motor cycle of deceased Veerendra Yadav. The driver of the vehicle Mukesh Yadav was arrested and motor cycle was seized.
It is submitted that FIR (Exhibit P-2) is against unknown persons and was lodged on 24.01.2017; therefore, it was for the complainant to point out as to how the offending vehicle was traced which had caused accident being driven by Mukesh Yadav and owned by Shri Balveer Yadav. It is also submitted that it has come on record that so called offending vehicle was seized when Mukesh had produced such motor cycle at the police station as is apparent from Exhibit P-9, when Mukesh was arrested vide Exhibit P-10. It is not apparent as to how Mukesh discovered the fact that he is required to surrender his motor cycle at a particular police station.
Pawan (PW-2) in his case diary statement Exhibit P-13 has deposed that on 23.01.2017, he was having his meals at Brijmohan Dhaba and he was about to leave when he heard sound of accident 3 THE HIGH COURT OF MADHYA PRADESH M.A. No. 3496/2018 (NATIONAL INSURANCE COMPANY LIMITED Vs RAMMILAN YADAV & OTHERS) close to a canal under construction. He and the employees of hotel reached the scene running and found that two motor cycles had met with an accident and one person was lying on the floor. This witness has further stated that one person was standing with his motor cycle bearing number MP32 MA 4913 and when he asked then he gave his name as Mukesh resident of Sirol and admitted that accident had taken place from his motor cycle but Pawan who has been examined before the Claims Tribunal admits that he does not know either Veerendra or Mukesh. He had not given any intimation about the accident to the Police. In para 3 of his cross-examination, he has admitted that since relatives of the injured had reached there, he had left the place. He further admits that he had given number of the offending vehicle after twenty days of the incident when Police enquired about the matter from him. This evidence of Pawan (PW-2) does not inspire any confidence as to why he had not reported the matter to the relatives who had come to attend injured Veerendra and if he had given such details to the relatives of the injured, then what prevented them from giving number of such motor cycle to the Police when report (Exhibit P-2) was lodged. Thus, it is apparent that persons belonging to the same community forming a chain with passage of time and implicating a motor cycle so to get mileage from the claim, causes sufficient doubt as to the authenticity of the claim.
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THE HIGH COURT OF MADHYA PRADESH M.A. No. 3496/2018 (NATIONAL INSURANCE COMPANY LIMITED Vs RAMMILAN YADAV & OTHERS) Learned counsel for the appellant has placed reliance on the judgment of this Court in the case of Reena (Smt.) vs. Gajendra Singh & Ors. as reported in MACD 2008(2) (M.P.) 827, where the ratio of the judgment is that if FIR and MLC report did not disclose involvement of the vehicle in accident, it cannot be said that the said vehicle as implicated in the accident was involved and further in absence of reliable evidence on record the involvement of the vehicle in question being doubtful, claim is not payable by the Insurance Company.
Learned counsel for the respondents/claimants, on the other hand, submits that mechanical report of the motor cycle is brought on record, as is contained in Exhibit P-11 and submits that that it is not a case of false implication. He further submits that mere delay in reporting as to the actors of crime is not fatal. He has placed reliance on the decision in case of Ravi V. Badrinarayan, reported in 2011 ACJ 911, wherein in paragraph Nos. 20 and 21, it is held as under:
"20. It is well-settled that delay in lodging FIR cannot be a ground to doubt the claimant's case. Knowing the Indian conditions as they are, we cannot expect a common man to first rush to the Police Station immediately after an accident. 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. Under such circumstances, they are not expected to act mechanically with promptitude in lodging the FIR with the Police. Delay in lodging 5 THE HIGH COURT OF MADHYA PRADESH M.A. No. 3496/2018 (NATIONAL INSURANCE COMPANY LIMITED Vs RAMMILAN YADAV & OTHERS) the FIR thus, cannot be the ground to deny justice to the victim. In cases of delay, the courts are required to examine the evidence with a closer scrutiny and in doing so; the contents of the FIR should also be scrutinized more carefully. If court finds that there is no indication of fabrication or it has not been concocted or engineered to implicate innocent persons then, even if there is a delay in lodging the FIR, the claim case cannot be dismissed merely on that ground.
