1. Heard Sri Sumit Suri, Advocate, holding brief of Sri Nipun Singh, learned counsel for appellants, Sri Atul Kumar Srivastava, learned counsel for respondents-Insurance Company and perused the record of Tribunal.
2. This appeal, at the behest of the claimants, challenges the judgment and award dated 29.09.2015 passed by Motor Accident Claims Tribunal, Baghpat (hereinafter referred to as 'Tribunal') in M.A.C.P. No. 24 of 2013 whereby the claim petition has been dismissed.
3. The facts as culled out, from the record are that the deceased was a pillion rider on the two wheeler driven by Akash son of Bhanwar Singh. Both of them were returning home one Wagon-R was being driven rashly and negligently, dashed with the motorcycle whereby the driver and the deceased were injured. The accident occurred on 22.2.2013 and for a period of two days he survives.
4. On 23.02.2013, the respondent filed its reply disputing the fact that the driver of the vehicle was driving the vehicle rashly and negligently and was driving the vehicle without taking proper care and caution and the vehicle was insured with insurance company.
5. The claimants filed documentary evidence so as to prove oral documentary evidence. The tribunal has framed five issues and decided all the issues and dismissed the claim petition. The tribunal dismissed the claim petition on totally ungermane grounds which could not be made on the basis of surmises and conjectures. The tribunal disbelieved the involvement of the vehicle on the ground that driver of the vehicle did not sustain serious injuries. He has disbelieved the evidence of PW 1 to 5 that they are not to be disbelieved and has relied on the decision of Orissa High Court. The investigator report, who has produces PW1 has been believed. According to D.W.1 the accident occurred due to involvement with some other vehicle and not that of Wagon-R. It is held that the evidence of PW.1 is not trustworthy and that accident occurred with unknown vehicle and the FIR has been given after two days. The tribunal has considered the facts which are not proved, the fact that charge-sheet is led against the driver and owner of Wagon-R. The charge-sheet and FIR prima facie prove the accident between the two vehicle. During investigation DW1 did not mention the fact that the accident occurred with which vehicle. The investigator just because of the investigator found that the vehicle involved in the accident was also really involved in the accident in the year 2012 and on the same basis he has come to the conclusion that the vehicle was not involved. He has not examined any other person as driver of the motorcycle. The charge-sheet led against Manoj Kumar just because Satpal Singh and Harpal Singh did not carry said vehicle that it is full proof investigation. He has not come out with number of vehicle which he suspects was involved. All these facts will go against the respondent-insurance company. Thus eye witnesses opined we will have to upturn the findings as far as non involvement of the vehicles, hence the matter is allowed. We would have decided the quantum of compensation as it is composite negligence of both the drivers. The driver and owner of the insurance company of the motor cycle is not joined as respondent party.
6. The order of the Tribunal is based on hyper technical ground that the FIR did not disclose the number of vehicle and that it was lodged against unknown vehicle. It is further submitted that the Tribunal has held that the driver of the vehicle did not sustain any injury. The Tribunal has rejected the claim petition of the appellants, who have lost the bread earner of the family.
7. Learned counsel for the appellant has heavily relied on the decision of the Apex Court in the case of Mangla Ram Vs. Oriental Insurance Co. Ltd. and others [2018 LawSuit (SC) 303]. He further relied in the case of Sunita and others Vs. Rajasthan State Road Transport Corporation and another [2019 LawSuit (SC) 190] so as to discard the statement of the counsel for the respondent. The said submission of the counsel for the respondent cannot be accepted for the reason that the driver, owner of the vehicle whose vehicle was involved in the accident has filed written statement wherein the accident having been taken place with their vehicle is not denied. The Tribunal on surmises and conjectures has disbelieved the evidence of eye witnesses.
8. The paragraph-18 of Mangla Ram (Supra) reads as under:
"18. It will be useful to advert to the dictum in N.K.V. Bros. (P) Ltd. Vs. M. Karumai Ammal and others.16, wherein it was contended by the vehicle owner that the criminal case in relation to the accident had ended in acquittal and for which reason the claim under the Motor Vehicles Act ought to be rejected. This Court negatived the said argument by observing that the nature of proof required to establish culpable rashness, punishable under the IPC, is more stringent than negligence sufficient under the law of tort to create liability. The observation made in paragraph 3 of the judgment would throw some light as to what should be the approach of the Tribunal in motor accident cases. The same reads thus:
3. Road accidents are one of the top killers in our country, specially when truck and bus drivers operate nocturnally. This proverbial recklessness often persuades the court, as has been observed by us earlier in other cases, to draw an initial presumption in several cases based on the doctrine of res ipsa loquitur. Accident 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. We are emphasizing this aspect because we are often distressed by transport operators getting away with it thanks to judicial laxity, despite the fact that they do not exercise sufficient (1980) 3 SCC 457 [LQ/SC/1980/132] disciplinary control over the drivers in the matter of careful driving. The heavy economic impact of culpable driving of public transport must bring owner and driver to their responsibility to their neighbour. Indeed, the Stat must seriously consider no fault liability by legislation. A second aspect which pains us is the inadequacy of the compensation or undue parsimony practised by tribunals. We must remember that judicial tribunals are State organs and Article 41 of the Constitution lays the jurisprudential foundation for State relief against accidental disablement of citizens. There is no justification for niggardliness in compensation. A third factor which is harrowing is the enormous delay in disposal of accident cases resulting in compensation, even if awarded, being postponed by several years. The States must appoint sufficient number of tribunals and the High Courts should insist upon quick disposals so that the trauma and tragedy already sustained may not be magnified by the injustice of delayed justice. Many States are unjustly indifferent in this regard."
