Calcutta High Court (Appellete Side)
National Insurance Company Limited vs Nirmalya Chakraborty & Anr on 8 December, 2023
IN THE HIGH COURT AT CALCUTTA
CIVIL APPELLATE JURISDICTION
APPELLATE SIDE
PRESENT:
THE HON'BLE JUSTICE BIVAS PATTANAYAK
FMA 2078 of 2014
CAN 2 of 2014 (Old No. CAN 11847 of 2014)
National Insurance Company Limited
versus
Nirmalya Chakraborty & Anr.
For the Appellant-Insurance : Mr. Rajesh Singh, Advocate
Company
For the Respondent No.1- : Mr. Jayanta Kumar Mandal, Advocate
Claimant
Heard on : 13.03.2023
Judgment on : 08.12.2023
Bivas Pattanayak, J. :-
1. This appeal is preferred against the judgment and award dated 27th
January, 2014 passed by learned Additional District Judge-cum-Judge,
Motor Accident Claims Tribunal, Fast Track, 1st Court, Paschim Medinipur
in M.A.C. Case No. 310 of 2012 granting compensation of Rs.1,50,000/-
together with interest in favour of the claimant under Section 166 of the
Motor Vehicles Act, 1988.
2. The brief fact of the case is that on 28th May, 2012 at about 6:30 P.M.
the claimant along with his family members including his minor son
(victim) was proceeding towards Midnapore from Garhbeta in a car bearing
registration no. WB-06/F-8634 (Tata Indigo) through NH-60 and near
Ledapole under P.S. Garhbeta, the vehicle was stopped beside the road
and the claimant along with the other family members got down from the
said car and started talking to each other standing in front of their car. At
that time, the offending vehicle bearing registration no. WB-34/Z-5225
(Maruti van) coming from Midnapore side and going towards Garhbeta side
in rash and negligent manner dashed the minor son of the claimant as well
as the Tata Indigo car. As a result of the aforesaid accident, the minor
victim sustained grievous bleeding injury on his head and body and he
died on spot. On account of sudden demise of the victim, the claimant
being the father of the minor victim filed application for compensation of
Rs.2,00,000/- under Section 166 of the Motor Vehicles Act, 1988.
3. The claimant in order to establish his case examined himself and
produced documents which have been marked as Exhibits-1 to 7
respectively.
4. The appellant-insurance company also adduced the evidence of two
witnesses and produced documents which have been marked as Exhibits-
A and B respectively.
5. The owner of the offending vehicle though appeared before the learned
Tribunal and filed his written statement but subsequently did not contest
the claim application and the case was proceeded ex parte against him. In
the present appeal despite service of notice of appeal, the owner of the
offending vehicle did not appear to contest.
6. Upon considering the materials on record and the evidence adduced on
behalf of respective parties, learned Tribunal granted compensation of
Rs.1,50,000/- together with interest in favour of the claimant under
Section 166 of the Motor Vehicles Act, 1988.
7. Being aggrieved by and dissatisfied with the impugned judgment and
award of the learned Tribunal, the insurance company has preferred the
present appeal.
8. Mr. Rajesh Singh, learned advocate for appellant-insurance company
submitted that the alleged offending vehicle, which is a Maruti van, was
not involved in the accident and it was subsequently implanted in the case
to obtain illegal and unlawful benefits from the insurance company. From
the materials on record, it would suffice that the entire front portion of the
Tata Indigo car was badly damaged but curious enough only the front steel
bumper of the alleged Maruti van was pushed in. He drew the attention of
the Court to the fact that if at all the Maruti van was involved in the
accident in the manner alleged by the claimant, then the same would also
have been damaged to a large extent. He further submitted that there is no
independent eyewitness to the occurrence examined by the claimant. The
only witness is the claimant who is an interested witness. Moreover, the
claimant in his evidence has deliberately avoided to disclose the name of
his driver which clearly raises doubt in his evidence. He further indicated
that the mother of the claimant, who also died in the said accident, was a
councilor of Medinipur Municipality and the news of the accident was
published in the local newspaper as well as the television channels which
reported that the accident has taken place while the Tata Indigo car hit a
roadside tree and, therefore, the involvement of the Maruti van as alleged
is far-fetched. He further submitted that the there has been delay of 33
days in lodging the FIR which in the facts and circumstances of the case is
indicating that the alleged offending vehicle was arranged in the meantime
to be implanted in the case. Moreover, neither the owner nor the driver of
the alleged offending vehicle intimated the police of such occurrence as per
the requirement of Section 134 of the Motor Vehicles Act, 1988. He further
relying on the decision of the Hon'ble Supreme Court passed in Safiq
Ahmad versus ICICI Lombard General Insurance Co. Ltd. and Others1
submitted that the Hon'ble Court taking cognizance of the fact of fake
claim cases being filed for making unlawful gains, has set up SIT for
making investigation. In light of his aforesaid submissions, he prayed for
dismissal of the claim application by setting aside the impugned judgment
and award of the learned Tribunal.
