Smt. Rinku Singh & Ors vs The New India Assurance Co. Ltd. & ...
2023 Latest Caselaw 5148 Cal

              IN THE HIGH COURT AT CALCUTTA
                CIVIL APPELLATE JURISDICTION
                         APPELLATE SIDE

PRESENT: -     THE HON'BLE JUSTICE SUBHENDU SAMANTA


                          FMA 958 of 2011
                IA No.:CAN/1/2012 (Old No.:CAN/1539/2012)
                       CAN/3/2017 (Old No.:CAN/3132/2017)
                       CAN/4/2023.

                     Smt. Rinku Singh & Ors.
                              versus
               The New India Assurance Co. Ltd. & Ors.


    For the Appellants/Claimants : Mr. Krishanu Banik, Advocate.



    For the Respondent            : Mr. Rajesh Singh

    Judgment on                   :   18.08.2023


    Subhendu Samanta, J.:-

                              In Ref: CAN 4 of 2023

This is an application for amendment in respect of name and

address of the appellants and also for recording the death of appellant

No. 4. Heard the learned advocate, perused. The application being

CAN 4 of 2023 is disposed of with a direction that the name and

address of minor appellant No. 2 of the instant appeal be amended

according to the table of paragraph 2 of the said application. The

name of appellant No. 4 be struck out from the memo of the appeal as

she has expired during the pendency of the appeal and the present

appellants are the surviving legal heirs of the deceased.

The office is directed to carry out the said amendment within a

fortnight.

The instant appeal is preferred against the judgment dated 15th

day of September, 2010 passed by the learned Judge, Motor Accident

Claims Tribunal, 3rd court, Paschim Medinipur in MAC Case No. 356

of 2006 under Section 166 of the M.V. Act.

The brief fact of the case is that the present appellants being the

claimants preferred an application under Section 166 of the M.V. Act

before the learned tribunal for getting compensation from the

insurance company on the ground that the predecessor of the present

appellant was died in a fateful road traffic accident due to the rash

and negligent driving of the driver of the offending vehicle duly

ensured under the respondent insurance company.

The joint owners of the offending vehicle did not contest the case

before the learned tribunal and the case was heard ex-parte against

them. The present respondent-insurance company contested the case

by filing written statement. The claimant adduced 2 oral witness

alongwith some documentary evidences. The insurance company has

also adduced one witness as OPW-1. Some documents were also

exhibited on behalf of the insurance company.

The learned tribunal after hearing both the parties and after

perusing the evidence both oral and documentary dismissed the claim

application. Hence this appeal.

Learned advocate for the appellants submitted before this court

that the impugned award passed by the learned tribunal is palpably

illegal in the eye of law; learned tribunal has not considered the

materials and evidences regarding the fact of accident and came to an

erroneous findings. Learned tribunal has also not considered the

police papers regarding the alleged accident and thus there is a

miscarriage of justice. Learned advocate for the appellant further

argued that the evidence of PW-1 and PW-2 was not at all considered

by the learned tribunal. The learned tribunal has considered only the

evidence of OP-1 who is interested witness. He further argued that the

finding of the learned tribunal regarding the non involvement

offending vehicle is completely erroneous so he prayed for setting

aside the impugned award.

Learned advocate appearing on behalf of the insurance

company submitted before this court that an entire false story was

created to get compensation from the insurance company. The alleged

motor vehicle was not at all involved in the alleged accident. From the

fact of the case, it would be evident that the deceased was fell into a

ditch and sustained injury in his spine thereafter he was admitted to

the several hospitals with the spinal injury. Nowhere, it was written in

the medical papers that it was a road traffic accident. He submitted

that the alleged date of accident was on 29th March, 2006. The FIR

and the instant case were registered with the police station on 24th of

April, 2006. There is no sufficient explanation in the case of the

claimant that how such inordinate delay was caused in lodging FIR.

The deceased may have suffered some spinal injuries but after he

admitted to the different Hospitals; the claimants have created the

cock-and- bull story of the alleged road traffic accident for getting

compensation. There is no document to prove that the deceased was

any way connected with the alleged road traffic accident. He again

argued that the OPW-1 is an investigator of the insurance company,

after thorough investigating the matter has deposed before the learned

tribunal that the deceased sustained accidental injury due to

landslide while collecting earth in a cavity by the side of a slivery road

for the purpose of loading into the tractor. He has collected some

medical papers from the hospital where the deceased was admitted.

