NEUTRAL CITATION
C/FA/3608/2023 JUDGMENT DATED: 05/09/2023
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/FIRST APPEAL NO. 3608 of 2023
FOR APPROVAL AND SIGNATURE :
HONOURABLE MS. JUSTICE GITA GOPI Sd/-
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1 Whether Reporters of Local Papers may be allowed to see No
the judgment ?
2 To be referred to the Reporter or not ? No
3 Whether their Lordships wish to see the fair copy of the No
judgment ?
4 Whether this case involves a substantial question of law No
as to the interpretation of the Constitution of India or any
order made thereunder ?
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GOPALBHAI KANJIBHAI VAGHELA
Versus
DHARMESHKUMAR JAYANTIBHAI AMIN
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Appearance:
NISHIT A BHALODI(9597) for the Appellant(s) No. 1
for the Defendant(s) No. 1,2,3
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CORAM:HONOURABLE MS. JUSTICE GITA GOPI
Date : 05/09/2023
ORAL JUDGMENT
1. By way of this Appeal, the Appellant-claimant has challenged the judgment and award dated 16.01.2023 passed by the learned Motor Accident Claims Tribunal Page 1 of 16 Downloaded on : Sat Sep 16 16:09:20 IST 2023 NEUTRAL CITATION C/FA/3608/2023 JUDGMENT DATED: 05/09/2023 undefined (Auxi.), Vadodara, in M.A.C.P. No.554 of 2018 on the ground that the Claim Petition under Section 166 of the Motor Vehicles Act, 1988 (hereinafter referred to in short as 'the M.V. Act') came to be rejected by the learned Tribunal with the observations that the applicant being the eye witness and the Assistant Sub Inspector (ASI) with the Police Department ought to have filed the police complaint immediately and considering the delay of 7 days in lodging the police complaint, the claim petition came to be rejected.
2. Learned Advocate for the appellant - claimant Mr. Nishit A. Bhalodi submits that after investigation, the charge-sheet came to be filed under Sections 279, 337, 338 and 427 of the Indian Penal Code and under Section 177, 184 and 134 of the M.V. Act against the four wheeler bearing Registration No.GJ- 06-DG-1118. It is submitted that though the claimant was a ASI in Gujarat Police at the time of accident, he was a victim, which fact has not been appreciated by the learned Tribunal.
3. As per facts of the case, the injured claimant on Page 2 of 16 Downloaded on : Sat Sep 16 16:09:20 IST 2023 NEUTRAL CITATION C/FA/3608/2023 JUDGMENT DATED: 05/09/2023 undefined 11.08.2018 was returning from Channi, Vadodara and was going to his house on his motor cycle bearing Registration No.GJ-06-KL-5001. The claimant was on the correct side of the road at that time, a Maruti Four Wheeler Car bearing Registration No.GJ-06-DG- 1118 came on the wrong side and dashed the applicant, who sustained serious body injuries and had taken treatment at Narhari Hospital. The Discharge Summary Report was produced at Exhibit
21. It was noted that the claimant was hit by the four wheeler at around 1.20 p.m. at Fatehganj Over Bridge and was brought in the Hospital in 108 Ambulance. It is further submitted that the very fact was proved from the statement of the Doctor of Narhari Hospital that in the vehicular accident, the applicant had sustained injuries and these were because of the four wheeler.
4. Heard learned Advocate for the appellant, perused the records of the case. It appears that the learned Tribunal has dismissed the Claim Petition observing that there has been a delay of seven days in filing the First Information Report and considering the Page 3 of 16 Downloaded on : Sat Sep 16 16:09:20 IST 2023 NEUTRAL CITATION C/FA/3608/2023 JUDGMENT DATED: 05/09/2023 undefined claimant as an ASI, the learned Tribunal while appreciating the facts on record, and, on an assumption that the applicant being an ASI, would have seen the Registration number of the Car and would not have given such a number to the concerned Doctor. The learned Tribunal appears to be oblivious of the fact that the appellant was treated as an indoor patient and the Discharge Summary of Narhari Hospital shows that the appellant was brought in 108 Ambulance. The fact also suggest that because of the accident, the claimant was flung far from the motor cycle and people had gathered there and had called the 108 Ambulance and that time, the driver of the four wheeler had escaped from the place of accident. The claimant had sustained rib fracture at the time of accident, he was not conscious and the motor cycle had also got damaged in the accident.
