1. Heard learned advocate Mr.Mehul Sharad Shah for appellant Insurance Co. and learned advocate Mr.Mehul Shah for respondent claimant in both appeals.
2. In present appeals, the appellant Insurance Co. has challenged common award passed by MAC Tribunal, Panchmahals at Godhra in MACP No.311 of 1991 and 467 of 1993, Exh.79, dated 29.11.2008, whereby the claims Tribunal has awarded Rs.4,41,000/- with 8% interest and Rs.30,000/- with 8% interest in MACP No.467 of 1993 in favour of respondent claimant.
3. Learned advocate Mr.Mehul Sharad Shah has challenged this common award only on one ground that vehicle in question is not involved at all in accident. He submitted that accident occurred on 1.4.1990. That first MACP is filed on 2.4.1991 and second MACP is filed on 27.2.1993 after a period of 34 months from date of accident. He also submitted that written statement filed by driver, owner and Insurance Co. before claims Tribunal. The FIR filed by Sormiben on 1.4.1990, who was the resident of village Kundala. According to complaint, accident occurred near curve of village Mandali, at that occasion he was pillion rider in motorcycle and her husband was driving motorcycle as a rider of motorcycle. He also raised contention that in first complaint FIR, there was no averments made by Sormiben that tempo has been dashed with motorcycle. On 2.4.1990, her second statement was obtained, in that statement development has been made by her giving colour of tempo and also made clear that accident occurred because of dash given by tempo to motorcycle. In Panchnama, no number of tempo has been given. Even said Sormiben has also not given number of tempo. In written statement specific contention has been raised by owner, driver and Insurance Co. that tempo is not involved in said accident. A criminal case has been lodged against driver, who was declared acquittal. The evidence of Sormiben at Exh.39 is contrary to first FIR. The investigation officer was examined, who has admitted that first FIR dated 1.4.1990 filed by Sormiben which has been recorded according to details given by Sormiben. That Rambhai, IO, was examined vide Exh.60 wherein FIR is proved. The owner of vehicle Dineshkumar was examined vide Exh.68 and according to his evidence, in tempo, dead body was taken and tempo was not at all there where accident is occurred. The driver was examined vide Exh.73 and Dineshbhai, owner of tempo, is uncle in law of driver and according to driver, he was coming with labourers travelling in tempo. These facts are not stated by owner of tempo. He also submitted that two witnesses are not reliable and they were not present when accident occurred. That Virabhai (Hirabhai) who was examined vide Exh.44, belonged to village Kundala and Sormiben also belonged to village Kundala. Another witness was examined vide Exh.52, who was also not travelling in tempo and also not present when accident occurred. These are so called witnesses and police has not recorded their statements. Therefore, according to his submission, the involvement of tempo is not proved by evidence before claims Tribunal. Therefore, claims Tribunal has committed gross error in appreciating evidence on record and come to different conclusion which is contrary to record. There is no challenge to merits means quantum of compensation by appellant Insurance Co. Except aforesaid contentions, as recorded by this Court, no other contention is made by learned advocate Mr.Mehul Sharad Shah before this Court.
4. Learned advocate Mr.Mehul Shah for respondent claimant submitted that claims Tribunal has rightly appreciated evidence on record. Two witnesses; Virabhai and Vajabhai, out of them one witness was travelling in tempo and another was going on bicycle and he was eye witness to accident. He also submitted involvement of tempo is proved by positive evidence of Sormiben at Exh.39 which evidence remained as it is and no person who was examined before claims Tribunal gave evidence that tempo was not involved at all in accident. He submitted that it is not a case of Insurance Co., owner and driver before claims Tribunal that on date of accident, tempo was not at all driven on the road in which the accident is occurred or tempo was lying in the house of owner. But it is not a defence raised by Insurance Co. before claims Tribunal. On the contrary, driver has admitted that tempo was there when accident occurred. So, presence of tempo on date of accident on road place in which accident is occurred, is proved by evidence of driver. Therefore, according to him, there is sufficient evidence on record and involvement of vehicle has been proved and on that basis, claims Tribunal has rightly decided the matter and rightly award amount of compensation. For that, no interference is required by this Court.
