Punjab-Haryana High Court
Jasbir Singh vs Surinder Singh And Ors on 29 January, 2025
Author: Sudeepti Sharma
Bench: Sudeepti Sharma
FAO-2584-2006 (O&M) -1-
IN THE HIGH COURT OF PUNJAB & HARYANA
AT CHANDIGARH
FAO-2584-2006 (O&M)
Date of Decision: 29.01.2025
Jasbir Singh ......Appellant
Vs.
Surinder Singh and others ......Respondents
CORAM: HON'BLE MRS. JUSTICE SUDEEPTI SHARMA
Present: Mr. K.S.Dhanora, Advocate,
for the appellant.
Mr. R.S.Budhwar, Advocate,
for respondent No.1.
Mr. Sanjiv Pabbi, Advocate,
for respondent No.2-Insurance Company.
****
SUDEEPTI SHARMA J.
1. The present appeal has been preferred for setting aside the
award dated 10.01.2006 passed in the claim petition filed under Sections
166, 140 and 141 of the Motor Vehicles Act, 1988 (for short, 'MV Act') by
the learned Motor Accident Claims Tribunal, Kurukshetra (for short, 'the
Tribunal'), whereby claim petition filed by the appellant/claimant, was
dismissed.
FACTS NOT IN DISPUTE
2. The brief facts of the case are that on 16.04.2004 at about 11:30
A.M., the appellant/claimant had taken a lift as a pillion rider on Moped
bearing registration No.HYQ-7183, being driven by one Gurnam Singh at a
normal speed and on the correct side of the road. When they reached at
FAO-2584-2006 (O&M) -2-
Ladwa Chowk, Shahabad, suddenly a Three-Wheeler bearing registration
No.HR-65-0889, being driven by respondent No.1 (Surinder Singh), came
from behind at a high speed and in a rash and negligent manner, violating
traffic rules, hit the said moped from behind. As a result thereof, Gurnam
Singh could not control his Moped, which led to the appellant/claimant
falling and sustaining multiple grievous injuries on various parts of his body.
After the accident, respondent No.1 fled from the spot along with the three-
wheeler. However, later on, he was challaned by the police of Police
Station, Shahabad and in this regard, FIR No.156 dated 24.04.2004 under
Sections 279, 337 and 338 of the Indian Penal Code, 1860, was registered at
Police Station Shahabad, District Kurukshetra.
3. Upon notice of the claim petition, the respondents appeared and
filed their separate replies denying the factum of accident/compensation.
4. From the pleadings of the parties, the learned Tribunal framed
the following issues:-
"1) Whether the accident in question resulting into
injuries on the person of claimant Jasbir Singh was
caused due to rash and negligent driving of three-
wheeler bearing no.HR-65-0889 by its driver, respondent
no.1, as alleged? OPP
2) If issue No.1 is proved, to what amount of
compensation the petitioner is entitled to and from
whom? OPP
3) Whether respondent no.1 was not holding a valid
and effective driving licence on the date of alleged
accident? OPR.
4) Relief."
FAO-2584-2006 (O&M) -3-
5. After taking into consideration the pleadings and the evidence
on record, the learned Tribunal dismissed the claim petition. Hence, the
present appeal.
SUBMISSIONS OF LEARNED COUNSEL FOR THE PARTIES
6. Learned counsel for the appellant/claimant contends that the
learned Tribunal dismissed the claim petition on the ground that there was a
delay of 09 days in lodging the FIR and the appellant/claimant failed to
prove that the accident was caused by rash and negligent driving of
respondent No.1-Surinder Singh.
7. Per contra, learned counsel for respondents No.1 and 2,
however, vehemently argue on the lines of the award dated 10.01.2006 and
submit that the award has rightly been dismissed by the learned Tribunal.
Therefore, they pray for dismissal of the present appeal.
8. I have heard learned counsel for the parties and perused the
whole record of this case.
9. The relevant portion of the award reads as under:-
"7. To begin with, it has been argued by the learned
counsel for the claimant that on 16.4.2004 at about 4.30
P.M., he had gone to Shahabad for bringing materials for
his shop. He was waiting for some vehicle for going to
Shahabad. In the mean time, a Moped bearing no. HYQ-
7183, driven by Gurnam Singh, came there and claimant
Jasbir Singh took the lift. The Moped was being driven at
a moderate speed and on the due left side of the road.