5. In the case of Mangla Ram v. Oriental Insurance Company Limited reported in 2018 (5) SCC 656 it was held by the Hon'ble Apex Court that while dealing with a claim petition in terms of Section 166 Page 4 of 16 Downloaded on : Sat Sep 16 16:09:20 IST 2023 NEUTRAL CITATION C/FA/3608/2023 JUDGMENT DATED: 05/09/2023 undefined 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. The Tribunal has to take a holistic view of the matter. A strict proof of an accident caused by a particular vehicle in a particular manner may not be possible. The claimants are merely required to establish their case on the touchstone of preponderance of probability. The standard of proof beyond reasonable doubt cannot be applied. The approach of the Tribunal should be holistic analysis of the entire pleadings and evidence by applying the principles of preponderance of probability.
6. In the above decision, it was further held that negligence is only one of the species for compensation in respect of the accident arising out of the use of the motor vehicles. There are other premises for such cause of action. Even if there is no negligence on the part of the driver or owner of the motor vehicle, but accident happens while the Page 5 of 16 Downloaded on : Sat Sep 16 16:09:20 IST 2023 NEUTRAL CITATION C/FA/3608/2023 JUDGMENT DATED: 05/09/2023 undefined vehicle was in use, should not the owner be made liable for damages to the person who suffered on account of such accident? This question depends upon how far the rule in Fletcher, (1868) LR 3 HL 330 can apply in motor accident cases. Like any other common law principle, which is acceptable to our jurisprudence, the rule in Ryland's case can be followed at least until any other new principle while excels the former can be evolved, or until legislation provides differently. Hence, said rule is adopted in claims for compensation made in respect of motor accidents.
7. Here in the present case, the charge-sheet has been filed against the offending four wheeler bearing Registration No.GJ-06-DG-1118. The driver of the vehicle has not denied the accident and no evidence has been produced by the Insurance Company contradicting the claim of the appellant-claimant, while a written statement has been submitted by the Insurance Company who has not denied about the involvement of the four wheeler but had pleaded about contributory negligence.
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8. In the case of Jai Prakash v. National Insurance Company Limited and Others reported in 2010 ACJ 455, the Hon'ble Apex Court had shown its concern about the four problems faced by the claimants under the M.V. Act.
8.1. The first problem relates to a section of motor accident victims who are doubly unfortunate - first in getting involved in an accident, and second, in not getting any compensation. The second problem relates to the widespread practice of using goods vehicles for passenger traffic. The third problem relates to the procedural delays in adjudication/settlement of claims by Motor Accidents Claims Tribunals (for short `Tribunals') and consequential hardship to the victims and their families.
8.2. The Courts have always been concerned that the full compensation amount does not reach to benefit of the victims and their families, particularly those who are uneducated, ignorant, or not worldly-wise.
Page 7 of 16 Downloaded on : Sat Sep 16 16:09:20 IST 2023NEUTRAL CITATION C/FA/3608/2023 JUDGMENT DATED: 05/09/2023 undefined 8.3. The Apex Court relying upon the report of amicus curie had given directions to the police authorities in following terms :-
"16. The Director General of Police of each State is directed to instruct all Police Stations in his State to comply with the provisions of Section 158(6) of the Act. For this purpose, the following steps will have to be taken by the Station House Officers of the jurisdictional police stations :
(i) Accident Information Report in Form No. 54 of the Central Motor Vehicle Rules,1989 (`AIR' for short) shall be submitted by the police (Station House Officer) to the jurisdictional Motor Vehicle Claims Tribunal, within 30 days of the registration of the FIR. In addition to the particulars required to be furnished in Form No. 54, the police should also collect and furnish the following additional particulars in the AIR to the Tribunal :
(i) The age of the victims at the time of accident;
(ii) The income of the victim;
(iii) The names and ages of the dependent family members.
(ii) The AIR shall be accompanied by the attested copies of the FIR, site sketch/mahazar/photographs of the place of occurrence, driving licence of the driver, insurance policy (and if necessary, fitness certificate) of the vehicle and postmortem report (in case of death) Page 8 of 16 Downloaded on : Sat Sep 16 16:09:20 IST 2023 NEUTRAL CITATION C/FA/3608/2023 JUDGMENT DATED: 05/09/2023 undefined or the Injury/Wound certificate (in the case of injuries). The names/addresses of injured or dependant family members of the deceased should also be furnished to the Tribunal.
(iii) Simultaneously, copy of the AIR with annexures thereto shall be furnished to the concerned insurance company to enable the Insurer to process the claim.
(iv) The police shall notify the first date of hearing fixed by the Tribunal to the victim (injured) or the family of the victim (in caseof death) and the driver, owner and insurer. If so directed by the Tribunal, the police may secure their presence on the first date of hearing.
