Kamlaben Mafatbhai Thakor ... vs Sheikh Siraj Mohammad Sheikh ...
2022 Latest Caselaw 9190 Guj

     C/FA/3504/2022                                 JUDGMENT DATED: 18/10/2022




             IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

                      R/FIRST APPEAL NO. 3504 of 2022

FOR APPROVAL AND SIGNATURE:

HONOURABLE MS. JUSTICE GITA GOPI                 Sd/-

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1    Whether Reporters of Local Papers may be allowed                      No
     to see the judgment ?

2    To be referred to the Reporter or not ?                               No

3    Whether their Lordships wish to see the fair copy                     No
     of the judgment ?

4    Whether this case involves a substantial question                     No
     of law as to the interpretation of the Constitution
     of India or any order made thereunder ?

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                KAMLABEN MAFATBHAI THAKOR PATANWADIA
                                Versus
               SHEIKH SIRAJ MOHAMMAD SHEIKH MOHAMMAD
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Appearance:
NISHIT A BHALODI(9597) for the Appellant(s) No. 1,2
for the Defendant(s) No. 1,2,3
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    CORAM:HONOURABLE MS. JUSTICE GITA GOPI

                              Date : 18/10/2022

                             ORAL JUDGMENT

1. The present appeal is filed against the judgment and decree dated 28.11.2019 passed by learned Motor Accident Claims Tribunal, Vadodara in M.A.C.P. No.1681 OF 2009, which was filed under Section 163A of the Motor Vehicle Act, 1998 (herein after referred to as the "Act"). The said claim petition was dismissed by the Tribunal.

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2. Mr.Bhalodi, learned advocate for the appellants has submitted that the Tribunal has committed an error by dismissing the claim petition on the ground that the involvement of the vehicle Jeep bearing registration No.GJ.6.A.H.2205 is doubtful.

2.1 Learned advocate for the appellants submits that the Trial Court ought to have considered the provisions under Section 169 of the Act for holing an inquiry upon the police report received by the Tribunal under Section 158(6) of the Act and should have proceeded to allow the compensation to the victim or the legal heirs of the victim.

2.2 Learned advocate for the appellants submits that the Tribunal failed to exercise the power vested upon it and from the findings it becomes apparent that no efforts have been made by the Tribunal to ensure that the legal heirs of the victim receive compensation after making legitimate inquiry regarding the involvement of the vehicle.

2.3 Learned advocate for the appellants has replied upon the judgment of Apex Court in case of Jay Prakash Vs. National Insurance Company Ltd reported in (2010) 2 SCC 607 to submit that the Tribunal ought to have called for Form-54 along with the all the police investigation papers, as per Form 54 in accordance to Central Motor Vehicles Rules, 1989, as per Section 166(4) of the Act should have confirmed the fact. It is submitted that after thorough investigation, the police has filed charge-sheet against the driver of vehicle Jeep bearing registration no.GJ.6.A.H.2205.

       C/FA/3504/2022                         JUDGMENT DATED: 18/10/2022




2.4     Learned advocate for the appellants also submitted that

the claim petition was filed in the Year-2009 and it was dismissed in the Year-2019 and during that period, the Tribunal had enough and sufficient time to hold inquiry and call for police report, as provided under the Act, where the Tribunal ought to have been mindful of the fact that it would not have been possible for the legal heirs of the victims in all the cases to procure the necessary documents, which are within the custody of police authority hence, the Tribunal ought to have appreciated the provisions under Section 166(4) and 169 of the Act, where special powers are granted to the Tribunal. It is submitted that Tribunal should have granted compensation to the legal heirs of the victim as per Schedule-II of the Act.

3. The observations of the Tribunal in the MACP No.1681 of 2009 decided on 28.11.2019 does not require the hearing from the side of opponents, as this Court is of the opinion at the admission stage that the matter is required to be remanded back to the concerned Tribunal.

4. The Tribunal while dismissing the claim petition made the observations that the applicant examined at Exh.17 has admitted that she has no personal knowledge about the accident and in Exh.21 FIR is against the unknown Jeep driver, the complaint does not disclose registration number nor the description or the color of the vehicle and no evidence has come on record whether there has been charge-sheet against Exh.21 FIR, and the complainant, who was owner of the rickshaw, has stated was sitting along with the deceased in the rickshaw, but no evidence has been produced to that regard nor the statement

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before the police of the complainant has been produced. The Tribunal also went on to observe that the owner and driver, opponent nos.1 & 2 were served inspite of that, they have remained absent and the applicants have not examined them, and therefore, the involvement of Jeep bearing registration no.GJ.6.A.H.2205 does not get disclose and in the panchnama no facts of involved vehicle could be culled out.

5. In case of Jay Prakash (supra), the Apex Court had shown concern about 4 (four) problems faced in MACT under the Act.

5.1 The first problem relates to a section of motor accident victims who are doubly unfortunate - first in getting involved in an accident, and second, in not getting any compensation. The second problem relates to the widespread practice of using goods vehicles for passenger traffic. The third problem relates to the procedural delays in adjudication/settlement of claims by Motor Accidents Claims Tribunals (for short `Tribunals') and consequential hardship to the victims and their families.