When they reached Ladwa-Babain Road, Shahabad, a
three-wheeler bearing No. HR-65-0889 came in a rash
and negligent manner and dashed the Moped, as a result
of which Gurnam Singh, who was driving the Moped, and
Jabir Singh claimant, who was pillion rider, had fallen on
the road and received multiple injuries. Claimant Jasbir
Singh was taken to a Hakim namely Kali Ram at village
FAO-2584-2006 (O&M) -4-
Baknore. Hakim applied plaster of paris on his leg. On
21.4.2004 some pain was felt by the claimant and he was
taken to Civil Hospital, Shahabad and was medico
legally examined there. From CHC, Shahabad, he was
referred to L.N.J.P., Hospital, Kurukshetra where he
remained admitted for 20 days. Surinder Singh,
respondent no. 1, driver of three-wheeler no. HR-65-
0889, ran away along with his offending vehicle from the
spot. The accident was caused due to rash and negligent
driving of respondent no. 1.
8. To rebut the arguments of the learned counsel for
the petitioner/claimant, it has been argued by the learned
counsel for respondents no.1 and 2 that no accident had
taken place due to rash and negligent driving of
respondent no. 1. Rather, no accident had taken place
with three-wheeler no. HR-65-0889. The vehicle has been
falsely involved with the purpose to claim compensation
from the Insurance Company. The claimant might have
received injuries at some other place and with some
other vehicle. FIR was lodged after 9 days of the alleged
accident. The claimant is not sure as to whether the
accident was caused at 11.30 A.M. or 4.30 P.M. The
place of accident is also disputed. The learned counsel
for the claimant-petitioner has failed to prove the
rashness and negligence of respondent no. 1 in driving of
vehicle and the resultant accident. The learned counsel
for respondents no. 1 and 2 have prayed for dismissal of
the claim-petition.
9. Perusal of the file shows that the present claim-
petition has been filed to claim compensation on
16.4.2004 at Ladwa Road, Babain in Shahabad. It has
been alleged by the petitioner that he had taken lift on a
Moped which was being driven by Gurnam Singh. Three-
wheeler bearing no. HR-65-0889 had dashed the Moped
no. HYQ-7183 from back side, as a result of which both
of them had fallen down and the petitioner had sustained
multiple grievous injuries.
10. First of all, the time consumed in lodging the F.I.R.
has to be taken into consideration. Allegedly, the
accident had taken place on 16.4.2004. The copy of F.I.R.
has been placed on the record as Ex. PI2. It was
registered on 24.4.2004. The copy of statement of
claimant-petitioner Jabir Singh has been placed on the
record as Ex. P10. It shows that statement of Jabir Singh
claimant was recorded on 24.4.2004 at 4.40 P.M.
Apparently, the accident had allegedly taken place on
16.4.2004 and the FIR was recorded after 9 days i.e. on
FAO-2584-2006 (O&M) -5-
24.4.2004. The delay in recording the F.I.R. has been
tried to be explained by the learned counsel for the
petitioner by saying that when injuries were received by
Jabir Singh claimant as a result of accident between
three-wheeler no. HR-65-0889 and Moped No. HYQ-
7183, he was taken to village Baknore to a Hakim namely
Kali Ram, who had applied plaster of paris on his leg. It
is pertinent to mention here that neither Kali Ram, said
Hakim, has been examined by the petitioner nor there is
any record to show that plaster of paris was applied by
Kali Ram Hakim on the leg of Jasbir Singh claimant. The
perusal of cross-examination of Jasbir Singh claimant,
PWl, shows that he has admitted that he was doing tyre
puncture work at village Babana which is about 7-8 Kms.
from Shahabad Markanda. Village Baknore where Jabir
Singh claimant was shifted from the place of alleged
accident, is at a distance of 35 Kms. It is very surprising
that when multiple injuries were received by the
claimant, instead of shifting to his own village which was
5-6 Kms., he was taken to a Hakim at a distance of 35-40
Kms. As per explanation of Jabir Singh claimant, he felt
severe pain in his leg on 21.4. 2004, when he had gone to
Civil Hospital, Shahabad. He had not told any body
attending him that he had received injuries in a road side
accident./ Dr. Sunita Kumari, Medical Officer,
Community Health Centre, Shahabad, PW4 has stated in
her cross-examination that the patient had come to Civil
Hospital, Shahabad on 21.4.2004 at 1.40 P.M. She has
further stated that exact date of suffering of injuries was
not told by the patient. He had also not told the manner
of suffering of the injuries. She has admitted that injuries
had already been plastered. She was specifically asked as
to whether duration of injuries could be ascertained, it
has been stated by her that she could not ascertain the
duration of the injuries. From CHC, Shahabad, the
claimant was referred to L.N. J.P., Hospital, Kurukshetra.