17. To avoid any administrative difficulties in immediate implementation of sections 158(6) of the Act, we permit such implementation to be carried out in three stages. In the first stage, all police stations/claims Tribunals in the NCT Region and State Capital regions shall implement the provisions by end of April 2010. In the second stage, all the police stations/claims Tribunals in district headquarters regions shall implement the provisions by the end of August 2010. In the third stage, all police stations/Claims Tribunals shall implement the provisions by the end of December, 2010. The Director Generals shall ensure that necessary forms and infrastructural support is made available to give effect to Section 158 (6) of the Act.
18. Section 196 of the Act provides that whoever Page 9 of 16 Downloaded on : Sat Sep 16 16:09:20 IST 2023 NEUTRAL CITATION C/FA/3608/2023 JUDGMENT DATED: 05/09/2023 undefined drives a motor vehicle or causes or allows a motor vehicle to be driven in contravention of the provisions of Section 146 shall be punishable with imprisonment which may be extended to three months, or with fine which may extend to Rs. 1000/-, or with both. Though the statute requires prosecution of the driver and owner of uninsured vehicles, this is seldom done. Thereby a valuable deterrent is ignored. We therefore direct the Director Generals to issue instructions to prosecute drivers and owners of uninsured vehicles under Section 196 of the Act.
19. The Transport Department, Health Department and other concerned departments shall extend necessary co- operation to the Director-Generals to give effect to Section 158 (6)."
8.4. The Apex Court had also in the context given directions to the Tribunal for compliance with Section 166(4) of the Act and had lay-down the steps to be initiated by the Motor Accident Claim Tribunal. The directions are elaborated in Paragraph Nos.20, 21 & 22, which are reproduced herein below:-
"20. The Registrar General of each High Court is directed to instruct all Claims Tribunals in his State to register the reports of accidents receive under Section 158 (6) of the Act as applications for compensation under Section 166 (4) of the Act and deal with them Page 10 of 16 Downloaded on : Sat Sep 16 16:09:20 IST 2023 NEUTRAL CITATION C/FA/3608/2023 JUDGMENT DATED: 05/09/2023 undefined without waiting for the filing of claim applications by the injured or by the family of the deceased. The Registrar General shall ensure that necessary Registers, forms and other support is extended to the Tribunal to give effect to Section 166 (4) of the Act.
21. For complying with section 166(4) of the Act, the jurisdictional Motor Accident Claims Tribunals shall initiate the following steps :
(a) The Tribunal shall maintain an Institution Register for recording the AIRs which are received from the Station House Officers of the Police Stations and register them as miscellaneous petitions. If any private claim petitions are directly filed with reference to an AIR, they should also be recorded in the Register.
(b) The Tribunal shall list the AIRs as miscellaneous petitions. It shall fix a date for preliminary hearing so as to enable the police to notify such date to the victim (family of victim in the event of death) and the owner, driver and insurer of the vehicle involved in the accident. Once the claimant/s appear, the miscellaneous application shall be converted to claim petition. Where a claimant/s file the claim petition even before the receipt of the AIR by the Tribunal, the AIR may be tagged to the claim petition.
(c) The Tribunal shall enquire and satisfy itself that the AIR relates to a real accident and is not the result of any collusion and fabrication of an Page 11 of 16 Downloaded on : Sat Sep 16 16:09:20 IST 2023 NEUTRAL CITATION C/FA/3608/2023 JUDGMENT DATED: 05/09/2023 undefined accident (by any `Police Officer - Advocate - Doctor' nexus, which has come to light in several cases).
(d) The Tribunal shall by a summary enquiry ascertain the dependent family members/legal heirs. The jurisdictional police shall also enquire and submit the names of the dependent legal heirs.
(e) The Tribunal shall categories the claim cases registered, into those where the insurer disputes liability and those where the insurer does not dispute the liability.
(f) Wherever the insurer does not dispute the liability under the policy, the Tribunal shall make an endeavour to determine the compensation amount by a summary enquiry or refer the matter to the Lok Adalat for settlement, so as to dispose of the claim petition itself, within a time frame not exceeding six months from the date of registration of the claim petition.
(g) The insurance companies shall be directed to deposit the admitted amount or the amount determined, with the claims tribunals within 30 days of determination. The Tribunals should ensure that the compensation amount is kept in Fixed deposit and disbursed as per the directions contained in General Manager, KSRTC v. Susamma Thomas [1994 (2) SCC 176].
(h) As the proceedings initiated in pursuance of Section 158(6) and 166(4) of the Act, are different Page 12 of 16 Downloaded on : Sat Sep 16 16:09:20 IST 2023 NEUTRAL CITATION C/FA/3608/2023 JUDGMENT DATED: 05/09/2023 undefined in nature from an application by the victim/s under Section 166(1) of the Act, Section 170 will not apply. The insurers will therefore be entitled to assist the Tribunal (either independently or with the owners of the vehicles) to verify the correctness in regard to the accident, injuries, age, income and dependents of the deceased victim and in determining the quantum of compensation.