5.2 The Courts have always been concerned that the full compensation amount does not reach to benefit of the victims and their families, particularly those who are uneducated, ignorant, or not worldly-wise.

5.3 The Apex Court relying upon the report of amicus curie had given directions to the police authorities in following terms:-

"16. The Director General of Police of each State is directed to

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instruct all Police Stations in his State to comply with the provisions of Section 158(6) of the Act. For this purpose, the following steps will have to be taken by the Station House Officers of the jurisdictional police stations:

(i) Accident Information Report in Form No. 54 of the Central Motor Vehicle Rules,1989 (`AIR' for short) shall be submitted by the police (Station House Officer) to the jurisdictional Motor Vehicle Claims Tribunal, within 30 days of the registration of the FIR. In addition to the particulars required to be furnished in Form No. 54, the police should also collect and furnish the following additional particulars in the AIR to the Tribunal:

(i) The age of the victims at the time of accident;

(ii) The income of the victim;

(iii) The names and ages of the dependent family members.

(ii) The AIR shall be accompanied by the attested copies of the FIR, site sketch/mahazar/photographs of the place of occurrence, driving licence of the driver, insurance policy (and if necessary, fitness certificate) of the vehicle and postmortem report (in case of death) or the Injury/Wound certificate (in the case of injuries). The names/addresses of injured or dependant family members of the deceased should also be furnished to the Tribunal.

(iii) Simultaneously, copy of the AIR with annexures thereto shall be furnished to the concerned insurance company to enable the Insurer to process the claim.

(iv) The police shall notify the first date of hearing fixed by the Tribunal to the victim (injured) or the family of the victim (in case

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of death) and the driver, owner and insurer. If so directed by the Tribunal, the police may secure their presence on the first date of hearing.

17. To avoid any administrative difficulties in immediate implementation of sections 158(6) of the Act, we permit such implementation to be carried out in three stages. In the first stage, all police stations/claims Tribunals in the NCT Region and State Capital regions shall implement the provisions by end of April 2010. In the second stage, all the police stations/claims Tribunals in district headquarters regions shall implement the provisions by the end of August 2010. In the third stage, all police stations/Claims Tribunals shall implement the provisions by the end of December, 2010. The Director Generals shall ensure that necessary forms and infrastructural support is made available to give effect to Section 158 (6) of the Act.

18. Section 196 of the Act provides that whoever drives a motor vehicle or causes or allows a motor vehicle to be driven in contravention of the provisions of Section 146 shall be punishable with imprisonment which may be extended to three months, or with fine which may extend to Rs. 1000/-, or with both. Though the statute requires prosecution of the driver and owner of uninsured vehicles, this is seldom done. Thereby a valuable deterrent is ignored. We therefore direct the Director Generals to issue instructions to prosecute drivers and owners of uninsured vehicles under Section 196 of the Act.

19. The Transport Department, Health Department and other concerned departments shall extend necessary co- operation to

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the Director-Generals to give effect to Section 158 (6)."

5.4 The Apex Court had also in the context given directions to the Tribunal for compliance with Section 166(4) of the Act and had lay-down the steps to be initiated by the Motor Accident Claim Tribunal. The directions are elaborated in Paragraph Nos.20, 21 & 22, which are reproduced herein below:-

"20. The Registrar General of each High Court is directed to instruct all Claims Tribunals in his State to register the reports of accidents receive under Section 158 (6) of the Act as applications for compensation under Section 166 (4) of the Act and deal with them without waiting for the filing of claim applications by the injured or by the family of the deceased. The Registrar General shall ensure that necessary Registers, forms and other support is extended to the Tribunal to give effect to Section 166 (4) of the Act.

21. For complying with section 166(4) of the Act, the jurisdictional Motor Accident Claims Tribunals shall initiate the following steps:

(a) The Tribunal shall maintain an Institution Register for recording the AIRs which are received from the Station House Officers of the Police Stations and register them as miscellaneous petitions. If any private claim petitions are directly filed with reference to an AIR, they should also be recorded in the Register.

(b) The Tribunal shall list the AIRs as miscellaneous petitions. It shall fix a date for preliminary hearing so as to enable the police to notify such date to the victim (family of victim in the event of death) and the owner, driver and insurer of the vehicle involved in the accident. Once the claimant/s appear, the miscellaneous application shall be converted to claim petition. Where a

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claimant/s file the claim petition even before the receipt of the AIR by the Tribunal, the AIR may be tagged to the claim petition.

(c) The Tribunal shall enquire and satisfy itself that the AIR relates to a real accident and is not the result of any collusion and fabrication of an accident (by any `Police Officer - Advocate - Doctor' nexus, which has come to light in several cases).

(d) The Tribunal shall by a summary enquiry ascertain the dependent family members/legal heirs. The jurisdictional police shall also enquire and submit the names of the dependent legal heirs.