On the strength of the same, he is of the opinion that the medical

papers and reports suggested that the deceased sustained spine

injury due to landslide in a cavity. The investigator also deposed that

he has examined several local witnesses regarding the fact of the

incident.

The learned advocate for the insurance company also submitted

before this court that this is a glaring instances where vehicles were

falsely implicated to procure money from the insurance company.

After long 25 days of the alleged incident, the false FIR was registered

with the police and with the help of the police some police papers were

also created. He frankly argued that in this case, the learned tribunal

has committed no error in dismissing the insurance claim case and

the instant appeal is liable to be dismissed.

Learned advocate for the appellant has cited some decisions in

support of his contentions.

He cited the observation of Hon'ble Supreme Court in Ravi Vs.

Badrinarayan & Ors (2010) ACJ 2212 wherein the Hon'ble

Supreme Court has held that delay in lodging FIR cannot be ground

to doubt the claimant's case. Knowing the Indian conditions as they

are, we cannot expect a common man to fast rush to the police Station

immediately after an accident.

He also cited National Insurance Company Vs. Smt. Pratima

Barick & Anr. 2018 ACJ 77 on the same principle of delay lodging of

FIR. Wherein the division Bench of this High Court is of view that a

fortnight's delay in registration of the FIR per se cannot defeat the

claim of the claimant and we are unable to hold that the case pleaded

in the claim petition, because of the belated registration of the FIR,

was doubtful and therefore unreliable".

The learned advocate for the appellant cited a decision of

Hon'ble Supreme Court in Saroj Devi and Other Versus Narendra

Singh and Others [2023 (2) T.A.C. 707 (S.C.)] the Hon'ble Supreme

Court in Saroj Devi has held that the learned Tribunal has not given

much credence to evidence of AW-3, who was eye-witness to the

accident, but has relied on the sketch which was available to conclude

that there was 50% negligence-MCT was not justified in merely

drawing certain assumptions based on the sketch.

Learned advocate for the appellant also cited a decision of

Hon'ble Apex Court passed in Sunita & Ors. Vs. Rajasthan State

Road Transport Corporation & Anr. regarding the credibility of eye-

witness.

He also cited the decision of Hon'ble division Bench of this High

Court passed in Mita Samanta with the principle that the insurance

company to prove his case must have to produce the driver of the

offending vehicle when the insurance company has filed the

application under Section 170 of M.V.Act to contest the claim case on

all available grounds.

On the other hand, learned advocate for the insurance company

cited a decision of Hon'ble Supreme Court passed in Anil and a

decision passed by this court in Haripada Halder on the principle that

instead of evidence of eye witness the Hon'ble Supreme Court has held

that the vehicle was implanted. It is the further argument for the

learned advocate of the insurance company that there are several

cases in the State wherein the vehicles were falsely implicated and

implanted for getting huge compensation when the vehicle was not at

all involved in the alleged accident.

Heard the learned advocates perused the materials on record in

considering the entire case in hand it appears to me that the learned

tribunal on considering the evidence of PW-2 and OPW-1 has

possessed some doubt in his mind.

During the cross examination, PW-2 stated that the deceased

fell down from the height near about 20ft/30ft. The case of the

claimant has stated in the claim application is that on the fateful date

when the deceased was walking through the left side of the road at

Silaboti Bridge near Dhadika the offending tractor bearing No. WGB-

6150 also proceeding to the same direction with a terrific high speed,

recklessly dashed the deceased from back side for which the deceased

sustained injury on her back bone and admitted to the Hospital. The

learned tribunal has opined that the evidence of PW-2 regarding

falling of deceased from the height near about 20ft/30ft is not

matching with the alleged accident. Learned tribunal has also placed

his reliance of the same doubt in the evidence of OPW-1 who deposed

that during the cutting of earth the deceased felt down inside the ditch

and sustained spinal injury. On the basis of such evidences, learned

tribunal could not find any medical papers regarding the admission of

the deceased at different Hospitals which creates the doubt of the

mind of the learned tribunal to be justified that the claim is a false

case.

