Gujarat High Court
Dhayalal Chunilal Khandelwal vs Abdul Alias Haji Mahmmad on 8 June, 2022
Author: Gita Gopi
Bench: Gita Gopi
C/FA/61/2022 JUDGMENT DATED: 08/06/2022
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/FIRST APPEAL NO. 61 of 2022
With
CIVIL APPLICATION (FOR STAY) NO. 1 of 2021
In
R/FIRST APPEAL NO. 61 of 2022
FOR APPROVAL AND SIGNATURE:
HONOURABLE MS. JUSTICE GITA GOPI
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1 Whether Reporters of Local Papers may be
allowed to see the judgment ?
2 To be referred to the Reporter or not ?
3 Whether their Lordships wish to see the fair copy
of the judgment ?
4 Whether this case involves a substantial question
of law as to the interpretation of the Constitution
of India or any order made thereunder ?
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DHAYALAL CHUNILAL KHANDELWAL
Versus
ABDUL ALIAS HAJI MAHMMAD
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Appearance:
MR VISHAL C MEHTA(6152) for the Appellant(s) No. 1
RULE SERVED for the Opponent(s) No. 2
RULE UNSERVED for the Opponent(s) No. 1
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CORAM:HONOURABLE MS. JUSTICE GITA GOPI
Date : 08/06/2022
ORAL JUDGMENT
1. The present Appeal has been filed by the appellant for quashing and setting the judgment dated Page 1 of 29 Downloaded on : Sat Dec 24 18:26:03 IST 2022 C/FA/61/2022 JUDGMENT DATED: 08/06/2022 29.11.2021 passed by the Motor Accident Claims Tribunal (Auxiliary), Banaskantha at Deesa in M.A.C.P. No.2394/2009 (Old No.43/2002).
2. Mr. Vishal C.Mehta, learned advocate for the appellant stated that the present appellant and his wife had filed M.A.C.P. Nos.43/2002 and 44/2002 on the same day, which was arising out of the same accident, which occurred on 08.06.2001 while both the applicants therein being the husband and wife were travelling from Nathwara to Dhanera in their car driven by the present appellant. Mr. Mehta submitted that when the car reached ahead of Ramnagar Chungi Naka, at that time one truck bearing Registration No.RJ-27-G-3427 came from the opposite side in a very high speed. The said truck was driven rashly and in negligent manner, as a result the truck dashed the vehicle of the appellant on the front side and owing to the accident both the applicants sustained injuries.
3. Mr. Mehta submitted that M.A.C.P. No.44/2002, which was thereafter registered as M.A.C.P. No.2033/2009, was decided by the Motor Accident Claim Tribunal (Auxi.) at Deesa, Dist. Banaskantha on 13.03.2019 and the Tribunal was pleased to allow the claim petition of the wife and the compensation of Rs.77,108/- was granted laying liability on the owner and the insurer of the truck.
Page 2 of 29 Downloaded on : Sat Dec 24 18:26:03 IST 2022C/FA/61/2022 JUDGMENT DATED: 08/06/2022
4. Mr. Mehta submitted that M.A.C.P. No.43/2002, thereafter registered as M.A.C.P. No.2394/2009, came to be dismissed by M.A.C.T. (Auxi.) on 29.11.2021, ordering the claimant therein, the present appellant to deposit Rs.50,000/- as exemplary cost to T.L.S.A. Deesa. Mr. Mehta submitted that the learned Tribunal appears to have dismissed the petition with bias mind and harbouring prejudice against the advocate who was ordered to pay Rs.25,000/- as exemplary cost to T.L.S.A., Deesa; with further direction that in default of payment by the applicant and his advocate, the T.L.S.A. Deesa to approach the Collector for compliance of the order. Mr. Mehta submitted that the very same Advocate appeared for the wife of the present appellant in M.A.C.P. No.2033/2009 (Old No.44/2002) and had conducted the trial, and on submission of the learned advocate, the Coordinate Motor Accident Claim Tribunal (Auxi.) at Deesa, was pleased to grant the compensation to the wife of the appellant. Mr. Mehta submitted that the learned Tribunal in M.A.C.P. No.2033/2009 (Old No.44/2002) was pleased to consider the issue of negligence and had found the driver of the truck sole negligent for the said accident. Thus, it was contended by Mr. Mehta that learned Tribunal in the impugned judgment was required to adopt the observations so made in M.A.C.P. No.2033/2009 and was to declare the issue so raised in the matter in accordance to the issue already decided. Advocate Mr. Mehta stated that the same Tribunal has Page 3 of 29 Downloaded on : Sat Dec 24 18:26:03 IST 2022 C/FA/61/2022 JUDGMENT DATED: 08/06/2022 dismissed many other cases of the same Advocate and the litigants had to suffer because of the prejudice of the Judge against the lawyer. Mr. Mehta further contended that reference was made to the Principal District Judge to transfer all the matters of the said Advocate to another Tribunal but request was declined.
