Hdfc Ergo General Insurance ... vs Jagatdhari Kevat (Mudha)
2023 Latest Caselaw 5818 MP

                             1                   M.A. No.2239/2016


IN THE HIGH COURT OF MADHYA PRADESH
            AT JABALPUR
                        BEFORE
     HON'BLE SHRI JUSTICE GURPAL SINGH AHLUWALIA
                ON THE 11th OF APRIL, 2023
               MISC. APPEAL No. 2239 of 2016
BETWEEN:-

HDFC ERGO GENERAL INSURANCE COMPANY LTD.
OFFICE HANIF TOWER, 1640, NAPIER TOWN
JABALPUR (MADHYA PRADESH) (THROUGH ITS
MANAGER)



                                                  .....PETITIONER
(BY SHRI ROHIT JAIN- ADVOCATE)

AND

1.    JAGATDHARI KEVAT (MUDHA) S/O RAMPATI
      KEVAT, AGED ABOUT 50 YEARS, OCCUPATION:
      LABOURER, R/O GRAM SHUKULGAVAN POST
      LALITPUR, P.S. TALA, TEHSIL AMARPATAN,
      DISTRICT SATNA (MADHYA PRADESH)



2.    VIMLA W/O JAGTDHARI KEVAT (MUDHA),
      AGED ABOUT 48 YEARS, OCCUPATION:
      HOUOSEWORK, R/O GRAM SHUKULGAVAN,
      POST LALITPUR, POLICE STATION TALA, TEH.
      AMARPATAN, DISTRICT SATNA (MADHYA
      PRADESH)



3.    SMT. SUBHADRA W/O LATE SHRI GANGA
      KEVAT (MUDHA), AGED ABOUT 21 YEARS,
      OCCUPATION: HOUOSEWORK R/O GRAM
      SHUKULGAVAN POST LALITPUR, P.S. TALA,
      TEHSIL AMARPATAN, DISTRICT SATNA AT
      PRESENT RESIDING AT GRAM MAHSANV, THE.
      GURH, DISTRICT REWA (MADHYA PRADESH)
                                  2                   M.A. No.2239/2016



4.   AMAN KEVAT S/O LATE SHRI GANGA
     KEVAT (MUDHA), AGED ABOUT 2 YEARS
     (MINOR) THROUGH GUARDIAN MOTHER
     SMT. SUBHADRA, WD/O LATE SHRI GANGA
     KEVAT (MUDHA) R/O GRAM SHUKULGAVAN
     POST LALITPUR, P.S. TALA, TEHSIL
     AMARPATAN, DISTRICT SATNA AT PRESENT
     RESIDING AT GRAM MAHSANV, THE. GURH,
     DISTRICT REWA (MADHYA PRADESH)



5.   PAWAN KEVAT S/O LATE SHRI GANGA
     KEVAT (MUDHA), AGED ABOUT 2 YEARS,
     MINORS THROUGH GUARDIAN MOTHR SMT.
     SUBHADAR, WD/O LATE SHRI GANGA
     KEVAT     (MUDHA),     R/O      GRAM
     SHUKULGAVAN POST LALITPUR, P.S. TALA,
     TEHSIL AMARPATAN, DISTRICT SATNA AT
     PRESENT RESIDING AT GRAM MAHSANV,
     THE. GURH, DISTRICT REWA (MADHYA
     PRADESH)



6.   MUNINDRA GUPTA S/O JAGANNATH GUPTA,
     AGED ABOUT 31 YEARS, OCCUPATION:
     VEHICLE OWNER, VEHICLE NO. MP-19-GA-
     2252, R/O GRAM TALA MANDAL HAITOLA,
     DISTRICT SATNA (MADHYA PRADESH)



7.   MANSIH KUMAR KUSHWAHA S/O SHRI
     SADHURAM KUHSWAHA, AGED ABOUT 25
     YEARS, OCCUPATION DRIVER VEHICLE NO.
     MP-19--GA-2252,  ADDRESS   MOHANIYA
     POLICE STATION AMDARA, DISTRICT
     SATNA (MADHYA PRADESH)



                                                    .....RESPONDENTS
(BY SHRI JAGDISH SAKALLE- ADVOCATE FOR RESPONDENT NOS. 6 & 7)
      This appeal coming on for admission this day, the court passed the
following:
                                   3                     M.A. No.2239/2016


                                 JUDGMENT

This miscellaneous appeal under Section 173 (1) of the Motor Vehicles Act, 1988 has been filed against the award dated 03.05.2016 passed by Motor Accident Claims Tribunal, Rewa in M.A.C.C. No.89/2014.

