Iffco Tokio General Insurance ... vs Dharamnath Devbakshi Pandey
2021 Latest Caselaw 16794 Guj

     C/SCA/2619/2020                             CAV ORDER DATED: 26/10/2021




             IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

               R/SPECIAL CIVIL APPLICATION NO. 2619 of 2020

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IFFCO TOKIO GENERAL INSURANCE COMPANY LIMITED, SURAT Versus DHARAMNATH DEVBAKSHI PANDEY ========================================================== Appearance:

MS KIRTI S PATHAK(9966) for the Petitioner(s) No. 1 DS AFF.NOT FILED (N)(11) for the Respondent(s) No. 7 MR.HIREN M MODI(3732) for the Respondent(s) No. 5 NOTICE SERVED BY DS(5) for the Respondent(s) No. 4,6 NOTICE SERVED(4) for the Respondent(s) No. 1,2,3 ==========================================================

CORAM:HONOURABLE MR. JUSTICE N.V.ANJARIA

Date : 26/10/2021

CAV ORDER Heard learned advocate Ms.Kirti Pathak for the petitioner and learned advocate Mr.Hiren Modi for the respondent.

2. BY filing the present petition, the petitioner has prayed to set aside order dated 7.5.2019 below Exhibit 98 passed by the Motor Accident Claims Tribunal (Auxiliary), Surat in proceedings of Motor Accident Claims Petition No.569 of 2008.

2.1 Application 98 was filed by the petitioner Insurance Company seeking to produce the police papers including charge sheet and the statements of the owner and the driver. The Tribunal refused the prayer stating that since the Investigating Officer is not examined therefore police papers cannot be exhibited. Stating that the owner was present on particular date but was not examined and also the Investigating Officer was not examined, the statement of the owner can also not be exhibited as the Investigating Officer was not examined.

3. The proceedings of the Motor Accident Claims Petition out

C/SCA/2619/2020 CAV ORDER DATED: 26/10/2021

of the accident which took place on 6.2.2008. The motor cycle bearing registration No.GJ-5-FB-9189 collided with another motor cycle bearing No.GJ-5-AC-4657. In the accident, the driver of motor cycle No. GJ-5-FB-9189 died out of injuries. The First Information Report was filed. The police recorded the statement of the driver of the motor cycle also recorded the statement of the motor cycle. The Investigating Officer one Mr.Bariya filed charge sheet against the accused persons. The heirs of the deceased filed aforesaid claimed petition before the Motor Accident Claims Tribunal, Surat.

3.1 In the said claimed proceedings the petitioner Insurance Company filed application Exhibit 75 calling upon the Investigating Officer said Mr.Bariya to give deposition and to produce the statement of driver, the statement of owner of the vehicle and all the papers of the FIR and the charge sheet. Exhibit 74 application was filed by the Insurance Company calling upon the driver of the vehicle one named Pratik Rakesh Patel as well the owner named Rakesh Patel for production of licence held by the driver at the time of accident. Another application No.99 was also filed asking for witness summons to call for the RTO Officer to produce the relevant records.

3.2 Application Exhibit 98 as above was also filed. It appears that the Investigating Officer Mr.Bariya died in the meantime. The petitioner Insurance Company summoned for giving evidence incharge Investigating Officer by filing application 88, who entered the box and confirmed the Investigation done by the predecessor Investigating Officer. Despite applications Exhibit 74 and Exhibit 75 as above, the driver and the owner did not turn up to give the evidence.

4. Learned advocate for the petitioner submitted that

C/SCA/2619/2020 CAV ORDER DATED: 26/10/2021

documents and the statements prayed to be produced, were necessary. They included statements of the owner and the driver of the vehicle bearing No.GJ-05-FB-9189, all papers of charge- sheet, FIR, and form No.54. It was submitted that the rejection of the Exhibit 98 for the purpose by the Tribunal was based on erroneous ground that the Investigating Officer had died or that the owner was not examined.

4.1 Learned advocate for the petitioner submitted that the driver of the vehicle did not possess the valid driving licence at the time of accident. It was submitted that this is important facet of the controversy and in that regard necessary evidence is required to be led by exhibiting the documents and proving the same. She referred to Order XVIII Rule 17, CPC to submit that the witness could be called for by the Tribunal even at the later stage and the proof of the document could be elicitated. On the basis of decision of this Court in Hiraben Mangabhai And Ors. Vs. Maganbhai Somabhai And Ors., [1997 (1) GLH 837], it was submitted that the statement made by the driver and owner before the Investigating Officer are admissible as evidence in the accidental claims proceedings and bear relevance to the process of adjudication and award of compensation.

4.2 Learned advocate for the respondent owner submitted that the owner is ready to enter into the box when summoned by the Tribunal. He submitted that the Tribunal can record the evidence in accordance with law. He however highlighted that since the Investigating Officer had died, the Tribunal considered thought it fit not the consider the granting of the prayer of the petitioner.

5. When the case and contention of the petitioner Insurance Company before the Tribunal is that there was no valid licence

C/SCA/2619/2020 CAV ORDER DATED: 26/10/2021

with the driver and the owner of the insured vehicle, the same is bound to turn up to be material aspect for its effect in law in the proceedings for compensation to be awarded by the Tribunal.

5.1 The decision of the Supreme Court in National Insurance Co. Ltd vs Swaran Singh & Ors., [(2004) 3 SCC 297] deal with the issue by producing the documents as per the application Exhibit 98, the Insurance Company wanted to prove the said factual aspect as in the statements recorded by the appellants, owner and driver had stated that they did not possess the driving licence. The petitioner Company ought to have given opportunity to prove the said aspect.

5.2 The death of the Investigating Officer could not have been ground for the Tribunal to refuse the request. The Tribunal reasoned that owner could have been examined but not examined though he was present on particular occasion. It is to be observed that Tribunal may recall the said witness- the owner and extending the opportunity to the petitioner Company by permitting the production of the statements and other documents to prove the contents thereof by examining the witness concerned.

5.3 At the time of reserving the orders in Special Civil Application it was directed that until the order is pronounced, Motor Accident Claims Tribunal shall not proceed with the proceedings of the claim petition in question not shall render any final decision.

5.4 It goes without saying that in view of this order, the Claims Tribunal shall undertake the process permitting the petitioner to produce and exhibit the same, with police papers, statements, etc. as per the prayer in application Exhibit 98 and after

C/SCA/2619/2020 CAV ORDER DATED: 26/10/2021

extending the parties to lead the evidence in that regard and prove the facts and issue, thereafter only pronounce the final judgment and award.

6. In view of the above discussion, the impugned order below Exhibit 98 dated 7.5.2019 passed in Motor Accident Claims Tribunal (Auxiliary) Surat, in Motor Accident Claims Petition No.569 of 2008, is set aside. The consequence shall follow.

7. The petition is allowed accordingly.

(N.V.ANJARIA, J) Manshi