5. Mr. Mehta further submitted that the very reason of approaching this Court is the observation made by the learned Tribunal against the appellant and the Advocate representing him, as the learned Judge instead of considering the matter on merits, had referred to irrelevant materials, which would disclose that the judgment is apparently erroneous, and is declared out of bias and prejudice.
6. Mr. Mehta submitted that the Tribunal has erred in dismissing the claim petition essentially on two grounds stating that there is discrepancy in mentioning the make/type of vehicle, which was driven by the appellant, and discrepancy as regard to the total number of persons travelling in the said vehicle. Mr. Mehta further stated that the learned Judge ought to have appreciated that, though in the claim petition the car was addressed as Maruti Car, but in the evidence the appellant has referred the vehicle as his car. Mr. Advocate Mehta contended that the Tribunal has erred in not considering the evidence by way of FIR that the vehicle so driven by the appellant was 'Hyundai Santro'.
Page 4 of 29 Downloaded on : Sat Dec 24 18:26:03 IST 2022C/FA/61/2022 JUDGMENT DATED: 08/06/2022 Mr. Mehta stated that no such query was raised by the other side in the cross examination nor any such question was put to the appellant as a claimant and further in the examination-in-chief claimant has referred to the vehicle as car of his ownership, thus, there could not have been any deliberate act of misrepresentation of the appellant while adducing evidence during the trial. Mr. Mehta further stated that the claim was against the offending Truck bearing Registration No.RJ-27-G-3427; thus, in light of that fact too, the discrepancy in the brand name of the vehicle would be irrelevant and was not to be a substantial question of issue.
7. Mr. Mehta further contended that learned Judge took exception to the applicant's case that on 08.06.2001, the appellant and his wife only two were travelling in the Maruti Car of his ownership bearing Registration No.GJ-8D-5021, as stated in the claim petition, considering that, it was not the case of the appellant that on 08.06.2021 he and his wife - Chandrikaben Dayalal Khandelwal along with their son - Kiran Kumar, all three were travelling in Hyundai Santro car bearing no.GJ-8D-8021, as stated in the complaint / FIR and Panchnama, produced at Exhibit - 54 and 55. Referring to the said observation, Mr. Mehta submitted that the FIR discloses the course of event of accident and as the son of the claimant had not sustained any injury, no claim petition was preferred. Mr. Mehta further stated that there was no reason for the appellant to conceal any Page 5 of 29 Downloaded on : Sat Dec 24 18:26:03 IST 2022 C/FA/61/2022 JUDGMENT DATED: 08/06/2022 fact from the Tribunal since the FIR itself was lodged by the son of the appellant.
8. Mr. Mehta further stated that the observation so made by the Tribunal is not consistent with the evidence given by the appellant. Mr. Mehta submitted that the learned Judge ought to have only appreciated the evidence on record; and further stated that no such objection was raised by the other side nor there was any challenge to the FIR, which was lodged at the behest of son of the claimant. Mr. Mehta further stated that panchnama so drawn proved the existence of both the vehicles at the place of accident. There was no cause or any reason for the appellant to misdirect the Court or mislead any facts, as the incident was recorded by way of FIR and Panchnama. He further stated that the issue of negligence was already decided in M.A.C.P. No.2033 of 2009, therefore, submitted that the observations made by the learned Judge are erroneous on the face of the record.
