The National Insurance Co. Ltd vs Amita Nayek & Ors
2022 Latest Caselaw 7848 Cal

                          IN THE HIGH COURT AT CALUTTA
                             Civil Appellate Jurisdiction
 28.11.2022
 SL No.8
Court No. 654
   Ali


                          F.M.A. 353 of 2019
                 IA No: CAN/1/2018 (Old No: CAN/9598/2018)
                         CAN/2/2022
                          The National Insurance Co. Ltd.
                                    Vs.
                               Amita Nayek & Ors.


                    Mr. Sanjay Paul
                                ....for the appellant-Insurance Co.

                    Mr. Subhankar Mandal
                             ....for the respondents

This appeal is directed against the judgment

and award dated 6 August 2018 passed by learned

Additional District Judge cum Judge, Motor

Accident Claims Tribunal, 3rd Court, Paschim

Medinipur in MAC case no. 204 of 2014 under

Section 166 of the Motor Vehicles Act, 1988 granting

compensation of Rs. 20,42,848/- in favour of the

claimants along with interest.

The brief fact of the case is that on 6 April

2012 at about 4:30 PM/5 PM, while the victim was

proceeding on his motorcycle from Jhargram

towards his native village at Rohini keeping left side

of Jhargram-Rohini Road, at that time offending

vehicle bearing no.WB-36B/5396 (Maruti Van)

coming at a high speed in rash and negligent

manner dashed the victim's motorcycle, as a result

of which the victim fell down on the road and

received grievous injuries on his head and body.

Local people rescued the victim and immediately

took him to Jhargram Hospital, where the attending

doctors declared him dead. On account of sudden

demise of the deceased-victim, the claimants being

the parents of the deceased filed claim application

under section 166 of the motor vehicles act, 1988

for compensation of Rs.18,30,000/- along with

interest.

Upon considering the materials on record,

the oral and documentary evidence adduced on

behalf of the claimants, the learned tribunal allowed

compensation in favour of the claimants to the tune

of Rs. 20,42,848/- in favour of the claimant no.1

(mother) along with interest.

Being aggrieved by and dissatisfied with the

impugned judgment and award the insurance

company has preferred the present appeal.

        Mr       Sanjay   Paul,   learned    advocate    for

appellant-insurance       company    submits      that   the

award of the learned tribunal has been challenged in

this appeal on the sole ground of non-involvement of

the alleged vehicle. He submits that as per the claim

case the accident took place on 6 April 2012

whereas the records show that FIR has been lodged

on 13 October 2012 i.e after a lapse of more than 6

months of the alleged occurrence and such delay

has not been sufficiently explained in the written

complaint and thus the delay in lodging FIR raises

serious doubt with regard to the involvement of the

offending vehicle in the alleged accident. He further

submits that the offending vehicle had not been

seized by the investigating agency soon after the

accident rather it has been seized after lodging of

the FIR in the month of October 2012. Furthermore

it is submitted that the eyewitness to the occurrence

namely PW2 in cross-examination has categorically

deposed that soon after the accident he made

telephone call to the family members of the

deceased-victim. In spite of such information been

received from the witness, the FIR maker did not

lodge the written complaint disclosing the

involvement of the offending vehicle which makes

the claim case suspicious and points towards

implanting of the offending vehicle with an ulterior

motive to receive a huge compensation in the claim

case. In the aforesaid backdrop he submits that the

appellant-insurance company cannot be saddled

with the liability of making payment of the

compensation amount and he prays for setting aside

the order of the learned tribunal.

Per contra Mr Subhankar Mandal, learned

advocate for respondents-claimants submit that no

challenge to involvement of the offending vehicle has

been made by the Insurance Company in the written

statement submitted before the learned tribunal. In

terms of Section 170 of the Motor Vehicles Act the

insurance company had all the available defences

but it did not produce any evidence before the

learned tribunal namely the owner or the driver of

the offending vehicle to suffice its contention of non-

involvement of the offending vehicle. He further

submits that delay in lodging the FIR per se does not

make the claim case doubtful in the absence of any

attending circumstances. In support of his

contention he relies on the decision of Hon'ble

Supreme Court passed in Ravi versus

Badrinarayan reported in (2011) 4 SCC 693 and

decision of this court passed in New India

Assurance Co. Ltd. versus Mita Samanta reported

in 2010(3) CHN (Cal) 411 and Bajaj Allainz

General Insurance Company Limited versus

Anjali Mandal and Anr. (FMAT 201 of 2018). In the

light of his aforesaid submissions he prayed for

dismissal of the appeal.

By an order dated 16 September 2022 the

service of notice of appeal upon respondent-owner of

the offending vehicle was dispensed with as the said

respondent did not contest the claim application

before the learned tribunal.

Having heard the learned advocates of both

the sides, it appears that in the present appeal the

only ground raised is with regard to involvement of

the offending vehicle. It is a fact that the written

complaint was lodged on 13 October 2012 after

expiry more than 6 months of the accident occurring

on 6 April 2012. The FIR maker, father of the

deceased, in the written complaint has explained

that due to sudden demise of his son and

debilitating mental condition he could not lodge the

written complaint immediately. There is no

indication of fabrication or concoction or

exaggerations.

The Hon'ble Supreme Court in its decision

passed in Ravi (supra) observed as follows.