5. I have considered submissions made by both learned advocates and also perused common award passed by claims Tribunal. The accident occurred on 1.4.1990 where Sormiben and her husband were going on motorcycle bearing No.GAM 2190 at Kundala village. That while coming back at noon on motorcycle, at that time Sormiben was sitting as a pillion rider and her husband was driving motorcycle and when the motorcycle reached to Mandali, near to Kundala village boundary, at that time from opposite side, tempo No.GRY-5333 belonged to opponent No.2 - owner was coming with rash and negligent driving and dashed to motorcycle and that is how accident is occurred which has resulted into death of Sorambhai and Sormiben received injury. On behalf of both persons, claim petitions were filed before claims Tribunal. A reply was filed vide Exh.36, owner of vehicle and Insurance Co. has also filed reply vide Exh.11 denying averments made in claim petition. The driver, owner and Insurance Co. have filed written statements before claims Tribunal so as to disprove involvement of vehicle tempo. A criminal complaint is also filed against driver of tempo. The FIR bearing No.41 of 1990 is lodged where driver was declared acquittal. Thereafter, issues have been framed by claims Tribunal vide Exh.12. Thereafter, claims Tribunal has considered evidence of claimant Sormiben at Exh.39. One witness Virabhai was examined vide Exh.44 and Vajabhai was examined vide Exh.52. On behalf of respondent, one witness Rambhai, PSI was examined vide Exh.60 and vide Exh.68, Dineshbhai, who is the owner of tempo, was examined and vide Exh.73, driver of tempo was examined. The claimants have produced certain evidence before claims tribunal. Vide Exh.20 PM note has been produced, vide Exh.21, appointment order of deceased also produced. Vide Exh.22, salary certificate was produced, vide Exh.23 injury certificate of Sormiben was produced. The 6% disability has been accepted by both parties in respect to injury received by Sormiben and thereafter, certain documents about statement recorded by police of Sormiben vide Exh.61 was produced and vide Exh.41, Panchnama of place of accident was produced and vide Exh.78, copy of insurance policy was produced. Thereafter, no witness has been examined and no other documents have been placed on record.
6. The evidence led before claims Tribunal has been appreciated by claims Tribunal on basis of record which are available before claims Tribunal. The evidence of claimant Sormiben where doubt has been created by learned advocate Mr.Mehul Sharad Shah who is appearing on behalf of Insurance Co. that first statement was given to police on 1.4.1990 and second statement was given on 2.4.1990 and both are having different facts and therefore, doubt has been created. Learned advocate Mr.Mehul Sharad Shah has forgotten that accident is an accident. The accuracy which argued by lawyer to have particular things in a particular manner, it is not possible in accident. A lady who suffered injury and her husband has died on the spot, gave statement on 1.4.1990 become unconscious and on next day i.e. 2.4.1990, stated correct picture after recovery, which has been doubted only on the ground that on 1.4.1990 some facts have not been disclosed and on 2.4.1990 particular facts have been disclosed and that amounts to improvement by claimant. I fail to understand this kind of submission when a lady received injury in an accident, gave statement of facts on 1.4.1990. It may be that some facts are lapse but accident occurred that fact has been disclosed by Sormiben on 1.4.1990. The question of involvement of vehicle when she recovered from injury to some extent on 2.4.2009, a clear statement has been given to police where tempo has been dashed to motorcycle and accident is occurred. The colour of tempo is also given but number of tempo was not given as per submission made by advocate of appellant as if that Sormiben is sitting to give examination in examination room for giving all details, that was not the situation in case of accident. The accident has to be understood when injured person has given statement which may not be accurate as expected by Insurance Co. from Sormiben. This is the hard reality which has been ignored merely creating doubt against witness. One witness was travelling in tempo and another witness was travelling on bicycle. The evidence of owner is contrary to driver's evidence. The evidence of owner suggests that there was no passenger in tempo and tempo was coming empty. Contrary to that, driver made clear statement on oath that there were passengers travelling in tempo, then why doubt is not created against owner and driver of tempo. Therefore, according to my opinion, claims Tribunal has rightly examined the matter. The evidence of PSI is also properly appreciated vide Exh.60, who was examined just to prove the complaint filed by Sormiben on 1.4.1990. The FIR is filed by Sormiben and offence has been registered by police. Ordinarily, police cannot register offence unless it has been properly investigated by concerned person as per ingredients of relevant section of IPC and that suggests that tempo is involved in said accident. The charge sheet is also filed against driver of tempo and there was sufficient evidence before claims Tribunal to come to conclusion that tempo was involved in accident and due to dash of tempo to motorcycle, accident is occurred and husband of Sormiben died and she has received injury.
