Madhya Pradesh High Court
Smt. Himanshi @ Hema @ Vandana Adwani vs Anand Gautam on 17 January, 2020
Author: Gurpal Singh Ahluwalia
Bench: Gurpal Singh Ahluwalia
1
THE HIGH COURT OF MADHYA PRADESH
MA No.1069/2016
National Insurance Company Ltd. Vs. Smt. Himanshi and others
MA No.82/2017
Smt. Himanshi and others Vs. Anand Gautam and others
Gwalior, Dated :17/01/2020
Shri Shriniwas Gajendragadkar, Counsel for appellant in M.A.
No.1069 of 2016 and for respondent/Insurance Company in M.A. No.
82 of 2017.
Shri G.S.Chouhan, Counsel for respondents no.1 to 3/claimants in M.A. No.1069 of 2016 and for appellants in M.A. No.82 of 2017.
None for other respondents in both the appeals. By this Common order, M.A.No.1069 of 2016 filed by Insurance Company and M.A. No.82 of 2017 filed by the Claimants shall be decided.
2. Both the appeals have been filed under Section 173 of Motor Vehicles Act, against the award dated 26-7-2016 passed by Motor Accident Claims Tribunal, Datia in Claim Case No.130 of 2015.
3. The claimants have filed the appeal for enhancement of compensation amount, whereas the Insurance Company has filed the appeal challenging the fact of accident.
4. The necessary facts for disposal of the appeals in short are that the claimants filed a claim petition under Section 166 of Motor Accident Claims Tribunal on the ground that on 7-6-2015, the 2 THE HIGH COURT OF MADHYA PRADESH MA No.1069/2016 National Insurance Company Ltd. Vs. Smt. Himanshi and others MA No.82/2017 Smt. Himanshi and others Vs. Anand Gautam and others deceased Deepak Advani was going by walking. When he reached in front of the Blue Star Hotel, then the respondent no. 5, by driving the motor cycle bearing registration No.MP 32 MB 1769 in a rash and negligent manner, dashed the deceased as a result of which, he sustained serious injuries. He was shifted to District Hospital Datial, from where he was referred to Jhansi. As the physical condition of the deceased did not improve, therefore, he was referred to Gwalior. When the condition of the deceased did not improve in the hospital at Gwalior also, then he was referred to Shri Gangaram Hospital, New Delhi. When the condition of the deceased did not improve, then his family members were advised to take him back to their house. While they were coming back from Delhi, then on the way, the deceased breathed his last. He was immediately taken to District Hospital Datia, where he was declared dead. The information regarding his death was sent to the police station. After conducting the merg enquiry, the police registered F.I.R., in Crime No.235/15 against the respondent no. 5 and his motor cycle was seized and after completing the investigation, filed the charge sheet. It was the case of the claimants that the deceased was running a cloth shop in the name and style Joli Fashion and his monthly earning was Rs. 25,000/-. 3
THE HIGH COURT OF MADHYA PRADESH MA No.1069/2016 National Insurance Company Ltd. Vs. Smt. Himanshi and others MA No.82/2017 Smt. Himanshi and others Vs. Anand Gautam and others
5. The Insurance Company filed its written statement and denied the accident. It was further pleaded that the respondent no.5 was driving the motor cycle without valid driving license. The owner and driver of the motor cycle also filed their separate written statement and pleaded that the driver was having valid driving license and the motor cycle was insured with the Insurance Company.
6. The Claims Tribunal, after framing issues and hearing all the parties, allowed the claim petition and awarded Rs. 13,22,000/-.
7. Challenging the award passed by the Claims Tribunal, it is submitted by the Counsel for the appellant/Insurance Company, that in fact, the story of accident by the offending vehicle was a cooked up and after thought theory as the identity of the offending motor cycle was disclosed belatedly. The witnesses belong to one caste and therefore, they are interested witnesses and hence not reliable. The Claims Tribunal has awarded exorbitant amount.
8. At the same time, the Counsel for the claimants has not only supported the award passed by the Claims Tribunal but also pleaded that the Claims Tribunal has ignored that the monthly income of the deceased was Rs.20,000/- per month, and considering the total numbers of dependents, should have deducted 1/4 th of the income 4 THE HIGH COURT OF MADHYA PRADESH MA No.1069/2016 National Insurance Company Ltd. Vs. Smt. Himanshi and others MA No.82/2017 Smt. Himanshi and others Vs. Anand Gautam and others towards personal income of the deceased and considering the age of the deceased, the multiplier of 17 should have been applied. Further, no amount has been awarded towards the expenses of attendant and transportation cost.
