Rajasthan High Court - Jaipur
Shabeer Khan vs Gaurav Sharma And Another on 3 February, 2014
Author: R.S. Chauhan
Bench: R.S. Chauhan
S.B. CMA No. 547/2013 1 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JAIPUR BENCH, JAIPUR J U D G M E N T S.B. Civil Misc. Appeal No. 547/2013 ShabbeerKhanv. GauravSharma& Anr. UNDER SECTION 173 OF THE M.V. ACT, 1988 AGAINST THE AWARD DATED 30.10.2012 PASSED BY THE LEARNED MACT, CHOMU, DISTRICT JAIPUR Date of Judgment : 3rd February, 2014 HON'BLE MR. JUSTICE R.S. CHAUHAN Mr. Sandeep Mathur, for the appellant. The appellant, Shabbeer Khan, is aggrieved by the award dated 30.10.2012 passed by the learned Motor Accident Claims Tribunal, Chomu, District Jaipur, whereby the learned Tribunal has dismissed the claim petition filed by the appellant. 2. The brief facts of the case are on 13.7.2010, Shabbeer Khan was going to court at Bani Park through Indira Bazar, as a pedestrian, on the correct side of the road. When he reached near Pashu Chikitsalaya, at about 11:30 AM, a car bearing Registration No. RJ-14-CC-7869, being driven rashly and negligently, came from opposite direction i.e. from Gopinath Marg and hit him. Consequently, the appellant sustained grievous injuries. Thereafter, the appellant was taken to hospital by the same car. Due to the injuries sustained by him, the appellant filed a claim petition before the Tribunal. S.B. CMA No. 547/2013 2 After going through the oral and documentary evidence, the learned Tribunal dismissed the claim petition filed by the appellant. Hence, this appeal. 3. The learned counsel for the appellant has vehemently raised the following contentions before this Court: firstly, the learned Tribunal was not justified in rejecting the claim petition on the ground that the FIR was delayed almost by two months. After all, on the date of accident i.e. on 13.7.2010, a Rojnamcha Report has been registered by the police. Thus, the report was given to the police and according to Rojnamcha, an accident did occurred with a car. Secondly, since the appellant has suffered a fracture of both bones of the right leg, and his jaw, he was not in a position to lodge the FIR immediately. Since, the delay has been explained by the appellant, the claim petition could not have been rejected on the ground of inordinate delay in lodging of the FIR. Thirdly, the owner Gaurav Sharma has himself admitted that the accident did take place with his vehicle. Moreover, he has confessed to the offence during the criminal trial. Therefore, the learned Tribunal should have granted the compensation as prayed by the appellant. Lastly, no evidence was led by the respondent-owner. Therefore, the learned Tribunal was unjustified in dismissing the claim petition. In order to buttress his contentions, the learned counsel for the appellant has relied on the cases of Bhanwar Lal Verma v. Sharad TholiaS.B. CMA No. 547/2013 3
& Ors. [2007 R.A.R. 142 (Raj.)], Kusum Lata & Ors. v. Satbir & Ors. [MACD 2011 (SC) 42], Ravi v. Badrinarayan & Ors. [MACD 2011 (SC) 46] and Bimla Devi & Ors. v. Himachal Road Trans. Corpn. & Ors. [2009 ACJ 1725].
4. Heard the learned counsel for the appellant and perused the impugned award and considered the case law cited at the bar.
5. Although, it is true that a delay in lodging of an FIR is not always fatal to the case of the claimant, but the delay needs to be explained by the claimant. In case, there is a reasonable explanation for the delay in lodging of the FIR, the FIR cannot be said to be inordinately delayed. Therefore, in such a case, notwithstanding the alleged delay, case of the claimant has to be adjudicated properly.
6. Admittedly, in the present case, the alleged accident took place on 13.7.2010, yet the FIR was not lodged till 13.9.2010, i.e. exactly after two months. According to the appellant himself, on 13.7.2010, when the police reached the hospital, he gave a statement to them. On the basis of that statement, a Rojnamcha was written. However, in the Rojnamcha, he did not give the number of the offending vehicle. Moreover, he did not mention the fact that his daughter was with him when the alleged accident took place. Moreover, according to the discharge ticket, he was discharged from the hospital, after three days. Yet there is a studied silence on his part for one month and twenty-seven days. The silence has not been explained by him in his testimony before the S.B. CMA No. 547/2013 4 learned Tribunal. Because of his silence, the learned Tribunal was certainly justified in concluding that the delay in lodging of the FIR is fatal to his case.
7. The explanation being given by the learned counsel for the appellant before this Court is that his one leg and the jaw were fractured, therefore, he could not lodge the FIR immediately. However, the said explanation is clearly untenable. For, if the appellant was able to describe and inform the police that he had met with an accident with a car. If, he knew the number of the car, he is expected to give information to the police while they were recording his statement. Yet, he has failed to do so. Since, the explanation being given by the appellant is unacceptable, the delay in lodging of the FIR is obviously a fatal one.
8. Merely because the owner may have admitted the offence that by itself would not buttress the case of the appellant. For the simple reason that the finding of criminal court is not binding upon the Tribunal. The claimant's case has to stand on his own two legs. However, the claimant has failed to prove the fact that the accident had occurred with a particular offending vehicle namely, Chevrolet Optra Car bearing Registration No. RJ-14-CC-7869. The learned Tribunal was certainly justified in dismissing his claim petition.
9. The learned counsel for the appellant has relied upon the case of Bhanwar Lal Verma (supra). However, the said case of Bhanwar Lal Verma (supra) is not applicable to the present case. In case of Bhanwar Lal Verma S.B. CMA No. 547/2013 5 (supra), the FIR had been lodged under a mistake of fact. However, it is not the situation in the present case.
10. Similarly, the case of Kusum Lata & Ors. (supra) is distinguishable on factual matrix. In the case of Kusum Lata & Ors. (supra), the FIR had been lodged by Ashok Kumar, the brother of the deceased, who had seen his brother being hit by car, and who had rushed to the hospital with his injured brother. In these circumstances, the Hon'ble Supreme Court had opined that it may be natural for Ashok Kumar not to note the number of offending vehicle, as he would be emotionally disturbed at that time, when he saw his own brother hit by car. However, in the present case, it is the injured himself, who has described the accident to the police. Therefore, he cannot claim that his memory was good while describing the accident, and it had suddenly failed when it came to giving number of offending vehicle.
11. Similarly, the case of Ravi (supra) is inapplicable to the present case. For, in the case of Ravi (supra), the delay in lodging of the FIR was satisfactorily explained. However, in the present case, the delay has not been explained satisfactorily by the appellant.
12. Even the case of Bimla Devi & Ors. (supra) does not support the case of the claimant. For, there is no issue with the opinion of the Apex Court that claim petition has to be decided on the basis of preponderance. However, in the present case, the preponderance is not in the favour of the appellant, but against him.
S.B. CMA No. 547/201313. For the reasons stated above, this Court does 6 not find any merit in the present appeal. It is, hereby, dismissed.
(R.S. CHAUHAN),J.
Mak/-97 All corrections made in the judgment/orderhave been incorporated in the judgment/orderbeing emailed.
Anil Makawana Jr. P.A.