7. The claims Tribunal has considered and discussed evidence in Para.17 and 18 and come to conclusion that statement given by driver that on humanitarian ground, he had taken dead body of deceased and also a clear statement made on oath that on date of accident, in tempo there were passengers (labourers) were travelling. Therefore, claims Tribunal has come to conclusion while observing in Para.19 which observations are relevant and according to my opinion, this is the correct approach of claims Tribunal. The claims Tribunal has come to conclusion that merely creating doubt and acquittal of driver in criminal case, the claims Tribunal should not have to be influenced by such facts and must have to consider evidence on record and also to take sufficient care that innocent person victim should not have to be suffered merely on technical contentions raised by other side. Therefore, claims Tribunal has considered the decision of Apex Court in case of NKV Brother (P) Ltd. v. M. Kurmai Amal and Others, reported in AIR 1980 1354 and considering decision of this Court in case of United India Insurance Co. Ltd. v. Damodar Kachrabhai Dhanabhai reported in 2007 (1) AMC 1179. In aforesaid decision, the Apex Court has observed that accidents Tribunals must take special care to see that innocent victims do not suffer and drivers and owners do not escape liability merely because of some doubt here or some obscurity there. Save in plain cases, culpability must be inferred from the circumstances where it is fairly reasonable. The Court should not succumb to niceties, technicalities and mystic maybes.
8. Recently, Apex Court has in case of Bimla Devi & Ors. v. Himachal Road Transport Corporation & others reported in 2009 AIR SCW 4298 has considered that in 166 claim petition, strict proof of accident not possible to be given by claimant. The claimants have to establish their case merely on touch stone of preponderance of probabilities. The standard of proof beyond reasonable doubt cannot applied. Relevant discussion are in Para.12 to 15 which are quoted as under :
12. While dealing with a claim petition in terms of Section 166 of the Motor Vehicles Act, 1988, a Tribunal stricto sensu is not bound by the pleadings of the parties; its function being to determine the amount of fair compensation in the event an accident has taken place by reason of negligence of that driver of a motor vehicle. It is true that occurrence of an accident having regard to the provisions contained in Section 166 of the Act is a sine qua non for entertaining a claim petition but that would not mean that despite evidence to the effect that death of the claimant s predecessor had taken place by reason of an accident caused by a motor vehicle, the same would be ignored only on the basis of a post mortem report vis-`-vis the averments made in a claim petition.
13. The deceased was a Constable. Death took place near a police station. The post mortem report clearly suggests that the deceased died of a brain injury. The place of accident is not far from the police station. It is, therefore, difficult to believe the story of the driver of the bus that he slept in the bus and in the morning found a dead body wrapped in a blanket. If the death of a constable has taken place earlier, it is wholly unlikely that his dead body in a small town like Dharampur would remain undetected throughout the night particularly when it was lying at a bus stand and near a police station. In such an event, the court can presume that the police officers themselves should have taken possession of the dead body.
14. The learned Tribunal, in our opinion, has rightly proceeded on the basis that apparently there was absolutely no reason to falsely implicate the respondent Nos.2 and 3. Claimant was not at the place of occurrence. She, therefore, might not be aware of the details as to how the accident took place but the fact that the First Information Report had been lodged in relation to an accident could not have been ignored. Some discrepancies in the evidences of the claimant s witnesses might have occurred but the core question before the Tribunal and consequently before the High Court was as to whether the bus in question was involved in the accident or not. For the purpose of determining the said issue, the Court was required to apply the principle underlying burden of proof in terms of the provisions of Section 106 of the Indian Evidence Act as to whether a dead body wrapped in a blanket had been found at the spot at such an early hour, which was required to be proved by the respondent Nos.2 and 3.
15. In a situation of this nature, the Tribunal has rightly taken a holistic view of the matter. It was necessary to be borne in mind that strict proof of an accident caused by a particular bus in a particular manner may not be possible to be done by the claimants. The claimants were merely to establish their case on the touchstone of preponderance of probability. The standard of proof beyond reasonable doubt could not have been applied. For the said purpose, the High Court should have taken into consideration the respective stories set forth by both the parties.
