Hon'ble Subhash Chand,J.
1. Heard learned counsel for the parties.
2. This appeal challenges the Judgment and order dated 31.3.2014 passed by Motor Accident Claim Tribunal/Additional District Judge, Room No.6, Ghaziabad (hereinafter referred to as the Tribunal) in Motor Accident Claim Petition No. 570 of 2011, Girish Kumar Gupta Vs. Brijesh Tyagi and others.
3. The Tribunal has dismissed the claim petition filed by the appellant herein, who had sustained grievous head injury. The claimant filed the claim petition alleging that on 9.6.2011 when he along with his wife Prabha Gupta were moving on their feet on their correct side and when they reached in front of old bus-stand Ghaziabad near over bridge at about 9.30 am, a young boy driving a Pulsar motorcycle bearing Registration No. UP 14 AE 3202 rashly and negligently came and dashed the claimant from behind.
4. At the time of accident, the claimant aged about 55 years was an ASI posted at Police Department whose monthly income was Rs.34,850/-. The F.I.R. was lodged as Crime No. 752 of 2011. The claimant, when filed the petition, was in coma. Dr. Atul Gupta, who was attached with Yashoda Hospital, Ghaziabad treated him. The respondent no. 1 and 2 filed their reply of denial but averments made in paras 14 to 17 were accepted. The respondents contended in the written statement that no such accident had taken place. Para 23 of the written statement is quoted as under:-
";g fd ;kfpdk dh /kkjk 23 dh mi/kkjkvksa ds dFku vLohdkj gSA ;kfpdk dh eksVj lkbfdy ls dksbZ nq?kZVuk ugh gqbZ gS izfroknh la[;k 2 izfroknh la[;k ,d dh fj'rsnkj dks cl vM~Mk ij okfil izfroknh la0 1 ds ?kj tk jgk Fkk rHkh fdlh vKkr okgu }kjk ftls vU; okguks dh HkhM+ ds dkj.k izfroknh la[;k 2 ugh ns[k ldk ;kph tks chp lM+d ij py jgs Fks dks Vddj ekj nh izfroknh la0 2 mlh oDr ogk ls xqtjk Fkk lEHkor% fdlh us Hkwyo'k ;kph dh eksVj lkbfdy dks nq?kZVuk dkfjr djus okyk okgu le> dj mldh eksVj lkbfdy dsk uEcj uksV dj fy;k ;kphx.k dks eksVj lkbfdy ls dksbZ nq?kZVuk ugh gqbZA nq/kZVuk ;kph ds vR;kf/kd okgu lapkfyr gksus okyh lM+d ds e/; ykijokgh ls pyus ds dkj.k nq?kZVuk gq;hA^^
5. The Insurance Company also filed its reply of denial and contended that the vehicle was not involved and accepted that vehicle was insured with it from 20th October 2010 to 19th October 2011.
6. The appellant herein examined P.W. 1 Prabha Gupta, wife of the injured. P.W. 2 Balveer Singh stated that he looks after the injured and he has suffered parlytic stroke because of this accident and, for two years, he has been under treatment. In his cross-examination, he was asked as to who stays with him and whether the witness has passed any nursing course or not. Dr. Atul Gupta has been examined as P.W. 3 under whom the treatment of the injured was going on. In his testimony, it is mentioned that even in the case paper he has mentioned that the injured was injured due to accidental injuries and had produced all the documents. P.W. 4 Mangal Sain has been examined so as to depose about the income and fact that from 9.6.2011, he is on leave.
7. As far as the respondents are concerned, DW 2 who is one Pratap son of Hari Kishan, has mentioned that respondent no. 2 had gone to the bus station to drop the relative of respondent no.1 and when he was returning therefrom to the house of respondent no.1, one unknown vehicle which he could not see due to crowd, dashed with the claimant in front of bus stand when he passed through at the very moment. Someone taking it the motorcycle of respondent no.2 which caused the accident, noted number of his motorcycle. Later on, he deposed that no accident occurred due to the said vehicle. He had not withstood the cross-examination despite his evidence has been believed by the Tribunal. He accepts that he did not see the claimant on the road. Pratap, in the cross-examination, accepted that he came out of the bus station but he disputes the timing. He has accepted that the charge-sheet is laid against him and the criminal trial is going on. He has accepted that the learned Advocate had prepared his affidavit and written statement. He had only singed on the same.
8. Learned counsel for the appellant has heavily relied on the decisions of Apex Court in Anita Sharma and others Vs. The New India Assurance Company Ltd. and another, 2020 0 Supreme (SC) 704 and Mangla Ram Vs. Oriental Insurance Co. Ltd. and others, 2018 5 SCC 656. According to him, both these Judgments are in favour of the appellant.