2. This appeal has been filed by the insurance company on the ground that the offending vehicle bearing registration No. MP-19-GA- 2252 was falsely involved after 40 days of the incident.

3. It is submitted by Shri Jain that the accident took place on 14.01.2014 and FIR (Ex.-P/2) was lodged on 23.02.2014 i.e. after 40 days of the accident. Therefore, it is clear that the offending vehicle was falsely involved. The driver of the offending vehicle namely Shri Manish Kumar Kushwaha (D.W.-1) has entered appearance and he denied that any accident took place with his vehicle.

4. Per contra, the findings recorded by the Claims Tribunal have been supported by the counsel for the respondent Nos. 6 and 7.

5. Considered the submissions made by the counsel for the parties.

6. The accident is alleged to have taken place on 14.01.2014 at about 17:00. The deceased was immediately shifted to hospital where he breath his last on 15.01.2014 at 17:00. Accordingly, the doctor sent a merg intimation to Police Station Tala District Satna on 16.01.2014 at 08:00 a.m. It appears that a merg enquiry was conducted and statement of the witnesses were recorded and accordingly on 23.02.2014, the FIR was registered in Crime No. 31/2014 at Police Station Tala, District

Satna.

7. It is submitted that during this period the witnesses kept quiet and they did not disclose the registration number of offending vehicle. No reason has been assigned by the witnesses for keeping it silence for 40 days. The driver of the offending vehicle namely Shri Manish Kumar Kushwaha (D.W.-1) has specifically denied the factum of accident.

8. So far as the delayed FIR is concerned, it is clear that the accident took place at about 17:00 on 14.01.2014 and the deceased was immediately shifted to hospital. He breath his last on 15.01.2014 at 05:00 p.m. and accordingly a merg intimation was sent by the doctor to the Police Outpost Sanjay Gandhi Medical Hospital, Rewa on 15.01.2014 itself about the death of the deceased, which was forwarded to Police Station Tala District Satna from Police Outpost Sanjay Gandhi Medical Hospital Rewa, which was received at Police Station Tala District Satna on 16.01.2014 at 08:00 pm. Since, the merg intimation with regard to the death of the deceased was sent by the doctor, therefore, there was no occasion for the doctor to disclose the registration number of the offending vehicle.

9. Since, the police was in seisin of the enquiry, therefore, it was not expected from the relatives of the deceased to rush to the police and lodge a second FIR. Even otherwise, two FIRs for the same offence are not maintainable. If the Police Authorities were negligent in conducting an enquiry and took as many as 40 days to record the statements of the witnesses, then the witnesses cannot be blamed for the same.

10. It is submitted by the counsel for the appellant that Dharmendra Singh (A.W.-2), who claims himself to be an eye witness, did not go to

the police station either to lodge the FIR or to make his statement.

11. Dharmendra Singh (A.W.-2) in his cross examination has specifically stated that he had gone to the police station to lodge the FIR but the ASI, who was having the file with him, informed that whenever he would visit the place, the report would be lodged. Thus, it is clear that in spite of efforts made by Dharmendra Singh (A.W.-2), the police did not lodge the FIR and the FIR (Ex.-P/2) was lodged only after conducting the merg enquiry. This lethargy on the part of the police is also causing undue hardship to the claimants and that is why the Supreme Court in the case of Gohar Mohammad Vs. Uttar Pradesh State Road Transport Corporation & Others by judgment dated 15.12.2022 passed in C.A. No. 9322/2022 has held as under:-