8.1 The view taken by this Court (Coram : Hon'ble Mr.Justice KS Jhaveri) in First Appeal No. 2162 of 2002 decided on 22.8.2006 in case of Nagajibhai Bhanjibhai Gosara V/s. Mukesh Vasantbhai Bhalara wherein earlier decision of this Court in New India Assurance Co. Ltd. And another vs. Dahyaben Jayantilal Panchal and others reported in 2000 ACJ 957 was considered by this Court. Paragraph 3 of the decision is reproduced as under:
3. Mr.
Kishor M Paul, Learned advocate for the appellant has submitted that the Tribunal has seriously erred by not appreciating judgments cited relating that if vehicle involved is mentioned in chargesheet in that case interim compensation should be awarded. The learned advocate has relied upon the decision of this Court in the case of New India Assurance Co. Ltd. And another Vs. Dahyaben Jayantilal Panchal and others reported in 2000 ACJ 957 to substantiate his contention. In the case of New India Assurance Co. Ltd. (Supra) it is held that on basis of the chargesheet it can be held that the vehicle was involved in the accident and insurance company is liable under no fault liability. It is clear from the chargesheet that the vehicle in question is involved in the accident. Therefore the claimant is entitled for interim compensation.
8.2. This Court has, in case of New India Assurance Co. Ltd. and another Vs. Dahyaben Jayantilal Panchal and others reported in 2000 ACJ 957, has observed as under in para 5 of the judgment:
5. From the judgment of the Tribunal I find that the appellant has not produced on the record of the claim case the report of the investigator appointed by it. On the basis of complaint filed before learned J.M.F.C.Sayala, police after completing the investigation has chargesheeted Harjibhai Chimanlal Panchal for the accident in question under sections 304A, 279, 337, 338 of I.P.C. and under section 177 and 184 of M.V. Act. Harjibhai Chimanlal Panchal is the driver of the jeep.The Tribunal has not committed any illegality in holding prima-facie on the basis of the chargesheet at this stage that the jeep was involved in the accident. For the purpose of recording prima-facie satisfaction this evidence cannot be stated to be altogether irrelevant and not admissible. Much emphasis has been laid by the learned counsel for the appellant that once this amount is awarded it is not refundable. It is true that the liability under section 140 of the M.V. Act, 1988 is based on the principle of "no fault liability" and even if ultimately the negligence of the driver in driving of the vehicle is not proved or for other reasons the driver or owner is exonerated, the amount paid by way of interim compensation cannot be recovered from the claimants but this principle may not be applicable to the cases where the insurance company made good of the liability of the owner of the vehicle and cannot realise this amount ultimately on their exoneration from the liability. The insurance company in fact insured the liability of the owners and ultimately he is exonerated then certainly at that point of time the Tribunal can pass appropriate order directing the owner of the vehicle to refund this amount together with interest, costs etc. to the company or otherwise the insurance company is within its competence to file a civil suit to recover this amount from the owner. However, only on these technical pleas the benevolent provisions as contained in section 140 of the M.V. Act, 1988 cannot be allowed to be frustrated by the Courts at the hands of the insurance company. The purpose and object of section 140 of M.V. Act is to provide immediate financial help to the claimants in the case of death and injured in the case of injury in motor accident.
9. In view of the aforesaid observation made by Apex Court as referred above, according to my opinion, contentions raised by learned advocate Mr.Mehul Sharad Shah cannot be accepted which merely creates doubt against conduct of claimants showing some contradiction in giving details about accident by injured Sormiben and also to substantiate the arguments on basis of evidence of driver and owner. The view taken by claims Tribunal in both cases is based on legal evidence and evidence on record that tempo is involved in present accident and that facts have been proved by legal evidence which are on record. For that, claims Tribunal has not committed any error which requires interference by this Court. There was no other contention raised in respect of quantum by learned advocate Mr.Mehul Sharad Shah in both appeals. Therefore, contentions raised by learned advocate Mr.Mehul Sharad Shah cannot be accepted and same are rejected. Therefore, there is no substance in both appeals. Accordingly, both appeals are dismissed.
10. As main first appeals are dismissed, no order is required to be made in civil applications for stay. Accordingly, civil applications for stay are also dismissed.
(H.K.RATHOD,J.) (vipul) Top