Hon'ble Om Prakash-VII, J.
This First Appeal From Order under Section 173 of the Motor Vehicle Act has been filed by the appellant - insurance company against the judgment and award dated 29.3.2014 passed by Motor Accident Claims Tribunal / Additional District Judge, Court No.4, Mathura in Motor Accident Claim Petition No.440 of 2010 (Smt. Brajesh Devi and others Versus Suresh Kumar Shastri and others) whereby the Tribunal has awarded compensation of Rs.23,11,000/- along with 7% simple interest per annum from the date of filing of the claim petition to the claimant-respondents fastening the liability to pay the compensation on the appellant - insurance company.
In the claim petition, the respondents set up a case that on 10.02.2008 at about 10.00 a.m.when the deceased was going to his village Salemabad, district Agra along with his wife, Smt. Brajesh Devi on motor-cycle and when they reached near Gate No.2 of Mathura Refinery on National Highway No.2, the driver of the offending car, bearing registration no.UP-85-S-0620, being driven rashly and negligently, hit the motor-cycle from the back side, causing grievous injuries to the deceased and also some injuries to Smt. Brajesh Devi, the pillion rider. The deceased was admitted in the hospital and during the course of treatment, he died on 14.12.2008.
It was the case of the claimants that the accident has been caused due to the sole negligence on the part of the driver of the offending car and rash driving. However, it is the admitted case that though Brajesh Devi, the wife of the deceased, who was pillion rider also suffered some injuries in the same accident but she did not file any claim petition.
Opposite party no.1 - Suresh Kumar Shastri, owner of the offending vehicle i.e. respondent no.5 and opposite party no.3 - Leela Singh, driver of the offending vehicle i.e. respondent no.6 have filed their written statements denying the fact mentioned in the claim petition. They pleaded that on the date of accident, deceased, who was driving the motorcycle, fell down in front of the Car, therefore, the accident took place. It is also the case of these respondents that accident was the result of sole rash and negligent driving on the part of the deceased and there was no rash and negligent driving on the part of the driver of the offending Car.
Appellant - insurance company has also filed written statement denying all the facts mentioned in the claim petition and has pleaded that no such type of accident took place with the offending Car on the date, time and place mentioned in the claim petition. There is collusion between the owner/driver and the claimants.
On the pleadings of the parties, the Tribunal has framed issues regarding accident and the injuries sustained by the deceased, driving license, insurance policy and also in regard to relief/compensation.
Claimants have examined before the Tribunal P.W.1 Brajesh Devi and P.W.2 Shamsher Singh in oral evidence and have filed documentary evidence also. Opposite parties did not examine any witness in oral evidence, but filed documentary evidence.
Tribunal, after hearing the parties, vide impugned judgement and order, awarded the compensation as above.
Feeling aggrieved with the impugned judgement and award, the present Appeal has been filed.
Heard Sri Saurabh Srivastava, learned counsel for the appellant - insurance company and Sri Santosh Kumar Singh, learned counsel for the claimants-respondents no.1 to 4.
Counter affidavit on behalf of the claimants-respondents no.1 to 4 has been filed.
It is the contention of learned counsel for the appellant - insurance company that accident is said to have taken place on 10.02.2008. The first information report was lodged in this matter on 11.06.2010 on the basis of order passed on the application dated 08.04.2010 under section 156 (3) Cr.P.C. No evidence about the treatment has been filed to connect the death of the deceased with the said accident. It has also been argued that no information to the Military Department has been given about the accident. The claimant Smt. Brajesh Devi did not file any claim petition for the injury. Claimants' version is not supported with the evidence of any independent witness. Disputing the income assessed by the Tribunal, it has been argued that deduction should have been made of 1/3rd instead of 1/4th because on computation of the unit, there is only 2½ unit.
Reference has been made to Annexure CA-1 filed along with the counter affidavit, which is the information given by one Lal Singh son of Chandan Singh, the uncle of the deceased, on 11.02.2008, the next day of the accident to the police station wherein, it was informed that the deceased, who was going on the motorcycle of his brother to Salemabad from Mathura, was serving in the Army and had come to his home on leave and at about 10:00 A.M., when he reached, in front of Gate No.9 on National Highway No.2, suddenly a person came in front of the motorcycle and in order to save him, the motorcycle of the deceased became dis-balanced and fell down on the road whereupon the deceased received serious injuries. The motorcycle was also got damaged. The accident has occurred suddenly. Tribunal has wrongly placed reliance on the charge-sheet filed on the basis of statement of P.W.1 Brajesh Devi and allowed the claim petition.