His X-ray examination was conducted and he remained
admitted there for few days. It was only on 24.4.2004 that
Ruqa was sent to the police and the police had recorded
the statement of Jabir Singh claimant on 24.4.2004.
Dr.P.K. Soni, Orthopaedic Surgeon, Soni Hospital,
Kurukshetra has been examined as PWo. In cross-
examination, it has been stated by him that the patient
had not told him the date of suffering of injuries,
however, it was an old case. Dr. K.K. Gangotra, C.Lal
Hospital, Ambala Cantt. where Jabir Singh claimant was
allegedly taken, has been examined as PW7. It has been
FAO-2584-2006 (O&M) -6-
stated by him in cross-examination that he was not aware
of when the patient had suffered injuries. The claimant
has no explanation as to why first information was not
given by him to the police on 16.4.2004 immediately
when the alleged accident took place. In cross-
examination Jabir Singh claimant PW1 has admitted that
they had passed in front of Police Station, Shahabad. He
has also admitted that on the next day on their return
they had again passed through the Police Station,
Shababad. Gurnam Singh, who was allegedly driving
Moped no. HYQ-7183, has been examined as PW8. In his
cross-examination he has admitted that there was Civil
Hospital as well as many doctors at Shahabad. He has
also admitted that Police Station, Shahabad also falls on
the way while going to village Baknore. He has also
admitted that village Baknore is at a distance of 40 Kms.
from the place of occurrence. He has stated that he
returned from village Bakhore on the same day in the
night all alone. He had not tried to inform the police even
after his return from village Baknore. Learned counsel
for the petitioner has tried to explain the delay in lodging
the FIR by saying that respondent no. 1, driver of three-
wheeler, had assured him to pay the expenses and to
compensate the petitioner-injured, yet it is pertinent to
point, out it here that as per story of the petitioner /
claimant, after the accident, the driver of the three-
wheeler ran away from the spot along with his vehicle.
When the driver of the three-wheeler had not stopped
even for a while after hitting the Moped, it is not clear
from the story of the petitioner as to when the driver of
the three-wheeler had met him and as to when the
assurance was given to him by the driver to compensate
him. Even there are no pleadings in the petition that the
driver of the offending three-wheeler had assured the
petitioner to compensate him and in these circumstances,
the FIR was not lodged by him with the police. If the
driver of the offending three-wheeler, respondent no.! had
met the claimant in the intervening period of 16.4. 2004
to 24.4.2004, again question arises as to why F.I.R. was
not got registered on 16.4.2004 itself.
11. It has further been argued by the learned counsel
for the petitioner that even registration of FIR is not pre-
condition of filing the claim-petition. He has placed
reliance on 1989(1) PLR 159 titled as United India
Insurance Co. Ltd. through its Regional Manager,
Chandigarh and another Vs Shri Swaran Singh and
another wherein it was observed by the Hon'ble High
FAO-2584-2006 (O&M) -7-
Court of Punjab & Haryana that lodging of first
information report is not an essential pre- requisite for
claiming compensation for loss of injury arising out of
motor accident. Each case has to be seen on its own facts
and circumstances.
12. The ratio in authority, cited by the learned counsel
for the petitioner, is not disputed that lodging of FIR is
not necessary but if the FIR has been lodged after expiry
of a number of days, the delay has to be satisfactorily
explained.
13. It is all the more suspicious that the accident takes
place on 16.4.2004. Instead of informing the police, the
claimant goes to a private Hakim and gets plastered his
leg. Gurnam Singh, who had not received any serious
injury, did not try to inform the police at any time. For 5
days Jabir Singh keeps quite and when allegedly he feels
pain after 5 days, he goes to Civil Hospital, Shahabad
and even then he did not try to lodge the F.I.R. It was
only on 24.4.2004 that F.I.R. was lodged after recording
statement after 9 days. Though the learned counsel for
the petitioner has tried to explain the delay in lodging the
F.I.R. but it remains an unsuccessful attempt on his part.
14. It seems that Jabir Singh might have suffered
fracture at some other place and because of some other
reasons. After 9 days on receiving a legal advise, he
thought of getting registered the F.I.R. and in those
circumstances three-wheeler bearing no. HR-65-0889
was involved and story of taking lift on Moped No. HYQ-
7183, being driven by Gurnam Singh, was concocted.