9. In reply to the contentions raised on behalf of the appellant-insurance
company, Mr. Jayanta Kumar Mandal, learned advocate for respondent
no.1-claimant submitted that there is no material on record to show that
on the relevant date the vehicle Tata Indigo car in which the claimant and
his family members were travelling hit a roadside tree. No local inspection
commission was held to ascertain the damage to any roadside tree by the
Tata Indigo car and, therefore, such argument advanced on behalf of the
insurance company is short of merit. He further relying on the decisions of
the Hon'ble Supreme Court passed in Sunita and Others versus
Rajasthan State Road Transport Corporation and Another2 and in
Anita Sharma & Ors. versus The New India Assurance Co. Ltd. &
Anr.3 submitted that the standard of proof in motor accident claim cases
should be one of preponderance of probabilities rather than beyond
reasonable doubt. The role of Courts is not to find fault with non-
1 2021 (4) T.A.C. 682 (S.C.)
2 2019 (1) T.A.C. 710 (S.C.)
3 2021 SAR (Civ) 1
examination of some best eyewitnesses but instead analyse the materials
placed on record by the parties to ascertain whether the claimant's version
is more likely than not true. He further submitted that P.W.1 (claimant),
who was injured in the said accident, had categorically deposed of the
involvement of the vehicle which is also supported by the documents
namely the FIR and chargesheet and such evidence of the claimant of the
involvement of the offending vehicle has not been disproved by the
insurance company by adducing the evidence of the driver or the owner of
the offending vehicle in spite of taking leave under Section 170 of the
Motor Vehicles Act, 1988. Therefore, the version of the claimant of
involvement of the offending vehicle is to be accepted. To buttress his
contention, he relied on the decision of this Court passed in The New
India Assurance Co. Ltd. versus Mita Samanta and Ors.4. In light of
his aforesaid submissions, he prayed that the impugned judgment and
award of the learned Tribunal should be affirmed in the interest of justice.
10. Having heard learned advocates for respective parties, the only issue
which has fallen for consideration is whether the offending vehicle was
involved in the said accident or not.
11. Before proceeding to deal with issue involved in the present appeal, I
concur with the submissions of Mr. Mandal, learned advocate for
respondent no.1-claimant relying on Sunita (supra) and Anita Sharma
(supra) that standard of proof beyond reasonable doubt cannot be applied
while dealing with motor accident cases instead one of preponderance of
probabilities is to be considered.
4 (2010) 1 WBLR (Cal) 137
11.1. In order to appreciate the aforesaid issue, it would be appropriate to
relate to the pleadings of the respective parties with regard to the
involvement of the vehicle. It is the claimant's case that on 28th May, 2012
at about 6:30 P.M. the claimant along with his family members including
the victim (minor) was proceeding towards Midnapore from Garhbeta in a
car bearing registration no. WB-06/F-8634 (Tata Indigo) from Garhbeta
side through NH-60 and near Ledapole under P.S. Garhbeta, the vehicle
was stopped beside the road and the petitioner along with the other family
members got down from the said car and started talking to each other
standing in front of their car. At that time, the offending vehicle bearing
registration no. WB-34/Z-5225 (Maruti van) coming from Midnapore side
and going towards Garhbeta side in rash and negligent manner dashed the
victim as well as the Tata Indigo car. Per contra, the insurance company in
its written statement has specifically pleaded that on the relevant date of
accident, the vehicle bearing registration no. WB-06/F-8634 in which the
claimant and his family member were travelling was driven in rash and
negligent manner and it hit a roadside tree resulting in death of three
persons on the spot and damage to the vehicle. The alleged Maruti van
bearing registration no. WB-34/Z-5225 was never involved in the said
accident and the case has been fabricated to make illegal gains from the
insurance company. In order to establish the involvement of the vehicle,
the claimant has adduced his evidence. The insurance company in order to
disprove the involvement of the vehicle examined two witnesses namely of
O.P.W.1 Mr. Ram Sundar Samui, Motor Vehicle Inspector (Technical) and
O.P.W.2 S.I. Bikash Kumar Sardar.
