Gujarat High Court
Oriental Insurance Co Ltd vs Bakunvarba Harisinh Hemantsinh & 5 on 15 January, 2014
Author: Harsha Devani
Bench: Harsha Devani
C/FA/4862/2008 JUDGMENT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
FIRST APPEAL NO.4862 of 2008
FOR APPROVAL AND SIGNATURE:
HONOURABLE MS. JUSTICE HARSHA DEVANI
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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, 1950 or any
order made thereunder?
5 Whether it is to be circulated to the civil judge?
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ORIENTAL INSURANCE CO LTD....Appellant(s)
Versus
BAKUNVARBA HARISINH HEMANTSINH & 5....Defendant(s)
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Appearance:
MR KK NAIR, ADVOCATE for the Appellant(s) No.1
MR SATYAJIT SEN, ADVOCATE for MR KG SHETH, ADVOCATE for the
Defendant(s) No.1 - 4
RULE SERVED for the Defendant(s) No.5 - 6
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CORAM: HONOURABLE MS. JUSTICE HARSHA DEVANI
Date : 15/01/2014
ORAL JUDGMENT
1. This appeal under section 173 of the Motor Vehicles Act, 1988 at the instance of the Insurance Company is directed Page 1 of 34 C/FA/4862/2008 JUDGMENT against the judgment and award dated 15 th February, 2008 passed by the Motor Accident Claims Tribunal (Auxiliary) at Ahmedabad (hereinafter referred to as "the Tribunal") in Motor Accident Claim Petition No.23/1992.
2. The respondents No.1 to 4 herein (hereinafter referred to as "the claimants") filed a claim petition before the Motor Accidents Claims Tribunal seeking compensation of Rs.10,09,716/- from the appellant and respondents No.5 and 6 for the death of Harisinh Hemantsinh Zala, who was the husband of respondent No.1 and father of respondents No.2 to 4, in a vehicular accident that is alleged to have taken place on 12th August, 1991. The claimants filed the above referred claim petition before the Tribunal wherein it was stated that the respondent No.3 - Vijaysinh Harisinh Zala and his deceased father had gone shopping at Teen Darwaza and at 7:30, both of them were going on foot and they had reached near the Bank of India at Bhadra, at which point of time, since they were to go towards Premabhai Hall, they had tried to cross the road, when the respondent No.6 who was riding a scooter bearing registration No.GJ-1-D-5252, came from the opposite side from the direction of UCO Bank with great speed and without taking any care and without sounding the horn and in a manner that was dangerous to the life of human beings, and dashed against his father due to which he fell down. The said respondent did not stop and went ahead whereupon he (the respondent No.3) had started shouting and people had gathered there and caught hold of the scooterist. That on account of the collision with the scooter, his father had sustained injuries on his head and other parts of the body as a result whereof, his father had expired on 15th August, 1991. It was the case of the claimants Page 2 of 34 C/FA/4862/2008 JUDGMENT that the deceased was serving with the Ahmedabad District Co-operative Bank since the last twenty seven years. At the time of the accident, he was aged 50 years and was hale and hearty and was working as an Assistant Senior Inspector at the said bank and his annual income was Rs.92,543/- and he also had income from agricultural land owned by him at Dholka. Before the Tribunal, the claimants in support of their say examined the respondent No.3 - Vijaysinh Harisinh Zala as well as one Prakashbhai Jagjivanbhai Patel as eye-witness and Dr. Ranjitbhai Vijayshankar Acharya, the Neurosurgeon who has treated the deceased prior to his death. Various other documentary evidences also came to be produced by the parties. The Tribunal after appreciating the evidence on record came to the conclusion that the accident had in fact taken place on account of the negligence of the scooter driver and that the monthly income of the deceased was Rs.7,100/-. Considering the prospective income of the deceased at Rs.10,650/- and applying a multiplier of 11 and deducting one- third of the income for his personal expenditure, the Tribunal worked out the future loss of dependency at Rs.9,37,200/-. The Tribunal further awarded a sum of Rs.15,000/- for pain, shock and suffering, Rs.10,000/- for loss of love and affection, Rs.10,000/- for loss of expectation of life and Rs.2,000/- for funeral expenses. Thus, in all, a sum of Rs.9,77,200/- came to be awarded with interest at the rate of 7.5% per annum. Being aggrieved, the appellant - insurance company has preferred the present appeal.