He submitted that the accident took place on 10.02.2008. The uncle of the deceased, Lal Singh has given the information at the police station on 10.02.2008, wherein he has not informed about any accident, caused by the offending car, bearing registration No.UP-85-S-0620. The information given by Lal Singh, has not been disputed by the claimants. The deceased died on 14.12.2008. The application under Section 156(3) Cr.P.C. has been moved on 08.04.2010, almost after two years of the alleged accident. No explanation has been given for the delay in filing the application under Section 156 (3) Cr.P.C., so late. It is surprising that though the deceased was serving in Indian Army, no information has been given to the department about the accident. If the totality of the facts and circumstances are to be taken into account, it reveals that the deceased was died on account of his own fault, may be that his motor-cycle became dis-balanced, as a result of which, he fallen down and suffered grievous injuries or for any other reason but the claimant failed to prove that the accident has been caused by the offending car. Although in the information given by Lal Singh, it has not been stated that the deceased had fallen down in front of the offending car but even if the case of the owner of the vehicle and the driver are to be taken into account, that the deceased fell down in front of the car and if the information of Lal Singh and the statement of the driver of the offending car are taken together it comes down that while the deceased was going along with his wife and reached at Gate No.2 of Mathura Refinery on National Highway No.2, suddenly a person came in front of the motor-cycle and in order to save him, the motor-cycle of the deceased became dis-balanced and fell down on the road and appears to have fell down in front of the offending car, which establishes that there was no fault on the part of the driver of the offending car. He further submitted that the death has been caused after eight months. It is not clear from the record that the death was caused as a result of injury caused in the accident. No explanation has been given for the delay in filing the application on 08.04.2010, under Section 156 (3) Cr.P.C. and, therefore, no reliance can be placed on the charge-sheet submitted in pursuance of the said first information report. He submitted that in the statement, PW-1, Brajesh Devi stated that at the time of accident, she was in conscious stage and has read the number of the offending vehicle. If it is so, why no step has been taken to lodge the first information report immediately by her.
Learned counsel for the claimants-respondents has argued that the owner of the offending vehicle has accepted the factum of the accident. There was no collusion between the owner and the claimants. The insurance company has contested the matter at length on all grounds with the permission of the Tribunal. Wife of the deceased Smt. Brajesh Devi has sent information to the concerned police and the investigation was done by the concerned police on that basis and a charge-sheet against the driver of the offending Car was submitted. No evidence to rebut the claimants' evidence has been adduced by the insurance company. Tribunal has rightly placed reliance on the evidence of P.W.1 Brajesh Devi, who was the eye witness of the accident and also on the charge-sheet submitted by the investigating officer. Mere delay in lodging the first information report is no ground to disbelieve the claimants' case. Claimants have adduced the evidence to connect the death with the accident. It is not the case that there is no first information report. There is first information report and it is followed by the investigation and charge-sheet. Tribunal has rightly taken into consideration the multiplier to work out the compensation. The grounds taken by the appellant in the memo of appeal are not acceptable.
We have heard rival submissions and perused the record.
The questions for consideration are:
(i) Whether any accident took place on 10.02.2008, in which offending car, bearing registration no. UP-85-S-0620 was involved and if involved, whether the accident occurred due to the rash driving on the part of the driver of the offending car and negligent;
(ii) Whether the injuries caused in the alleged accident was as a result of the sole negligence on the part of the driver of the offending car and rash driving;
(iii) Whether the claimant was able to discharge his burden to prove that the accident has been occurred due to the sole negligence and rash driving on the part of the driver of the offending car, bearing registration no. UP-85-S-0620.