Let me consider whether the observation of the learned tribunal

on the basis of a single line of cross examination of PW-2 and mainly

on the basis of the evidence of OPW-1 is at all justified in the

attending facts and circumstances of this case.

Starting from the beginning of the instant case, the accident

said to be happened near Silaboti Bridge over N.G-60 which was

alleged that the offending vehicle dashed the deceased from the back

side. Thereafter, the deceased was admitted firstly to the Garbeta

Hospital, thereafter Bisnupur Hospital, thereafter Midnapore Medical

College & Hospital and lastly he was admitted at N.R.S. Medical

College & Hospital at Kolkata where he died on 02.05.2006. The

deceased appears to be a mason and the claimants/appellants are

belong to rural community. The fact suggests that the deceased had

his family members of his wife, minor sons and her old mother

obviously the family members and the well wishers would be involved

to admit the deceased in different Hospitals. In this particular case,

the lodging of FIR after 25 days is not appears to me unjustified.

In considering the FIR, it appears to me that the FIR was lodged

by the brother of the deceased contending inter-alia that when the

deceased was proceeding towards his house at the time the offending

vehicle dashed him near the Bridge of Silaboti from the back side on

such he felt down by rolling beneath the Bridge. The FIR does not

suggest the height of the road to the lower portion of the Bridge to be

25ft or 30ft. On the basis of such FIR, the Garbeta Police Station Case

No. 47 of 2006 dated 24.04.2006 was started. After completion of

investigation, the police has submitted charge-sheet, the offending

vehicle was seized during the course of investigation. The police also

enquire the available witnesses including eye witnesses of the alleged

accident and recorded their statement under Section 161 CrPC. The

present PW-2 is also appeared as a charge sheeted witness No. 2 in

the CS. The police also collected the injury reports from the different

Hospitals during the course of investigation wherein the Doctor has

opined the injury of the deceased to be "spinal injury". The deceased

succumbed to his injuries on 2nd May, 2006. After his demised, a

post-mortem was conducted wherein the history of injury was stated

to be knocked by the offending tractor bearing No. WGB 6150 on 23rd

March, 2006 over NH-60 near Bridge over Silaboti River.

On the other hand, the investigator of the insurance company

who admittedly not the eye witnesses of the accident investigated the

matter on the direction of the insurance company and after thorough

inquiry prepared a report contending inter-alia to the fact that the

alleged accident is not correct, the deceased fell down on the ditch

when he was cutting the earth. In his report, he stated that he asked

the local people about the accident who stated him that while the

deceased was lifting soil inside the Silaboti river suddenly sand slide

occurred and deceased felt down cause fatal injury on his spinal cord.

He also collected the medical papers from the different Hospitals

regarding the injury of the deceased in all the papers it was mentioned

the injury to be "accidental spinal injury". He also mentioned the

name of the local person whom he enquired.

Considering the peculiar facts of this case-on the side of

claimants there are fact of accident for rash and negligent driving of

the driver of the offending vehicle (tracktor) bearing No. WGB-6150

PW-1 and PW-2 appeared to support the claimant's case. The

documentary evidences standing in favour of the claimants are FIR,

charge sheet and post-mortem report.

On the other hand, the insurance company has adduced OPW-1

including his report totally contradictory to the fact of the claimant.

Learned tribunal has picked up the single line of cross examination of

the PW-2 regarding falling down of deceased from 20ft/30ft height and

made its connection with the fact of the insurance company.

Let me consider whether the probative value of FIR, charge

sheet and post-mortem report including evidence of the PW-2 and PW-

2 can be brushed aside against the probative value of OPW-1

including his report.