15. The time of accident is another important point to
be taken into consideration. First of all, the petition has
to be seen. It was filed on 24.7.2004. In paras no.8 and
25 of the said petition, the time of accident has been
mentioned as 11.30 A.M. When the evidence of petitioner
Jabir Singh was recorded, in the opening line of his
deposition he has stated that the accident had taken place
at 4.30 P.M. Even in the cross-examination he has stated
that he had taken the lift on the Moped at 4.00 P.M. They
had reached the place of accident at around 4.30 P.M.
The copy of F.I.R. has been placed on the record as Ex.
P12 and the copy of statement of claimant Jabir Singh
has been placed on the record as Ex.P10. In the said
statement, the time of the accident has been mentioned as
4.30 P.M. and in the F.I.R. the time of the accident has
been mentioned as 11.30 A.M. Obviously, F.I.R. was
registered on the statement of the present claimant. He is
FAO-2584-2006 (O&M) -8-
not sure as to whether the accident had taken place at
11.30 A.M. or at 4.30 P.M. It also becomes suspicious.
16. The place of accident is also equally material. It is
pertinent to point it out here that at the time of filing the
petition in para no.25 of the petition it has been stated
that when the claimant reached Ladwa-Chowk,
Shahabad, a three-wheeler, driven by respondent no.l,
came at a high speed and hit the Moped from behind.
When the statement of the claimant was recorded, he has
stated Ladwa-Babain Road in Shahabad.
17. Equally material is the site-plan, copy of which has
been placed on the record as Ex. P11. At point 'A', the
accident has been shown to have taken place. Point A has
been shown at G. T. Road from Ambala to Pipli. The road
leading towards Ladwa has been shown towards eastern
side and point 'A' has been shown on western side. It
cannot be said that point A is Ladwa chowk or Ladwa-
Babain Road. It has apparently been shown as G.T.
Road. Gurnam Singh, who was allegedly driving the
Moped, has stated in his examination-in-chief that when
he reached G. T. Road, ahead of Ladwa-Babaink Road at
Shahabad, a three-wheeler came in a rash and negligent
manner.
18. Though it has been argued by the learned counsel
for the claimant that a criminal case is pending against
respondent no. 1 under Sections 279, 337 and 338 IPC
and the copy of FIR has also been placed on the record
as Ex. P12 and the learned counsel for the petitioner has
placed reliance on 1993(2) PLR 109 titled as Girdhari
Lal Vs Radhey Shyam and others in which it has been
observed that the driver was being tried on account of
rash and negligent driving and it is prima facie safe to
conclude that the accident had occurred on account of
rash and negligent driving, yet pendency of criminal case
against the driver of allegedly offending vehicle does not
mean that the vehicle, in fact, was involved, and the
accident had taken place due to rash and negligent
driving of the driver of the offending vehicle.
19. Now coming to the point as to how number of the
vehicle came to the knowledge of the petitioner-claimant.
As per averments of the claimant, the driver of the three-
wheeler had fled away from the scene of occurrence
along with his three-wheeler. If the driver had runaway
after leaving the vehicle, the matter would had been
entirely different. In the present case, the vehicle was also
not on the spot after causing the accident. In cross-
examination, learned counsel for the respondents had
FAO-2584-2006 (O&M) -9-
specifically asked the petitioner as to where his face was
when the Moped was being driven. It has been stated by
the claimant that his face was towards front side of the
Moped. The three-wheeler was about half a furlong
behind the Moped. The claimant has further stated that
the driver of the Moped did not apply the brakes, rather
the driver of the three-wheeler came from behind and
struck against the Moped. The front portion of the three-
wheeler struck against the rear wheel of the Moped.
20. There are also some variations as to the manner in
which the accident took place. At the time of filing of the
petition, in column no.25, the petitioner has written that
a three-wheeler bearing no. HR-65-0889 came at a high
speed from behind and hit the Moped from behind and
due to the impact of hit, the Moped could not be
controlled by Gurnam Singh and the claimant fell down.
This version has been narrated while deposing by the
petitioner as PWl. Copy of F.I.R. has been placed on the
record as Ex. P12. The statement of Jabir Singh claimant
in the said criminal case has been placed on the record
as Ex.P10. In the said statement, Jabir Singh has stated
that the driver of the three-wheeler had diverted a cut on
the front side of the Moped and the Moped had hit the
three-wheeler from back side towards right. Both of the
versions of Jabir Singh cannot be correct. Either the
three-wheeler had hit the Moped from the back side or
the front side of the Moped had hit the back side of the
three-wheeler. The copy of mechanical report of the
three-wheeler or of the Moped has not been placed on the
record. Only in that eventuality, it could not be
ascertained as to whether the Moped was hit from front
side or from back side.