"20. It is well settled that the delay in lodging FIR cannot be a ground to doubt the claimant's case. Knowing the Indian conditions as they are, we cannot expect the 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 rush to the Police Station. Under such circumstances, they are not 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 Courts 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."

Bearing in mind the aforesaid observation of

the Hon'ble Supreme Court and as in the present

case at hand there is no indication of fabrication or

concoction or engineering of the FIR hence the delay

in lodging the FIR per se cannot be a ground for

dismissal of the claim case. Further such delay has

been duly explained in the FIR. This court in the

decision passed in Anjali Mandal's Case (FMAT

201 of 2018) also relied on the aforesaid observation

of Hon'ble Supreme Court made in Ravi's case

(supra). Accordingly, the argument of the appellant-

insurance company in this regard falls short of

merit.

Although the insurance company at the time

of hearing raised the issue that the offending vehicle

has been implanted and was not involved in the

accident but it is pertinent to note that no such

defence has been taken by the insurance company

before the learned tribunal in its written statement.

PW2, Samir Bera in his evidence-in-chief stated that

he saw the accident in which the offending vehicle

was involved. Such evidence of PW2 has not been

rebutted in cross-examination.

The appellant-insurance company filed

application for leave to avail all defences under the

provisions of Section 170 of the Motor Vehicles Act,

1988. When Section 170 of the Act permitted an

insurance company to contest proceedings on behalf

of the insured-owner of the vehicle, it was

incumbent upon the insurance company to summon

the owner or the driver of the vehicle to appear as

witness for disputing the allegation of involvement of

the offending vehicle. The owner of the offending

vehicle was the best person to prove non-

involvement of the offending vehicle by producing

either garage register or movement register of the

vehicle to indicate the movement of the offending

vehicle at the relevant time. Similarly, the driver

could have been a necessary witness to throw light

as to whether the offending vehicle was really

involved in the said accident or not. The appellant-

insurance company did not take any steps to

adduce the evidence of the owner or the driver of the

offending vehicle to establish its plea of non-

involvement of the offending vehicle. Failure to adopt

such course the court is left with no other

alternative than to accept the allegations of the

claimants of involvement of the offending vehicle.

This court in the case of Mita Samanta

(supra) observed as follows.

" Therefore, the insurance company in spite of taking leave under section 170 of the Act having failed to summon the owner or the driver of the

vehicle to disprove the allegation of the claimants of the involvement of the vehicle concerned or the rash and negligent driving, the court is left with no other alternative but to accept the allegation of the claimants unless there is either admission of the claimants or their witness about non-involvement of the vehicle or about contributory negligence of the victim in the accident or there exists other evidence of unimpeachable nature given by uninterested witness showing falsity of the allegation of the claimants. In this case, there is no such admission or evidence of that nature. In this case, driver has been charge-sheeted and thus, there is no reason why the insurance company in spite of taking leave under Section 170 of the Act should not summon the said driver to give evidence for disclosing the truth. We are unable to presume collusion between the driver and the claimants when the driver has been indicted in the criminal proceedings. It will be a travesty of justice in the facts of the present case to disbelieve the eyewitness of the claimants when the owner and the driver are neither appearing nor are they even summoned by the insurance company even after taking leave under Section 170 of the Act to face cross examination at the instance of the claimants"

Keeping in mind the aforesaid observation of

this Hon'ble court, I am of the view that as the

appellant-insurance company in spite of taking leave

under Section 170 of the Act has failed to adduce

the evidence of owner or the driver of the offending

vehicle to establish its defence of non-involvement of

the vehicle, it will be a travesty of justice to

disbelieve the eyewitness namely PW2 examined on

behalf of the claimants in this regard. Needless to

mention that the insurance company also did not

produce the evidence of the investigating agency to

disprove the claim of the claimants regarding the

involvement of the offending vehicle. The FIR

(Exhibit 1), charge sheet (Exhibit 2) and seizure list

(Exhibit 3) clearly shows involvement of the

offending vehicle in the said accident. In view of the

above discussion the argument advanced on behalf

of the appellant-insurance company of non-

involvement of the offending vehicle in the said

accident does not hold good.

In view of the above discussion I find that

the grounds taken by the insurance company in the

present appeal regarding non-involvement of the

offending vehicle falls short of merit and accordingly

the appeal is liable to be dismissed.

Mr Sanjay Paul, learned advocate for

appellant insurance company informs the court that

the insurance company has already deposited the

entire awarded sum along with interest before the

learned Registrar General, High Court Calcutta. It

appears that an amount of Rs. 26,59,732/- has

been deposited before the Registry of this Court vide

OD Challan no.258 dated 13.5.2019 and statutory

deposit of 25,000/- has been made vide OD Challan

no.2479 date 3.1.2019.

Accordingly, learned Registrar General, High

Court Calcutta is directed to disburse the aforesaid

amount alongwith accrued interest in favour of the

respondent no.1 upon satisfaction of her identity.

The appeal is accordingly dismissed. The impugned

judgment and award of learned tribunal dated 6

August 2018 passed in MAC case no. 204 of 2014 is

hereby affirmed. No order as to costs.

All connected applications, if any, stands

disposed of.

Interim order if any stands vacated.

Let a copy of this order be forwarded to

learned tribunal for information.

Urgent photostat certified copy if applied for,

be supplied to the parties upon compliance of legal

formalities.

(Bivas Pattanayak, J.)