Calcutta High Court (Appellete Side)

Smt. Pipli Pal vs United India Insurance Company ... on 4 October, 2023

                  IN THE HIGH COURT AT CALCUTTA
                   CIVIL APPELLATE JURISDICTION
                          APPELLATE SIDE

PRESENT:
THE HON'BLE JUSTICE BIVAS PATTANAYAK
                          FMA 2832 of 2015
                            Smt. Pipli Pal
                                versus
             United India Insurance Company Ltd. & Anr.


For the Appellant-Claimant    : Mr. Krishanu Banik, Advocate
For the Respondent No.1-      : Mr. Rajesh Singh, Advocate

Insurance Company Heard on : 20.02.2023

Judgment on : 04.10.2023

Bivas Pattanayak, J. :-

1. This appeal is preferred against the judgment and award dated 31st

October, 2014 passed by learned Judge, Motor Accident Claims Tribunal,

3rd Court, Balurghat, Dakshin Dinajpur in M.A.C. Case No. 215 of 2005

dismissing the claim application of the claimant-injured filed under

Section 166 of the Motor Vehicles Act, 1988.

2. The brief fact of the case is that on 19th February, 2005 at about 18:30

hours while the victim was proceeding by riding a thela van from Raiganj

side towards Itahar keeping left side of kancha portion of the NH-34 and

when he reached at Sripur Krishi Farm, at that time the offending vehicle

bearing registration no. WB-62/6150 (scooter) proceeding towards the

same direction in a rash and negligent manner dashed the victim from

behind. Due to such impact, the victim fell down on the road and

sustained multiple injuries and fracture injuries on his both legs.

Immediately the victim was admitted to Itahar Hospital wherefrom he was

shifted to Raiganj District Hospital. For the reason of injuries sustained,

the victim had permanent disablement. On account of the injuries received

in the accident and the subsequent permanent disablement, the claimant-

injured filed application through his wife Smt. Pipli Pal for compensation of

Rs. 5,00,000/- only under Section 166 of the Motor Vehicles Act, 1988.

3. The claimant-injured in order to establish his case has examined

himself and his wife as well as two other witnesses and produced

documents which have been marked as Exhibits-1 to 8 respectively.

4. The respondent no.1-insurance company did not adduce any evidence.

5. The respondent no.2-owner of the offending vehicle did not contest the

claim application and the case was disposed of ex parte against the owner

of the offending vehicle.

6. In the present appeal, in spite of service of notice of appeal, respondent

no.2-owner of the offending vehicle is unrepresented.

7. Upon considering the materials on record and the evidence adduced on

behalf of the claimant-injured, learned Tribunal dismissed the claim

application of the claimant filed under Section 166 of the Motor Vehicles

Act, 1988.

8. Being aggrieved by and dissatisfied with the impugned judgment and

award of the learned Tribunal, the claimant-injured has preferred the

present appeal.

9. Mr. Krishanu Banik, learned advocate for the appellant-claimant

submitted that the learned Tribunal erred in dismissing the claim

application. The learned Tribunal disbelieved the evidence of the victim of

involvement of the vehicle on the ground that offending vehicle dashed the

victim from behind and since the accident has taken place around 6:30

P.M. in the month of February, it was not possible for him to see the

registration number of the offending vehicle and the evidence of another

eyewitness to the occurrence namely P.W.3 since his presence was not

justified and he was not named as a witness in the charge sheet. Such

findings of the learned Tribunal is not in sync with the materials on

record. P.W.2 (injured) has truly stated in the cross-examination that he

did not see the particular vehicle since he was dashed from behind,

however, the evidence of P.W.3 has remained unchallenged in cross-

examination which the learned Tribunal failed to appreciate. In motor

accident claim cases, the claimant is to establish its case on the

touchstone of preponderance of probabilities and is not required to prove

its case beyond the shadow of reasonable doubt. To buttress his

contentions, he relied on the decisions of the Hon'ble Supreme Court

passed in Sunita & Ors. versus Rajasthan State Road Transport

Corporation & Anr.1 and Bimla Devi & Ors. versus Himachal Road

Transport Corpn. & Ors.2.