11.2. At the outset, it is found that there are no evidence on record to
suggest that the Tata Indigo car in which the claimant and his family
members were travelling on the relevant date hit a roadside tree resulting
in death of the victim. Be that as it may, the question of involvement of
alleged offending Maruti van requires to be analysed on the basis of
materials on record to ascertain whether the claimant's version is more
likely or not.
11.3. P.W.1 Nirmalya Chakraborty (claimant) in his evidence-in-chief
stated that on the relevant date he and his family member got down from
the Tata Indigo car in which they were travelling and while they were
talking to each other on Raigange-Midnapore Road, the offending Maruti
van bearing registration WB-34/Z-5225 with a very high speed dashed the
stationary Tata Indigo car. In his cross-examination, he deposed that after
the accident the offending Maruti van was standing at the place of accident
till he lost his consciousness. There is no case made out that the offending
vehicle Maruti van fled away from the place of occurrence. Be that as it
may, at this juncture, it would be apposite to examine whether in the given
set of facts it was possible for the Maruti van to flee away from the place of
occurrence. As per the claim case, the offending Maruti van in a high
speed dashed the stationary Tata Indigo car in which the claimant and his
family members were travelling. O.P.W.1 Ram Sundar Samui, Motor
Vehicle Inspector (Technical) deposed that on 10th January, 2013 he
examined the Tata Indigo car bearing registration no. WB-06/F-8634
which was kept within the compound of Garhbeta P.S. On examination, he
found that the body shell of the said Tata Indigo car having golden colour
was fully damaged and deformed. He further deposed that he found that
the engine and steering system, instrument panel board, break system, air
condition system, front suspension system fully damaged and were not
serviceable. Battery was found damaged, wind shield glass and front door
glass and head lamp were broken. Front show and radiator of the vehicle
were fully damaged and deformed. He further deposed that due to such
damage, the car became inoperative and was not road worthy. O.P.W.1 in
his cross-examination deposed that if the said Maruti van having a steel
bumper dashed the stationary vehicle, in his opinion both the vehicles
shall sustain damage. It is pertinent to note that in the said accident two
persons died on the spot and one person died while being shifted to the
hospital and another person sustained injury. The extent of damage to the
Tata Indigo vehicle and the death of several persons in the accident clearly
suggest that the impact of the accident was grave. Thus, in all probability,
the Maruti van, which is claimed to be involved in the accident, in such
event should also be damaged to a great extent. As per the evidence of
P.W.1, before losing his consciousness he found two persons standing on
the opposite side of NH-60. It is of common prudence that when such a
massive accident takes place on a public highway, immediately the people
in and around rush and gather near the scene of occurrence. For the
aforesaid reasons and in the circumstances as above, it would not be
possible for the alleged Maruti van which having been damaged to a great
extent and in midst of gathering of people to flee away from the scene of
occurrence. O.P.W.2 S.I. Bikash Kumar Sardar deposed that after the
accident the Tata Indigo car was brought to the police station on the date
of accident i.e. 28th May, 2012 with the help of recovery van. In the facts
and circumstances of the case, had the Maruti van been involved in the
accident, it would have been found in damaged condition near the scene of
occurrence and the police would have also taken the said Maruti vehicle to
the police station along with the Tata Indigo vehicle by the recovery van
and would have started specific case against the driver of the offending
Maruti van.
11.4. It is relevant to note that O.P.W.2 categorically stated that no
specific case was started on 28th May, 2012 (i.e. date of occurrence). P.W.1
in his cross-examination deposed that he saw the registration number of
the Maruti van which he informed to his father after five days of the
accident. However, such registration number was never intimated to the
police authorities till the F.I.R. came into existence after 33 days. Although
it is trite law delay in lodging F.I.R. is not fatal to claimant's case but in
the present context considering the preponderance of probabilities as
above and bearing in mind the nature of a massive accident resulting in
death of three persons and injury to one, the delay becomes fatal and
suspicious. In all probabilities, had the alleged Maruti van been involved in
the accident, the surviving family members, who lost several near and dear
ones, would immediately on getting information of the offending vehicle
report it to police authorities in order to bring the offending driver to
books.
11.5. Further it is found that soon after lodgment of the F.I.R. the Maruti
van bearing registration no. WB-34/Z-5225 was seized by the investigating
agency on the date of F.I.R. at 15:25 hours. O.P.W.2, S.I. of Police, in his
evidence-in-chief deposed that the owner of the Maruti Omni brought the
said vehicle to the police station and subsequently the vehicle was seized.
