The New India Assurance Co. Ltd. vs Smt. Shakuntala Devi And 2 Others
2021 Latest Caselaw 2124 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

?Court No. - 1
 

 
Case :- FIRST APPEAL FROM ORDER No. - 2932 of 2013
 

 
Appellant :- The New India Assurance Co. Ltd.
 
Respondent :- Smt. Shakuntala Devi And 2 Others
 
Counsel for Appellant :- Rakesh Bahadur,Manish Tandon,Praful Bahadur
 
Counsel for Respondent :- Manish Tandon,Rajesh
 

 
Hon'ble Vivek Agarwal,J.

1. Heard Sri Rakesh Bahadur, learned counsel for appellant and Sri Manish Tandon, learned counsel for respondent.

2. This appeal has been filed by the insurance company being aggrieved of award dated 14.08.2013 passed by learned Motor Accident Claims Tribunal/Additional District Judge, Court No. 9, Kanpur Nagar in MACP No. 275 of 2012, on the ground that firstly, there is a false implication of the offending 'tempo', inasmuch as FIR was lodged on the date of the accident i.e., 25.11.2009 against an unknown vehicle and thereafter, police authorities had filed two final reports i.e., first one on 25.03.2010, showing that 'tempo' was not traceable and second one on 29.08.2012 again deposing that 'tempo' was not traceable, yet on the basis of the evidence of PW2, treating him to be an eye-witness, tribunal has accepted his version and awarded compensation.

3. It is further submitted that the counsel for claimants may argue that owner-driver of the 'tempo' had appeared before the tribunal, filed his written statement and in the said written statement admitted the factum of accident, but at the same time, written statement is to be read in totality. When it is read in totality, then it will be revealed that he has denied the aspect of rashness and negligence on the part of the driver of the 'tempo'. Placing reliance on the judgment of Supreme Court in case of Oriental Insurance Co. Ltd. vs. Premlata Shukla and Others; 2007 (3) TAC 11 (SC), it is submitted that once a part of contents of documents is admitted in evidence, party cannot be permitted to turn around and say their contents have not been proved. Supreme Court had set aside the judgment of the High Court.

4. Sri Manish Tandon, in his turn, submits that once there is admission of the owner-driver of the 'tempo', then there was no iota of doubt that 'tempo' has not been falsely implicated.

5. Sri Rakesh Bahadur, in his turn, submits that PW2 is a planted witness. He never gave number of the 'tempo' to any of the police authorities or even to the relatives of the deceased. In his testimony, he admits that he had given number of 'tempo' to the brother of the deceased and that too after two days of the incident, when he had visited a 'paan shop' in the vicinity of the accident. It is submitted that this is a false statement and PW2 is a planted witness, inasmuch as if number of the 'tempo' was given to the brother of the deceased, then it was incumbent upon the brother of the deceased to have pass on the said number of the offending vehicle to the police authorities, who were investigating the case for about three years and every time disclosed in their final report that unknown 'tempo' is not traceable. It is also submitted that as per the site plan, accident is clearly shown to have taken place head on, whereas as per PW2, 'tempo' had hit the motorcycle from behind. Even in the FIR, this stand has been taken which is bellied from the site plan. It is further submitted that site plan is prepared under Rule 203-A of U.P. Motor Vehicles Rules, 1998 and in terms of the provisions contained in Rule 211-A, there is a presumption of correctness of the documents prepared under Rule 203 A, B and C.

6. Sri Manish Tandon, at this stage, submits that they had filed a protest petition before Mahanagar Magistrate IInd, Kanpur Nagar and a copy of which was also produced before the claims tribunal, in para-6 of which it is mentioned that number of the offending vehicle was supplied to the Investigating Officer, but note of it was not taken by the Investigating Officer and he had filed final report without taking note of such number.

7. However, fact of the matter is that there is no mention of any date on which such details were made available to the Investigating Officer. There is no mention of any number of the miscellaneous case on this application which has been admitted as document no. 57Ga before the learned tribunal and which has been again filed along with counter affidavit before this court.