9. Mr. Mehta, to the observation of fraud, strongly contended that the learned Judge has committed a serious error by observing that there was misrepresentation of fact for gaining false compensation by fraudulent activity. Mr. Mehta stated that these observations so made in paragraph nos.17 and 18 itself reflects the bias mind of the Judge and the prejudice so carried during the course of trial and thus it is submitted Page 6 of 29 Downloaded on : Sat Dec 24 18:26:03 IST 2022 C/FA/61/2022 JUDGMENT DATED: 08/06/2022 by Mr. Mehta that those are required to be expunged since operative order would tarnish the image of the appellant, as well as his Advocate, who both have a long standing practice as Doctor (surgeon) and Advocate.
10. Opponent No.2, the national Insurance Co. Ltd., though served, none appeared. Having heard learned Advocate Mr. Mehta and on perusal the material placed on record, it is to be noted that, in M.A.C.P. No.2033/2009 (Old No.44/2002), the Motor Accident Claim Tribunal (Auxi.) was pleased to consider the claim of the wife of the appellant which had arisen out of the same accident. The learned Tribunal had considered the driver of the truck sole negligent for the accident and accordingly the compensation was granted to the wife of the present appellant. The issue of negligence was already decided by the concerned Tribunal and thus the Tribunal in the present impugned judgment was required to follow the issue so decided, since no further facts were brought to the notice of the Court nor there was any change in facts situation. The grounds, which were taken into consideration for dismissing the claim petition were totally misplaced. There is no denial to the fact of the vehicle so involved in the accident. More so, when the claimant had moved the Tribunal praying for compensation against the insurance company of the involved offending truck, there is nothing on record nor anything adverse is observed by the Judge concerned of any misrepresentation of the fact with regard to the Page 7 of 29 Downloaded on : Sat Dec 24 18:26:03 IST 2022 C/FA/61/2022 JUDGMENT DATED: 08/06/2022 offending truck or its brand name or any registration number. The FIR was registered, panchnama was drawn, the make/type/model of the vehicle so involved were already brought on record by way of FIR and panchnama; further the said facts were already appreciated in M.A.C.P. No.2033/2009 (Old No.44/2002). It is also sad to note that both the claim petitions which ought to have been conducted together were decided by two different Chairman. The judgment in both the claim petitions should have been declared on the very same day, failure of the procedural aspect has led to contrary observations and judgment. The Tribunal in the subsequent decision ought to have followed the principle of res judicata, since the observation in M.A.C.P. No.2033/2009 (Old No.44/2002) has achieved finality, as no appeal was filed against the observations made in the said claim petition.
11. In the case of United India Insurance Co. Ltd. Vs. Laljibhai Hamirbhai & Ors., reported in 2007 (1) GLR 633, referred by learned advocate Mr. Mehta, the Court has decided on the concept of res judicata in motor accident claim petition, where the issue of negligence was decided in the earlier claim petition in case of collision of two vehicles. In earlier petition, the Tribunal held that the truck driver was negligent upto 30% while in the subsequent claim petition the Tribunal held the truck driver negligent upto 100%. Except the claimant, the parties in both the petitions were same. It Page 8 of 29 Downloaded on : Sat Dec 24 18:26:03 IST 2022 C/FA/61/2022 JUDGMENT DATED: 08/06/2022 was held that the decision by the Tribunal in petition decided earlier operates as 'res judicata' in subsequent petition. It was further held that when questions at issues and contesting defendants being same, the bar of res judicata would operate. Even if, the principle of res judicata is not pleaded, still it was held that the bar of res judicata would operate. It was further held that in case where materials placed before the Tribunal are different in two petitions, even then, if the question at issue and parties are same, the material which led to decision being different, makes no difference and bar of res judicata would operate.
12. Thus, in view of the law so propounded by the Court in case of United India Insurance Co. Ltd. Vs. Laljibhai Hamirbhai & Ors. (supra), Advocate Mr. Mehta has been successful to demonstrate that the judgment of the Tribunal is erroneous in the eyes of law.