21. The purpose of lodging the FIR in such type of cases is primarily to intimate the police to initiate investigation of criminal offences. Lodging of FIR certainly proves factum of accident so that the victim is able to lodge a case for compensation but delay in doing so cannot be the main ground for rejecting the claim petition. In other words, although lodging of FIR is vital in deciding motor accident claim cases, delay in lodging the same should not be treated as fatal for such proceedings, if claimant has been able to demonstrate satisfactory and cogent reasons for it. There could be variety of reasons in genuine cases for delayed lodgment of FIR. Unless kith and kin of the victim are able to regain a certain level of tranquility of mind and are composed to lodge it, even if, there is delay, the same deserves to be condoned. In such circumstances, the authenticity of the FIR assumes much more significance than delay in lodging thereof supported by cogent reasons".
Heard learned counsel for the parties and perused the record. There are vital gaps in the testimony of claimants' witnesses. Claimants have examined Rammilan Yadav (PW-1), father of deceased Veerendra. He has deposed that his son Veerendra and Lalla @ Hari Singh had visited Datia by motorcycle on 23.01.2017 in connection with match making of sister of Veerendra. Due to night, Veerendra 6 THE HIGH COURT OF MADHYA PRADESH M.A. No. 3496/2018 (NATIONAL INSURANCE COMPANY LIMITED Vs RAMMILAN YADAV & OTHERS) stayed in house of Lalla @ Hari Singh. He had his dinner there itself and had gone to sleep. Thereafter, in examination-in-chief it is mentioned that at about 12 - 12:30 Veerendra took his motor cycle and left for his own house. When he reached close to 'Brajmohan Dhaba', at Jhansi Road, respondent No.1, driving his motor cycle MP 32 ME 4913 in rash and negligent manner hit him from the front, then Pawan, who was having meals at Dhaba, reached there and Hari Singh also reached there.
Pawan Yadav (PW-2) has given time of the incident between 12- 12:30 in the night. There is material contradiction in the testimony of PW-1 and PW-2 inasmuch as if Veerendra had slept in the house of Lalla @ Hari due to night, then there was no reason for him to leave such house of Hari between 12-12:30 in night. Claimants have not examined Lalla @ Hari who according to PW-1 and PW-2 had reached the scene of incident. Claimants have failed to explain the distance between house of Hari and Brajmohan Dhaba and what was the provocation for Hari to come from his home in night, when Veerendra had already departed for his house. This is another vital gap in the claimants story. Another gap is that if Hari had reached there and Pawan was also present so also Mukesh, then what prevented Hari from reporting the matter to the Police. In fact FIR (Exhibit P-2) reported on 24.01.2017 does not disclose presence of Lalla @ Hari. 7
THE HIGH COURT OF MADHYA PRADESH M.A. No. 3496/2018 (NATIONAL INSURANCE COMPANY LIMITED Vs RAMMILAN YADAV & OTHERS) This chronology renders claimants story doubtful and this fact has been glossed over by the learned Claims Tribunal. Pawan (PW-2) has given contradictory statement before the Court from one under Section 161 Cr.P.C.
Therefore, in my opinion this is a case of false involvement of a vehicle with a view to claim compensation from the Insurance Company. This is not a case of simple lacuna in not reporting the details of offending vehicle, but a case of false implication of vehicle. In view of such facts, I am of the opinion that it is a fit case for exoneration of Insurance Company.
Accordingly, appeal is allowed. Appellant/Insurance Company is exonerated from its liability.
Parties to bear their own costs.
(Vivek Agarwal) Judge Aman Aman Tiwari 2019.09.06 10:42:03 +05'30'