22. The aforesaid directions to the Tribunals are without prejudice to the discretion of each Tribunal to follow such summary procedure as it deems fit as provided under Section 169 of the Act. Many Tribunals instead of holding an inquiry into the claim by following suitable summary procedure, as mandated by Section 168 and 169 of the Act, tend to conduct motor accident cases like regular civil suits. This should be avoided. The Tribunal shall take an active role in deciding and expeditious disposal of the applications for compensation and make effective use of Section 165 of the Evidence Act, 1872, to determine the just compensation."
8.5 The suggestions have also been given for the Insurance Company and also suggestions of the legislative / executive interventions and the Apex Court, thereafter, has concluded making observations ensuring that all accident victims get compensation and had further make suggestions to the Central Government to consider amendment of the Second Page 13 of 16 Downloaded on : Sat Sep 16 16:09:20 IST 2023 NEUTRAL CITATION C/FA/3608/2023 JUDGMENT DATED: 05/09/2023 undefined Schedule to the Act to rectify several mistakes therein and rationalize the compensation thereunder, repeatedly pointed out by Apex Court (U.P.S.R.T.C. v. Trilok Chandra reported in 1996 (4) SCC 362 and Sarla Verma reported in 2009 (6) SCC 121).
9. In Ravi v. Bhadrinarayan and Others reported in 2011 (4) SCC 693, the Hon'ble Apex Court has observed that it is now well settled that the delay in lodging the First Information Report cannot be a ground to reject the case of the claimant. The Hon'ble Apex Court considered the Indian conditions as they are and held that we cannot expect a common man to rush to the police immediately after an accident of human nature and ultimate responsibility. It has been observed in Paragraphs 20 and 21 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 conditions as they are, we cannot expect a common man to first rush to the Police Station immediately after an accident. Human nature and family responsibilities occupy the mind of kith and kin to such an extent that they give more importance to get the victim treated rather than to rush to the Police Station. Under such circumstances, they are not Page 14 of 16 Downloaded on : Sat Sep 16 16:09:20 IST 2023 NEUTRAL CITATION C/FA/3608/2023 JUDGMENT DATED: 05/09/2023 undefined expected to act mechanically with promptitude in lodging the FIR with the Police. Delay in lodging the FIR thus, cannot be the ground to deny justice to the victim. In cases of delay, the courts are required to examine the evidence with a closer scrutiny and in doing so; the contents of the FIR should also be scrutinized more carefully. If court finds that there is no indication of fabrication or it has not been concocted or engineered to implicate innocent persons then, even if there is a delay in lodging the FIR, the claim case cannot be dismissed merely on that ground.
[21] The purpose of lodging the FIR in such type of cases is primarily to intimate the police to initiate investigation of criminal offences. Lodging of FIR certainly proves factum of accident so that the victim is able to lodge a case for compensation but delay in doing so cannot be the main ground for rejecting the claim petition. In other words, although lodging of FIR is vital in deciding motor accident claim cases, delay in lodging the same should not be treated as fatal for such proceedings, if claimant has been able to demonstrate satisfactory and cogent reasons for it. There could be variety of reasons in genuine cases for delayed lodgment of FIR. Unless kith and kin of the victim are able to regain a certain level of tranquility of mind and are composed to lodge it, even if, there is delay, the same deserves to be condoned. In such circumstances, the authenticity of the FIR assumes much more significance than delay in lodging thereof supported by cogent reasons."
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10. In the present matter, in view of the fact that a charge-sheet has been filed against the four wheeler bearing Registration No.GJ-06-DG-1118 and the Insurance Company has filed a W.S, the present Appeal is allowed and the judgment and award dated 16.01.2023 passed by the learned Motor Accident Claims Tribunal (Auxi.), Vadodara, in M.A.C.P. No.554 of 2018 is quashed and set aside. M.A.C.P. No.554 of 2018 is ordered to be restored on the File of the learned Tribunal to be decided on merits. An opportunity be granted to all the parties to provide the evidence on record. All the parties are directed to co-operate with the learned Tribunal and to conclude the petition within a period of six months from the date of receipt of writ of the order of this Court. Record and proceedings, if any, be sent back to the concerned Court / Tribunal forthwith.
Sd/-
(GITA GOPI, J) CAROLINE Page 16 of 16 Downloaded on : Sat Sep 16 16:09:20 IST 2023