13. Advocate Mr. Mehta showed concern, while expressing that judicial officers should never ever work with prejudice mind nor should express any bias against any litigants or the Advocates representing those litigants without observing any specific case of contempt of the Court. Mr. Mehta strenuously submitted that none of the observations so raised by the learned Judge were ever pleaded by any of the parties nor there was any pleading of act of fraud against the claimant, nor of any misrepresentation of facts or suppression of any material Page 9 of 29 Downloaded on : Sat Dec 24 18:26:03 IST 2022 C/FA/61/2022 JUDGMENT DATED: 08/06/2022 facts. Mr. Mehta further stated that the observations so made would affect the moral standard of the litigant, who being the Doctor (surgeon) had been practicing medicine for the welfare of ailing patience.
14. This Court also considers that the learned Judge had gone over board while passing the orders of exemplary cost against the appellant and his advocate, considering it as a case of professional misconduct blemishing it with the observation that false and fake claim petition, concealing the facts of the case, misleading the Tribunal, though legally not eligible/entitled, has been filed.
14.1 The Tribunal considering the aspect as professional misconduct and practice against the rules of professional ethics in the operative part of the order, ordered the claimant to pay Rs.50,000/- as exemplary cost to T.L.S.A. Deesa; his advocate to pay Rs.25,000/- exemplary cost within 45 days from the date of the judgment. In default the amount to be recovered from both, the applicant and his advocate, through revenue sources. The T.L.S.A., Deesa is directed to approach the Collector and submitting the xerox copy (photo copy) of the judgment, the Collector is to issue necessary orders in compliance of the direction of the judgment.
14.2 Further a photo copy of the judgment was ordered to be forwarded by R.P.A.D. to Medical Council Page 10 of 29 Downloaded on : Sat Dec 24 18:26:03 IST 2022 C/FA/61/2022 JUDGMENT DATED: 08/06/2022 of Gujarat & Medical Council of India with direction of taking serious note of the conduct of the appellant and a copy by R.P.A.D. to Bar Council of Gujarat for taking serious note of the conduct of the advocate of the claimant; one copy of the judgment with attachment of all necessary documents was ordered to be forwarded to DYSP Deesa (Dist. B.K.), for complaint/implementation of the order.
14.3 The learned Tribunal passed the following order vide para-4 of the operative portion of the judgment, which is reproduced herein below:
"4. DYSP Deesa (Dist. B.K.) under his subordination is hereby directed to initiate the inquiry in regards to the ownership and insurance policy of vehicle MARUTI CAR bearing registration no.G.J.8.D.5021, and ownership and insurance policy of vehicle HYANDAI SANTRO CAR bearing registration no.G.J.8.D.8021, & after thorough investigation, forward the conclusive report to this Tribunal with all attachments of necessary documents within a period of 45 days from the date of receipt of this order / judgment. And at the end of inquiry / investigation if any antecedent / evidence of commission of crime / fraud is purporting, in regards to filing of this claim Page 11 of 29 Downloaded on : Sat Dec 24 18:26:03 IST 2022 C/FA/61/2022 JUDGMENT DATED: 08/06/2022 petition then criminal offence be registered against all concerned, whomsoever involved in the commission of offence, & thereafter report accordingly to this Tribunal."