3. Mr. K.K. Nair, learned advocate for the appellant submitted that the challenge to the impugned judgment and award is to the very factum of accident and the involvement of Page 3 of 34 C/FA/4862/2008 JUDGMENT the vehicle in question. It was submitted that the Tribunal was not justified in holding that the accident had in fact taken place. Referring to the decision of the Supreme Court in the case of Jai Prakash v. National Insurance Company Ltd. & Ors., 2010 (1) Scale 8, it was submitted that the Tribunal is required to inquire 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 or doctor' nexus which has come to light in several cases). It was argued that in an action based on tort, it is imperative that the claimant has to establish that (1) the accident did take place in the manner alleged and it was the cause of injury/death complained of, (2) it was caused by the particular vehicle, and (3) the person who had caused the accident and his negligence had caused the accident, whereas, all the above aspects have not been proved in the present case. It was submitted that it is the case of the claimants that the original respondent No.2 - Ajitkumar Dahyabhai Patel who was alleged to be riding the scooter of the opponent No.1 - Somabhai Gandabhai Patel which was insured with the appellant herein, rashly and negligently, knocked down the deceased who was crossing the road in the company of his son. It was pointed out that the owner of the scooter was stated to be a Member of Parliament staying at Viramgam. The scooterist is residing at Vasna Bhatta and the applicants and the deceased resided at Fatehpura which is in the same locality. It is alleged that the rider tried to flee with the scooter but the public collected and caught hold of him about 100 to 150 feet from the scene of incident. Despite this, the respondent No.3 - Vijaysinh simply noted down the number of the scooter and the name and address of the rider and allowed him to go. Vijaysinh, however, did not file Page 4 of 34 C/FA/4862/2008 JUDGMENT a police complaint but took his father home in a rickshaw; despite the fact that his father had sustained serious injuries, he did not take him to the V.S. Hospital which was on his way to the residence or to any other doctor; after reaching home, when the deceased complained of pain, Vijaysinh contacted Dr. R.V. Acharya, a Neurologist and as per his instructions took Harisinh to Ashirwad Hospital where he was admitted. Curiously, he did not inform the doctor about the alleged accident. Subsequently, when Harisinh died in the hospital on 15th August, 1991, no post-mortem was performed. It was pointed out that thereafter at a belated stage, a complaint came to be filed before the Metropolitan Magistrate on 8 th October, 1991 against the scooter rider who was prosecuted and Criminal Case No.3903/1991 was initiated against him. It was submitted that the very narration of the accident itself shows that the story put up is highly improbable, inasmuch as, the accident is alleged to have taken place in the Bhadra area which is a crowded place all throughout the day and especially in the evening. The accident is alleged to have taken place near the Karanj Police Station and, therefore, presence of police personnel would be expected, especially in the evening time. If an accident, as alleged, had happened and people had collected, the police would certainly have taken cognizance of the event and taken note of the same. Moreover, despite the fact that witness Prakashbhai has advised Vijaysinh to lodge a complaint, he did not file a first information report and permitted the rider to go, after simply noting down the number of the scooter and the name and address of the rider. It was submitted that the fact that the claimants and rider Ajitbhai reside in the nearby locality cannot be a mere coincidence. It was pointed out that Vijaysinh did not inform Dr. Acharya of the Page 5 of 34 C/FA/4862/2008 JUDGMENT accident as narrated in the claim petition but as per Dr. Acharya, the history given was fall from scooter, which would mean that in all probability, Harisinh must have been the pillion rider on the scooter. It was argued that though Harisinh died in the hospital on 15th August, 1991, no post-mortem of the dead body was performed and though the accident had taken place on 12th August, 1991, no first information report was lodged at the police station but a criminal complaint was filed before the Metropolitan Magistrate on 8 th October, 1991. Referring to the record of the case, it was pointed out that the doctor in his deposition had admitted the contents of the two certificates issued by him to be true which were consequently exhibited at Exhibits 64 and 65, wherein he has stated that the cause of death was Intra Cerebral Haemorrhage, which, in the absence of any external injury, was attributed to high blood pressure and not fall from scooter. Since it was not an MLC case and was not sent to V.S. Hospital, the police was not informed. It was submitted that from the contents of the two certificates, it is evident that the deceased did not die on account of the alleged accident. It was pointed out that despite the contents of the said documents having been proved; the claimants did not elicit any explanation from Dr. Acharya in this regard. It was pointed out that in the year 1991, accident cases were being handled only by the public hospitals. Under the circumstances, had it been an accident case, Dr. Acharya would have referred the patient to the V.S. Hospital and would also have informed the police. It was submitted that no other documentary evidence to show that the deceased was admitted to Ashirwad Hospital has been produced nor have any bills been produced evidencing payment to Ashirwad Hospital and for purchase of any medicine.
Page 6 of 34C/FA/4862/2008 JUDGMENT 3.1 Referring to the deposition of Prakashbhai (Exh.56),
it was submitted that initially he had stated that he had gone to the Bhadra area at 6:00 a.m. and the accident had taken place at 6:30 a.m. According to him, the scooterist after the accident tried to ride away when the passersby caught hold of him some 200 feet away from the place of the incident and he then rushed to the scooterist. At the same time, he also says that he helped Harisinh to stand on his feet which, by itself is a contradiction. However, subsequently he tried to correct himself, realizing that whatever he was expected to depose has been falsified by his statement. He, therefore, corrected himself by saying that it was not morning but evening when he reached Bhadra. It was further submitted that the said witness has stated that he had advised Vijaysinh to file a complaint and had given his name and address to Vijaysinh, whereas Vijaysinh has deposed to the effect that no one advised him to file a complaint and that he was unaware of such procedure. It was contended that the Tribunal was not justified in placing reliance upon the decision of the Consumer Commission in respect of personal accident claim, as the same stands on a different footing. That the standard of proof is also different and in those proceedings, the Medical Officer had not been examined. It was, accordingly, submitted that the Tribunal had failed to appreciate the evidence on record in proper perspective while arriving at the conclusion that such vehicular accident had in fact taken place.
3.2 Referring to the judgment and order passed by the trial court in Criminal Case No.3903/1991, it was pointed out that in the case instituted against the alleged rider of the Page 7 of 34 C/FA/4862/2008 JUDGMENT scooter, the complainant could not identify the person accused of riding the scooter and neither did the alleged eye-witness Prakashbhai identify the said person to be the accused. Thus, it is evident that all the concerned persons have conspired together to illegally make financial gain from public funds. It was, accordingly, submitted that the evidence when appreciated in proper perspective would unequivocally show that in the present case, the claim is not based upon a genuine accident but is completely collusive and fabricated. Thus, the appeal deserves to be allowed on this ground alone.
3.3 Next, it was submitted that without prejudice to the contention of the appellant that no such vehicular accident had in fact taken place, even on the question of quantum, there are various infirmities in the impugned order of the Tribunal. It was pointed out that the Tribunal while computing the income of the deceased at Rs.7,100/- has failed to deduct the amount payable by way of income-tax. In support of such submission, the learned advocate placed reliance upon the decision of the Supreme Court in the case of Shyamwati Sharma and others v. Karam Singh and others, 2010 ACJ 1968, for the proposition that deduction towards income-tax/surcharge should be considered to arrive at the net income of the deceased. It was pointed out that the deceased was 50 years of age and, therefore, the formula for finding out the prospective income cannot be the same as a person of younger age group.