Relying on the decision of this Court passed in The New India Assurance

Co. Ltd. versus Mita Samanta & Ors.3, he submitted that the insurance

company in spite of taking leave under Section 170 of the Motor Vehicles

Act failed to examine the owner of the offending vehicle to primarily show

1 AIR 2019 SC 994

2 2009 (2) T.A.C. 693 (S.C.)

3 (2010) 1 WBLR (Cal) 137

non-involvement of the vehicle and thus the version of the claimant, in

absence of any contrary evidence, is to be accepted.

He further submitted that the manner of accident clearly shows that there

was negligence on the part of the driver of the offending vehicle and

principle of res ipsa loquitur applies to the facts of the case. In support of

his contentions, he relied on the decision of Hon'ble Supreme Court passed

in Pushpabai Purshottam Udeshi & Ors. versus Ranjit Ginning &

Pressing Co. (P) Ltd. & Anr.4.

Further he submitted that the learned Tribunal doubted the case of the

claimant on the ground of delay in lodging of the FIR. Delay per se in

lodging of the FIR will not effect the claim of the claimant until and unless

it is found that such FIR is the outcome of any fabrication or concoction or

engineering. In support of his aforesaid contentions, he relied on the

decision of the Hon'ble Supreme Court passed in Ravi versus

Badrinarayan and Others5.

He further submitted that the learned Tribunal without any basis

disbelieved the evidence of the doctor who treated the claimant and issued

disability certificate.

So far as the quantum of compensation is concerned, Mr. Banik, learned

advocate for the appellant-claimant submitted that at the time of accident

the victim was 42 years of age and as such the multiplier should be 14.

With regard to the income of the victim, he fairly submitted that the

income has not been proved but bearing in mind the economic factors in

the year 2005, the income should be considered at Rs. 3,000/- per month.

4 AIR 1977 SC 1735 5 2011 (1) T.A.C. 867 (S.C.)

The claimant-injured is further entitled to an amount equivalent to 25% of

his annual income towards future prospect.

Since the victim sustained 60% disablement, his loss of earnings should

be considered on such basis.

In light of his aforesaid submissions, he prayed for setting aside the order

of dismissal of the learned Tribunal and granting compensation in favour

of the claimant-injured.

10. In reply to the contentions raised on behalf of the appellant-claimant,

Mr. Rajesh Singh, learned advocate for respondent no.1-insurance

company submitted that the vehicle could not be detected by P.W.1

(injured) who admitted in his cross-examination that he could not see the

particular vehicle. The claimant has adduced evidence of one other witness

P.W.3, who claimed to be an eyewitness to the occurrence. P.W.3 is a

resident of Khamrua which is far from the place of occurrence and thus

the presence of the witness near the place of occurrence is doubtful. The

witness, as per his evidence, is known to the claimant and, therefore, is an

interested witness. Further P.W.3 has admitted in his evidence that he did

not accompany the victim to the hospital. Moreover, the accident having

taken place in the month of February at 6:30 P.M., the visibility of the

number of the offending vehicle as stated by P.W.3 is far from being true.

Further, P.W.3 is not a listed witness in the chargesheet filed by the

investigating agency. Therefore, the evidence of P.W.3 with regard to the

involvement of the vehicle is unreliable.

He further drew the attention of the Court to the fact that the vehicle was

not seized on the date of accident and none of the medical documents

reflects the registration number of the offending vehicle, therefore, its

involvement as claimed by the claimant is doubtful.

Furthermore he submitted that where the evidence on record clearly

indicates of non-involvement of the offending vehicle and the facts

manifest of falsity, the claim should be dismissed. In support of his

contention, he relied on the decision of the Hon'ble Supreme Court passed

in Anil and Ors. versus New India Assurance Co. Ltd. and Ors.6.

He further submitted that neither the driver nor the owner of the offending

vehicle has informed of the accident in terms of Section 134 of the Motor

Vehicles Act to the police soon thereafter which raises serious doubt as to

the occurrence and injuries sustained by the victim in the accident as well

as involvement of the alleged vehicle.

