Gauhati High Court
United India Insurance Company Ltd vs Sarita Jalan And 2 Ors on 7 June, 2024
Page No.# 1/12
GAHC010002752012
THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : MACApp./23/2012
UNITED INDIA INSURANCE COMPANY LTD.
HAVING ITS REGISTERED OFFICE AT 24, WHITES ROAD, CHENNAI 600014
AND A BRANCH OFFICE AT SIVASAGAR, ASSAM AND REPRESENTED BY
ITS REGIONAL OFFICE, G.S. ROAD, GUWAHATI-5
VERSUS
SARITA JALAN and 2 ORS
W/O LATE JOY PRAKASH JALAN, P.O. TIPHOK, DUPDHAR MOUZA,
P.S.HALUATING, DIST. SIVASAGAR.
2:SUREN KHANIKAR
S/O LATE P. KHANIKAR
R/O SHAMUA KHANIKAR GAON
P.S. AMGURI
DIST. SIVASAGAR.
3:SMTI. NIKUNJA KHANIKAR
W/O SRI SUREN KHANIKAR
R/O SHAMUA KHANIKAR GAON
P.S. AMGURI, DIST.SIVASAGAR
Advocate for the Petitioner : MS.L SARMA
Advocate for the Respondent : MD.ASLAM
Date of hearing :19.03.2024
Date of Judgment : 07.06.2024
Page No.# 2/12
BEFORE
HONOURABLE MR. JUSTICE BUDI HABUNG
JUDGMENT & ORDER (CAV)
Date : 07-06-2024
Heard Mr. H. Buragohain, learned counsel for the appellant/ Insurance
Company. I have also heard Mr. B. Sharma, learned counsel for the
respondents/claimants.
2. This appeal has been preferred by the appellant against the judgment
and award dated 21.07.2010 passed by the learned Member, Motor Accidents
Claims Tribunal, (F.T.C.), Sivasagar in MAC case no. 46/2002 whereby the
learned Member, MACT(F.T.C), Sivasagar has awarded a compensation to the
tune of Rs. 4,24,660/- (Rupees four lakhs twenty-four thousand six hundred
sixty) against the appellant/ Insurance Company and in favour of the
respondents/claimants after considering the basis for their claims and on
appreciation of the evidences produced in support of their respective claims.
3. The case of the appellant in brief is that on 02.01.2002, the deceased
was walking on foot in Amguri town and was hit by a motorcycle bearing
registration no. AS-04/B-6008, in front of Kalibari, in which he received injury.
He was then immediately taken to N.N.B.Clinic, Amguri. On X-ray, the doctor of
N.N.B. Clinic found fracture of neck of femur and hence the doctor referred the
deceased to Dibrugarh, where he was admitted at Aditya Diagnostic and
Hospital, Dibrugarh. The deceased was in hospital till 14.01.2002. However, he
was re-admitted in the hospital again on 09.02.2002. At that time, there was
Septicemia in the infected fracture of the femur and he ultimately died on
20.02.2002. The matter was reported to the police on 06.05.2002.
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4. The case was contested and basing on the pleadings of the parties, the
learned Tribunal framed the following four issues:
(i) Whether there was an accident on 02.01.2002 involving vehicle
No. AS-04/B-6008 (Motorcycle)?
(ii) whether the accident took place due to rash and negligent
driving of the driver of the vehicle?
(iii) whether the deceased Prakash Jalan died in the accident?
(iv) whether the claimant is entitled to any compensation? If so,
from whom and to what extend?
5. In order to establish his case, the claimant has produced all together
three witnesses. However, the contesting opposite party have not examined any
witnesses. Upon hearing the parties and on appreciation of the evidences
adduced by the respective parties, the learned Tribunal has passed the
impugned judgment and award dated 21.07.2010, whereby the learned Tribunal
decided the issue nos. 1, 2 and 3 in favour of the claimant/respondent and
directed the appellant/Insurance Company to pay the claimants/respondent an
amount of Rs. 4,24,660/- (Rupees four lakhs twenty-four thousand six hundred
sixty) with interest at the rate of 6 % per annum from the date of filing of the
application till the date of realization.
6. Being highly aggrieved by the said judgment and award, the present
appeal has been preferred by the appellant/Insurance Company amongst others
on the following grounds:
(i) That the deceased, late Joy Prakash Jalan died of Septicemia and
not due to road accident;
(ii) that the alleged accident took place on 02.01.2002, but the FIR was
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lodged before the police only on 02.05.2002. The FIR was not
registered and investigated into against the offending vehicle;
(iii) that there is no evidence of rash and negligent driving on the part
of the driver of the motorcycle.