4. Vehemently opposing the appeal, Mr. Satyajit Sen, learned advocate for the respondents No.1 to 4 - claimants submitted that sufficient evidence by way of the depositions of Page 8 of 34 C/FA/4862/2008 JUDGMENT the witnesses as well as documentary evidence has been adduced by the claimants before the Tribunal. The Tribunal, upon due and proper appreciation of the evidence on record, has found that the accident had in fact taken place and has accordingly held that the accident had taken place on account of the rash and negligent act of the driver of the scooter. Reference was made to the first information report lodged by the respondent No.3 - Vijaysinh which came to be registered as Karanj Police Station M.Case No.32/1991, to point out that in connection with the accident in question, a complaint had been duly lodged against the rider of the scooter - Ajitkumar Dahyabhai Patel. Pursuant to the said first information report, the police had carried out investigation and a charge-sheet came to be submitted, pursuant to which, trial had taken place. From the evidence on record, it was pointed out that the claimants had examined two eye-witnesses namely, Vijaysinh and Prakashbhai Jagjivanbhai Patel, both of whom had deposed as regards the manner in which the accident had taken place. It was argued that the appellant insurance company, in cross- examination of the said witnesses, has not been able to dislodge what has been stated by them in their examination-in- chief. Referring to the written statement of the owner of the scooter, it was pointed out that he has admitted the occurrence of the accident. Besides, in other proceedings before the Consumer Forum in respect of the personal accident claim, both, the Consumer Disputes Redressal Forum, Ahmedabad city in Complaint No.1550 of 1994 as well as the Consumer Disputes Redressal Commission, Gujarat State, after appreciating the evidence on record, have believed that such an accident had in fact taken place and the amount awarded in the said proceeding has already been paid by the insurance Page 9 of 34 C/FA/4862/2008 JUDGMENT company. Thus, in the light of the overwhelming evidence which has been brought on record by the claimants, the Tribunal was wholly justified in holding that the claimant had proved the occurrence of the accident and that the appellant had failed to prove that no such accident had taken place. Insofar as the certificates (Exh.64 and 65) on which strong reliance has been placed on behalf of the appellant, it was submitted that Dr. Acharya is not an eye-witness and as such, his submissions on the effect of the accident are not relevant. As regards the submission made on behalf of the appellant that the entire case was one of collusion between the claimants, the doctor and the police, it was submitted that on the contrary, there is collusion between the Surveyor, the Doctor and the insurance company to thwart a genuine claim of the claimants. It was pointed out that before the consumer forum, the same two certificates were produced and it was proved that the Surveyor had obtained the certificates from the doctor. Referring to the certificates (Exhs.64 and 65), it was pointed out that the same are typed certificates and only signed by the doctor and that the Consumer Forum did not rely upon such certificates. It was argued that the certificates at the most are in the nature of an opinion of the concerned Medical Officer and such opinion is rebuttal. It was contended that the facts have to be seen versus opinion. According to the learned counsel, the opinion of Dr. Acharya given by way of two certificates was required to be ignored vis-à-vis the evidence of the eye-witnesses who have seen the accident. It was submitted that once the claimants have led evidence to establish the occurrence of the accident, the burden shifts on the insurance company to prove that the accident had not taken place. Therefore, it was the duty of the insurance Page 10 of 34 C/FA/4862/2008 JUDGMENT company to call the scooterist in the witness box. They, however, have not summoned the said scooterist, and consequently, he has neither been examined nor cross- examined on behalf of the appellant. Besides, the Surveyor who obtained the certificates from Dr. Acharya has also not been examined. It was argued that the burden to prove collusion was on the insurance company. Moreover, the theory of collusion and fraud has to be pleaded in the written statement. Referring to the written statement filed by the insurance company, it was submitted that no such plea regarding collusion has been pleaded therein. It was emphatically argued that what has been contended before this court had not been stated before the Tribunal and as such, the Tribunal did not commit any error while holding that the vehicular accident had in fact taken place. Reliance was placed upon section 140 of the Act for contending that in view of the liability to pay compensation on the principle of no fault, the judgment in criminal case would have no relevance. Once the accident is proved, the claimants are entitled to compensation.
4.1 Next, it was submitted that Dr. Ranjit Acharya has mentioned in the form filed before the insurance company that there was a fall from the scooter and that the eye-witnesses also say that there was an accident. It was urged that the Tribunal has not acted beyond the evidence which was led before it and after duly appreciating the evidence has come to the conclusion that the accident has taken place. Under the circumstances, in the absence of any perversity in the findings recorded by the Tribunal in the impugned judgment and award, there is no warrant for interference by this court.
Page 11 of 34C/FA/4862/2008 JUDGMENT 4.2 As regards the delay in lodging the first information
report, reliance was placed upon the decision of the Supreme Court in the case of Hasib v. The State of Bihar, AIR 1972 SC 283, for the proposition that the principal object of the first information report from the point of view of the informant is to set the criminal law in motion and from the point of view of the investigating authorities is to obtain information about the alleged criminal activity so as to be able to take suitable steps for tracing and bringing to book the guilty party. The first information report does not constitute substantial evidence though its importance as conveying the earliest information regarding the occurrence cannot be doubted. It was further submitted that obtaining a post-mortem report is not mandatory but it is an enabling provision to ascertain the cause of death. In the present case, the cause of death is clearly reflected in the certificate issued by the concerned doctor and the effect of not conducting post-mortem would not in any manner prejudice the case of the claimants.
4.3 As regards the contention raised by the learned advocate for the appellant on the question of quantum of compensation, it was pointed out that while considering the submission advanced by the learned counsel, the fact that the Tribunal had awarded interest at the rate of 7.5% should also be taken into consideration, inasmuch as, in terms of the latest decision of the Supreme Court, interest of 9% is required to be granted.
5. In the backdrop of the facts and contentions noted hereinabove, two questions that require to be answered are:
firstly, as to whether the vehicular accident as alleged had in Page 12 of 34 C/FA/4862/2008 JUDGMENT fact taken place, and secondly, as to whether in the facts and circumstances of the case, the quantum of compensation as determined by the Tribunal is just.
6. Dealing with the first question, as noted hereinabove, it is the case of the appellant that the accident itself had never taken place and that the entire case has been created by collusion between the claimants and the alleged scooterist and the owner of the scooter. Since the very occurrence of the vehicular accident has been challenged, it would be necessary to refer to the evidence in some detail.