Further relying on the decision of the Hon'ble Supreme Court passed in

Safiq Ahmad versus ICICI Lombard General Insurance Co. Ltd. and

Others7, he submitted that with the rise in filing of false claim cases,

Hon'ble Supreme Court has taken cognizance of such fact and had issued

direction for filing status report by concerned authorities.

In light of his aforesaid submissions, he prayed that the order of dismissal

passed by the learned Tribunal should be affirmed.

11. The learned Tribunal in order to decide the claim application framed

the following issues:

1. Is the claim case maintainable in its present form and prayer?

2. Is the case valued properly and court fees paid accordingly?

6 (2018) 2 SCC 482

7 2021 (4) T.A.C. 682 (S.C.)

3. Is the vehicle bearing registration no. WB-62/6165 (Scooter)

was involved in the accident of Santosh Pal, husband of claimant

Pipli Pal?

4. Whether the accident took place due to rash and negligent

driving on the part of the driver of offending vehicle?

5. Whether the offending vehicle in question was duly covered by

valid Insurance policy at the relevant point of time?

6. Is the claimant entitled to get any compensation as prayed for?

7. To what other relief or relieves, if any, the victim entitled to get?

12. The issue nos. 1, 2 and 5 were decided in favour of the claimant. The

issue nos. 3 and 4 were decided against the claimant which resulted in

dismissal of the claim application. Therefore, the aforesaid two issues

dealing with involvement of the offending vehicle and rash and negligent

act of the driver of the offending vehicle are precisely to be dealt with in

this appeal.

13. At the very outset, it is settled proposition of law that claim cases are

to decided on the touchstone of preponderance of probalities and the

standard of proof beyond reasonable doubt cannot be applied while dealing

with motor accident cases as has rightly been argued by Mr. Banik,

learned advocate for appellant-claimant relying on Sunita (supra) and

Bimla Devi (supra). The involvement of the offending vehicle was doubted

on the ground of lack of reliability in the evidence of Santosh Pal, P.W.2

(claimant-injured) and Dipak Shil, P.W.3 (eyewitness to the occurrence)

and delay in lodging of the FIR. The claimant in order to establish the

involvement of the vehicle has examined himself as P.W.2 and also

adduced evidence of one eyewitness namely Dipak Shil as P.W.3 and

produced documents in the form of FIR (Exhibit-1), charge sheet (Exhibit-

2) and seizure list (Exhibit-3). Though P.W.2, Santosh Pal (claimant-

injured) deposed that on the relevant date of accident he was dashed by

the offending vehicle bearing registration no. WB-62/6150, yet in cross-

examination this witness admitted that he did not notice the very

particular vehicle by which he was dashed from behind. Thus, the

evidence of the claimant-injured as to the involvement of the vehicle

becomes inconsequential. Be that as it may, P.W.3, Dipak Shil in his

evidence-in-chief has categorically deposed that on the relevant date of

accident (i.e. 19th February, 2005) at about 18:30 hours the victim was

dashed by the offending vehicle bearing registration no. WB-62/6150

(scooter) resulting in his injuries and that he was an eyewitness to the

occurrence. The evidence of this witness has been challenged by the

insurance company on the ground that his residence is far away from the

place of occurrence, that he was an interested witness, that he was not

named as witness in the charge sheet and his possibility to see the

number of the alleged vehicle at the relevant time. It is true that this

witness in cross-examination had admitted that his residence is about 8

kms. away from the place of occurrence, however, only because of his

residence is far away does not make the presence of the witness near the

scene of occurrence doubtful. The witness might be a chance witness.