7. The learned counsel for the appellant contended that the deceased did
not die due to the injury received in the alleged accident. It is clear from the
evidence of Doctor (CW-2) who deposed that the deceased died on 20.02.2002
and the cause of the death was due to Septicemia, the septicemia may be
caused due to any injury. The CW-2 also deposed that it was reported by the
relatives of the deceased that the deceased/victim suffered injury due to road
accident and the patient died as a result of the infection. The CW-2 further
deposed that he had not filled up the column no. 7 which is in the last list of
Ex.7. This was done as the death of the deceased was not due to road accident
but it was due to septicemia.
8. The appellant further contended that although the FIR was lodged
after a gap of more than four months of the alleged accident. And even after
lodging of the FIR also only GD entry was made; it was not registered as a
regular PS case, and no any action has been initiated against the driver and the
owner of the vehicle. Thus, it is submitted that there was no any accident at all;
had there been any accident of such serious nature in the broad daylight at
11:30 am, the police would have been informed by the bystanders. It is further
submitted that the Doctor of N.N.B. clinic on the very same day, i.e., 02.01.2002
gave a certificate mentioning only about fracture injury on the neck, but nothing
was mentioned about road traffic accident and the report does not reflect about
any sign of external injury, bleeding, bruises, etc. which is inevitable in any case
of a motor vehicle accident. Thus, this fact raised a question mark on the
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genuineness of the alleged accident. It is further submitted that an attempt has
been made to turn the injury case into a road accident case with an ulterior
motive with a view to claim compensation.
9. The learned counsel for the appellant further argued that in the
discharge certificate issued by the Doctor on 14.01.2002, nothing was recorded
about any road accident or any injury suffered due to accident. The alleged
victim was admitted in the hospital on 02.01.2002 and discharged on
14.01.2002. Thus, he was under treatment in the said hospital for about 12
days under the supervision of specialists and doctors. However, nothing was
observed on the victim which indicates any sign of injury due to accident. Even
the attendant or any family member of the victim did not provide any
information or disclose anything regarding accident to the Doctors. From the
plain reading of discharge certificate issued on 14.01.2002, it can be seen that
the Doctor did not mention anything about the road accident and also did not
find any injury which could be attributed to any accident. The CW-2 (Doctor)
who examined the alleged victim/deceased deposed that he left the column of
accidental death blank because the death was not due to accident but due to
septicemia. The CW-2 (Doctor) had also made a very clear and important
statement in his cross-examination that the injury suffered by the victim could
also be sustained by falling down.
10. For the above stated reasons, the learned counsel for the appellant prays
for setting aside the impugned judgment and award dated 21.07.2010 passed
by the learned Member, Motor Accidents Claims Tribunal, (F.T.C.), Sivasagar in
MAC case no. 46/2002. The learned counsel for the appellant submits that the
appellant had already deposited 50% of the awarded amount and the same has
already been withdrawn by the respondents/claimants. In the event, the appeal
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is allowed, it is further prayed for a direction to reimburse/return the withdrawn
amount to the appellant.
11. On the other hand, the learned counsel for the respondent submits that
the accident occurred on 02.01.2002and the deceased died on 20.02.2002.
However, immediately after the accident, no FIR could be lodged before the
police as the respondents with her children were busy in making arrangement
for treatment of the deceased. Thereafter, the deceased die ultimately leaving
behind the wife and minor children in penury. However, an intimation about the
accident was given to the Officer-in-Charge, Amguri P.S. on 02.05.2002 and the
GD entry was made on the same day. It is contended that the opposite
parties/appellant herein had violated the mandatory provisions of section 134(c)
of the Motor Vehicles Act, 1988 and failed not only to provide medical treatment
to the injured person but also failed to give information to the concerned PS or
to the Insurance Company regarding the accident.
12. The learned counsel for the respondents contended that although the
opposite parties/appellant herein had filed their written statements, they had
never adduced any evidence to support their case and to disprove that the
death of the deceased was not caused due to injury sustained in the said
vehicle accident. In their written statement, the opposite parties/appellant
herein nowhere denied that the accident did not take place on 02.01.2002. That
although the appellant has taken plea based on the deposition of the CW-2
(Doctor), during the cross-examination, the appellant did not adduce any
evidence to support their case. Further, the appellant also did not deny that the
vehicle involved in the accident was not insured. As the appellant did not
produce any contrary evidence or rebut the evidence of the doctor (CW-2),
mere filing of the written statement without adducing any evidence in their
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support would not lend support to their case.