9. Learned counsel for the appellant has relied on the decisions of Apex Court in New India Assurance Company Vs. Urmila Shukla decided on 6.8.2021 reported in MANU/SCOR/24098/2021, Vimla Devi and others Vs. National Insurance Company Ltd. and another (2019) 2 SCC 186 [LQ/SC/2018/1460] and Anita Sharma and others Vs. The New India Assurance Company Limited and another 2021 (1) SCC 171 [LQ/SC/2020/821 ;] ">2021 (1) SCC 171 [LQ/SC/2020/821 ;] [LQ/SC/2020/821 ;] .
Sections 166, 168 and 147 of the Motor Vehicle Act are reproduced as under:
"166. Application for compensation.- (1) An application for compensation arising out of an accident of the nature specified in subsection (1) of Section 165 may be made--
(a) by the person who has sustained the injury; or.
(b) by the owner of the property; or.
(c) where death has resulted from the accident, by all or any of the legal representatives of the deceased; or.
(d) by any agent duly authorised by the person injured or all or any of the legal representatives of the deceased, as the case may be:
Provided that where all the legal representatives of the deceased have not joined in any such application for compensation, the application shall be made on behalf of or for the benefit of all the legal representatives of the deceased and the legal representatives who have not so joined, shall be impleaded as respondents to the application.
(2) Every application under sub-section (1) shall be made, at the option of the claimant, either to the Claims Tribunal having jurisdiction over the area in which the accident occurred, or to the Claims Tribunal within the local limits of whose jurisdiction the claimant resides or carries on business or within the local limits of whose jurisdiction the defendant resides, and shall be in such form and contain such particulars as may be prescribed:
Provided that where no claim for compensation under Section 140 is made in such application, the application shall contain a separate statement to that effect immediately before the signature of the applicant.
(3) * * * *
(4) The Claims Tribunal shall treat any report of accidents forwarded to it under sub-section (6) of Section 158 as an application for compensation under this Act."
"168. Award of the Claims Tribunal.-
(1) ...............................................…
(2) ...............................................…
(3) When an award is made under this section, the person who is required to pay any amount in terms of such award shall, within thirty days of the date of announcing the award by the Claims Tribunal, deposit the entire amount awarded in such manner as the Claims Tribunal may direct."
"147. Requirements of policies and limits of liability:
(1) In order to comply with the requirements of this Chapter, a policy of insurance must be a policy which—
(a) is issued by a person who is an authorised insurer; and.
(b) insures the person or classes of persons specified in the policy to the extent specified in sub-section (2)—
(i) against any liability which may be incurred by him in respect of the death of or bodily 27 [injury to any person, including owner of the goods or his authorised representative carried in the vehicle] or damage to any property of a third party caused by or arising out of the use of the vehicle in a public place;
(ii) against the death of or bodily injury to any passenger of a public service vehicle caused by or arising out of the use of the vehicle in a public place:
Provided that a policy shall not be required—
(i) to cover liability in respect of the death, arising out of and in the course of his employment, of the employee of a person insured by the policy or in respect of bodily injury sustained by such an employee arising out of and in the course of his employment other than a liability arising under the Workmen's Compensation Act, 1923 (8 of 1923) in respect of the death of, or bodily injury to, any such employee—
(a) engaged in driving the vehicle, or.
(b) if it is a public service vehicle engaged as conductor of the vehicle or in examining tickets on the vehicle, or.
(c) if it is a goods carriage, being carried in the vehicle, or.
(iii) to cover any contractual liability.
Explanation. —For the removal of doubts, it is hereby declared that the death of or bodily injury to any person or damage to any property of a third party shall be deemed to have been caused by or to have arisen out of, the use of a vehicle in a public place notwithstanding that the person who is dead or injured or the property which is damaged was not in a public place at the time of the accident, if the act or omission which led to the accident occurred in a public place.