It is the case of the claimant that on 10.02.2008 when the deceased was going on motor-cycle along with his wife, Brajesh Devi at about 10.00 a.m. and reached near Gate No.2 of Mathura Refinery on National Highway No.2, the driver of the offending car, bearing registration no. UP-85-S-0620 hit the motor-cycle from the back side, causing grievous injuries to the deceased and was admitted in the hospital where he died during the course of treatment on 14.12.2008. The record reveals that one Lal Singh, uncle of the deceased on 11.02.2008, the next date of the accident given the information to the police regarding the accident wherein it was stated that the deceased, who was going on motor-cycle, reached near the Gate No.2 of Mathura Refinery on National Highway No.2, suddenly a person came in front of the motor-cycle and in order to save him, the motor-cycle of the deceased became dis-balanced and fell down on the road whereupon the deceased received serious injuries. In the statement, Brajesh Devi admitted that at the time of accident, she was conscious and has noted the registration number of the offending car. Though she could have lodged the first information report immediately but she has not taken any step to do so. No explanation in this regard has been given. The deceased died on 14.12.2008, after ten months from the date of the accident. No information about the accident has been given to his department, though he was an Army personnel. The application under Section 156 (3) Cr.P.C. has been given on 08.04.2010, after almost two years from the date of the accident. No explanation has been given for such a long delay. First information report was lodged on 11.06.2010. Spot inspection has been made in pursuance of the first information report on 11.06.2010, almost after two years. Thus, reliance can not be placed on such spot inspection, which was highly belated. Perusal of the chargesheet shows that it based, merely on the statement of Smt. Brajesh Devi, without any other investigation.
On the facts and circumstances, we are of the view that much reliance can not be placed on such charge-sheet. The information given by Lal Singh, which appears to be more authenticated, inasmuch as, it has been given by the uncle of the deceased on the very next day of the accident. In the said information, nothing has been stated about the accident, caused by the offending car. The case set up by Suresh Kumar Shastri, the owner of the offending vehicle and Leela Singh, driver of the offending vehicle stating therein that the deceased, who was driving the motor-cycle, all of a sudden fallen down in front of the car, appears to be doubtful. However, in their pleading both the owner and the driver of the offending vehicle have denied that any accident has been caused due to rash and negligent driving on the part of the driver of the offending vehicle.
However, if the statement of the owner and the driver of the offending vehicle and the information given by Lal Singh, uncle of the deceased are read together, it comes down that suddenly a person came in front of the motor-cycle and in order to save him, the motor-cycle of the deceased became dis-balanced and fell down on the road whereupon the deceased received serious injuries and might have fallen down in front of the offending vehicle. There is nothing on record to establish that offending car hit the motorcycle from the back side as a result of which he fell down which caused injuries. The entire facts and circumstances, establishes that the injuries have been caused due to falling down of the deceased on road on account of his own fault and not on account of hitting by the offending car from the back side to the motor-cycle. Lal Singh, who has initially lodged the first information report, also creates doubt about the involvement of the offending vehicle in the accident. For the first time, PW-1, Smt. Brajesh Devi had sent a report on 30.03.2010 to the Senior Superintendent of Police concerned under postal certificate. Site plan prepared by the Investigating Officer and the statement recorded under Section 161 Cr.P.C. are also on the basis of facts mentioned in the application under Section 156(3) Cr.P.C. If the offending vehicle was involved in the accident, information in this regard could have been given by one Lal Singh, uncle of deceased, to the police, which would have led the police to make the investigation immediately but in the information the accident by offending vehicle has not been given. The investigation carried out by the local police after two years of the accident, can not be relied upon.
Further it is also doubtful whether the death has been caused due to injuries caused in the alleged accident. No finding has been recorded that the death was caused due to the injuries sustained by the deceased in the said accident. Moreover, the Tribunal has not awarded any amount towards medical treatment.
For the aforesaid reasons, we are of the view that the statement given by Smt. Brajesh Devi before the court regarding the involvement of the vehicle in question in the said accident does not inspire confidence and can not be believed. PW-2 is not the eye witness of the accident. Investigation made by the local police on the basis of the order passed on the application under Section 156 (3) Cr.P.C. in the matter regarding involvement of the vehicle in question, can also not be relied upon, which is based on merely on the statement of Smt. Brajesh Devi, the claimant.
In view of the above, we are of the view that the claimant failed to prove that the injury has been caused to the deceased, as a result of the accident caused by the offending vehicle and on account of the sole negligence and rash driving by the driver of the offending vehicle, bearing registration no. UP-85-S-0620. The findings of the Tribunal that the accident has been caused due to the negligence and rash driving by the driver of the offending vehicle, are perverse and based on no evidence, inasmuch as mis-reading of the evidences and without taking into account totality of the facts and circumstances.
For the aforesaid discussions, the order of the Tribunal is not sustainable and is liable to be set aside.
In the result, the appeal is allowed. The order dated 29.03.2014 passed by Motor Accident Claims Tribunal/Additional District Judge, Court No.4, Mathura is hereby set aside. The appellant is entitled for the return of the amount, if paid in pursuance of the said order.
Dated : 28.10.2014 ss/safi