Let me assessed the evidence of PW-2 who is appeared to be eye

witness before the learned tribunal. The eye witness was examined by

the police during the course of investigation thus it cannot be said

that PW-2 is outside to the fact. He stated the entire fact regarding the

rash and negligent driving of the driver of the offending vehicle and

also dashing the victim from the back side. During his cross

examination he stated the deceased felt down from 20ft/30ft height at

the time. The FIR suggests that after such accident, the deceased

rolled down beneath the Bridge from the N.H.-60 road. The FIR

suggests the statement of PW-2 has its corroboration. During the

course of investigation, the IO has collected the injury reports from

the Hospital and doctors are of opinion of spinal injury of the

deceased. Merely not mentioning the form "road traffic accident" at the

time of admission, cannot falsify the fact of accident. Moreover, the

post-mortem report contained the history of injury regarding the

alleged accident sustained by the victim. The post-mortem report

generally recorded on the basis of the Hospital bed head tickets and

records. The post-mortem report is prepared by the Doctor. At the

time of preparation of post-mortem report obviously the influence of

police or the claimants could not possible thus the post-mortem report

appears to me independent and trustworthy.

In considering the evidentiary value of the OPW-1, it appears

that he is the investigator appointed by the insurance company. After

such investigation, he submitted the report directly to the office of the

insurance company. No doubt functioning of the investigator is

underneath to the office of the insurance company. Thus the

investigator must have to act according to the wish of the insurance

company. An investigator did not witness the accident; he came the

place of occurrence after a substantial period. He visited the place

after police investigation. Thus, his enquiry in locality after a long

period of accident may have a chance of revealing distorted facts. On

that score the evidence of investigator cannot be said to be

independent or impartial though it has some corroborative value. The

investigator has submitted his report contending the name of some

persons whom he enquired during his investigation. The insurance

company must have produced such local witnesses before the learned

tribunal to contradict the statement of the eye witness i.e. PW-2 who

is also a charge-sheeted witnesses. The observation of Hon'ble

Supreme Court in Anil as well as the observation of this court in the

case of Haripada Halder is on the basis of the particular case only.

The principles as laid down by the Hon'ble Supreme Court in different

cases are on the basis of the peculiar fact of that particular case.

The impugned judgment passed by the learned tribunal on the

basis of the report of the investigator and denying the other oral and

documentary evidences, appears to me not justified. Considering the

probative value of the evidences of either parties in this case, I am of

the opinion, that the evidence adduced by the claimants before the

learned tribunal is trustworthy. After considering the entire facts and

circumstances of their case and after discussion made above I am of

the view the impugned order passed by the learned tribunal suffered

illegality and is liable to be set aside. FMA is allowed.

The claimants being the fateful heirs of the deceased is entitled

to get compensation as prayed for. To assess the just and proper

compensation of this case. It appears to me that in the absence of any

particular evidence of income of the deceased by virtue of the

judgment of Hon'ble apex Court passed in Sarla Verma and Pranay

Sethi the notional income is taken to be Rs.3,000/- per month. The

claimants are also entitled to get 40% of establishment income

towards the future prospect according to the direction of Hon'ble

Supreme Court passed in Pranay Sethi. The appellants are three in

number thus the deduction on personal grounds of the deceased of

this case would be 1/3rd. Post-mortem report suggest that the age of

the deceased more than 35 years thus the applicable multiplier case

would be 15. The claimants are also entitled to get an amounting to

Rs. 70,000/- towards the general damages.

The just and proper compensation of this case is as follows:---

1. Monthly Income....................................................Rs. 3,000/-

2. Annual Income...................................................Rs. 36,000/-

(Rs.3000 X 12)

3. 40% Future Prospect .........................................Rs. 14,400/-

Rs. 50,400/-

4. 1/3rd deduction..................................................Rs. 16,800/-

5. After deduction...................................................Rs.33,600/-

(Rs.50,400-Rs.16800/-)

6. Multiplier as per age is 15................................Rs.5,04,000/-

(Rs.33,600/-X 15)

7. General Damages...............................................Rs. 70,000/-

Total Rs. 5,74,000/-

The insurance company is directed to pay the compensation

alongwith interest @ 6% per annum from the date of filing of this case

i.e. from 23.06.2016 within eight weeks through the office of the

learned Registrar General, High Court, Calcutta. On such deposit the

claimants are at liberty to withdraw the same subject to the

ascertainment of payment of requisite court fees.

Accordingly, the FMA is disposed of.

All connected applications, if any, stand disposed of.

Interim orders, if any, stand vacated.

LCR be sent down immediately.

Parties to act upon the server copy and urgent certified copy of

this order be provided on usual terms and conditions.

(Subhendu Samanta, J.)