14.4 The learned Tribunal to come to the above conclusion and to pass the final order, has given its reasons in paras (17) and (18), which are reproduced as under:
"17. Now under these circumstances, it is pertinent to note that it is not the case of the applicant "that on dt.8-6-2001, he and his wife chandrikaben and son Kiran Kumar all three together were travelling in the HYANDAI SANTRO car bearing G.J.8.D.8021, as stated in the complaint / F.I.R. and Panchanama, produced at Exh.54 & 55 in the present claim petition and had met with the accident due to the rash, negligent and careless driving of the driver of the offending vehicle Truck bearing no.RJ.27.G.3427 and had sustained the injuries due to the alleged accident" but it is the case of the applicant " that on dt.8-06- 2001, he and his wife only two of them were travelling in the MARUTI CAR of his own ownership bearing no.G.J.8.D.5021, as stated in the present claim petition and had Page 12 of 29 Downloaded on : Sat Dec 24 18:26:03 IST 2022 C/FA/61/2022 JUDGMENT DATED: 08/06/2022 met with the accident due to the rash, negligent and careless driving of the driver of the offending vehicle Truck bearing no.RJ.27.G.3427 and had sustained the injuries due to the alleged accident. Now in view of the above, it is pertinent to note that two sets of facts which are emerging over here are that there are two different four wheeler vehicle cars of different company, one is HYANDAI SANTRO & second is MARUTI CAR and both are bearing different registration numbers, however, documentary papers of none of the vehicle are being produced by the parties nor it is being demanded by the opponents, on the face of record, which itself not only appears to be doubtful & suspicious in the eye of law but also gives an indication that there is some scam behind this mystery which has been burried long before many years, by submitting misleading facts & information before the Tribunal. It also appears to be a misrepresentation of facts for gaining false compensation by fraudulent activity. Fraud is wrongful or criminal deception for financial gain. Auto insurance fraud can range from mild exaggeration of an actual injury to criminal conspiracy to fake accidents and file false claims. However, as the facts of present case on hand are appearing to be the rarest of rare kind are Page 13 of 29 Downloaded on : Sat Dec 24 18:26:03 IST 2022 C/FA/61/2022 JUDGMENT DATED: 08/06/2022 speaking volume about the truth itself & therefore the principle of "Res Ipsa Loquitor" is being squarely applicable over here but apart from that the only way left out to know the actual truth & solve the mystery is to initiate a police inquiry & investigate the matter/issue in question from the roots & at the end of inquiry/investigation if any fraudulent activity or commission of any criminal offence is coming on record then the offence be registered against all the concerned, whomsoever are involved in the scam.
18. In the foregoing discussions, it is further pertinent to note that, when the issue of involvement of the vehicle Maruti Car in which the applicant and his wife were travelling and the alleged accident had occurred by the offending vehicle RJ.27.G.3427, is itself not being proved beyond doubt, then in that circumstances, question of deciding the quantum and liability would not at all arise nor discussions of any other documents or pleadings on that aspect would arise, as it is deemed to be understood and believed that the applicant though being from medical profession and though being a Doctor with degree, by forgetting all the moral & ethics has came before this Tribunal in abetement / Page 14 of 29 Downloaded on : Sat Dec 24 18:26:03 IST 2022 C/FA/61/2022 JUDGMENT DATED: 08/06/2022 conspiracy of his advocate Mr. A.D. Acharya, to seek compensation by filing totally false & fake macp claim petition on the basis of the vehicle MARUTI CAR bearing reg.
no.G.J.08.D.5021, (documentary papers of which are never submitted at any stage in the present claim petition, though declared on oath that said car was of his ownership) and which has never met with the accident with the alleged offending vehicle bearing reg. no.RJ.27.G.3427 and therefore the applicant is not being legally entitled to claim the amount of compensation under any heads from any of the opponents and therefore answer to the Issue Nos.2 &3 would turn into negative and lastly for Issue No.4 this Tribunal is inclined to pass the following final order."