There is no cross-examination challenging the presence of the witness near

the scene of occurrence. Although this witness deposed in his evidence

that injured and his wife are known to him, such fact cannot per se raise

doubt in the otherwise reliable evidence of this witness. Only acquaintance

with the claimant does not show that he is an interested witness. It is a

fact that this witness has not been named in the charge sheet. Be that as

it may, there are no hard and fast rule that only charge sheeted witness

are to examined in the claim cases. The evidence of the eyewitness has

also been challenged on the ground that it was not possible for the witness

to see the number of the offending vehicle on the relevant date and time of

the accident in the evening hours. It is pertinent to note that in cross-

examination there are no iota of evidence that the place of occurrence was

totally dark at 6:30 P.M. due to setting of the sun. Rather the evidence of

this witness shows that there are number of shops in both sides of the

road at Durgapur. The light from such shops could have made the place of

occurrence visible. Thus, the possibility to see the number of the offending

vehicle by the witness at such time cannot be brushed aside.

13.1. The insurance company has not adduced any evidence of the owner

or the driver of the scooter regarding non-involvement of the offending

vehicle. This Court in Mita Samanta (supra) has 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, the 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."

13.2. Bearing in mind the aforesaid observation of this Hon'ble Court, 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, hence it will be a travesty of justice to disbelieve the eyewitness

namely P.W.3 examined on behalf of the claimant in this regard.

13.3. The involvement of the vehicle has also been doubted on the ground

of delay in lodging FIR. It is true that the accident has taken place on 19th

February, 2005 and the complaint has been lodged after about 28 days on

21st March, 2005. The wife of the claimant Pipli Pal is the informant who in

the written complaint has stated that, due to treatment of her husband,

there was delay in lodging of the FIR. Learned Tribunal observing that the

victim was released from the hospital on 9th March, 2005 whereas FIR was

lodged on 21st March, 2005, held that such delay has not been duly

explained. The findings of learned Tribunal in this regard appears to be

hyper technical. There are no ground to any fabrication or concoction or

engineering of the FIR. In the absence of any evidence of any fabrication or

concoction or engineering in the FIR, delay per se cannot make the

claimant's case doubtful. I find substance in the submissions of Mr. Banik,

learned advocate for appellant-claimant relying on Ravi (supra).

13.4. Though Mr. Singh, learned advocate for respondent no.1-insurance

company has strenuously argued that the occurrence is doubtful since no

information was given to the police authorities by the driver or the owner

of the offending vehicle in terms of the Section 134 of the Motor Vehicles

Act, yet such non-compliance by the driver or the owner of the offending

vehicle does not lead to adverse presumption against the claim made by

the claimant.

13.5. It is further found from the discharge certificate dated 9th March,

2005 that the victim was admitted to the hospital on 19th February, 2005

on the date of accident with history of road traffic accident.

13.6. Further upon completion of investigation, charge sheet has been

submitted against the driver of the offending vehicle. Therefore,

considering the evidence of P.W.3 corroborated by the FIR (Exhibit-1) and

charge sheet (Exhibit-2), it is quite manifest that the vehicle was involved

in the said accident causing injuries to the victim.

13.7. In Pushpabai Purshottam Udeshi (supra), the car dashed against the

tree while proceeding from Nagpur to Pandurna which is factually quite

dissimilar to the case at hand.

13.8. The facts involved in Anil (supra) is also distinct and different and,

therefore, does not apply to the case at hand.

14. With regard to rash and negligent act of the driver of the offending

vehicle, it is found that P.W.3, eyewitness to the occurrence, has

categorically stated that the accident occurred due to rash and negligent

driving of the driver of the offending scooter. Such fact has remained

unchallenged in cross-examination. The evidence of P.W.3 is being

corroborated by the charge sheet which has been submitted, upon

completion of investigation, against the driver of the offending vehicle

under Sections 279/338 of the Indian Penal Code. Such being the

position, the claimant has succeeded in establishing the fact of rash and

negligent act of the driver of the offending vehicle.

15. Although Mr. Singh, learned advocate for respondent no.1-insurance

company relying on Safiq Ahmad (supra) tried to impress upon the Court

that filing of false claim cases are on the rise, yet in my view, no

generalised approach can be resorted and each case has to be dealt with

on its own merits.

16. In view of the above discussion, the order of dismissal passed by the

learned Tribunal is liable to the set aside.