9. Heard the learned Counsel for the parties.
10. So far as the delay in lodging the F.I.R. is concerned, it is well established principle of law that claim petition cannot be dismissed on the ground of delay in F.I.R. The Supreme Court in the case of Ravi Vs. Badrinarayan and others reported in 2011 (1) TAC 867 (SC) has held as under :
"20. It is well-settled that delay in lodging FIR cannot be a ground to doubt the claimant's case. Knowing the Indian conditions as they are, we cannot expect a common man to first rush to the police station immediately after an accident. Human nature and family responsibilities occupy the mind of kith and kin to such an extent that they give more importance to get the victim treated rather than to rush to the police station. Under such circumstances, they are not expected to act mechanically with promptitude in lodging the FIR with the police. Delay in lodging the FIR thus, cannot be the ground to deny justice to the victim. In cases of delay, the courts are required to examine the evidence with a closer scrutiny and in doing so; the contents of the FIR should also be scrutinised more carefully. If court finds that there is no indication of fabrication or it has not been concocted or engineered to implicate innocent persons then, even if there is a delay in lodging the FIR, the claim case cannot be 5 THE HIGH COURT OF MADHYA PRADESH MA No.1069/2016 National Insurance Company Ltd. Vs. Smt. Himanshi and others MA No.82/2017 Smt. Himanshi and others Vs. Anand Gautam and others dismissed merely on that ground."
11. If the facts of this case are considered, then it is clear that immediately after the accident, the injured/deceased was taken to District Hospital Datia, from where he was referred to Jhansi, and from Jhansi, he was referred to Gwalior and thereafter the injured was taken to Delhi. Thus, it is clear that the family members of the deceased were busy in looking after the injured/deceased, therefore, under these circumstances, it was not expected of them that instead of looking after the injured, they should have lodged the F.I.R. The deceased died on 12-6-2015 and after 13 days ceremony, the witnesses could have lodged the report, but that was not done, and their statement under Section 161 of Cr.P.C. were recorded on 25-7- 2015.
12. It is submitted that since all the witnesses belong to one community therefore, they are not reliable. The submission made by the Counsel for the Insurance Company cannot be accepted and it cannot be held that the witnesses are unreliable merely on the ground that they belong to the caste of the deceased.
13. However, there is an important aspect, which has been ignored by the Claims Tribunal. As per M.L.C., Ex.P.10, the deceased was 6 THE HIGH COURT OF MADHYA PRADESH MA No.1069/2016 National Insurance Company Ltd. Vs. Smt. Himanshi and others MA No.82/2017 Smt. Himanshi and others Vs. Anand Gautam and others admitted by Santosh Advani, however, the claimants have not examined Santosh Advani. Kripal Das (P.W.2) has stated that he and Sundarani took the injured/deceased Deepak Advani to the Hospital, however, he has not stated that Santosh Advani was also with them. The claimants have not examined Sundarani. Kripal Das (P.W.2) has not stated that he had ever informed Gautam Advani (P.W.3) immediately after the accident. Himanshi (P.W.1) has stated that while they were going from Datia to Jhansi, the number of motor cycle was informed by Kripal and Narayan Sindhi, but Kripal Das (P.W.2) has not stated that he had accompanied the injured Deepak Advani to Jhansi. When a specific question was put to Shri Chouhan, Counsel for the claimants that why Santosh Advani, who had admitted the injured in Datia hospital was not examined, then he could not give any explanation for the same. In the entire Court evidence, none of the witness has stated about Santosh Advani. However, after taking instructions from the claimants, it is submitted by the Counsel for the claimants, that Santosh Advani is the cousin brother of the deceased Deepak Advani. Since, Gautam Advani, the real brother of the injured/deceased was getting late to come to the spot/ hospital, therefore, he informed Santosh Advani on telephone, 7 THE HIGH COURT OF MADHYA PRADESH MA No.1069/2016 National Insurance Company Ltd. Vs. Smt. Himanshi and others MA No.82/2017 Smt. Himanshi and others Vs. Anand Gautam and others therefore, Santosh Advani immediately rushed to the hospital and admitted the deceased in the District Hospital Datia. The above mentioned explanation/answer given by the Counsel for the claimants/appellant is not supported by evidence. Further Gautam Advani (P.W.2) has stated that after getting information from Narayan and Kripal Das (P.W.2), he reached the hospital within 30 minutes of the accident, however, in para 7 of his cross examination, this witness on his own has stated that he came to know about the accident on the next day. Further, this witness has stated that from Datia, he had taken the deceased Deepak