Bajaj Allianz General Insurance ... vs Shibdas Majhi @ Shibu Maji & Anr
2023 Latest Caselaw 3722 Cal

08.06.2023
 Ct. 654
  D/L 2
   ab

                   IN THE HIGH COURT AT CALCUTTA
                     CIVIL APPELLATE JURIDICTION
                           APPELLATE SIDE

                              FMA 665 of 2019
                                    With
               IA No. CAN 2 of 2017(Old No. CAN 8036 of 2017)

              Bajaj Allianz General Insurance Company Limited
                                      -Vs-
                      Shibdas Majhi @ Shibu Maji & Anr.


             Mr. Rajesh Singh
                           ... for the appellant-Insurance Company

             Mr. Amit Ranjan Roy
                               ... for the respondent No.1-claimant

This appeal is preferred against the judgment and

award dated 16th December, 2016 passed by the

learned Judge, Motor Accident Claims Tribunal, Fast

Track, 2nd Court, Burdwan in M.A.C. Case No. 67 of

2013 (128 of 2013) granting compensation of Rs.

5,11,880/- together with interest under Section 163A of

the Motor Vehicles Act, 1988.

The brief fact of the case is that on 26.02.2012 at

about 12.00 hours in the afternoon while the victim was

returning home from Kamarpara to Khurul, at that time

the offending vehicle bearing registration No. WB 41C-

0203 dashed the victim on Kurumba-Kamarpara Road

near Nildanga more, as a result of which the victim was

severely injured and subsequently his right leg was

amputated at Burdwan Medical College & Hospital and

consequent thereto, he became permanently disabled.

On account of injuries sustained and disablement, the

injured filed an application for compensation of Rs.

6,00,000/- under Section 163A of the Motor Vehicles

Act, 1988.

The respondent No. 1-claimant in order to

establish his case examined himself and two other

witnesses and also produced documents, which have

been marked as Exhibits- 1 to 6 respectively.

The appellant-insurance company also examined

three witnesses including the owner and driver of the

alleged offending vehicle. In cross-examination of P.W.

3, the discharge certificate of Burdwan Medical College

& Hospital dated 15.03.2012 has been marked as

Exhibit-A on behalf of the insurance company.

Upon considering the materials on record and the

evidence adduced on behalf of the respective parties,

the learned Tribunal granted compensation of Rs.

5,11,880/- together with interest in favour of the

claimant-injured under Section 163A of the Motor

Vehicles Act.

Being aggrieved by and dissatisfied with the

impugned judgment and award, the insurance company

has preferred the present appeal.

Mr. Rajesh Singh, learned advocate for the

appellant-insurance company submits that the

insurance company challenged the award in the present

appeal on the ground of non-involvement of the

offending vehicle and such challenge to involvement of

the offending vehicle has also been specifically averred

in the written statement filed by the insurance

company. Raising the plea of non-involvement of the

offending vehicle, Mr. Singh at the first instance

indicates that there has been inordinate delay of almost

341 days in lodging the FIR. Such delay has not been

explained properly either in the written complaint or by

evidence during the proceedings and, therefore, the

delay is fatal to the claim of the claimant. He further

submits that in his evidence, the injured has admitted

that he did not see the number of the offending vehicle.

However, he stated that one Shibaji Mondal, Arup Hati

and his wife told him about the number of the offending

tractor. It is curious to note that none of the eye-

witnesses informed the police about the accident. Far

less, his wife who also witnessed the accident failed to

intimate the police. Further, the driver of the offending

vehicle stated in his evidence that he informed of the

accident to the owner, which has been also admitted by

the owner O.P.W. 1 in his evidence but neither the

owner nor the driver informed the matter to the police

and the FIR comes into existence after a lapse of 341

days without any explanation. He further draws the

attention of the Court to the cross-examination of the

sole eye-witness P.W. 2, who categorically deposed in

cross-examination that the number plate of the

offending vehicle was white with black ink which

suggests that the offending vehicle was a private vehicle

and not a commercial one as has been alleged by the

claimant, which raises a serious doubt as to the

involvement of the offending vehicle. Further more, he

submits that none of the medical documents produced

before the learned Tribunal records the number of the

offending vehicle or its involvement. Thus, the evidence

and the facts emanating from the materials on record

clearly indicate that the vehicle has been afterwards

implanted to get compensation from the Court. In

support of his contentions, he relies on the decision of

the Hon'ble Supreme Court passed in Anil and Ors. Vs.

New Indian Assurance Co. Ltd & Ors. (Civil Appeal

Nos. 3291-3292 of 2011) reported in AIR 2018 SC

612 and another decision of this Court passed in Smt.