8. Date of protest petition is 15.04.2013 whereas second final report was produced by the authorities of police on 29.08.2012, therefore, there is no justification in taking such issue of disclosure of number of the offending vehicle to the Investigating Officer after lapse of almost seven months time, before the Court of Magistrate and that too without supporting with documentary evidence as to which orders were passed by the Magistrate on such protest petition.

9. After hearing learned counsel for the parties and going through the record, it is apparent that accident took place on 25.11.2009. It has come on record that accident took place when deceased was travelling on his motorcycle bearing registration no. UP 78 BP 8745. In the FIR, which was lodged on 25.11.2009, it is mentioned that an unknown 'tempo' driver had hit his father-Suresh Chandra Yadav from behind, as a result of which, father of the complainant had sustained head injuries. Informant is Rajiv Yadav s/o Suresh Chandra Yadav i.e., son of the deceased.

10. PW2, who claims himself to be an eye-witness, has also deposed that 'tempo' had hit from behind. Whereas the spot map on record demonstrates that it was the case of head on collision, inasmuch as according to PW2, deceased was travelling from Chunniganj, whereas direction from which 'tempo' is shown to be travelling from the side of Chunniganj to the opposite side, from where deceased was travelling and spot of the accident is marked as 'A'. This spot map has a sanctity in terms of the provisions contained in Rule 203-A read with Rule 211-A of the U.P. Motor Vehicles Rules, 1998. Claimants have not examined anybody to disapprove this spot map and did not call for the police officer or the Investigating Officer in the witness box to either dispute the spot map or to bring on record a fact that the number of the offending vehicle was supplied to the Investigating Officer and Investigating Officer did not took note of the said number. Thus, it is evident that PW2, who claims himself to be an eye-witness is not an eye-witness.

11. Even if for the sake of argument, it is accepted that PW2 had supplied number of the offending vehicle to the brother of the deceased, then as per the version of PW2, he had visited a 'paan shop', two days after the date of the accident, which is located in the vicinity of the accident where he had met brother of the deceased and had supplied registration number of the offending vehicle. If this statement is taken to be true, even though, hypothetically, then Investigating Officer had filed first final report on 25.03.2010. This final report, as is available on record, filed by the insurance company as Annexure-4 categorically makes a mention that investigation was carried on initially by Sub-Inspector-Bhagwan Shankar and thereafter by Sub-Inspector-Mohammad, but from investigation and taking statement of the witnesses and the complainant, no information could be gathered in regard to the details of the unknown offending 'tempo'.

12. This final report, should have been the triggering point for the claimants to have brought a fact before the court of competent Magistrate that they had supplied number of the 'tempo' as was received by them after two days of the incident to the Investigating Officer, but Investigating Officer has not taken note of such number. However, fact is that when learned Magistrate had refused to accept the final report dated 25.03.2010, at that time no protest petition was filed by the claimants to raise issue of supplying number of the offending vehicle to the Investigating Officer. Therefore, filing of the protest petition after lapse of more than seven months of filing of the second final report dated 29.08.2012 clearly demonstrates that all kinds of tactics have been used by the claimants to falsely implicate the 'tempo' and take advantage of it being insured, to claim compensation from the insurance company.

13. In normal circumstances, I would have taken non-examination of the driver of the 'tempo' in the hands of the insurance company to be a serious lapse and would have not shown indulgence in the matter, but in the present case, when the witness PW2 is clearly and apparently a planted witness, who is not even able to give correct details of the accident and who according to the claimants was the informer about the number of the offending vehicle, which was supplied to them after 2-3 days of the accident, then there appears to be no reason for the claimants to not supply such number to the Investigating Officer and in case, Investigating Officer had not acted on their information, then not to approach higher police officials especially, when claimants also belong to the family of police personnel and there can be presumption of their easy access to the higher officials of the police, unlike common public.

14. Therefore, appeal is allowed. Impugned award is set aside.

15. At this stage, learned counsel for the appellant submits that, if any, amount deposited by the insurance company, in compliance of the provisions contained in Section 173 of the Motor Vehicles Act, be remitted to the Claims Tribunal to be adjusted from the claim amount.

16. This prayer is allowed. Registry is directed to do the needful.

17. Lower court record be sent back to the tribunal.

Order Date :- 9.2.2021

Vikram/-