Bombay High Court
Arun S/O Onkar Tayade vs Gulab Rabbani S/O S.K. Harun And 2 Ors on 5 March, 2024
Author: G.A. Sanap
Bench: G.A. Sanap
2024:BHC-NAG:3271
J-fa64.10.odt 1/12
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH, NAGPUR
FIRST APPEAL No.64 OF 2010
Arun s/o. Onkar Tayade,
Aged about 40 years,
Occupation : Nil,
R/o. Bhiwandi, Ward No.5,
Balapur, Tq. Balapur,
Distt. Akola. : APPELLANT
...VERSUS...
1. Gulab Rabbani s/o. S.K. Harun,
Aged : Adult, Occupation : Business,
R/o. Mominpura,
Ward No.15,
Balapur, Tq. Balapur,
District Akola.
2. Yunuskhan s/o. Karim Khan,
Aged about 54 years,
Occupation : Driver,
R/o. Kalekhanipura, Tq. Balapur,
District Akola.
3. The Oriental Insurance Company Limited,
Through its Manager,
Office at Rayat Haveli,
Old Cotton Market, Tilak Road,
Akola, District Akola. : RESPONDENTS
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Ms. Dipali Sapkal, Advocate for Appellant.
Mr. S.S. Sohohi, Advocate for Respondent No.1.
Mr. S.K. Pardhy, Advocate for Respondent No.3.
=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=
J-fa64.10.odt 2/12
CORAM : G.A. SANAP, J.
DATE : 05th MARCH, 2024.
ORAL JUDGMENT :
1. In this appeal challenge is to the judgment and award
dated 22nd January, 2007 passed by the Motor Accident Claims
Tribunal, Akola, whereby the claim filed by the appellant under
Section 166 of the Motor Vehicles Act was dismissed.
2. The accident occurred on 7th July, 2003. It is the case of
the appellant that on 7th July, 2003 he was proceeding towards
Balapur from Akola on his motor-cycle bearing registration
No.MH-30-N-4061. It is stated that on 'Man' river on the road the
truck bearing registration No.MP-09-K-1362 came from the opposite
direction in a high speed. The driver was rash and negligent. The
truck gave dash to the motor-cycle of the appellant. According to the
appellant, at the time of accident one of the two headlights of the
truck was off. The driver was solely responsible for the accident. The
respondent No.1 is the owner of the truck. The respondent No.2 is
the driver of the truck. The respondent No.3 is the insurance
company. According to the appellant, the injuries suffered by him has
resulted into permanent disability. He, therefore, claimed
compensation.
3. The respondent No.1 filed written statement and opposed
the claim. The respondent No.1 has admitted the ownership of the
truck and the insurance of the truck with respondent No.3. It was
contended that the appellant was responsible for the accident. There
was no fault on the part of the driver i.e. respondent No.2. The driver
respondent no.2 did not appear before the Tribunal and as such the
claim was proceeded exparte against him.
4. The respondent No.3 insurance company filed the written
statement and opposed the claim. The insurance company has denied
the accident as well as involvement of the truck in the accident.
According to the insurance company, the truck was not involved in the
accident. The involvement of the truck was not mentioned in the
report lodged to the Police. Later on, number of offending truck was
provided to the Police. It was after thought. The Insurance company
contended that there was a collusion between the appellant and the
respondent No.1 the owner of the offending vehicle.
5. The appellant examined himself as AW 1. He has
examined AW 2 Doctor to establish the disability. The respondent
Nos.1 and 3 did not adduce the oral evidence. The learned Chairman
of the Tribunal accepted the claim of the appellant with regard to the
accident and the partial disability suffered by the claimant and
quantified the compensation. The learned Chairman dismissed the
claim on the ground that the offending vehicle was not involved in the
accident and the subsequent involvement of the offending vehicle
shown in the accident was as a result of collusion between the
appellant and the respondent No.1. The appellant being aggrieved by
this finding and ultimate dismissal of the claim has come before this
Court in appeal.
6. I have heard learned Advocate for the parties. Perused the
record and proceedings.
7. The points for determination :
(i) Whether the claim filed by the appellant was
in collusion with the respondent No.1 ?
(ii) Whether the finding as to permanent partial
disability and the compensation arrived at on
the said basis is just, proper and reasonable ?
