Madhya Pradesh High Court

Pradeep Lodhi vs Neelesh Vishwakarma on 6 March, 2024

Author: Amar Nath Kesharwani

Bench: Amar Nath Kesharwani

                                                          1




                                IN THE HIGH COURT OF MADHYA PRADESH
                                                  AT JABALPUR
                                                        BEFORE
                                HON'BLE SHRI JUSTICE AMAR NATH (KESHARWANI)
                                           MISC. APPEAL NO.3475 OF 2022
                           BETWEEN:-
                           PRADEEP LODHI AGE ABOUT 43 YEARS S/O SHRI
                           TEEKARAM LODHI, R/O RIMJHIRIYA SHIVAJI
                           WARD, SAGAR, POLICE STATION GOPALGANJ,
                           DISTRICT SAGAR (MADHYA PRADESH)


                                                                          .....APPELLANTS
                           (SHRI AMAN CHOURASIYA - ADVOCATE)


                           AND

                           1.    NEELESH VISHWAKARMA, AGED ABOUT
                           30    YEARS,    S/O   SHRI     DOODHNATH
                           VISHWAKARMA, R/O SHIVAJI WARD, STREET OF
                           LOKPRIYA HOSPITAL, RIMJHIRIYA, TEHSIL AND
                           DISTRICT SAGAR (MADHYA PRADESH)


                           2. TARIQ ALI, AGED ABOUT 46 YEARS S/O SHRI
                           KHURSHID ALI,   R/O   GOPALGANJ,    BESIDES
                           CENTRAL BANK, POLICE STATION GOPALGANJ,
                           DISTRICT SAGAR (MADHYA PRADESH)


                           3     BAJAJ ALLIANZ GENERAL INSURANCE
                           COMPANY LIMITED, BHOPAL, SECOND FLOOR,
                           PLOT NO.7 AND 8, NEAR ICICI BANK, JANKI
                           NAGAR, CHUNA BHATTI, BHOPAL (MADHYA
                           PRADESH




Signature Not Verified
Signed by: ANAND KRISHNA
SEN
Signing time: 3/6/2024
5:46:23 PM
                                                                       2




                                                                                           .....RESPONDENTS
                           (NONE FOR THE RESPONDENTS, THOUGH SERVED)
                           ---------------------------------------------------------------------------------------
                                  Reserved on                   :      01.02.2024
                                  Pronounced on                 :      06.03.2024
                           ---------------------------------------------------------------------------------------
                                 This Miscellaneous Appeal having been heard and reserved for
                           orders, coming on for pronouncement on this day, Justice Amar Nath
                           (Kesharwani) pronounced the following:

                                                                ORDER

Heard on admission.

Admit.

With the consent of learned counsel for the appellant, heard final arguments.

This Miscellaneous Appeal under Section 173(1) of the Motor Vehicles Act, 1988 is filed by the appellants/claimants being aggrieved with the award dated 21/06/2022 passed by learned VIth Motor Accident Claims Tribunal, Sagar in Motor Accident Claim Case No.251/2021, whereby the learned claims Tribunal dismissed the claim petition filed by appellant/claimant holding that the FIR was lodged with a delay of 27 days, so the involvement of the alleged vehicle seems to be suspected and at the time of incident the appellant was in intoxicated condition, therefore, appellant is not entitled for amount of compensation.

2. Brief facts of the case are that on 21.01.2020 at about 10:00 P.M. appellant was coming back to his home on his motorcycle bearing registration No.MP-15-MV-7750, when he reached Christian Colony, an auto bearing registration No.MP-15-R-2990 which was being driven by respondent No.1 rashly and negligently, hit his motorcycle, due to which appellant fell down from the motorcycle and sustained grievous injuries

including fracture in 4th & 5th metacarpal bone in right leg, fracture of clavicle bone in right foot and fracture in jaw. Thereafter, appellant remained hospitalized from 21/01/2020 to 22/01/2020 at District Hospital, Sagar and thereafter he remained hospitalized at Medical College, Sagar from 23/01/2020 to 25/02/2020 and due to the injuries sustained by him in the incident, on 05/02/2020 he was operated. It was alleged that the intimation of the accident was very well given at Police Chouki situated at District Hospital on the same date of the incident i.e. 21/10/2020. It was prayed that the claim petition be allowed and a sum of Rs.11,00,000/- (Eleven lakhs) be awarded.

3. Respondent No.1/driver of the alleged vehicle filed the written statement stating that the appellant with the collusion of Police officials falsely implicated the respondent No.1 in the alleged incident. No accident took place with the alleged vehicle.

4. Respondent No.2/owner of the alleged vehicle by way of filing written statement denied the averments mentioned in the claim petition. It was also alleged that the appellant sustained injuries due to the accident by some other vehicle. However, it was alleged that on the date of incident respondent No.1 was having valid and effective license to drive the alleged vehicle, which was insured with respondent No.3. It was prayed that the claim petition be dismissed.