17. Now the determination of compensation is to be considered. While

dealing with such determination, following aspects are to be taken into

account:

(i) Multiplier,

(ii) Income,

(iii) Loss of earnings,

(iv) Pecuniary and non-pecuniary damages.

17.1. It is found from the Voter's Identity Card (Exhibit-4) that the victim

was aged about 32 years on 1st January, 1995. Thus, on the date of

accident on 19th February, 2005, the victim was aged 42 years and 1

month. Following the observation of the Hon'ble Supreme Court in Sarla

Verma (Smt) and Others versus Delhi Transport Corporation and

Another8, the multiplier should be 14.

17.2. So far as income is concerned, as per the claim application and the

evidence adduced on behalf of the claimant, the injured at the time of

accident was a thela puller and his monthly income was Rs. 3,000/- per

month. Considering the economic factors prevalent at the time of accident

in the year 2005, I am of the opinion that income claimed by the claimant

is reasonable and should be accepted. The victim is further entitled to an

amount equivalent to 25% of his annual income towards future prospect

since at the time of accident he was 42 years of age and was self-employed.

17.3. With regard to the loss of earnings, it is found that the injured-

claimed, in order to prove his disablement certificate, has examined Dr.

Aninda Sarkar as P.W.4 who proved the disablement certificate marked as

Exhibit-8. P.W.4 deposed that the victim sustained disability of 60%.

P.W.4 is a surgeon (orthopaedic) attached to Raiganj District Hospital. He

operated the injured-victim and discharged him on 9th March, 2005. He

further deposed that he along with the superintendent and other doctors

formed medical board which issued disability certificate to the injured

showing 60% disablement. This witness also deposed that the victim

8 (2009) 6 SCC 121

sustained polytrauma injury on scalp, closed segmental fracture on left leg

and Grade-3B fracture on right leg distal third. The discharge certificate

dated 9th March, 2005 (Exhibit-6) also reveals of such injuries sustained

by the victim in the road traffic accident. The evidence of P.W.4 was

disbelieved by the learned Tribunal on the ground that some of the

columns of disability certificate (Exhibit-8) was not filled up. Be that as it

may, there are no contrary evidence suggesting of any manufacturing or

procuring of such disability certificate. The doctor (P.W.4), who treated the

patient and was member of the board, deposed that the victim sustained

60% disablement. Such being the position, physical disablement of 60% is

acceptable. Now it is to be ascertained whether such physical disablement

has effected the earnings of the victim. The victim deposed that he was a

thela puller and, due to such injuries, he has become unemployed.

However, there are no medical evidence that the victim, due to the fracture

injuries, is unable to work at all. In cross-examination, P.W.4 has admitted

that there is no note of shortage or any amputation of the limb.

Considering the above, in my opinion, the loss of earnings of the victim

should be considered at 30%.

17.4. It is found that for treatment of his fracture injuries the victim had

to be hospitalised on several occasions which is revealing from the

discharge certificate (Exhibit-6, 6/1, 6/2, 6/3 respectively). Though no

medical expenses has been proved, but bearing in mind that the victim

was hospitalised on several occasions, I am inclined to allow an amount of

Rs.5,000/- towards medical expenses.

17.5. As far as non-pecuniary damages is concerned, under the heads of

pain and sufferings, bearing in mind the hospitalisation and operative

measures undertaken by the victim, I am inclined to allow an amount of

Rs. 30,000/-.

18. Other factors have not been challenged in the present appeal.

19. In view of the above discussion, the calculation of compensation is

made hereunder:

Calculation of Compensation

Monthly income Rs. 3,000/-

          Annual income                             Rs. 36,000/-
          (Rs. 3,000/- x 12)
          Add: Future prospect @ 25%                Rs. 9,000/-
                of the annual income
                                                    Rs. 45,000/-
          Loss of earnings: 30% loss of income      Rs. 13,500/-
          Adopting multiplier 14                    Rs. 1,89,000/-
          (Rs. 13,500/- x 14)
          Add: Medical expenses incurred            Rs. 5,000/-
          Add: Non-pecuniary damages                Rs. 30,000/-
          Total compensation                        Rs. 2,24,000/-