Kalpana Ruidas & Ors. Vs. The Shriram Insurance

Company Ltd. & Anr. (FMA 2124 of 2013).

In reply to the contentions raised on behalf of the

appellant-insurance company, Mr. Amit Ranjan Roy,

learned advocate for the respondent No. 1-claimant

indicated from the evidence of the P.W. 1 that the wife

of the victim namely, Purnima Majhi informed the police

about the accident after 3/ 4 days from the date of

accident and, therefore, the argument advanced on

behalf of the insurance company that the fact of

accident was not informed is out and out not

acceptable. Further, relying to the evidence of the sole

eye-witness P.W. 2, he submits that the said witness

has categorically stated of the involvement of the

vehicle. Save and except that the number plate of the

said vehicle is white in colour with black ink, there is no

other contradictory evidence to disbelieve his evidence.

Relying on Basthi Kasim Saheb (Dead) by L.Rs. Vs.

The Mysore State Road Transport Corporation and

Others, reported in AIR 1991 SC 487, he submits that

the driver of the offending vehicle is the best witness of

an accident and in the present case, the driver of the

offending vehicle has admitted of the involvement of the

vehicle and supported the version of the claimant which

should be accepted for adjudication of the dispute.

Relying on the decision of the Hon'ble Supreme

Court passed in Ravi Vs. Bardrinarayan and others,

reported in 2011 (1) T.A.C. 867 (S.C.), he submits that

the delay per se is not fatal to the claim of the claimant

and, therefore, the delay in the present case in lodging

the FIR cannot affect the claim of the injured-claimant,

who suffered amputation due to injuries sustained in

the accident. Moreover, he submits that no proceeding

for quashing of the FIR has been initiated which

establishes the occurrence and the involvement of the

vehicle. Relying on the decision of the Hon'ble Supreme

Court passed in SLP (Civil) No. 21077 of 2019

(Janabai WD/O Dinkarrao Ghorpade & Ors. Vs. M/S.

I.C.I.C.I. Lambord Insurance Company Ltd., he

submits that the FIR in the said case was initiated

against the unknown vehicle and unknown driver and

upon oral evidence of the wife of the victim, the Hon'ble

Court accepted the involvement of the vehicle. In the

light of the aforesaid submissions, he prays for

dismissal of the appeal.

None appears on behalf of the respondent No. 2,

owner of the offending vehicle in spite of service of

notice of appeal.

Having heard the learned advocates for the

respective parties, it is found that the insurance

company has thrown challenge to the award solely on

the ground of non-involvement of the offending vehicle.

In order to appreciate the aforesaid issue, it would be

profitable to refer to the written statement submitted by

the insurance company. The insurance company in its

written statement filed in the proceeding has

categorically denied the allegation of involvement of the

offending vehicle. In order to establish the involvement

of the offending vehicle, the claimant has adduced the

evidence of victim (injured) as P.W. 1 and another

witness, Shibaji Mondal as P.W. 2. Though the P.W. 1,

the victim of the alleged accident stated in his affidavit-

in-chief that while returning home from Kamarpara to

Khurul, the tractor being registration No. WB 41C-0203

going towards Khurul dashed him, yet in his cross-

examination, he stated that he became senseless as a

result of the accident and could not see the number of

the offending vehicle. Therefore, the evidence of the

victim so far as the involvement of alleged tractor

becomes inconsequential. Turning to the evidence of the

sole eye-witness P.W. 2, it is found that he stated in his

evidence that the victim was dashed by the tractor

bearing registration No. WB 41C-0203. Both O.P.W. 1,

owner of the alleged offending vehicle and O.P.W. 2

stated in their evidence- in- chief that the alleged

vehicle was a commercial vehicle. However, the sole eye-

witness P.W.2 stated in his cross-examination that the

number of the offending vehicle was fitted in a number

plate in a rear portion of the offending vehicle and it

was written down in a white board with black ink.