5. Respondent No.3/insurance company contested the claim petition by filing written statement, in which insurance company denied the averments mentioned in the claim petition. It was alleged that no accident took place with the alleged vehicle. At the time of incident appellant No.1 was not having a valid and effective driving license. Respondent No.1 was driving the alleged vehicle in violation of terms and conditions of the insurance policy. Hence, it was prayed that insurance company has no liability to pay

any compensation and prays for dismissal of the claim petition against the insurance company.

6. After framing of issues and recording of evidence, learned Tribunal assessed the amount of compensation as Rs.57,546/-, however keeping in view all the facts and circumstances of the case, learned Tribunal dismissed the claim petition holding the FIR was lodged with a delay of 27 days, so the involvement of the alleged vehicle seems to be suspected and at the time of incident the appellant was in intoxicated condition, therefore, appellant is not entitled for amount of compensation. Being aggrieved by the impugned award, appellant/claimant has preferred the present Miscellaneous Appeal.

7. Learned counsel for appellant submitted that the learned tribunal committed error in dismissing the claim petition on the ground of delay in lodging the FIR. It is submitted that the delay in lodging the FIR cannot be a ground to doubt the claimant's case. It is submitted that on the date of incident i.e. 21/01/2020 appellant was brought to District Hospital, Sagar, where Pre MLC (Ex.P-3) was prepared, which shows that on the date of incident appellant sustained injuries in an accident. It is submitted that thereafter appellant remained hospitalized at Medical College, Sagar from 23/01/2020 to 25/02/2020, so he could not lodge the FIR promptly. In support of his contention learned counsel placed reliance on the judgment passed by Hon'ble Apex Court in the case of Ravi Vs. Badrinarayan & Others, (2011) 4 SCC 693.

8. Learned counsel for the appellant further submitted that the learned tribunal also committed error in dismissing the claim on the ground that at the time of alleged incident appellant was in intoxicated condition. It is submitted that there is no medical report to show that in which quantity appellant was intoxicated and learned tribunal only relied upon MLC

report in which it is mentioned that 'smell of alcohol from mouth and breath i.e. consumed alcohol & intoxicated' dismissed the claim petition, which is erroneous. Learned counsel further submitted that looking to the injuries sustained by appellant in the incident, compensation amount assessed by the learned tribunal on all the heads is on lower side, which deserves to be enhanced. On the strength of aforesaid it is prayed that the appeal be allowed, impugned award be set aside and amount of compensation be awarded to the appellant.

9. I have considered the arguments advanced by learned counsel for the appellant, perused the record and gone through the citation upon which reliance is placed by learned counsel for the appellant.

10. Driver of the offending vehicle respondent No.1 has filed his reply to the claim petition separately and denied the averments mentioned in the claim petition but he did not appear before the tribunal as witness to prove his pleadings. Similarly, owner of the offending vehicle respondent No.2 and insurer of the offending vehicle respondent No.3 also have not adduced any evidence to support their pleadings before the tribunal. Hence, non-applicants have failed to prove their pleadings. In absence of rebuttal of the statement of appellant, it is not proper to disbelieve the statement of injured/claimant/appellant.

11. Hon'ble Apex Court in the case of Sunita & Others Vs. Rajasthan State Road Transport Corporation & Others, (2020) 13 SCC 486 in para 22 has held as under :-

"22. It is thus well settled that in motor accident claim cases, once the foundational fact, namely, the actual occurrence of the accident, has been established, then the Tribunal's role would be to calculate the quantum of just compensation if the accident had taken place by reason of negligence of the driver of a motor vehicle and, while doing so, the Tribunal would not be strictly bound by the pleadings of the parties. Notably, while deciding cases arising out of motor vehicle accidents, the standard of proof

to be borne in mind must be of preponderance of probability and not the strict standard of proof beyond all reasonable doubt which is followed in criminal cases."

(Emphasis supplied)

12. It reveals from the certified copy of MLC/Police report Ex.P/3 that injured/claimant was brought by 108 Ambulance of Police Station Civil Lines Distt. Sagar on 21.01.2020 at 10:30 pm to District Hospital Sagar. It is mentioned in Ex.P-3 that injury was caused due to collision of Auto Rikshaw and motorcycle. Appellant/claimant AW-1 has stated in his chief- examination that he was firstly brought to government hospital by Ambulance after that he was admitted and treated at medical college. AW- 1 has also stated in his cross-examination para 12 that police officials of P.S.Tilli had come to the hospital and interrogated him about the incident. It reveals from the certified copy of the FIR Ex.P-2 that FIR was scribed on 18.02.2020 after investigation on the information (Ex.P-3) sent by District Hospital Sagar. Hence, the incident cannot be called suspicious merely on the basis of delay in registration of FIR.

13. It is settled principle of law that delay in filing of FIR is not fatal either in criminal cases or in claim cases provided sufficient and cogent reasons for delay in filing the FIR are given.