7. On behalf of the claimants, three witnesses have been examined namely, Vijaysinh Harisinh Zala, son of the deceased, Prakashbhai Jagjivanbhai Patel and Dr. Ranjit Acharya. Vijaysinh Harisinh Zala, who has been examined at Exh.31, has deposed to the effect that the accident took place on 12th August, 1991 in the evening at 6:30. On that day, he had gone with his father for shopping at Teen Darwaza on foot. While returning, they were carefully trying to cross the road near Bank of India towards Premabhai Hall, when a scooter came at full speed from the direction of UCO Bank and dashed with his father, on account of which, his father had sustained serious injuries on his head as well as on his spine. At a distance of about 200 feet, the public caught hold of the scooterist. Since on account of the incident, he was under
tension, he had mildly reprimanded the scooterist and let him go. However, he had taken the name of the scooterist and had noted down the number of the scooter which was GJ-1-D-5252 and the name of the scooterist was Ajitkumar Dahyabhai Patel. Thereafter, they had taken a rickshaw and gone home.Page 13 of 34
C/FA/4862/2008 JUDGMENT Subsequently, since his father had a headache, he had made him lie down on the bed and upon the pain increasing, he had made a telephone call to Dr. Ranjit Acharya who had asked him to immediately come to Ashirwad Hospital. His father was admitted in the hospital and was given treatment. On account of the pain in the head, his father was shouting and on 15 th August, 1991, his father expired during the course of treatment. He has further deposed that he had informed Dr. Acharya and Dr. Shah about the accident. He has produced the injury certificate issued by Dr. Ranjit Acharya at Exh.34 as well as the death certificate issued by Dr. Shah at Exh.35. He has further deposed that one and a half months after the death of his father, he had gone to the Karanj Police Station to lodge a first information report on four to five occasions, however, they did not pay any heed to the same and hence, on 8 th October, 1991, he had lodged a case under section 304 IPC against the opponent before the Metropolitan Magistrate, Court No.5 wherein an order was passed directing the police to register a first information report pursuant to which a charge-sheet had been submitted against the scooterist. The papers of the criminal case have been produced at Exhs.36 to 39. Thereafter, he has stated that earlier he has deposed to the effect that he had gone to the Karanj Police Station one and a half months after the accident, however, in fact, he had gone to the Karanj Police Station on the next day after the funeral rites came to be completed whereupon he came to know that the hospital had not lodged any complaint with the police. He had, therefore, gone to meet Dr. Acharya who had told him that through oversight, they had not informed the police about the accident. Thereafter, he had gone back to the Karanj Police Station where he was called upon to produce the hospital Page 14 of 34 C/FA/4862/2008 JUDGMENT papers which took three to four days whereafter he had again approached the police staff. He was thereafter informed that since the post-mortem note was not obtained and the funeral rites had been completed, they would not be in a position to register a complaint. Subsequently, he had, in terms of the advice given by the police, lodged a complaint before the concerned court. In his cross-examination, he has denied that there was no fault on the part of the scooterist. He has denied the suggestion that his father was trying to cross the road in haste and it was on account of his own negligence that the accident had taken place. He has also denied the suggestion that his father had sustained simple injuries and had got up on his own. He has deposed that he had gone to testify in the criminal proceedings, but as he was not able to identify the driver, the said case was concluded. In his cross-examination he has deposed that he had talked with the scooterist and had taken down his name, address and number of the scooter and that since the crowd had grown bigger, with a view to see that there was no violence, he had let him go. That, after the accident, the scooterist had not fallen down. They had gone home in a rickshaw and had stayed for five to ten minutes after which he had called up the doctor and gone to the hospital. He has deposed that by saying Dr. Acharya's hospital what he means is Ashirwad Hospital and that his father was admitted there and that Dr. Shah had also treated him, but he presently does not remember whether it was Dr. Himanshu Shah. He has stated that he had produced all the papers of Ashirwad Hospital that he had with him and that post-mortem report had not been obtained. He has reiterated that he had informed Dr. Shah about the accident but he was not aware whether Dr. Shah had informed the police about the same. He Page 15 of 34 C/FA/4862/2008 JUDGMENT had further deposed that he had taken his father to Ashirwad Hospital at the instance of Dr. Acharya and that the doctors had not given any advice to the effect that a post-mortem to be conducted. That, two days after the funeral rites, he had gone to inquire from the police as to whether any complaint was received from the hospital and was informed that he should inquire from the hospital. He has denied the suggestion that no accident had taken place at all and that with a view to obtain compensation from the insurance company, facts regarding an accident had been concocted. He has denied the suggestion that his father suddenly felt giddy and had fallen down on account of which he had sustained injuries. He had also denied that the complaint had been lodged belatedly and facts regarding the accident had been concocted.
8. The facts stated in the first information report (Exh.36) are more or less similar to what is stated by the said witness in his deposition. The certificate (Exh.34) dated 5 th September, 1991, issued by Dr. Ranjit Acharya certifies that the patient - Harisinh H. Zala was admitted on 12 th August, 1991 at Ashirwad Nursing Home at 9:00 p.m. under the care of Dr. Acharya and expired on 15 th August, 1991 at 8:45 a.m. The death certificate has been issued by Dr. K.I. Shah of Ashirwad Nursing Home certifying that Mr. Harisinh H. Zala died in the nursing home. The cause of death stated therein is Intra Cerebral Haemorrhage with Cardio respiratory Arrest. Certain other documents have been produced by way of salary certificate indicating the income of the deceased as well as extracts of Village Form No.7/12 to show that the deceased owned several lands. The insurance policy has also been placed on record.
Page 16 of 34C/FA/4862/2008 JUDGMENT
9. Witness Prakashbhai Jagjivanbhai Patel has deposed to the effect that on 12th August, 1991 in the morning at 6 o'clock, he had gone for shopping at Teen Darwaza in a red bus. At 7:15, he had reached the Lal Darwaza Bus Stand where he had alighted and had gone from Bhadra Kali Mandir to Premabhai Hall at 7:30 in the morning. Since he wanted to go on the other side from Premabhai Hall, he was standing at the footpath and was crossing the road at which point of time, from the opposite side namely, Bank of India, an aged person alongwith a boy had stepped down from the footpath to cross the road and had walked five steps when from the UCO Bank lane, a scooter came at full speed and without taking any care or caution and without sounding the horn, dashed with force against the aged person whereupon he fell down. The scooterist tried to escape with his vehicle whereupon the persons there stopped the scooterist. He also ran there. He has thereafter stated that due to inadvertence, he had stated that he had left his home at 6 o'clock in the morning, whereas he had left his home at 6 o'clock in the evening and at 7:30 in the evening, he had come back to Premabhai Hall. He has further deposed that he had helped the aged person in getting up and had told his son that the scooterist should be caught and a police case should be registered against him and he should not be permitted to go. That he gave Vijaybhai, the person's son his address and asked him to call him, if need be. That he does not know what happened to the scooterist and the aged person thereafter. In his cross-examination, he has stated that he had gone to give his evidence in the criminal proceeding, however, he does not know the result thereof. He has further stated that he did not know the person who fell down nor the scooterist Page 17 of 34 C/FA/4862/2008 JUDGMENT and that he had gone to make purchases at the relevant time. He has further stated that he had come because he was issued summons. He has denied that he had not seen the accident and that he was deposing falsely at the instance of Vijaybhai.