Rule 50(2)(d) of the Central Motor Vehicles Rules,

1989 provides as hereunder:

["(d) the letters of the registration mark shall be in English and the figures shall be in Arabic numerals and shall be shown:-

(A) in the case of transport vehicles in Black colour on Yellow background; and (B) in other cases, in Black colour on White background, the registration mark on the trailer shall be exhibited on the left hand side in Black colour on Yellow background. In addition, the registration mark of the drawing vehicle shall be exhibited on the trailer also and this shall be done on the right

hand side at the rear of the trailer or the last trailer as the case may be, in Black colour on retro-reflective type Yellow background:

Provided that where provisions of this clause have not been complied with in respect of motor vehicle, on or before the commencement of the Central Motor Vehicles (8th Amendment) Rules, 2001, then the provisions shall be complied with,-

(i) in respect of transport vehicle on or before 1st February, 2002; and

(ii) In other cases, on or before 1st July, 2002"]

As per the aforesaid Rule, the commercial

vehicle's number plate should be yellow with black

colour numerals. Therefore, the evidence of P.W. 2, sole

eye-witness that the number plate of the alleged vehicle

was white with black ink raises a doubt with regard to

the involvement of a tractor having a commercial

registration, which is alleged to have been involved in

the present case. The victim P.W. 1 has stated in his

cross-examination that the P.W. 2, one Arup Hati and

his wife Purnima Majhi witnessed the accident. Save

and except P.W. 2, the claimant has not adduced the

evidence either of his wife or Arup Hati.

It is not in dispute that there is delay in lodging of

the FIR of more than 300 days. In backdrop of the

evidences discussed above, let me examine as to

whether the delay is properly explained or whether such

delay is fatal to the claim case. It is pertinent to note

that the FIR has been initiated on the basis of an

application filed before the learned Chief Judicial

Magistrate, Burdwan under Section 156(3) of the

Criminal Procedure Code on the ground of refusal by

the police authority to accept the FIR. There is no iota of

evidence that prior to filing of the application under

Section 156(3) of the Code, the complainant approached

the police authority. P.W. 1 (victim) stated that his wife

informed the police about the accident after 3 /4 days

of the accident. Neither such fact has been stated in the

petition under Section 156(3) of the Code nor any

document or general diary has been called for to

establish the fact that the wife of the victim lodged

complaint before the police alleging of such accident.

That apart, none of the eye witnesses namely, Shibaji

Mondal or Arup Hati informed of the accident to the

police. More so, O.P.W. 1, owner of the offending vehicle

and the O.P.W.2, driver of the offending vehicle who

admitted that they knew about the accident also did not

inform the police of such accident. It is curious to note

that none of the witnesses who had knowledge of the

accident informed the police of such accident which

raises a doubt. There is no plausible reason coming up

as to why these witnesses failed to inform the police if

such occurrence in actuality has taken place.

Mr. Roy, learned advocate for the respondent/

claimant referring to the report of the Hon'ble Supreme

Court in Ravi (Supra) tried to impress upon the court

that the delay in lodging the FIR is not fatal to the claim

case. The Hon'ble Supreme Court in the aforesaid report

has observed that in case 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 Court 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 delay in lodging the FIR, the claim case

cannot be dismissed merely on that ground.

Bearing in mind the aforesaid proposition, upon

scrutiny of the evidence of the witnesses as discussed

above, it is already found that none of the witnesses to

occurrence or the victim or the owner or the driver

informed the accident to the police. The FIR has come to

existence after an inordinate delay of more than 300

days. Though it has been stated that due to injury the

complaint could not be made but it is found that the

injured has been discharged on 15.03.2012 whereas the

complaint was filed in Court on 21.01.2013 under

Section 156(3) of the Code. More so, the fact of accident

though stated to have been intimated to the police by

the wife of the victim has not been supported by any

document. The medical documents on the record do not

speak of any road traffic accident. So far as the decision

of the Hon'ble Supreme Court passed in Janabai

(supra), it is found that the same is distinguishable in

facts and thus, does not apply to the facts of the

present case. Therefore, bearing in mind the evidence of

witnesses discussed above, the witnesses not informing

the police without plausible reason together with

unexplained inordinate delay in lodging FIR, the

involvement of the vehicle in the accident becomes

doubtful and is very much fatal to the claim of the

claimant. I find substance in the submission of Mr.

Singh relying on Anil (supra) and Smt. Kalpana Ruidas

(supra).

In view of the above discussions, the appeal

stands allowed. The impugned judgment and award of

the learned Tribunal is set aside.

The appellant-insurance company is at liberty to

withdraw the statutory amount of Rs. 25,000/-

deposited vide OD Challan No.3405 dated 20.03.2017

and the deposit of Rs. 6,71,848/- made in terms of the

order dated 04.07.2017 vide OD Challan No.962 dated

17.07.2017 along with accrued interest.

All the connected applications, if any, stand

disposed of.

Interim order, if any, stands vacated.

Let a copy of this order along with the Lower

Court Records be sent to the learned Tribunal in

accordance with law.

Urgent photostat copy of this order, if applied for,

be given to the parties upon compliance of necessary

legal formalities.

( Bivas Pattanayak, J.)