13. The learned counsel for the respondent further submits that the CW-2 in
his evidence deposed that the deceased sustained injury due to the road
accident.The CW-2 also in his evidence deposed that the injury was sustained
due to road accident but the Insurance Company failed to lead best evidences
to disprove the same. She submits that the Hon'ble Gauhati High Court in its
reported case (2023) 1 GLT 1 relying the various judgments of the Hon'ble Apex
Court gave much credence to the Maxim "Preponderance of Probability" and
such the onus had been shifted to the Insurance company. And unless the
Insurance Company discharged the onus by bringing on record such facts and
circumstances showing the Preponderance of Probabilities tilting in its favour,
any doubt on the claimant's case could not have been raised for want of
evidence. In the instant case, the Insurance Company has not only failed to
adduce any evidence but also failed to obtain permission to contest the case on
all grounds under section 170 (b) MVA, 1988 before the learned Tribunal. And
as such, the appellant cannot be allowed to challenge the quantum of
compensation awarded to the respondent no.1/claimant.
14. In support of her submission, the learned counsel for the
respondents/claimantsrelied upon the following decisions of the Hon'ble High
Court;
(i) In the case of Joluk Ninu Vs. Ajay Agarwal reported in 2023 STPL
11084 Gauhati [(2023)1 GauLT 1], the Hon'ble High Court held as under:
"10. In Rangappa v. Sri Mohan reported in (2010) 11 SCC 441, a
threeJudge Bench of Hon'ble Supreme Court held that Section 139 of the
Act mandates that it shall be presumed, unless the contrary is proved,
that the holder of a cheque received it, in discharge, in whole or in part,
of a debt, or liability. The expression "unless the contrary is proved"
indicates that the presumption under Section 139 of the Act is
Page No.# 8/12
rebuttable. Terming this as an example of a "reverse onus clause" the
Court held that in determining whether the presumption has been
rebutted, the test of proportionality must guide the determination. The
standard of proof for rebuttal of the presumption under Section 139 of
the Act is guided by a preponderance of probabilities.
11. It is further held that: -
"28. In the absence of compelling justifications, reverse onus clauses
usually impose an evidentiary burden and not a persuasive burden.
Keeping this in view, it is a settled position that when an accused has to
rebut the 4 (2021) 5 SCC 283 5 (2020) 15 SCC 348 6 (2010) 11 SCC 441
Crl.A.1260/2022 7 presumption under Section 139, the standard of proof
for doing so is that of "preponderance of probabilities". Therefore, if the
accused is able to raise a probable defence which creates doubts about
the existence of a legally enforceable debt or liability, the prosecution can
fail. As clarified in the citations, the accused can rely on the materials
submitted by the complainant in order to raise such a defence and it is
conceivable that in some cases the accused may not need to adduce
evidence of his/her own."
(ii) In the case of Bhanwar Lal Verma Vs. Sharad Tholia and Ors
reported in 2006 STPL 1110 Rajasthan [1 (2006) ACC 652] , the Hon'ble
High court held as under:
"6. ... Although the lodging of an FIR in an accident claim is
desirable, but its existence or non-existence cannot be made a basis
for the success of a claim filed by an injured person. Considering the
fact that a large population lives in desolate and remote area where
the nearest police station might be inaccessible, to insist on the
existence of and FIR for the success of a claim petition, would be to
cause injustice to such claimants...
10. ...It is trite law that party is required to prove its case, which
sets up the particular case. The claimant was required to establish that
he met with an accident due to rash and negligent driving of the
scooter driven by Surendra Kumar Malhotra. Once this fact was
established, the burden shifted on the respondnets to show that the
accident did not happen in the way alleged by the claimant. It is to be
remembered that in a criminal case the prosecution is required to
prove its case beyond shadow of reasonable doubt. However, in civil
cases, claimant can succeed on the basis of preponderance of
probabilities only. In a motor accident claim, the claimant is not
required to prove his case beyond shadow of reasonable doubt. It
would suffice if he has proved his case on the basis of preponderance
of probabilities..."
Page No.# 9/12
(iii) In the case of National Insurance Co. Ltd vs. Lalmuanawmi and
Ors reported in2022 STPL 3566, Gauhati, the Hon'ble High Court held as
under:
"18. ... As the appellant did not obtain permission to contest the
case on all grounds under section 170 of the MV Act, 1988, the
appellant cannot be allowed to challenge the quantum of
compensation awarded to the claimant in this appeal. Appeal is
accordingly dismissed..."
(iv) In the case of Oriental Insurance Company Ltd. Vs. Lalawmpuii
and Ors reported in 2022 STPL 3853,Gauhati the Hon'ble High Court held as
under:
"5. The records show that no objection was raised by the appellant
at the time the Income Certificate of the deceased was exhibited in
the learned Tribunal, which is Exhibit-C-21. Further, though written
statement was submitted, no evidence was adduced by the
appellant-Insurance Company before the learned Tribunal. It was also
noticed that the respondent No. 2, the owner of the accident vehicle
submitted her written statement, but no evident was adduced by the
respondent No. 2.