10. Dr. Ranjit Vijayshankar Acharya came to be examined by the claimants at Exh.62. He has deposed that he holds the qualification of M.D. (Medicine) and is a Neurologist Physician and has been practicing in the said field since 27 years. He has deposed that Harisinh Zala was given treatment at Ashirwad Nursing Home. That the papers of such treatment would be at the nursing home and that he was visiting the said hospital only as a consulting doctor. The said nursing home belongs to Dr. Himanshu Shah who is presently in America and the nursing home is closed. He has stated that if any patient is given treatment for four days and dies during the course of such treatment, it can be said that the injuries sustained by him are grievous. He has also stated that if any person on account of accident or in any other manner falls on the ground and sustains head injuries, there is a possibility of death being caused. In his cross-examination, he has stated that he has admitted his signature as well as the contents of the two documents Mark 'C' and 'D' which were shown to him. Since the doctor had admitted the contents of the said documents, the learned counsel for the insurance company stated that the same should be admitted in evidence whereas the learned counsel for the claimants had stated that since the said documents are not the originals, the same cannot be admitted. After hearing the arguments, the court was of the view that since the contents of the documents as well as the signatures were admitted, the same were required to be accepted and Page 18 of 34 C/FA/4862/2008 JUDGMENT accordingly, both the documents were exhibited at Exhibits No.64 and 65. The document Exh.64 reads thus:-
"When the Pt. Was brought to Nursing Home on 12.8.91 with H/o fall from scooter, he was conscious, had no external injuries on his body, complained of vomiting and rt side weakness/paralysis.
Later his 'CAT' scan revealed Intra Cerebral Haemorrhage which, in absence of external injuries, was attributed to High Blood Pressure and not fall from scooter.
As it was not an MLC case, the pt was not sent to Wadilal Hospital handling MLC Cases, nor Police was informed.
In two certificates dated 23.1.92 signed by me for LIC and Oriental Insurance Co. Ltd. in respect of late Mr. HH Zala, I have given cause of death being due to (1) Intra Cerebral Haemorrhage, and (2) Cardio Respiratory arrest. These two conditions and Rt half body paralysis are not caused by fall from scooter or scooter accident, but were earlier occurrences. Rather accident, if any, could be attributed to these conditions, but not vice versa, as he showed no symptoms of accident when brought to Nursing Home."
The document at Exh.65 is identically worded except that the same bears an endorsement of Dr. Shah of Ashirwad Nursing Home to the following effect "I agree with the reply given to you by Dr. R.V. Acharya - Neurophysician."
It may be noted that despite admission of the contents of the above two documents, there is no re-examination of the Medical Officer on the part of the claimants.
11. The occurrence or otherwise of the vehicular accident is required to be determined in the light of the above Page 19 of 34 C/FA/4862/2008 JUDGMENT evidence which has come on record. The Supreme Court in the case of Jai Prakash vs. National Insurance Company Limited (supra) has issued various directions to the Claims Tribunal. Direction (c) is to the effect that the Tribunal shall enquire and satisfy itself that the AIR (Accident Information Report) 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). In the present case, on facts there does not appear to be nexus between any police officer - advocate - doctor, inasmuch as, the police had refused to register a first information report and the claimants were constrained to approach the court of the Metropolitan Magistrate for registration of a first information report. From the evidence on record, there does not appear to be any collusion on the part of the doctor. However, collusion is alleged between the witnesses and the owner of the offending vehicle.
12. Before adverting to the merits of the case, reference may be made to section 134 of the Motor Vehicles Act which provides for duty of driver in case of accident and injury to a person and reads thus:-
134. Duty of driver in case of accident and injury to a person.-When any person is injured or any property of a third party is damaged, as a result of an accident in which a motor vehicle is involved, the driver of the vehicle or other person in charge of the vehicle shall-
(a) unless it is not practicable to do so on account of mob fury or any other reason beyond his control, take all reasonable steps to secure medical attention for the injured person, by conveying him to the nearest medical practitioner or hospital, and it shall be the duty of every registered medical practitioner or the doctor on duty in the hospital immediately Page 20 of 34 C/FA/4862/2008 JUDGMENT to attend to the injured person and render medical aid or treatment without waiting for any procedural formalities, unless the injured person or his guardian, in case he is a minor, desires otherwise;
(b) give on demand by a police officer any information required by him, or, if no police officer is present, report the circumstances of the occurrence, including the circumstances, if any, for not taking reasonable steps to secure medical attention as required under clause (a), at the nearest police station as soon as possible, and in any case within twenty-four hours of the occurrence;
[(c) give the following information in writing to the insurer, who has issued the certificates of insurance, about the occurrence of the accident, namely:-
(i) insurance police number and period of its validity;
(ii) date, time and place of accident;
(iii) particulars of the persons injured or killed in the accident;
(iv) name of the driver and the particulars of his driving licence.