14.5 It appears that the learned Tribunal failed to take notice of the fact that the claim petition for compensation was filed against the offending vehicle, a truck bearing Registration No.RJ-27-G-3427. In MACP No.2033/2009 (Old No.44/2002), the co-ordinate Tribunal had held the said truck solely liable for the accident. The issue of negligence was already decided by the co- ordinate Tribunal, thus, the principle of res judicata as held in Laljibhai Hamirbhai & Ors. case (supra) would become applicable; and further the significant facts Page 15 of 29 Downloaded on : Sat Dec 24 18:26:03 IST 2022 C/FA/61/2022 JUDGMENT DATED: 08/06/2022 remains that the FIR was lodged by the son of the claimant. The FIR as well as Panchnama were on record. The Tribunal had the opportunity to verify the make/brand of the vehicle of the ownership of the claimant; further the claimant in evidence, in affidavit of chief-examination, has referred by addressing the vehicle as his car. He has not stated on oath that it was 'Maruti Car'. It is only the evidence which comes on record which is to be appreciated, while no cross-examination was from the other side, specifically the Insurance Company complaining of making false claim or misrepresenting the make of the car, nor any case was pleaded of fraud or implanting any car other than that of the ownership of the claimant. The learned Tribunal, considering the fact that neither documentary papers of name of the vehicle were produced by the parties nor was demanded by opponents, found it doubtful and suspicious in the eye of law, and found that it gives an indication of some scam behind it which the learned Tribunal considered it, as mystery buried long before many years. This observation is not supported by any report of any Insurance Company, to conclude that some claim petition is under any scam of auto insurance fraud. The learned Tribunal has also made reference of Bar Council of India suspending 28 lawyers named in FIRs or chargesheets for allegedly filing fake claims under Motor Accident Act and Workmen Compensation Act, to consider the compensation petition as false, fake claim. It is settled principle, which even Page 16 of 29 Downloaded on : Sat Dec 24 18:26:03 IST 2022 C/FA/61/2022 JUDGMENT DATED: 08/06/2022 requires no mentioning, that every case is decided on appreciation of its own pleadings, circumstances and the evidence recorded in it, if such accident and injuries are proved then compensation should be awarded, such claim cannot be left over on the mercy of the criminal case or its papers. The party has right to prove his case by leading evidence before the Tribunal and Tribunal may consider even in the absence of the criminal case. Here in the present case FIR was registered by the son of the claimant before the police, and further the claim petition of the wife of the appellant was already allowed by the co- ordinate Tribunal, deciding the issue of negligence, making liable the offending truck for the accident, and the compensation came to be granted.
14.6 In case of Kusum Lata & Ors. V. Satbir And Ors., reported in AIR 2011 Supreme Court 1234, Apex court observing held that, when a person is seeing that his brother, being knocked down by a speeding vehicle, was suffering in pain and was in need of immediate medical attention, that person is obviously under a traumatic condition. His first attempt will be to take his brother to a hospital or to a doctor. It is but natural for such a person not to be conscious of the presence of any person in the vicinity especially when other person did not stop at the spot after the accident and gave a chase to the offending vehicle. Under such mental strain if the brother of the victim forgot to take down the number of the offending vehicle it was also not unnatural. Therefore, Page 17 of 29 Downloaded on : Sat Dec 24 18:26:03 IST 2022 C/FA/61/2022 JUDGMENT DATED: 08/06/2022 that by itself cannot justify the findings reached by the Tribunal that offending vehicle was not involved in accident.
14.7 The provisions regarding claim under the Motor Vehicles Act are enacted by keeping in view the social welfare, whenever the incident of vehicular accident takes place, and pursuance to it any person like the appellant got injured and circumstances are proved then claimant is always entitled for compensation irrespective whether the police has registered the offence regarding the incident or not. The facts noticed by the Tribunal considering as misrepresentation of fact, are errors in pleadings which are subject to amendment, which may be the cause of carelessness of the staff of the Advocate concerned or by error in typing. Had the Tribunal brought it to the notice of the Advocate on record, the learned advocate certainly would have moved application for amendment to put the record straight. In decision of Jai Prakash Vs. National Insurance Co. Ltd. And Others, reported in 2010 ACJ 455, the Hon'ble Apex Court has dealt with quite some deficiency that comes in the way of efficient working of the motor vehicles. Supreme Court issued various direction to police, Tribunal and Insurance Company in the said judgment, which reads as under:
"Para-8. The Director General of Police of each State is directed to instruct all Police Page 18 of 29 Downloaded on : Sat Dec 24 18:26:03 IST 2022 C/FA/61/2022 JUDGMENT DATED: 08/06/2022 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 in Form No. 54 of the Central Motor Vehicle Rules,1989 (`AIR' for short) shall be submitted by the police (Station House Officer) to the jurisdictional Motor Vehicle 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 postmortem report (in case of death) or the Injury/Wound certificate (in the case of injuries). The names/addresses of injured or dependant family members of the deceased Page 19 of 29 Downloaded on : Sat Dec 24 18:26:03 IST 2022 C/FA/61/2022 JUDGMENT DATED: 08/06/2022 should also be furnished to the Tribunal.
(iii) Simultaneously, copy of the AIR with annexures thereto shall be furnished to the concerned insurance company to enable the Insurer to process the claim.
(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.