He further deposed that the Maruti van was in running condition and was
brought to the police station by driving the same. He also deposed that the
Maruti van was in tip-top running condition. It is already discussed that
due to the impact of the accident and the extent of the damage to the Tata
Indigo car there is every possibility that the Maruti van, alleged to be
involved, would also be damaged to a large extent. In such circumstances,
it is quite impossible to decipher as to how the Maruti van claimed to be
involved could be brought to the police station by driving on the date of
lodgment of the F.I.R. itself after 33 days that too in a tip-top running
condition. Mr. Mandal, learned advocate for the respondent no.1-claimant
relying on the decision of the Hon'ble Supreme Court passed in Mangla
Ram versus The Oriental Insurance Company Ltd. & Ors.5 submitted
that since the vehicle is seized after one month of the accident, the
possibility of it having been repaired cannot be ruled out. The facts before
the Hon'ble Supreme Court in Mangla Ram (supra) was that the offending
jeep dashed a motorcycle from behind and the Mechanical Inspection
Report stated only a scratch on the mudguard of the left tyre of the vehicle.
The vehicle was seized after one month. Bearing in mind the above facts,
the Hon'ble Court observed that the possibility of the same having been
repaired in the meantime could not be ruled out. The facts involved in the
cited decision is quite dissimilar to the case at hand where it is found that
there is large impact of the accident on both the vehicles and due to such
5 2018 SAR (Civil) 633
impact one vehicle i.e. Tata Indigo car has become totally inoperative and
thus the ratio does not apply to the facts of the case. Further there is no
case made out that the alleged offending Maruti van after the accident has
been repaired.
11.6. It is also relevant to note that neither the owner nor the driver of the
alleged offending vehicle has informed of the incident to the police when
facts clearly goes to suggest that there was a massive accident.
11.7. P.W.1 in his cross-examination deposed that the vehicle belonged to
their company namely Explore Business Management of which he is one of
the directors. However, curious enough he deposed that he does not know
the name of the driver of the said vehicle. Such aspect clearly shows that
P.W.1 tried to suppress the name of the driver of the offending Tata Indigo
car.
11.8. Bearing in mind the preponderance of probabilities and in view of
the above discussion, the evidence of P.W.1, who is claimant and
eyewitness to the occurrence, cannot be accepted and at the same time the
involvement of the alleged Maruti van in the said accident also becomes
very much doubtful.
11.9. Referring to the decision of this Court in Mita Samanta (supra), Mr.
Mandal, learned advocate for the respondent no.1 tried to impress upon
the Court since the driver or the owner of the offending vehicle has not
been examined to disprove the involvement of the offending vehicle, hence
the claim of the claimant in such regard should be accepted. It is a fact
that the driver or the owner of the offending vehicle has not been
examined. In the cited decision, there was evidence of eyewitness of the
involvement of the vehicle which was found to be reliable whereas such
reliable evidence of eyewitness is lacking in this case. Be that as it may,
the role of the Courts is to analyse the materials placed on record by the
parties to ascertain whether the claimant's version is acceptable on the
touchstone of preponderance of probabilities. Since from the evidence on
record it is palpable that the involvement of the Maruti van in the said
accident is doubtful, the non-examination of the driver or the owner of the
offending vehicle by the insurance company does not ipso facto lead to
acceptance of the claimant's version regarding involvement of the alleged
vehicle. There is no other independent eyewitness examined in support of
the involvement of the vehicle.
11.10. Mr. Mandal, learned advocate for respondent no.1-claimant
strenuously argued that the F.I.R. and the chargesheet show involvement
of the Maruti van and hence the claimant's version of involvement of the
vehicle should be accepted. Such argument pressed into service as above
is not sustainable since F.I.R. and chargesheet are not conclusive piece of
evidence (See Kamlesh and Others versus Attar Singh and Others6).
11.11. In view of the above discussion, it is found that the claimant had
failed to establish the involvement of the alleged Maruti van in the said
accident.
12. In the event the appeal succeeds. The impugned judgment and award
of the learned Tribunal is set aside. The claim application stands
dismissed. No order as to costs.
6 (2015) 15 SCC 364
13. The appellant-insurance company is granted liberty to withdraw the
amount of Rs. 1,48,960/- deposited vide OD Challan No. 830 dated 7th
July, 2014 and statutory deposit of Rs. 25,000/- vide OD Challan No. 359
dated 14th May, 2014 before the registry of this Court together with
accrued interest.
14. All connected applications, if any, stand disposed of.
15. Interim order, if any, stands vacated.
16. Let a copy of this judgment be forwarded to the learned Tribunal
along with lower court records for information in accordance with rules.
17. Urgent photostat certified copy of this judgment, if applied for, be
given to the parties upon compliance of necessary legal formalities.
(Bivas Pattanayak, J.)