Explanation.- For the purposes of this section, the expression "driver" includes the owner of the vehicle.] On a plain reading of the above provision, it is apparent that the same imposes an obligation upon the driver of the vehicle or other person in charge of the vehicle to take all reasonable steps to secure medical attention for the injured person by taking him to the nearest medical practitioner or hospital. The provision also imposes a duty upon every registered medical practitioner or doctor on duty in the hospital immediately to attend to the injured person and render medical aid or treatment without waiting for any procedural formalities unless the injured person or his guardian, in case he is a minor, desires otherwise. The said section also provides that the Page 21 of 34 C/FA/4862/2008 JUDGMENT driver of the vehicle or person in charge of the vehicle shall give on demand by a police officer, any information required by him or, if no police officer is present, report the circumstances of the occurrence, including the circumstances, if any, for not taking reasonable steps to secure medical attention at the nearest police station as soon as possible, and in any case, within twenty-four hours of the occurrence. A duty is also imposed upon the driver of the vehicle or the person in charge of the vehicle to give information in writing to the insurer about the occurrence of the accident with the particulars enumerated therein.
13. Sub-section (6) of section 158 of the Act provides that as soon as any information regarding any accident involving death or bodily injury to any person is recorded or report under the sub-section is completed by a police officer, the officer in-charge of the police station shall forward a copy of the same within thirty days from the date of recording of information or, as the case may be, on completion of such report to the Claims Tribunal having jurisdiction and a copy thereof to the concerned insurer, and where a copy is made available to the owner, he shall also within thirty days from the receipt of such report, forward the same to the Claims Tribunal and insurer.
14. Adverting to the facts of the case, Vijaysinh Harisinh Zala, in his deposition, has stated that at the time of the incident, since he was under tension, he had mildly reprimanded the scooterist and let him go after taking down his name and the number of the scooter. That thereafter, he had taken his father home but since his father was in pain, he Page 22 of 34 C/FA/4862/2008 JUDGMENT had taken him to Ashirwad Hospital after making a telephone call to Ranjitbhai Acharya who had asked him immediately to take him there. As per the say of the said witness, the incident had taken place on 12th August, 1991 in the evening at 6:30 p.m. It is the case of the said witness that his father was given treatment at Ashirwad Hospital from 12 th August, 1991 namely, the date of the accident till 15th August, 1991, when he died. In support of his say, the documentary evidence which is produced on record is a certificate which is issued by Dr. Ranjit Acharya to the effect that the patient Harisinh H. Zala was admitted on 12th August, 1991 and he expired under the care of Dr. R.V. Acharya on 15th August, 1991. A certificate dated 15th August, 1991 has also been issued by Dr. K.I. Shah of Ashirwad Nursing Home wherein the date of admission is 12 th August, 1991 and the date and time of death is 15 th August, 1991 at 8.45 a.m. and the cause of death is Intra Cerebral Haemorrhage with Cardio Respiratory Arrest. Apart from the aforesaid two documents, no other medical case papers have been produced on record. Nothing is brought on record as regards the time when the deceased was admitted to the Ashirwad Hospital, the case history reported to the doctor or the nature of treatment given to the deceased.
15. The said witness has stated that he had informed the concerned doctors namely, Dr. Acharya and Dr. Shah about the accident. However, no medico-legal case had been registered. The said witness has stated that after the obsequial ceremonies were over, he had immediately gone to the Karanj Police Station to inquire as to whether any complaint had been lodged. That the police had asked him to bring the post- mortem note and other papers and that in the absence of such Page 23 of 34 C/FA/4862/2008 JUDGMENT papers, the police refused to register a first information report on account of which he had lodged the complaint before the court of the learned Metropolitan Magistrate on 8 th October, 1991 i.e. after a period of more than one and a half months from the death of the deceased. It may be noted that in his entire testimony, the said witness does not refer to the presence of Prakashbhai Jagjivanbhai Patel at the scene of the incident or the fact that Prakashbhai had advised him to lodge a first information report against the scooterist or that Prakashbhai had given him his name and address and asked him to contact him, if necessary.
16. Prakashbhai Jagjivanbhai Patel, in his deposition, has initially stated that he had started at 6 o'clock in the morning and had reached Bhadra Kali at 7:15 and had reached Premabhai Hall at 7:30 in the morning. He has thereafter corrected himself and said that he had started at 6 o'clock in the evening and had come to Premabhai Hall at 7:30 at which point of time, the accident had taken place. He has further stated that he had given his address to Vijaybhai and informed him that he should call him, if necessary. Thus, while Vijaybhai had stated that the accident had taken place at 6:30 in the evening, this witness had stated that it had taken place at 7:30 in the evening.
17. Dr. Ranjit Acharya who has been examined by the claimants, in his deposition, merely states that the deceased had been treated at Ashirwad Nursing Home where he was going as a consulting doctor. He has nowhere stated that Harisinh Zala had been brought to Ashirwad Nursing Home after meeting with a vehicular accident. On the contrary, the Page 24 of 34 C/FA/4862/2008 JUDGMENT said witness has accepted the contents of the documents Exhs.64 and 65 wherein it has been stated that the patient was brought to the Nursing Home on 12 th August, 1991 with history of fall from scooter. That he was conscious and there were no external injuries on his body. That the CAT Scan revealed Intra Cerebral Haemorrhage which, in the absence of external injuries, was due to high blood pressure and not fall from scooter. It has been stated that as it was not an MLC case, the patient was not sent to Vadilal Hospital which handles MLC cases nor was the police informed. The said doctor has specifically stated that the two conditions stated in the cause of death certificate were not caused by fall from scooter but were earlier occurrences and that the accident if any could be attributed to these conditions but not vice-versa as the patient showed no symptoms of the accident when brought to the nursing home. Dr. Shah has agreed with the opinion given by Dr. R.V. Acharya. The documents Exhs.64 and 65 have been obtained by Extra Detective and Security Organisation, the Investigating Officer of the appellant insurance company. Though the Investigating Officer has not been examined, both these certificates have been duly proved through the evidence of Dr. R.V. Acharya, who has admitted the contents thereof as well as his signature.
