Jharkhand High Court
The Oriental Insurance Company ... vs Gopal Sahu on 18 January, 2022
IN THE HIGH COURT OF JHARKHAND AT RANCHI
M.A. No. 255 of 2008
The Oriental Insurance Company Limited, Hazaribagh ..... Appellant
Versus
1. Gopal Sahu
2(a). Smt. Manju Bala Jaiswal
2.(b). Mr. Manish Kumar Jaiswal
2.(c). Mr. Rajesh Kumar Jaiswal
2.(d). Nitin Kumar Jaiswal .... .... Respondents
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CORAM : HON'BLE MR. JUSTICE GAUTAM KUMAR CHOUDHARY
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For the Appellant : Mr. D.C. Ghose, Advocate
For the Respondents : Mr. Vijay Kr. Sharma, Advocate
CAV ON 21.11.2021 PRONOUNCED ON 18 .01.2022
1. The Insurance Company has preferred the instant appeal against the judgment
and award of compensation in Claim Case No.115/1997 by the learned
Additional MVACT, Fast Track Court-III, Chatra, whereby and whereunder a
compensation of Rs.2,00,000/- has been awarded for the permanent disability
suffered by the claimant in motor vehicle accident involving a Bus bearing
registration No.BR-14P-7912 under Section 166 of M.V. Act.
2. As per claim case filed the claimant Gopal Sahu who was a pillion rider of
scooter was dashed by the Bus bearing registration No. No.BR-14P-7912
coming from the opposite direction and as a result he sustained fracture in his
right leg and consequent permanent disability.
3. The Judgment has been assailed on the ground that the case of the claimant
suffers from material inconsistencies and contradictions which shades cloud on
the claimant's version of motor vehicle accident. It is argued that case has been
registered after two months on the basis of the written report lodged after an
inordinate delay of 5 days without a cogent explanation for the delay. He was
admitted in Chatra Hospital immediately after the accident and there was
opportunity of lodging FIR at that stage, but no case was lodged and it was
instituted as afterthought. Police found the case as not true and submitted final
form with finding that the accident took place when the motorcycle hit a rock
and not as stated by the claimant of being dashed by the bus. The learned Court
of the Magistrate took cognizance on the basis of protest-cum-complaint-
petition, inquiry was conducted and on holding trial the driver of the bus was
acquitted. All the relevant documents have been adduced into evidence and
marked as Exhibits-A to D.
4. The learned tribunal on the basis of evidence of AW-1, AW-2 and AW-4 has
recorded a finding of fact and held that the claimant was under cover of
insurance policy at the time of accident.
5. Learned Trial Court proceeded on the principle, and rightly so that Civil Courts
are not bound by the findings of the criminal courts and arrived at an
independent finding on the basis of the oral witnesses examined on behalf of
the claimant that accident did take place due to rash and negligent driving of
the offending bus. The degree of proof in civil and criminal cases is different
and, therefore, there can be different findings in both. But there is a caveat here
for the Tribunals that when there are materials on record which raises serious
doubt on the claimant's version, it need to exercise greater care in appreciating
evidence on the point of manner of accident. Thus, where there is definite
finding of investigating agency followed by criminal court after trial which
refutes the claimant's version of the accident, the civil court though not bound
by those findings, need to scrutinize the evidence with greater caution. Purity
and sanctity of judicial process is to be upheld and insulated from unscrupulous
litigants, at the same time the cause of bonafide litigants need to be vindicated
at all cost. It has been held National Insurance Co. Ltd. v. Rattani, (2009) 2
SCC 75 : (2009) 1 SCC (Civ) 398 : that the first information report as such
may or may not be taken into consideration for the purpose of arriving at a
finding in regard to the question raised by the appellant herein, but, when the
first information report itself has been made a part of the claim petition, there
cannot be any doubt whatsoever that the same can be looked into for the
aforementioned purpose.
6. In the instant case a brief sequence of events need to be set out for better
appreciation of materials on record:
a. As per FIR (Ext A) the accident took place on 2.1.1997 at 10.25 a.m. in Chatra
valley near police picket by the rash and negligent driving of Bunty Bus No.
BR-14P-7912.
b. After the accident he was taken to the chamber of Dr Nityanand Mandal at
Sadar Hospital, Chatra from there he was referred to Gaya.
c. He returned home after treatment on 6.1.97.
d. The FIR lodged on 13.3.97 on the basis of written report of claimant Gopal
Sahu dated 7.1.97
e. Claim case was filed on 26.3.1999
f. Disability certificate issued vide memo no.154 dated 6.3.2002 by the medical
board, Chatra on the basis of examination of Gopal Sahu on 30.1.2002.
7. Delay of five days in lodging the written report can not be regarded as fatal and
has been duly explained. It has been stated that on the very same day he was
referred for treatment to Gaya, where he remained under treatment from 2nd
January to 6th January 1997, and after returning the matter was reported to the
police on 7.1.1997.
8. On the manner of accident AW-1 Bhagwan Das Prasad, AW-4 Nawal Kishore
Gupta, have claimed that they were eye witnesses to the accident and were
travelling in the offending vehicle at the relevant time. AW-1 has deposed that
on 02.01.1997 Vehicle No.BR-14P-7912 started from Jori and when it reached
the Chatra valley, he heard the sound of something dashing. When they
alighted from the bus, they saw the scooter fallen on the road and Mohammad
Alam and Gopal Sahu lying there. He was taken for treatment to Chatra. In his
cross examination he has deposed that his statement was not recorded by the
police. AW-4 has deposed that he was also travelling by the same bus and was
sitting in the driver's cabin which was at a high speed and dashed the scooter in
a head on collision. Both Mahmood and Gopal Sahu fell down. The bus took
both of them to Chatra for treatment. In his cross examination he has deposed
that he took the bus at 9:00 - 9:30 a.m. Thus the complainant's deposition
about the accident has been duly corroborated by the testimony of two
independent witnesses who were also travelling in the offending bus at the
relevant time of accident. Thus, the factum of accident is duly proved by
preponderance of probability in favour of the claimant.
Under the aforesaid facts and circumstance of the case, I do not find any reason
to disturb the finding of fact recorded by the learned Tribunal on the manner of
accident.
The appeal accordingly stands dismissed.
The Insurance Company is permitted to withdraw the statutory amount.
(GAUTAM KUMAR CHOUDHARY, J.)
Jharkhand High Court, Ranchi
Dated 18th January, 2022
AFR/Tarun
