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2020 Supreme(MP) 409
G.S. Ahluwalia, J.
National Insurance Company Ltd. v. Smt. Himanshi & Others
Miscellaneous Appeals No. 1069 of 2016 and 82 of 2017 (Gwalior): against the award dated 26.7.2016 passed by the Motor Accident Claims Tribunal, Datia in Claim Case No. 130/2015; Decided on 17.1.2020
Shrinivas Gajendragadkar for appellant in M. A. No. 1069/2016
and for respondent/insurance company in M. A. No. 82/2017; G. S. Chouhan for respondents No. 1 to 3/claimants in M. A. No. 1069/2016 and for appellants in M. A. No. 82/2017.
Headnote:
(1) Motor Vehicles Act, 1988 -- S. 166 -- maintainability of claim petition -- delay in lodging FIR -- claim petition cannot be dismissed on ground of delay in FIR. 2011 (1) TAC 867 (SC) followed. [Para 10
(2) Evidence Act, 1872 -- S. 60 -- reliability of witness -- witnesses not unreliable merely because they belong to caste of deceased.
[Para 12
(3) Motor Vehicles Act, 1988 -- Ss. 166 and 168 -- discrepancies in evidence of claimants’ witnesses -- failed to prove that eye witness had witnessed accident -- delay in disclosure to police about number of offending motorcycle -- claimants failed to prove that deceased met with accident caused by offending motorcycle -- award set aside. [Paras 14 & 15
¼1½ eksVj ;ku vf/kfu;e] 1988 && /kkjk 166 && nkok ;kfpdk dk pyus ;ksX; gksuk && izFke bfÙkyk fjiksVZ nkf[ky djus esa foyac && nkok ;kfpdk izFke bfÙkyk fjiksVZ nkf[ky djus esa foyac ds vk/kkj ij [kkfjt ugha dh tk ldrhA 2011¼1½ Vh , lh 867 ¼,l lh½ vuqlfjr ¼iSjk 10
¼2½ lk{; vf/kfu;e] 1872 && /kkjk 60 && lk{kh dh fo'oluh;rk && lk{khx.k ek= blfy, vfo'oluh; ugha fd og e`rd dh tkfr ds gSaA ¼iSjk 12
¼3½ eksVj ;ku vf/kfu;e] 1988 && /kkjk 166 rFkk 168 && nkosnkjksa ds lk{khx.k ds lk{; esa folaxfr;k¡ && lkfcr ugha dj lds fd izR;{kn'khZ lk{kh us nq?kZVuk ns[kh Fkh && vijk/k esa varoZfyr eksVj lkbfdy dk la[;kd iqfyl dks izdV djus esa foyac && nkosnkj lkfcr djus esa vlQy jgs fd e`rd dh nq?kZVuk vijk/k esa varoZfyr eksVj lkbfdy ls gqbZ Fkh && vf/kfu.kZ; vikLrA¼ iSjk 14 ,oa 15
ORDER
1. By this Common order, M.A. No.1069 of 2016 filed by Insurance Company and M.A. No.82 of 2017 filed by the Claimants shall be decided.
2. Both the appeals have been filed under section 173 of Motor Vehicles Act, against the award dated 26.7.2016 passed by Motor Accident Claims Tribunal, Datia in Claim Case No. 130 of 2015.
3. The claimants have filed the appeal for enhancement of compensation amount, whereas the Insurance Company has filed the appeal challenging the fact of accident.
4. The necessary facts for disposal of the appeals in short are that the claimants filed a claim petition under section 166 of Motor Accident Claims Tribunal on the ground that on 7.6.2015, the deceased Deepak Advani was going by walking. When he reached in front of the Blue Star Hotel, then the respondent No. 5, by driving the motor cycle bearing registration No. MP 32 MB 1769 in a rash and negligent manner, dashed the deceased as a result of which, he sustained serious injuries. He was shifted to District Hospital Datial, from where he was referred to Jhansi. As the physical condition of the deceased did not improve, therefore, he was referred to Gwalior. When the condition of the deceased did not improve in the hospital at Gwalior also, then he was referred to Shri Gangaram Hospital, New Delhi. When the condition of the deceased did not improve, then his family members were advised to take him back to their house. While they were coming back from Delhi, then on the way, the deceased breathed his last. He was immediately taken to District Hospital Datia, where he was declared dead. The information regarding his death was sent to the police station. After conducting the merg enquiry, the police registered FIR, in Crime No. 235/15 against the respondent No. 5 and his motor cycle was seized and after completing the investigation, filed the charge sheet. It was the case of the claimants that the deceased was running a cloth shop in the name and style Joli Fashion and his monthly earning was Rs. 25,000/-.
5. The Insurance Company filed its written statement and denied the accident. It was further pleaded that the respondent No. 5 was driving the motor cycle without valid driving license. The owner and driver of the motor cycle also filed their separate written statement and pleaded that the driver was having valid driving license and the motor cycle was insured with the Insurance Company.
6. The Claims Tribunal, after framing issues and hearing all the parties, allowed the claim petition and awarded Rs. 13,22,000/-.
7. Challenging the award passed by the Claims Tribunal, it is submitted by the Counsel for the appellant/Insurance Company, that in fact, the story of accident by the offending vehicle was a cooked up and after thought theory as the identity of the offending motor cycle was disclosed belatedly. The witnesses belong to one caste and therefore, they are interested witnesses and hence not reliable. The Claims Tribunal has awarded exorbitant amount.
8. At the same time, the Counsel for the claimants has not only supported the award passed by the Claims Tribunal but also pleaded that the Claims Tribunal has ignored that the monthly income of the deceased was Rs.20,000/- per month, and considering the total numbers of dependents, should have deducted 1/4th of the income towards personal income of the deceased and considering the age of the deceased, the multiplier of 17 should have been applied. Further, no amount has been awarded towards the expenses of attendant and transportation cost.
9. Heard the learned Counsel for the parties.
10. So far as the delay in lodging the FIR is concerned, it is well established principle of law that claim petition cannot be dismissed on the ground of delay in F.I.R. The Supreme Court in the case of Ravi v. Badrinarayan and others reported in 2011 (1) TAC 867 (SC) has held as under :
“20. It is well-settled that delay in lodging FIR cannot be a ground to doubt the claimant’s case. Knowing the Indian cond