(2) Subject to the proviso to sub-section (1), a policy of insurance referred to in sub-section (1), shall cover any liability incurred in respect of any accident, up to the following limits, namely:—
(a) save as provided in clause (b), the amount of liability incurred;
(b) in respect of damage to any property of a third party, a limit of rupees six thousand:
Provided that any policy of insurance issued with any limited liability and in force, immediately before the commencement of this Act, shall continue to be effective for a period of four months after such commencement or till the date of expiry of such policy whichever is earlier.
(3) A policy shall be of no effect for the purposes of this Chapter unless and until there is issued by the insurer in favour of the person by whom the policy is effected a certificate of insurance in the prescribed form and containing the prescribed particulars of any condition subject to which the policy is issued and of any other prescribed matters; and different forms, particulars and matters may be prescribed in different cases.
(4) Where a cover note issued by the insurer under the provisions of this Chapter or the rules made thereunder is not followed by a policy of insurance within the prescribed time, the insurer shall, within seven days of the expiry of the period of the validity of the cover note, notify the fact to the registering authority in whose records the vehicle to which the cover note relates has been registered or to such other authority as the State Government may prescribe.
(5) Notwithstanding anything contained in any law for the time being in force, an insurer issuing a policy of insurance under this section shall be liable to indemnify the person or classes of persons specified in the policy in respect of any liability which the policy purports to cover in the case of that person or those classes of persons."
10. Three aspects which we would highlight would be (1) though the Tribunal has felt that there is collusion between the parties. No rebuttal evidence is led by the insurance company except the evidence of the so called private investigator. We will have to go by the pleadings of the parties also. The written statement of the insurance company is totally silent on the point involvement of any other vehicle in the accident and that it has sent the matter for investigation. The written statement was filed on 22.02.2013. The evidence of witnesses of the claimants and their cross-examination also silent to the said fact. Not a single question in rebuttal is asked to any of the witnesses. The Tribunal has permitted evidence being led by the insurance company. Even if, we go by the evidence of D.W.1, he has unfortunately not produced his investigation report. He on what basis has found that another vehicle was involved is also not projected. Had there been a collusion between the owner, driver of the composite vehicle, the respondent would not have filed the reply of denial. They totally denied the negligence. The factum of charge-sheet has not been proved by D.W.1 to a concocted one. If we peruse the written statement filed on behalf of insurance company, which runs into 23 paragraphs they should he saddled with principles of falsus in uno falsus in omnius meaning thereby false one thing would be false in everything should be applied to the facts of this case also. The reason being the insurance company has nowhere in its reply mentioned even that they had appointed an investigator. They did not produce investigator’s report and therefore, we are unable to fathom how all of a sudden they have examined so called investigator as D.W. 1. The police authorities have never been summoned by the Tribunal and the judgment has been passed on surmises and conjectures that there is fraud, deception and cheating. Even in the additional pleas which runs up to paragraph-40 also does not state anywhere that they have given the matter for special investigation to any person. All of a sudden without amending the written statement D.W.1 has been produced. Even if, we consider his submission, he has heavily relied on the FIR which was lodged against unknown vehicle. The fact that the record is silent about this aspect of the matter will also permit us to discord the said fact as having not been proved. Recently the Apex Court in Chandrakanta Tiwari Vs. New India Assurance Company Ltd. (Civil Appeal No. 2527 of 2020) decided on June 08, 2020 has held that what has not been contended in the written statement cannot be permitted to be proved which is beyond record. The insurance company if it wanted to heavily relied on the report of the private investigator, the investigator’s report should have been produced. The trapping of Civil Court should not be adhered to in such a way that it does not give so as to the claimants of the accident. The fact that the judgment in United India Insurance Company Vs. Shaila Dutta, 2011 (10) SCC 509 will also enure for the benefit of the appellants. Further the Apex Court has held that where the pleadings are silent, the same cannot be agitated so as to dismiss the claim of the claimants. In the present case also the written statement of the insurance company is totally silent on this aspect, hence we cannot concur with the award of the Tribunal.
11. There is no reason to falsely implicate a vehicle and the insurance company has not led any evidence that the vehicle has been falsely implicated. This is one of the aspect which goes against the insurance company. Thus, the appeal stands allowed and the judgment and award dated 29.09.2015 passed by Motor Accident Claims Tribunal, Baghpat in M.A.C.P. No. 24 of 2013 is set aside. We remit the matter to the Tribunal to hear the matter afresh on the negligence as record is already there after affording proper opportunity of hearing to the parties concerned. The judgment in Mangla Ram (Supra) will favour the appellants and not to the respondents as submitted by the respondents.
12. We direct the Tribunal to decide the issue of negligence and quantum of compensation as all other issues are already decided, it would be a question of composite negligence as the deceased was a pillion rider on the vehicle being driven by Akash son of Bhanwar Singh and if ultimately the Tribunal holds both the drivers negligent, they may give rights to recover from the owner, driver of the vehicle, who was not made party to the case.
13. We are thankful to the Advocates, who assisted the Court in disposing of the matter finally.
14. Let the record of court below be sent back to the Tribunal concerned.