18. On behalf of the claimants, reliance had been placed upon the decision of the State Consumer Commission wherein the accident has been believed by the Commission after appreciating the evidence on record. In this regard, reference may be made to the judgment of the Consumer Disputes Redressal Commission in Appeal No.310/2001 wherein, the Commission has discarded the submission Page 25 of 34 C/FA/4862/2008 JUDGMENT advanced on behalf of the appellant insurance company that since post-mortem was not done, the cause of death could not be established because the consulting Neurologist had examined the patient several times during life and C.T. scan of the brain was done. The Commission has observed that the said test being so sensitive gives all possible details including the one which cannot be seen even in the post-mortem and also in the opinion of the said expert, the cause of death was evident both clinically and by C.T. Scan Brain. In support of the contention that the death was not accidental, the appellant company had filed an affidavit of Dr. Acharya. However, it appears that despite repeated reminders by the Commission, the said witness was not produced for cross-examination by the appellant and hence, the said affidavit had been excluded from consideration by the Commission. A perusal of the judgment of the Commission reveals that the fact that no witnesses were examined on behalf of the insurance company, had weighed heavily with the Commission. It was observed that if the insurance company claims that the death was not an accidental one, it was for the insurance company to establish its claims by documents and evidence which it had failed to do so. However, the situation before the Tribunal was not the same as before the Commission, inasmuch as, before the Tribunal, the claimants had examined Dr. Ranjit Acharya and in his cross-examination, the documents (Exhs.64 and 65) were brought on record and the said witness had duly admitted the contents thereof. Therefore, the contents of the two documents could not have been ignored by the Tribunal. At this stage, reference may be made to the impugned judgment and award made by the Tribunal.
Page 26 of 34C/FA/4862/2008 JUDGMENT
19. In paragraph 9 of the judgment, the Tribunal has reproduced the contents of the written statement as well as the submissions advanced on behalf of the insurance company. Reference is also made to the documents produced at Exhs.64 and 65. The Tribunal in the entire judgment has nowhere dealt with the documents Exhs.64 and 65 and has merely brushed the same aside. The contention with regard to the vehicular accident not having taken place at all has been dealt with in paragraph 22 of the impugned judgment, which clearly reveals that it was contended on behalf of the insurance company that in the appeal filed before the Commission the doctor had not been examined while in the present case, the doctor had deposed before the Tribunal. However, the Tribunal has not dealt with the said contention nor has it made any reference to the documents Exh.64 and 65, as to why the same have not been considered. The Tribunal has placed reliance upon the documents Exh.34, 35 and 62 namely, the death certificate issued by Dr. Ranjit Acharya and Dr. K.I. Shah and the deposition of Dr. Ranjit Acharya and without discussing the contents thereof, has held that it can be said that in the accident the deceased Harisinh Zala fell down on the road and sustained serious head injuries and injuries upon his spleen and due to forceful dashing of the scooter, he was feeling giddiness. Thereafter he was taken to the Ashirwad Hospital and as a result of the severe head injuries; he succumbed to death on 15th August, 1991. Thus, the Tribunal has totally excluded the certificates Exhs.64 and 65 from consideration. Besides, the finding of the Tribunal that the deceased had injuries on his spleen is not borne out from the record.
20. From the overall evidence which has been adduced Page 27 of 34 C/FA/4862/2008 JUDGMENT on behalf of the claimants and the insurance company, it is apparent that there is nothing on record to reveal the exact time when the deceased was admitted to Ashirwad Hospital, the history given to the doctor or the nature of treatment given to the deceased. The medical case papers of the deceased have not been produced on record. Had such medical case papers been produced, they would disclose as to what was the case history given before the doctor and the opinion of the doctor. The very fact that no MLC case had been registered nor had the concerned hospital informed the police, gives rise to a suspicion regarding the very happening of the accident. On behalf of the claimants, the learned advocate had pointed out that even the certificates Exhs.64 and 65 speak of the patient being brought to the nursing home with history of fall from scooter. In the opinion of this court, history of fall from scooter does not have the same connotation as history of an accident on account of a scooter dashing with him. Besides, it is apparent that since the history given was fall from scooter, no MLC case had been registered and the police were not informed. Had the history been given regarding an accident on account of a scooter colliding with the deceased, evidently in view of the serious condition of the deceased at the time when he was admitted, an MLC case would have been registered and the police would have been informed. Another notable aspect of the matter is that no first information report was lodged at the relevant point of time. It is true that Vijaysinh, son of the deceased was young and only twenty years of age at the time of the accident and might not have been aware of the niceties of law or that he was immediately required to lodge a first information report, however, Prakashbhai Jagjivanbhai Patel, has deposed to the effect that he had informed Vijaysinh that a Page 28 of 34 C/FA/4862/2008 JUDGMENT police case should be registered against the scooterist and that he had given his name and address to the said Vijaybhai to contact him, if necessary. Thus, on the basis of the evidence led by the claimants, it is not as if Vijaybhai was not informed by anyone that he should lodge a first information report.
21. Another aspect of the matter which assumes significance is that in the proceedings of the criminal case registered against the scooterist, both Vijaysinh as well as Prakashbhai, have stated that they knew the accused and that he was not present before the court despite the fact that the accused scooterist was present before the court. In the said criminal proceedings, since the identity of the accused was not established, he was acquitted. The theory advanced on behalf of the appellant that the accident had taken place on account of collusion derives force in the light of the fact that the owner of the vehicle in his written statement has stated that he does not deny the happening of the accident but only denies that the same had occurred on account of any negligence on the part of the scooterist. The owner has stated that he is a Member of Parliament and has been elected from Viramgam constituency and he being a social worker, lends his scooter to third persons for the purpose of social work. The facts emerging from the record, namely that the owner of the vehicle has admitted to the happening of such accident; in criminal proceedings both the witnesses who otherwise say that they would recognise the accused do not recognise the scooterist though he was present before the court; no first information report had been lodged at the relevant time; no MLC case was registered by Ashirwad Hospital when the deceased was admitted to the hospital; as well as the contents Page 29 of 34 C/FA/4862/2008 JUDGMENT of the documents Exh.64 and 65, on a preponderance of probabilities, lead to the inevitable conclusion that no accident had in fact taken place and that the deceased had died on account of high blood pressure and not on account of a scooter accident.
22. In the light of the aforesaid discussion, the court is of the view that the answer given by the Tribunal to issue No.1, viz., whether the petitioner proves that the victim died due to the negligent act and careless driving of the motor vehicle involved by its driver in the said accident, is required to be answered in the negative and not in the affirmative. Consequently, in the absence of any accident having taken place, the question of awarding any compensation would not arise.
