National Insurance Co Ltd vs Maganbhai Premjibhai Rojasara Father Of Decd & 8S

1.0 This appeal is directed against the judgement and award dated 26.05.2000 passed by the Motor Accident Claims Tribunal (Auxi.), Rajkot, in Claim Case No. 15 of 1993 wherein the learned Tribunal has partly allowed the aforesaid claim petition by awarding compensation in the sum of Rs. 135000/­ along with interest at the rate of 12% per annum from the date of claim petition till realization.

2.0 On 07.12.1992 at about 1.30 p.m. Babubhai was riding his bicycle with moderate speed and on the correct side of the road on Ahmedabad­Rajkot highway road and was proceedings towards Rajkot. At that time, one Luna Moped bearing No. GJ­3­C­8256 came from opposite side in excessive speed and in rash and negligent manner dashed with Babubhai causing death of Babubhai. The heirs of the deceased therefore, filed the aforesaid claim petition wherein the learned Tribunal passed the aforesaid award which is challenged in the present appeal.

3.0 Learned advocate for the appellant contended that the involvement of the vehicle is doubtful; that the learned Tribunal has failed to appreciate that actually as per F.I.R and Panchnama, Luna Moped No. GBO­1461 was involved in the accident but as the interest of the owner of Luna No. GBO­1461 was not insured with any Insurance Company, the vehicle No. GJ­3­C­8256 has been substituted subsequently with a view to help the claimants and to foist the liability of the claim on the Insurance Company of GJ­3­C8256.

4.0 According to him, the F.I.R is lodged against the driver of Luna Moped No. GBO 1436. Panchnama also shows that it is Luna Moped No. GBO 1436 which is involved in the accident but subsequently it transpired during investigation that the interest of the owner of Luna Moped No. GBO 1436 was not insured by any policy of Insurance and with a view to help the claimants in getting compensation the vehicle has been changed. According to him, there is collusion with each other in the present case which is not considered by the learned Tribunal.

5.0 The claimants submitted application Exh. 8 stating that after the inquiry it was revealed that not vehicle No. GBO 1463 but vehicle No. GJ 3 C 8256 was involved in the accident and therefore, claim petition be permitted to be amended in such a way that vehicle No. GJ3C 8256 be substituted for vehicle No. GBO 1463.

6.0 Learned advocate for the appellant­Insurance Company submitted that the appellant made application with a prayer to direct the claimants to implead the owner, driver and Insurance Company of Luna Moped No. GBO 1436 as opposite parties and the claimants be directed to carrying out the necessary amendments in the claim petition.

7.0 Mr. Soni, learned advocate appearing for opponent No.4 submitted that learned Tribunal has dismissed the claim against the opponent No.4 and therefore, it is not liable to pay compensation to the claimants .

8.0 Mr. Darji, learned advocate appearing for the claimants submitted that in the police statement it is clearly stated that Luna No. GJ­3­C­ 8256 dashed and not Luna No. GBO­1463. He further submitted that it was stated by eyewitness that alleged accident had taken place due to rash and negligent driving on the part of the driver of unknown Luna and not due to rash and negligent on the part of driver of Luna No. GBO 1463.

9.0 Heard learned advocates for the parties and perused the documents on record. As far as accident is concerned, the same is not disputed. The only question is with regard to involvement of the vehicle in the accident.

10.0 Looking to the F.I.R and panchnama of place of occurrence it is crystal clear that Luna Moped No. GBO­1463 was involved in the accident and Luna Moped No. GJ­3­C­8256 was not involved in the alleged accident. Further, in the F.I.R and panchnama of scene of occurrence nowhere it is mentioned that Luna Moped No. GJ­3­C­8256 was involved in the accident. The record shows that Luna Moped No. GBO­1463 was involved and accident had taken place due to rash and negligent driving on the part of the driver of Luna No. 1463. From the F.I.R and panchnama it is clear that Luna No GBO­1463 was involved in the alleged accident but it appears that as the interest of the owner of Luna No. GBO­1463 was not insured by any insurance policy with insurance company, Luna No. GJ­3­C­8256 has been got substituted subsequently with a view to help the claimants and to foist the liability of claim on the insurance company of Luna No.GJ­3­C­8256.

11.0 From the above facts, it clear that at the initial stage on 07.12.1992 everything was aimed against vehicle No. GBO 1463. Even that vehicle was lying on the spot when the panchnama was drawn. Subsequently the story was changed and new fact was introduced to the effect that the vehicle involved in the accident had run away and vehicle of opponent No. 4 was simply lying there which was not involved in the accident. Probably the vehicle No. GBO 1463 was not insured or the contract of insurance was not in force on the date of accident and, therefore, with the aid of other persons appear to have substituted the new vehicle with driver owner and insurer.

12.0 When the insurer has positively about the probability of substitution of parties because of the fact that the vehicle No. GBO 1463 originally shown in the police papers may not have been insured is a very significant statement and in view of that position, it would not be just and proper to dismiss the claim petition against opponent No.4.

13.0 If the involved vehicle had really run away then it is not explained as to why the informant has omitted to state that fact in the F.I.R. If that vehicle had run away then it is not on record as to who found the vehicle No. GBO 1463 on the spot. It is also not clear as to why this vehicle was present when the panchnama was drawn.

14.0 It is also not clear as to why son of this opponent Girharbhai raised no objection for drawing panchama with respect to his vehicle. All the surrounding circumstances and documents on record create doubt about the bonafide of the application made by the claimants.

15.0 For the foregoing reasons, the appeal is allowed. The impugned judgement and awards passed by the Tribunal are quashed and set said qua the imposition of liability on the appellant­Insurance Company to make the payment of compensation. It is, however, observed that if the amount deposited before the Tribunal is already withdrawn by the original claimants, the same shall not be recovered from the original claimants and the Insurance Company shall be at liberty to recover the same form the owner of the vehicle. If the amount is not withdrawn by the original claimants, it will be open to them to recover the same from the owner of the vehicle. The award of the Tribunal is modified accordingly. It is clarified that the amount shall not be recovered from the owner of the vehicle No. GJ­3­C­8256. If any, amount lying with the Registry of this Court shall be transmitted to the concerned Tribunal forthwith. No order as to costs.

(K.S.JHAVERI, J.) niru*