Para-13 For complying with section 166(4) of the Act, the jurisdictional Motor Accident 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 Page 20 of 29 Downloaded on : Sat Dec 24 18:26:03 IST 2022 C/FA/61/2022 JUDGMENT DATED: 08/06/2022 police to notify such date to the victim (family of 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 Page 21 of 29 Downloaded on : Sat Dec 24 18:26:03 IST 2022 C/FA/61/2022 JUDGMENT DATED: 08/06/2022 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 Fixed deposit and disbursed as per the directions contained in General Manager, KSRTC v.
Susamma Thomas [1994 (2) SCC 176].
(h) As the proceedings initiated in pursuance of Section 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 dependents of the deceased victim and in determining the quantum of compensation.
14. The aforesaid directions to the Page 22 of 29 Downloaded on : Sat Dec 24 18:26:03 IST 2022 C/FA/61/2022 JUDGMENT DATED: 08/06/2022 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 Section 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.
14.8 Learned Tribunal has referred to the judgments
(i) in case of Rameshbhai Dalsangbhai Raval Vs. State of Gujarat, in SCR.A. No.4794/2019 (ii) in case of Affiruddin S.K. @ Asabul Sk. @ Patai Sk. (iii) in Special Leave to Appeal (crl.) No.(s)4634/2014 (iv) judgment of Hon'ble Supreme Court in case of Kishore Samrite v. State of Uttar Pradesh And Others, reported in (2013) 2 SCC 398; to pass an order of imposing exemplary cost on advocate. The judgments were relied to support the observation for concealing the true facts and being irresponsible to the court.
Page 23 of 29 Downloaded on : Sat Dec 24 18:26:03 IST 2022C/FA/61/2022 JUDGMENT DATED: 08/06/2022
15. Every Judge should bear in mind that advocate is an officer of the Court, being there to assist the Court. Chapter-II of Bar Council of India Rules enumerates 'Standards of Professional Conduct and Etiquette'. Section-I prescribes Duty to the Court, which are as under:
"1. An advocate shall, during the presentation of his case and while otherwise acting before a court, conduct himself with dignity and self-respect. He shall not be servile and whenever there is proper ground for serious complaint against a judicial officer, it shall be his right and duty to submit his grievance to proper authorities.
2. An advocate shall maintain towards the courts a respectful attitude, bearing in mind that the dignity of the judicial office is essential for the survival of a free community.
3. An advocate shall not influence the decision of a court by any illegal or improper means. Private communications with a judge relating to a pending case are forbidden.
4. An advocate shall use his best efforts to restrain and prevent his client from resorting to sharp or unfair practices or from doing anything in relation to the court, Page 24 of 29 Downloaded on : Sat Dec 24 18:26:03 IST 2022 C/FA/61/2022 JUDGMENT DATED: 08/06/2022 opposing counsel or parties which the advocates himself ought not to do. An advocate shall refuse to represent the client who persists in such improper conduct. He shall not consider himself a mere mouth- piece of the client, and shall exercise his own judgment in the use of restrained language in correspondence, avoiding scurrilous attacks in pleadings, and using intemperate language during arguments in court."
16. The Hon'ble Supreme Court in case of A.M. Mathur Vs. Pramod Kumar Gupta And Others, reported in (1990) 2 Supreme Court Cases 533, held that, judicial restraint and discipline are as necessary to the orderly administration of justice as they are to the effectiveness of the army. The duty of restraint, this humility of function should be a constant theme of the judges. This quality in decision making is as much necessary for judges to command respect as to protect the independence of the judiciary. Judicial restraint in this regard might better be called judicial respect, that is, respect by the judiciary. Respect to those who come before the Court as well to other co-ordinate branches of the State, the executive and the legislature. There must be mutual respect. When these qualities fail or when litigants and public believe that the judge has failed in these qualities, it will be neither good for the judge nor for the judicial process.