9. The submission of Sri N.K. Srivastava is that as the petition has rightly been dismissed as though the injured is a policeman and the accident occurred near the police station, the F.I.R. was lodged on the next day. Thus, the Tribunal has rightly, according to Sri Srivastava, rejected the claim petition.
10. We are concerned mainly with issue no.1 which has been answered in the negative on the basis of fact that she did not register the F.I.R. immediately despite the fact that her husband is a police officer. The F.I.R. was lodged on the next date. The claim petition was dismissed because there are some discrepancies in the timings. The Tribunal decided all the other issues also and dismissed the claim petition.
11. We have perused the evidence. Though the F.I.R. was lodged on the next day, the Judgment of the Apex Court Jai Prakash Vs. National Insurance Company Ltd. 2010 (2) GLR 1787 wherein the Apex Court has held that the police authorities are under a duty to intimate the Court regarding the accident having taken place and, therefore, dismissing the claim petition on this ground is bad and is against the mandate of the Supreme Court. In Anita Sharma & others Vs. The New India Assurance Co. Ltd & another, 2020 0 Supreme 52, it was held by the Supreme Court that strict principles of evidence and standards of proof like in a criminal trial are inapplicable in MACT claim cases and it is commonplace for most people to be hesitant about being involved in legal proceedings and they do not volunteer to become witnesses. In Mangla Ram Vs. Oriental Insurance Co. Ltd & others, 2018 4 Supreme 525, it was held by the Supreme Court that Tribunal stricto sensu not bound by pleadings of parties. Its function is to determine amount of fair compensation and even if Insurance Company is not held liable, principle of ''pay and recover' can be invoked. Based on the same, the learned counsel has contended that the findings of the Tribunal are based on misreading of the evidence on record. The Tribunal has committed an error in not considering the fact that the doctor opined that the injured was under his treatment. The evidence clinches that the injured has been in hospital since the date which he has mentioned in the F.I.R. and the claim petition.
12. The Judgment of the Apex Court in the case of Anil Vs. National Insurance Company reported in 2018 ACJ 729 will also come to the aid of the claimant. The claim petition cannot be dismissed just because there is delay in lodgment of the F.I.R. by one day. The involvement of the vehicle is proved. The reason being charge sheet is laid. It is not proved by the respondent that on the said date, he was not on that road rather he accepts the fact that he was on the said road. He had gone to drop somebody at the bus stand and in the absence of evidence to the contrary that the evidence have been planted, the Tribunal could not have dismissed the claim petition. The F.I.R. was registered. The deposition of the eye witness could not have been discarded in the manner in which the Tribunal has done. It was the solemn duty of the Tribunal to take a holistic view of the matter as held by the Apex Court in Jai Prakash (supra) and several precautions are given to the police authorities so as to comply with Section 166 (4) of the Motor Vehicle Act 1988. The decision in the case of Mangla Ram (supra) and the recent Judgment in Anita Sharma (supra) would apply to the facts of the case. The Judgment in Parmeshwari Vs. Amir Chand, (2011) 11 SCC 635, relied in the case of Anita Sharma (supra) would also come to the aid of the appellant. The Judgment of the Apex Court in Sunita and others Vs. Rajasthan State Road Transport Corporation, AIR 2019 SC 994 will also come to the aid of the appellant herein where the wife was examined but just because there is difference in the timing which she has narrated in oral testimony and the timing given to the respondent are different, the claim petition has been dismissed.
13. We have perused the paper book also which shows that the accident had occurred but same has been disbelieved by the Tribunal only on the ground that she did not go to lodge F.I.R. immediately. The Tribunal held that the accident occurred but it occurred with this vehicle could not be proved. This finding is perverse. The driver of the vehicle was present at the place of accident. He himself accepted that he had gone to the bus stand to drop somebody and takes a stand that his vehicle was not involved despite the fact that the charge-sheet was already laid against him.
14. Having perused the record, we are convinced that the Tribunal has decided the claim petition on surmises and conjectures and had not taken a holistic view of the matter, which was required to be taken. The charge-sheet is laid against the driver and his presence is accepted on timing but as the F.I.R. was delayed by one day, the claim petition was dismissed. We cannot concur with the Tribunal rather for the reasons we have mentioned hereinabove. The claim petition could not have been dismissed when the aforesaid facts were proved.
15. We would have decided the quantum here but remit the matter to the Tribunal to decide the quantum as all other issues have been decided. It shall hear the parties for compensation only. No further evidence be led as the evidence is already led. The matter be decided on or before 31st of December 2021 as the accident is of the year 2011 and the appellant is paralytic as mentioned by his counsel while making his oral submissions.
16. Appeal is partly allowed with the aforesaid observations.
17. Record be sent back to the Tribunal.
18. We are thankful to the counsel for both the parties for ably assisting the Court in deciding the appeal.
Order Date :- 24.9.2021 Ram Murti