"62. Accordingly, this appeal is decided with the following directions:

i) The appeal filed by the owner challenging the issue of liability is hereby dismissed confirming the order passed by the High Court and MACT.

ii) On receiving the intimation regarding road accident by use of a motor vehicle at public place, the SHO concerned shall take steps as per Section 159 of the M.V. Amendment Act.

iii) After registering the FIR, Investigating Officer shall take recourse as specified in the M.V. Amendment Rules, 2022 and submit the FAR within 48 hours to the Claims Tribunal. The IAR and DAR shall be filed before the Claims Tribunal within the time limit subject to compliance of the provisions of the Rules.

iv) The registering officer is duty bound to verify the registration of the vehicle, driving licence,

fitness of vehicle, permit and other ancillary issues and submit the report in coordination to the police officer before the Claims Tribunal.

v) The flow chart and all other documents, as specified in the Rules, shall either be in vernacular language or in English language, as the case may be and shall be supplied as per Rules. The Investigating Officer shall inform the victim(s)/legal representative(s), driver(s), owner(s), insurance companies and other stakeholders with respect to the action taken following the M.V. Amendment Rules and shall take steps to produce the witnesses on the date, so fixed by the Tribunal.

vi) For the purpose to carry out the direction No. (iii), distribution of police stations attaching them with the Claim Tribunals is required.

Therefore, distribution memo attaching the police stations to the Claim Tribunals shall be issued by the Registrar General of the High Courts from time to time, if not already issued to ensure the compliance of the Rules.

vii) In view of the M.V. Amendment Act and Rules, as discussed hereinabove, the role of the Investigating Officer is very important. He is required to comply with the provisions of the Rules within the time limit, as prescribed therein. Therefore, for effective implementation of the M.V. Amendment Act and the Rules framed thereunder, the specified trained police personnel are required to be deputed to deal with the motor accident claim cases. Therefore, we direct that the Chief Secretary/Director General of Police in each and every State/Union Territory shall develop a specialized unit in every police station or at town level and post the trained police personnel to ensure the compliance of the provisions of the M.V. Amendment Act and the Rules, within a period of three months from the date of this order.

viii) On receiving FAR from the police station, the Claims Tribunal shall register such FAR as Miscellaneous Application. On filing the IAR and DAR by the Investigating Officer in connection with the said FAR, it shall be attached with the same Miscellaneous Application. The Claims Tribunal shall pass appropriate orders in the said application to carry out the purpose of Section 149 of the M.V. Amendment Act and the Rules, as discussed above.

ix) The Claim Tribunals are directed to satisfy themselves with the offer of the Designated Officer of the insurance company with an intent to award just and reasonable compensation. After recording such satisfaction, the settlement be recorded under Section 149(2) of the M.V. Amendment Act, subject to consent by the claimant(s). If the claimant(s) is not ready to accept the same, the date be fixed for hearing and affording an opportunity to produce the documents and other evidence seeking enhancement, the petition be decided. In the said event, the said enquiry shall be limited only to the extent of the enhancement of compensation, shifting onus on the claimant(s).

x) The General Insurance Council and all insurance companies are directed to issue appropriate directions to follow the mandate of Section 149 of the M.V. Amendment Act and the amended Rules. The appointment of the Nodal Officer prescribed in Rule 24 and the Designated Officer prescribed in Rule 23 shall be immediately notified and modified orders be also notified time to time to all the police stations/stakeholders.

xi) If the claimant(s) files an application under Section 164 or 166 of the M.V. Amendment Act, on receiving the information, the Miscellaneous application registered under Section 149 shall be sent to the Claims Tribunal where the application under Section 164 or 166 is pending immediately by the Claims Tribunal.