Page 25 of 29 Downloaded on : Sat Dec 24 18:26:03 IST 2022C/FA/61/2022 JUDGMENT DATED: 08/06/2022 16.1 The Hon'ble Supreme Court further held that, the Judge's Bench is a seat of power. Not only do judges have power to make binding decision, their decisions legitimate the use of power by other officials. The Judges have the absolute and unchallengeable control of the Court domain. But they cannot misuse their authority by intemperate comments, undignified banter or scathing criticism of counsel, parties or witnesses. Though the court has the inherent power to act freely upon its own conviction on any matter coming before it for adjudication, but it is a general principle of the highest importance to the proper administration of justice that derogatory remarks ought not to be made against persons or authorities whose conduct comes into consideration unless it is absolutely necessary for the decision of the case to animadvert on their conduct.
17. The Hon'ble Supreme Court in case of P.D. Dinakaran Vs. Judges Inquiry Committee And Ors., reported in (2011) 8 SCC 380, propounded the law in regard to bias and held that, the first of the two principles of natural justice recognised by the traditional English Law is nemo debet esse judex in propria causa. This principle consists of the rule against bias or interest and is based on three maxims: (i) No man shall be judge in his own cause; (ii) Justice should not only be done, but manifestly and undoubtedly be seen to be done; and (iii) Page 26 of 29 Downloaded on : Sat Dec 24 18:26:03 IST 2022 C/FA/61/2022 JUDGMENT DATED: 08/06/2022 Judges, like Caesar's wife should be above suspicion. The first requirement of natural justice is that the Judge should be impartial and neutral and must be free from bias. He is supposed to be indifferent to the parties to the controversy. He cannot act as a Judge of a cause in which he himself has some interest either pecuniary or otherwise as it affords the strongest proof against neutrality. He must be in a position to act judicially and to decide the matter objectively. A Judge must be of sterner stuff. His mental equipoise must always remain firm and undetected. He should not allow his personal prejudice to go into the decision making. The object is not merely that the scales be held even; it is also that they may not appear to be inclined. If the position that a bias can be assumed, he is disqualified to act as a Judge, and the proceedings will be vitiated. This rule applies to the judicial and administrative authorities required to act judicially or quasi-judicially.
18. The Hon'ble Apex Court in case of N.K.V. Bros. (P.) Ltd. Vs. M. Karumai Ammal and Others etc., reported in AIR 1980 Supreme Court 1354, held that, accidents tribunals must take special care to see that innocent victims do not suffer and drivers and owners do not escape liability merely because of some doubt here or some obscurity there. Save in plain cases, culpability must be inferred from the circumstances where it is fairly reasonable. The court should not succumb to niceties, technicalities and mystic maybes.
Page 27 of 29 Downloaded on : Sat Dec 24 18:26:03 IST 2022C/FA/61/2022 JUDGMENT DATED: 08/06/2022 18.1 The Hon'ble Apex further further held in the said judgment that, there was no reason why the Tribunal and the High Court would ignore the otherwise reliable evidence of person who chased vehicle. In fact, no cogent reason has been assigned either by the Tribunal or by the High Court for discarding the evidence. The so-called reason that as the name of that person was not mentioned in the FIR, so it was not possible for him to see the incident, is not a proper assessment of the fact-situation in this case. In a case relating to motor accident claims, the claimants are not required to prove the case as it is required to be done in a criminal trial.
19. In view of the observations made hereinabove, the judgment dated 29.11.2021 passed by the Motor Accident Claims Tribunal (Auxiliary), Banaskantha at Deesa in M.A.C.P. No.2394/2009 (Old No.43/2002) is quashed and set aside. The matter is remanded back to the Motor Accident Claim Tribunal (Auxi.), Banaskantha at Deesa for consideration afresh from the stage of argument with direction that the learned trial Court would not be influenced by any observations made in M.A.C.P. No.2394/2009 (Old No.43/2002) to decide the quantum of compensation.
20. In view of the above observations, the appeal is allowed in the aforesaid terms.
Page 28 of 29 Downloaded on : Sat Dec 24 18:26:03 IST 2022C/FA/61/2022 JUDGMENT DATED: 08/06/2022
21. No order in connected Civil Application. The application stands disposed of accordingly.
R & P, if any, be sent back to the concerned Court forthwith.
(GITA GOPI, J.) Pankaj Page 29 of 29 Downloaded on : Sat Dec 24 18:26:03 IST 2022