Advani to Shanker Hospital Jhansi. On the next day of accident, he was told by Kripal Das (P.W.2) about the number of motor cycle, whereas Himanshi (P.W.1) has stated that Kripal Das (P.W.2) had told the number of the motor cycle while they were on their way to Jhansi. If the evidence of Himanshi (P.W.1) and Gautam Advani (P.W.3) are considered, then there is a discrepancy in their evidence as to when the number of motor cycle was told to them by Kripal Das (P.W.2). If the evidence of Gautam Advani (P.W.3) that he was informed about the number of motor cycle on the next day of accident is accepted, then it is clear that Gautam Advani (P.W.3) was in Shanker Hospital, Jhansi whereas Kripal Das (P.W.2) 8 THE HIGH COURT OF MADHYA PRADESH MA No.1069/2016 National Insurance Company Ltd. Vs. Smt. Himanshi and others MA No.82/2017 Smt. Himanshi and others Vs. Anand Gautam and others has stated that on the next day of the accident, he had given an application to the S.P., Datia. thereby disclosing the number of the motor cycle. Thus, it is clear that on the next day of accident, Kripal Das (P.W.2) was in Datia and not in Jhansi. Further, Kripal Das (P.W.2) has not stated that he too had gone to Jhansi along with the injured and Himanshi (P.W.1) and Gautam Advani (P.W.3). Thus, it is clear that the presence of Kripal Das (P.W.2) on the spot, in District Hospital Datia and thereafter in Shanker Hospital Jhansi could not be proved by the claimants. Although Kripal Das (P.W.2) has stated that he had informed the S.P., Datia about the number of offending motor cycle, but no document in this regard has been filed by the claimants. In fact, the claimants have not filed any document to show that immediately after the accident, any of the witness had ever informed the police about the number of the motor cycle. It appears that that witnesses came to light for the first time on 25-7-2015, when their statements under Section 161 of Cr.P.C. were recorded i.e., after about 48 days of accident. Further, it is clear from the mechanical test report of the offending motor cycle, Ex. P-9, no damage or defect was found. Had there being any collusion with the deceased, then the offending motor cycle should have sustained some damage. 9
THE HIGH COURT OF MADHYA PRADESH MA No.1069/2016 National Insurance Company Ltd. Vs. Smt. Himanshi and others MA No.82/2017 Smt. Himanshi and others Vs. Anand Gautam and others
14. Thus, in view of the discrepancies in the evidence of the claimants witnesses, this Court is of the considered opinion, that the claimants have failed to prove that Kripal Das (P.W.2) had witnessed the accident. 'Thus, under this circumstance, the delay in disclosure to the police about the number of offending motor cycle becomes important. Thus, it is held that the claimants have failed to prove that the deceased Deepak Advani met with an accident, caused by the offending motor cycle bearing registration no. MP 32 MB 1769.
15. Thus, the findings given by the Claims Tribunal, that the accident took place with motor cycle no. MP 32 MB 1769 are hereby set aside.
16. So far as the appeal filed by the claimants for enhancement of compensation amount is concerned, since, the claimants have failed to prove that the deceased Deepak Advani met with an accident, caused by offending motor cycle bearing registration no. MP 32 MB 1769, therefore, M.A. No. 82 of 2017 filed by the claimants is hereby dismissed. As a consequence thereof, the appeal filed by the Insurance Company, i.e., M.A. No. 1069 of 2016 is hereby allowed. The Claims Petition filed by the claimants under Section 166 of Motor Vehicles Act, is hereby dismissed.
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THE HIGH COURT OF MADHYA PRADESH MA No.1069/2016 National Insurance Company Ltd. Vs. Smt. Himanshi and others MA No.82/2017 Smt. Himanshi and others Vs. Anand Gautam and others
17. Resultantly, the award dated 26-7-2016 passed by Motor Accident Claims Tribunal, Datia in Claim Case No. 130 of 2015 is hereby set aside.
18. M.A. No. 1069 of 2016 filed by Insurance Company is Allowed and M.A. No. 82 of 2017 filed by the Claimants is hereby Dismissed.
19. This Court by order dated 3-11-2016 had observed that disbursement of the amount so deposited, shall be subject to the orders passed by this Court, and the Claims Tribunal was directed to invest the amount so deposited in a Nationalized Bank in the form of a short term Fixed Deposit. therefore, it is directed that if the amount is still in the form of Fixed Deposit, then the appellant/Insurance Company shall be entitled to receive the same back along with the interest which has already accrued or if the amount has been paid to the claimants/appellants, then they shall immediately deposit the same back in the Claims Tribunal, preferably within a period of one month from today, otherwise, the said amount shall carry the interest @ 6% p.a. (G.S. Ahluwalia) Judge MKB* MAHENDRA KUMAR BARIK 2020.01.29 VALSALA VASUDEVAN 2018.10.26 15:14:29 -07'00' 15:11:39 +05'30'