xii) In case the claimant(s) or legal representative(s) of the deceased have filed separate claim petition(s) in the territorial jurisdiction of different High Courts, in the said situation, the first claim petition filed by the claimant(s)/legal representative(s) shall be maintained by the said Claims Tribunal and the subsequent claim petition(s) shall stand transferred to the Claims Tribunal where the first claim petition was filed and pending. It is made clear here that the claimant(s) are not required to apply before this Court seeking transfer of other claim petition(s) though filed in the territorial jurisdiction of different High Courts. The Registrar Generals of the High Courts shall take appropriate steps and pass appropriate order in this regard in furtherance to the directions of this Court.

xiii) If the claimant(s) takes recourse under Section 164 or 166 of the M.V. Amendment Act, as the case may be, he/they are directed to join Nodal Officer/Designated Officer of the insurance company as respondents in the claim petition as proper party of the place of accident where the FIR has been registered by the police station. Those officers may facilitate the Claims Tribunal specifuying the recourse as taken under Section 149 of the M.V. Amendment Act.

xiv) Registrar General of the High Courts, States Legal Services Authority and State Judicial Academies are requested to sensitize all stakeholders as early as possible with respect to the provisions of Chapters XI and XII of the M.V. Amendment Act and the M.V. Amendment Rules, 2022 and to ensure the mandate of law.

xv) For compliance of mandate of Rule 30 of the M.V. Amendment Rules, 2022, it is directed that on disputing the liablility by the insurance company, the Claims Tribunal shall record the evidence through Local Commissioner and the fee and

expenses of such Local Commissioner shall be borne by the insurance company.

xvi) The State Authorities shall take appropriate steps to develop a joint web portal/platform to coordinate and facilitate the stakeholders for the purpose to carry out the provisions of M.V.

Amendment Act and the Rules in coordination with any technical agency and be notified to public at large."

12. Under these circumstances, this Court is of the considered opinion that merely because the enquiry officer was at fault in not conducting the merg enquiry at the earliest, it cannot be held that the offending vehicle was falsely involved. The finding of this Court finds support from the evidence of Shri Manish Kumar Kushwaha (D.W.-1) who was the driver of the offending vehicle. In his affidavit filed under Order 18 Rule 4 of C.P.C. he has mentioned that at the time of the accident his vehicle was parked in his house whereas in paragraph 10 of his cross examination he has stated that the vehicle was parked in Village Mohaniya whereas the owner of the vehicle is a resident of Tala. The distance between the Mohaniya and Tala is approximately 100 km. He has further stated that he had never disclosed to anybody about the fact that the truck in question was parked in Village Mohaniya at the time of accident. Further the owner of the offending truck did not enter in the witness box to clarify that on the date of the accident the vehicle was not plying on the road but it was parked in Village Mohaniya.

13. Manish Kumar Kushwaha (D.W.-1) has not explained as to why he had parked the vehicle in his house or in Village Mohaniya, specifically when the vehicle in question was a loading vehicle and every owner of the vehicle tries to ply the vehicle on road for

transporting the goods.

14. If, the owner of the vehicle had no goods to load on the vehicle, then it was expected that the driver of the vehicle would park the vehicle either in the house or at the godown of the owner so that the same can be loaded as and when the goods are available. There was no reason for the driver of the vehicle to park the vehicle at a distance of 100 km from the house of the owner. Furthermore, the driver of the vehicle has also admitted that he was arrested and a criminal case is pending in the Court below.

15. Under these circumstances, this Court is of the considered opinion that Manish Kumar Kushwaha (D.W.-1) has failed to plausibly explain as to why the vehicle was parked in Village Mohaniya or in his house instead of the house of the owner which was at the distance of 100 km.

16. Considering the totality of the facts and circumstances of the case, this Court is of the considered opinion that the Claims Tribunal did not commit any mistake by holding that the accident in question was caused by the offending vehicle No. MP-19-GA-2252.

17. No other argument is advanced by the counsel for the appellant.

18. Ex-consequenti, the award dated 03.05.2016 passed by Motor Accident Claims Tribunal, Rewa in M.A.C.C. No.89/2014 is hereby affirmed.

19. The appeal fails and is hereby dismissed.

(G.S. AHLUWALIA) JUDGE ashish ASHISH KUMAR LILHARE 2023.04.13 16:58:19 +05'30'