(e) The Tribunal shall categories the claim cases registered, into those where the insurer disputes liability and those where the insurer does not dispute the liability.

(f) Wherever the insurer does not dispute the liability under the policy, the Tribunal shall make an endeavour to determine the compensation amount by a summary enquiry or refer the matter to the Lok Adalat for settlement, so as to dispose of the claim petition itself, within a time frame not exceeding six months from the date of registration of the claim petition.

(g) The insurance companies shall be directed to deposit the admitted amount or the amount determined, with the claims tribunals within 30 days of determination. The Tribunals should ensure that the compensation amount is kept in Fixed deposit and disbursed as per the directions contained in General Manager, KSRTC v. Susamma Thomas [1994 (2) SCC 176].

(h) As the proceedings initiated in pursuance of Section 158(6) and 166(4) of the Act, are different in nature from an application by the victim/s under

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Section 166(1) of the Act, Section 170 will not apply. The insurers will therefore be entitled to assist the Tribunal (either independently or with the owners of the vehicles) to verify the correctness in regard to the accident, injuries, age, income and dependents of the deceased victim and in determining the quantum of compensation.

22. The aforesaid directions to the Tribunals are without prejudice to the discretion of each Tribunal to follow such summary procedure as it deems fit as provided under Section 169 of the Act. Many Tribunals instead of holding an inquiry into the claim by following suitable summary procedure, as mandated by Section 168 and 169 of the Act, tend to conduct motor accident cases like regular civil suits. This should be avoided. The Tribunal shall take an active role in deciding and expeditious disposal of the applications for compensation and make effective use of Section 165 of the Evidence Act, 1872, to determine the just compensation."

5.5 The suggestions have also been given for the Insurance Company and also suggestions of the legislative / executive interventions and the Apex Court, thereafter, has concluded making observations ensuring that all accident victims get compensation and had further make suggestions to the Central Government to consider amendment of the Second Schedule to the Act to rectify several mistakes therein and rationalize the compensation thereunder, repeatedly pointed out by Apex Court (U.P.SRTC v. Trilok Chandra reported in 1996 (4) SCC 362 and Sarla Verma reported in 2009 (6) SCC 121).

6. In present facts of the case, the concentration is required to be made to the directions, which had been asked to be followed by the Claims Tribunal. The Tribunal are directed to

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maintain an Institution Register for recording the AIRs, which are received from the Station House Officers of the Police Stations and register them as miscellaneous petitions. The Tribunal in the cases which have been instituted prior to the decision of Jay Prakash (supra), the Tribunal is required to ensure that AIRs, if not called for and had not been supplied to the Tribunal prior to the judgment of Jay Prakash, the Tribunal should on its own volition invite the AIRs and the decision of the matters in case where no necessary documents, as in the form of AIR has been introduced, then the Tribunal should call for the same, so that, that exercise by the Tribunal could ensure that all the necessary papers which the claimants are not in a position to receive or procure from the concerned Police Stations are made available to the Court for just decision of the case.

7. The Directions, which are given in Jay Prakash's case lays down that the Tribunal has to enquire and satisfy itself that the AIR relates to a real accident and is not the result of any collusion and fabrication of an accident, wherein, in present case, if the Tribunal had any doubt and suspicion about the involvement of the vehicle, then the Tribunal should have followed the directions given in Jay Prakash's case and should have satisfied regarding the involvement of the vehicle in the accident. The summary inquiry also incorporates that the Tribunal is required to ascertain the dependents of the family members / legal heirs and at the same time, the jurisdictional police is also required to inquire and submit the names of the dependents legal heirs. Further, the Tribunal has also to verify whether there was any dispute from the insurer in connection

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with the claim case registered and in case of any pleading from the side of the Insurance Company raising any doubts regarding the involvement of the vehicle it becomes incumbent on the Tribunal to call for AIRs from the concerned jurisdictional police stations. Here in this case, the Tribunal could have done real justice by calling for the AIRs from the police station and could have verify the facts and could have satisfied itself with regard to the issues which the Tribunal has raised while dismissing the claim petition. The case of Jay Prakash directs the Tribunal to ensure that the claimants as legal heirs receive compensation and the Tribunal by adopting just and reasonable method, as directed in Jay Prakash's case could have ensure granting of compensation amount to the claimants.

8. In view of the above, judgment and decree dated 28.11.2019 passed by learned Motor Accident Claims Tribunal, Vadodara in M.A.C.P. No.1681 of 2009 is quashed and set aside and the matter is ordered to be remanded to be restored in the file of concerned Tribunal and the Tribunal is directed to decide the same in accordance with provisions of law. The Tribunal thus, is directed to call Form 54, as provided in the Central Motor Vehicle Rules, 1989 and reconsider the matter and said Form No.54 be tagged along with the claim petition and thus, the matter be reconsidered by perusing the evidence, which has already been recorded

With aforesaid, the present appeal stands disposed of.

(GITA GOPI,J) GIRISH