8. Learned Advocate for the appellant submitted that the
report was lodged by the appellant immediately after the accident.
However, due to his state of mind he could not mention the number of
the offending vehicle. Learned Advocate submitted that at the time of
accident he had noted down the number of the truck in his personal
diary and when the diary was traced out the necessary information
was provided to the Police. The learned Advocate pointed out after
completion of the investigation the involvement of the offending truck
and the driver of the offending truck was revealed and, therefore, the
charge-sheet was filed against the respondent No.2. The learned
Advocate submitted that simply because of the failure to mention the
number of the offending truck in the initial report, the collusion
between the appellant and the respondent No.1 cannot be inferred.
Learned Advocate submitted that in order to establish the collusion
the evidence was not adduced by the insurance company as well as by
the owner. The learned Advocate submitted that in the cross-
examination of AW 1 there was not even a simple suggestion about
the so called collusion. Learned Advocate submitted that criminal
prosecution is a serious matter. The learned Advocate submitted that
the owner of the offending truck and the driver of the offending truck
had no reason to invite the criminal prosecution by colluding with the
appellant. Learned Advocate submitted that after filing of the
charge-sheet neither the respondent No.1 nor respondent No.2 driver
of the offending truck filed any proceeding for quashing the F.I.R. or
made complaint to the superior Police Officer about false implication
of respondent No.2 in the crime. The learned Advocate submitted that
learned Chairman of the Motor Accident Claims Tribunal without any
positive evidence on record by the insurance company has drawn
inference of the collusion.
9. Learned Advocate for the respondent No.1 and the learned
Advocate for the respondent No.3 insurance company supported the
judgment and award passed by the Chairman. The learned Advocate
for the insurance company submitted that the involvement of the
offending truck in this crime was after thought. Learned Advocate
submitted that the explanation putforth for not making specific
reference of the offending truck in the report is not probable and
acceptable. Learned Advocate submitted that the appellant has not
adduced evidence to rule out the possibility of collusion. Learned
Advocate for the respondent No.1 submitted that the owner has
categorically denied the claim of the appellant. Learned Advocate
submitted that the owner has categorically stated in the written
statement that neither the offending vehicle neither nor the driver
respondent No.2 were involved in the accident.
10. Undisputedly the respondent No.1 and the respondent
No.2 have not adduced oral as well as documentary evidence. The
respondent No.3 has pleaded the collusion between appellant and
respondent No.1. In order to fortify the defence of collusion reliance
has been placed on the undisputed facts placed on record by the
appellant. The most important fact relied upon is that the number of
offending truck was not mentioned at the earliest possible
opportunity, namely, at the time of the report and, therefore, the
subsequent involvement of the offending truck in the crime was after
thought and in collusion with the respondent No.2. It is to be noted
that the defence of collusion has to be proved by leading evidence. If
the parties failed to adduce evidence then in that event the materials
placed on record by the parties must be sufficient to prove or infer the
collusion. The learned Chairman has observed that failure to mention
the number of offending truck in the report was a very vital
circumstance. The learned Chairman has given importance to this
aspect while appreciating the defence of collusion and has recorded a
finding that there was a collusion between the appellant and the
owner of the offending truck.
11. In my view, the learned Chairman has failed to consider
the evidence adduced by the appellant on record and also the fact that
the burden to prove the collusion was on the respondent and the
evidence was not adduced by the respondent to prove the defence of a
collusion. The F.I.R. was registered on the initial report. In the F.I.R.
the number of the truck was not mentioned. Later on, the appellant
provided the information with regard to the number of the offending
vehicle to the Police and after investigation the Police filed the
charge-sheet against the respondent No.2 the driver of the offending
truck. It is to be noted that the criminal prosecution is a serious
matter. A person of a ordinary prudence will not tolerate a false
collusive prosecution. In order to accept the defence of a collusion in
such a factual situation, there must be a concrete evidence. The
respondent No.2 driver of the offending truck had no reason to invite
such unwanted prosecution, if he was not involved in the accident.