23. On the question of quantum, the Tribunal has considered the total income of the deceased at Rs.7,100/-. The Tribunal has thereafter considered the prospective income at Rs.10,650/- (Rs.7100 + 14200 = 21300/2). The Tribunal has adopted a multiplier of 11 years and after deducting one-third amount from the monthly income of the deceased towards his monthly expenditure, calculated the future loss of dependency as under:-
Rs.10,650/- p.m. x 1/3rd = Rs.3,550/-
Rs.10,650/- - Rs.3,550/- = Rs.7,100/- per month loss
Rs.7,100/- x 12 months = Rs.85,200/- per year loss
Rs.85,200/- x 11 multiply = Rs.9,37,200/- as total future
loss of dependency
24. On behalf of the appellant, the quantum has been challenged on two grounds. Firstly, that the prospective income ought not to have been calculated at the rate adopted for Page 30 of 34 C/FA/4862/2008 JUDGMENT young persons and secondly, on the ground that the income- tax payable by the deceased ought to have been deducted while computing his monthly income. In this regard, a perusal of the salary certificate of the deceased shows that Rs.11,140/- came to be deducted from his salary towards income-tax for the period 1st April, 1990 to 31st March, 1991 and Rs.720/- came to be deducted towards surcharge. Thus, a total of Rs.11,860/- came to be deducted towards income-tax and surcharge. This amount, therefore, was required to be deducted while computing the monthly income of the deceased.
25. A perusal of the impugned award reveals that the Tribunal has considered the monthly salary of the deceased to be Rs.7,100/- and after considering the prospective income arrived at the figure of Rs.10,650/-. From the salary statement, it appears that the Tribunal has, while considering the monthly income of the deceased, even excluded standard deductions towards P.F. account deducted from salary, LIC premium paid by the employee, professional tax and NSS credited by the employee and amount of National Savings Certificates. It is by now well-settled that it is only the income-tax and surcharge which can be deducted from the salary, however, other standard deductions are not required to be deducted while computing the salary of the concerned person. The Tribunal, therefore, has arrived at a lower figure of the monthly salary of the deceased, which would be 1,04,643 - 11,860 = 93,783/12 = Rs.7,815/-. Thus, the monthly income of the deceased should have been taken to be Rs.7,815/- and not Rs.7,100/- as computed by the Tribunal. However, the Tribunal has also considered the prospective income of the deceased at Page 31 of 34 C/FA/4862/2008 JUDGMENT Rs.10650/- (7100 +14200 = 21300/2). In this regard, reference may be made to the decisions of the Supreme Court on the question of future prospects. In Sarla Verma v. Delhi Transport Corporation, (2009) 6 SCC 121, the Supreme court after considering its earlier decisions in the case of Susamma Thomas, (1994) 2 SCC 176, Sarla Dixit v. Balwant Yadav, (1996) 3 SCC 179 and Abati Bezbaruah v. Geological Survey of India, (2003) 2 SCC 148, has held that in view of the imponderables and uncertainties, they were in favour of adopting as a rule of thumb, an addition of 50% of actual salary to the actual salary income of the deceased towards future prospects, where the deceased had a permanent job and was below forty years. (Where the annual income is in the taxable range, the words "actual salary" should be read as "actual salary less tax"). The addition should be only 30% if the age of the deceased was 40 to 50 years. There should be no addition, where the age of the deceased is more than 50 years. In Reshma Kumari v. Madan Mohan, (2013) 9 SCC 65, a three-judge Bench of the Supreme Court on a reference, agreed with the view taken in the earlier decision in the case of Sarla Verma as referred to hereinabove. In this regard, from the deposition of Hasmukhbhai Ramanlal Patel, an employee of the Ahmedabad District Co-operative Bank, it has come on record that the deceased was 51 years of age. Vijaysinh, the son of the deceased has also deposed to the effect that the deceased was 51 years of age at the time when the alleged accident took place. The age of the deceased being above 50 years at the time of the accident, in the light of the above decisions of the Supreme Court, no amount could have been awarded towards future prospects. Under the circumstances, the Tribunal was not justified in taking into consideration future Page 32 of 34 C/FA/4862/2008 JUDGMENT prospects while computing the income of the deceased. The monthly income of the deceased, therefore, ought to have been taken at Rs.7,815/- instead of Rs.7,100/- as adopted by the Tribunal. Considering the age of the deceased, the multiplier of 11 adopted by the Tribunal is in consonance with the standards laid down by the Supreme Court in the case of Sarla Verma (supra). The total calculation towards future loss of dependency, therefore, has to be worked out as under:-
Rs.7,815 per month x 1/3rd = Rs.2,605/- Rs.7,815 - Rs.2,605/- = Rs.5,210/- Rs.5,210 x 12 months = Rs.62,520/- Rs.62,520 x 11 multiplier = Rs.6,87,720/-
Therefore, the quantum under the head 'loss of dependency' should be Rs.6,87,720/- instead of Rs.9,37,200/- as awarded by the Tribunal.
26. No dispute has been raised as regards the other heads under which compensation has been awarded.
27. In the light of the above discussion, the appeal is allowed. The impugned judgment and award dated 15 th February, 2008 passed by the Motor Accident Claims Tribunal (Auxiliary) at Ahmedabad in Motor Accident Claim Petition No.23/1992 is hereby quashed and set aside.
28. The appellant has deposited the awarded amount, interest and cost with the Tribunal pursuant to the directions issued by this court vide order dated 8 th April, 2009. Subsequently, by an order dated 15th June, 2011, the claimants were directed to withdraw the interest as may accrue in future on the principal amount of compensation of Rs.9,77,200/- from the date of the said order. The principal amount of Page 33 of 34 C/FA/4862/2008 JUDGMENT compensation of Rs.9,77,200/- alongwith the interest accrued till the date of the above order dated 15 th June, 2011 as well as the remaining amount of interest and cost alongwith interest accrued thereon shall be refunded to the appellant upon production of a certified copy of this judgment. The appellant- insurance company shall also be entitled to recover the amount of interest received by the respondents No.1 to 4 - from the fixed deposit on the basis of the order dated 15 th June, 2011.
( Harsha Devani, J. ) hki Page 34 of 34