14. In the case of Ravi Vs. Badrinarayan and Others, AIR 2011 SC 1226, Hon'ble Apex Court has held in Para 20 & Para 21 (which are reproduced as below) that -

"20. It is well-settled that delay in lodging FIR cannot be a ground to doubt the claimant's case. Knowing the Indian conditions as they are, we cannot expect a common man to first rush to the Police Station immediately after an accident. Human nature and family responsibilities occupy the mind of kith and kin to such an extent that they give more importance to get the victim treated rather than to rush to the Police Station. Under such circumstances, they are not expected to act mechanically with promptitude in lodging the FIR with the Police. Delay in lodging the FIR thus, cannot be the ground to deny justice to the victim. In

cases of delay, the courts are required to examine the evidence with a closer scrutiny and in doing so; the contents of the FIR should also be scrutinized more carefully. If court finds that there is no indication of fabrication or it has not been concocted or engineered to implicate innocent persons then, even if there is a delay in lodging the FIR, the claim case cannot be dismissed merely on that ground.

21. The purpose of lodging the FIR in such type of cases is primarily to intimate the police to initiate investigation of criminal offences. Lodging of FIR certainly proves factum of accident so that the victim is able to lodge a case for compensation but delay in doing so cannot be the main ground for rejecting the claim petition. In other words, although lodging of FIR is vital in deciding motor accident claim cases, delay in lodging the same should not be treated as fatal for such proceedings, if claimant has been able to demonstrate satisfactory and cogent reasons for it. There could be variety of reasons in genuine cases for delayed lodgment of FIR. Unless kith and kin of the victim are able to regain a certain level of tranquility of mind and are composed to lodge it, even if, there is delay, the same deserves to be condoned. In such circumstances, the authenticity of the FIR assumes much more significance than delay in lodging thereof supported by cogent reasons."

(Emphasis Supplied)

15. Hence looking to the unrebutted oral and documentary evidence placed on record on behalf of appellant/claimant and in the light of principle of law laid down by the Hon'ble Apex court in the case of Saroj & Others Vs. Hetlal & Others (2011) 1 SCC 388, Janabai Wd/o Dinkarrao Ghorpade & Others Vs. ICICI Lambord Insurance Co. Ltd., 2022 (10) SCC 512 and Sunita & Others Vs. Rajasthan State Road Transport Corporation & Others, (2020) 13 SCC 486, the possibility of false implication of vehicle bearing registration No.MP-15-R-2990 is ruled out.

16. Learned tribunal has assessed the compensation amount as Rs.57546/- (Fifty Seven Thousand Five Hundred Forty Six) breakup is which is as under :

Towards fracture and physical & mental pain Rs.30000/-

                                 Towards medical expenses                          Rs.3546/-
                                 Towards loss of income for two months             Rs.14000/-
                                 Towards special diet and conveyance               Rs.10000/-

17. It reveals from the discharge card Ex.P-11 that he was hospitalized from 22.01.2020 to 25.02.2020 at Bundelkhand Medical College, Sagar i.e. for about 35 days. The learned tribunal has awarded only Rs.10000/- (Ten Thousand) for special diet and conveyance and the tribunal has not awarded any amount regarding expenses incurred on attendant which should be awarded. Hence, in the head of special diet for 35 days Rs.10000/- (Ten Thousand), in the head of conveyance Rs.5000/- (Five Thousand) and in the head of attendant Rs.5000/- (Five Thousand) are awarded. Further, as per discharge card Ex.P-11, appellant sustained fracture of the body of Mandible (right side). Though the appellant did not record the statement of any doctor in support of his case regarding injury and he has not filed any permanent disability certificate to prove that he suffered permanent disability due to the alleged motor vehicle accident.

But looking to the injuries caused to the appellant in alleged incident, award of Rs.30000/- (Thirty Thousand) in the head of grievous injury, physical and mental pain is on lower side which should be enhanced. Hence, in the head of grievous injury and pain and sufferings and physical and mental shock, the amount is enhance from Rs.30000/- (Thirty Thousand) to 50000/- (Fifty Thousand).

18. In view of above discussion, appellant/claimant shall be entitled for the following amount of compensation :-

Towards fracture and physical & mental pain Rs.50000/-

                                   Towards medical expenses                         Rs. 3546/-
                                   Towards loss of income for two months            Rs.14000/-
                                   Towards special diet                             Rs.10000/-
                                   Towards conveyance                               Rs. 5000/-
                                   Towards attendant                                Rs. 5000/-
                                   Total                                            Rs.87546/-

19. Thus, appeal filed by the appellant/claimant is allowed. Impugned award dated 21.06.2022 is hereby set-aside. The appellant/claimant will be entitled for a total sum of Rs.87546/- (Eighty Seven Thousand Five Hundred Forty Six) which shall fetch interest @ 6% per annum from the date of filing of claim petition till the date of actual payment. Insurance company (respondent No.3) is directed to deposit the award amount with interest within a period of sixty days from the date of this order.