Similarly, the respondent No.1 the owner of the offending truck had
no reason to allow the false implication of his driver respondent No.2
in such an incident and also his truck. It is not the case of the
insurance company that the appellant was shown sympathy for one
reason or the other by the respondent No.1 and respondent No.2. The
Police conducted the investigation. The result of the investigation
needs to be considered in such a matter. The Police is not bound to
file charge-sheet without evidence. The presumption of availability of
evidence is there when the charge-sheet is filed. The filing of the
charge-sheet against the respondent No.2 is sufficient to conclude that
the investigation conducted by the Police had established his
involvement in the crime. This is the only inference possible.
12. The conduct of the respondent Nos.1 and 2 needs
appreciation in this context. After filing of the charge-sheet the
respondent Nos.1 and 2 were expected to file an appropriate
proceeding for quashing the F.I.R. or charge-sheet. It is not the case
of the respondents that any complaint was made by the respondent
Nos.1 and 2 to the superior Police Officer for filing a false charge-
sheet against the respondent No.2. The respondent Nos.1 and 2 by
their conduct has accepted the filing of a prosecution. In my view, this
is a very vital aspect. The appellant has adduced the evidence. In his
evidence he has categorically stated about the involvement of the
offending truck in the accident. He has also explained as to why the
number of the offending truck was not mentioned in his report. He
was cross-examined on behalf of the insurance company. There was
no suggestion to the appellant in his cross-examination with regard to
the so called collusion between him and the respondent No.1. It is
true that the defence was set up in the written statement. It is a
cardinal principle of law that the pleading cannot be substituted as an
evidence. The material fact pleaded has to be proved by leading the
evidence. The cross-examination is silent about the collusion. The
learned Chairman was required to take all these aspects into
consideration. The evidence, in my view, is sufficient to prove the
involvement of the offending truck in the accident. The reasons
recorded by the learned Chairman to come to a conclusion that there
was a collusion between the appellant and the respondents cannot be
sustained.
13. The learned Advocate for the respondent No.3 has relied
upon two Judgments. First Judgment is in the case of Ram Karan &
others Vs. Zile Singh and others, reported in II (2002) ACC 15,
wherein it is held that the F.I.R. is not a substantive piece of evidence.
It can be used only as a corroborative piece of evidence. The second
Judgment is in the case of Oriental Insurance Co. Ltd. Vs. Narayan
Nair, reported in (1) TAC 233 (Ker), wherein it is held that contest of
a claim does not mean filing of written statement or examination of
the witnesses etc. It is held that contest must be a genuine challenge
or opposition and not a mere eye wash.
14. In my view, the ratio laid down in the decisions has to be
considered in view of the findings arrived at by me as above. It is true
that the F.I.R. is not a substantive piece of evidence. It needs to be
stated that the accident claim is tried as a summary proceeding. The
accident claim is filed under law which is a beneficial legislation. In
this case, the charge-sheet was filed on the basis of the F.I.R. The
respondent No.3 though raised the defence of a collusion, has failed to
prove this by leading evidence. The evidence on record in my view is
not sufficient to accept this defence. As such, I conclude that this
finding recorded by the learned Chairman, Motor Accident Claims
Tribunal, Akola cannot be sustained.
15. As far as the injuries sustained by the appellant in
vehicular accident is concerned, the finding has been in his favour.
Similarly, the finding as to the disability is in his favour. The
compensation has also been determined. However, the claim was
dismissed on the ground that it was a collusive claim. In my view, in
view of the above, the appellant is entitled to get the compensation
quantified by the learned Chairman, Motor Accident Claims Tribunal,
Akola. As such, I record my finding on Point No.1 in the negative and
my finding on the Point No.2 is in the affirmative.
16. As such, I pass following order :
ORDER
(i) The appeal is allowed.
(ii) The judgment and order dated 22.1.2007,
passed by the learned Chairman, Motor
Accident Claims Tribunal, Akola is set aside.
(iii) The claim is allowed.
(iv) The appellant is entitled to get a compensation
of Rs.1,35,000/-.
(v) The respondent Nos.1 to 3 are jointly and
severally are held responsible to pay the
compensation.
(vi) The decree be drawn up accordingly.
(vii) The appellant shall be entitled to get interest at
the rate of 6% p.a. on the amount of
compensation from the date of filing of the
claim petition till realisation of the
compensation.
(G.A. Sanap, J.)
okMksns
Signed by: Mr. Devendra Wadode
Designation: PA To Honourable Judge
Date: 16/03/2024 17:16:11