13. ... Accordingly, as the records of the learned Tribunal show
that the appellant did not obtain permission to contest the case on all
grounds under section 170(b) of the MV Act, 1988 before the learned
Tribune, the appellant cannot be allowed to challenge the quantum of
compensation awarded to the claimants in this appeal. Appeal is
accordingly dismissed."
(v) In the case of Reliance General Insurance Co. Vs.
Chandraprabha Kalita and Others reported in 2023 STPL 979,Gauhati,
the Hon'ble High Court held as under:
"12. ...Approach to be adopted by Tribunal and Court in Motor
Vehicles Act, 1988 in section 166, 168 and 173 is that standard of
proof is one of preponderance of probabilities, rather than beyond
reasonable doubt. Approach and role of courts while examining
evident in accident claim cases ought not to be to find fault with
non-examination of some of the best witnesses, as may happen in
criminal trial; but instead should be only to analyze material placed
on record by the parties to ascertain whether claimant's version is
more likely than not true. The Apex further held that:
Page No.# 10/12
"If the owner-cum-driver of the car was setting up a defence plea
that the accident was a result of not his but the truck driver's
carelessness or rashness, then the onus was on him to step into the
witness box and explain as to how the accident had taken place"
15. Heard both the learned counsels for the parties. I have also perused the
records. Upon hearing and consideration of the submissions of the parties, the
point to be decided by this Court is as to" whether the learned Tribunal has
rightly decided the case in favour of the respondent and passed a
decision awarding a compensation in favour of the respondent".
16. The record reveals that the opposite parties/appellant herein in their
written statement before the Tribunal stated that the alleged accident did not
take place for any fault on the part of the motorcyclist. Thus, the
appellant did not deny or dispute the fact that the accident took place. While
admitting the fact that there was an accident, the appellant however, submitted
that there was no any police case. It is the case of the appellant that the
accident took place not due to the fault of the driver, but due to the negligence
of the deceased. Thus, the above contention clearly indicates that the
respondent has admitted that the accident took place on 02.01.2002. It is also
seen that the respondent had submitted before the learned Tribunal that the
police had not registered any case in respect of the accident and the General
Diary was made only on 06.05.2002. In this regard the CW-3, M.M. Patowary
who was working as Officer in Charge of Amguri Police Station on 02.05.2002
deposed that on that day, the claimant informed the fact of the accident to the
police. On receipt of the information, he entered the matter in the General Diary
vide GDE No. 22 dated 02.05.2002. Thereafter, he made enquiry about the
accident and he had examined the witnesses including the driver of the
offending vehicle.The deceased was admitted immediately after the incident at
N.N.B. clinic and thereafter he was examined by Dr. N. B. Baruah of that clinic.
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Then he came to the conclusion that there was an accident on 02.01.2002 in
front of Kalibari, Amguri town where motorcycle bearing registration No. AS-
04/B-6008 had knocked down the victim. After the inquiry, the I.O had made
another General Diary entered vide GDE No. 109 dated 06.05.2002.
17. On close scrutiny of the written statements as well as the evidences on
record, it reveals that the owner and rider of the motorcycle have also clearly
admitted that there was an accident. The opposite parties/appellant has also
admitted the fact in their written statement. On the basis of the above, it can
safely be concluded that there was a motor accident which occurred on
02.01.2002 at about 11 am in front of Kalibari, Amguri town with the motorcycle
bearing registration No. AS-04/B-6008. And immediately after the accident the
injured was taken to N.N.B.Clinic and on X-ray, the doctor of N.N.B. clinic found
fracture of neck of femur and hence, the doctor referred him to Dibrugarh,
where he was admitted at Aditya Diagnostic and Hospital, Dibrugarh on
02.01.2002. The deceased was discharged from the hospital on 14.01.2002. The
record further shows that the deceased was re-admitted on 09.02.2002 due to
septicemia to infected fracture of the femur and ultimately died on 20.02.2002.
The discharge certificate of the deceased (Ext-4) shows that the patient was
admitted into Aditya Hospital, Dibrugarh on 02.01.2002 and was discharged on
14.02.2002. It also shows as "neck right femur". Ex 7(1) is the remark of doctor
wherein it was mentioned that," Septicemia due to infected fracture of femur
following road traffic accident". This fact has not been controverted by the
appellant by adducing evidence and or by producing any contrary evidence.
18. In view of the above facts and circumstances of the case and the
submissions made by the learned counsel for the parties, and for the reason
what has been discussed above, the impugned judgment and award dated
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21.07.2010 passed by the learned Member, MACT FTC, Sivasagar in MACT case
no. 46 of 2002, in my considered view does not require any interference.
19. Accordingly, the appeal being devoid of merit is dismissed.
20. No order as to cost. Return the record.
JUDGE
Comparing Assistant