21. It is pertinent to mention here that the claimant was
on his back side when three-wheeler No. HR-65-0889
had allegedly struck against the Moped bearing No.
HYQ-7183. He had not seen the three-wheeler at the time
of alleged accident. After the alleged accident,
respondent no. l, driver of the three-wheeler, had run
away from the place of accident. There is no possibility
that the claimant might have seen the number of the
three-wheeler. The petitioner has stated that the name the
driver of the three-wheeler and the number of the three-
wheeler were told by Gurnam Singh, driver of the
Moped. He came to know the number of the three-
wheeler and the name of the driver after 2-3 days of the
alleged accident. Gurnam Singh appearing as PW8 has
stated that the police had told him the number of the
FAO-2584-2006 (O&M) -10-
three-wheeler and the name of the driver of the three-
wheeler, which in turn, was told by him to Jabir Singh
claimant. It is astonishing that Gurnam Singh had never
gone to the police but the police had told him the name of
the driver of the three-wheeler and number of the three-
wheeler with which the accident had allegedly taken
place on 16.4.2004. Gurnam Singh did not remain with
Jasbir Singh claimant allegedly after taking him to
village Baknore for plaster of paris but he told the
number of the three-wheeler and the name of the driver
of the three-wheeler to Jasbir Singh claimant. If Jabir
Singh claimant had come to know about the number of
the three-wheeler and name of the driver of the three-
wheeler, why he kept silent for 9 days to get registered
the F.I.R. Gurnam Sigh, PW8, driver of the Moped, has
stated that after getting plastered the leg of injured Jabir
Singh, he came back on the same night to his village,
whereas Jabir Singh claimant has stated that he along
with Gurnam Singh came back from village Baknore on
the next day.
22. It is apparent on the record that F.I.R. was lodged
after 9 days i.e. on 24.4.2004, whereas the accident had
allegedly taken place on 16.4.2004. It shows that the
story of involvement of three-wheeler bearing no. HR-65-
0889 in the accident with Moped bearing no. HYQ-7183
at Ladwa Road, Shahabad Markanda has been
formulated by the claimant only with a view to claim
compensation.
23. The learned counsel for the petitioner has
examined Dr. Bimla Gouri as PW2, who has proved
Disability Certificate as Ex.Pl, Dr.C.R. Khatri, D.I.O.,
LNJP, Hospital, Kurukshetra as PW3 who had treated
Jasbir Singh claimant on 22.4.2004 at L. N. J.P.,
Hospital, Kurukshetra, Dr. Sunita Kumari, Medical
Officer, CHC, Shahabad as PW4, who had medico legally
examined Jasbir Singh claimant on 21.4.2004, Dr.P.K.
Soni, Orthopaedic Srugeon of Soni Hospital,
Kurukshetra as PW6 who had treated Jasbir Singh
claimant in his follow-up. Dr. K. K.Gangotra, C.Lal
Hospital, Ambala Cantt.as PW7 from where Jasbir Singh
claimant got himself operated. The claimant has also
placed on record the medical slips as Exs.P2, P3, P5 to
P8, P13 to P40, yet these medical bills are relevant only
when the claimant succeeds in proving that the accident
had taken place due to rash and negligent driving of
respondent no.1, driver of three-wheeler bearing no. HR-
65-0889.
FAO-2584-2006 (O&M) -11-
24. From the oral as well as documentary evidence
adduced on the record, it is hereby observed that the
learned counsel for the claimant-petitioner has failed to
prove that on 16.4.2004 at 4.30 P.M., the accident had
taken place between three-wheeler bearing no. HR-65-
0889 and Moped bearing No. HYQ-7183, at Ladwa
Road, Shahabad Markanda, as a result of which Jasbir
Singh claimant had received multiple injuries including
fracture.
25. Consequent upon the aforesaid discussion, issue
no. l is hereby decided against the claimant and in favour
of respondents no.l and 2."
10. Upon a thorough examination of the award, it is evident that the
learned Tribunal committed a legal error in dismissing the claim petition on
the ground of 9 days delay in lodging the First Information Report (FIR) and
the alleged failure of the appellant/claimant to establish that the accident was
caused by rash and negligent driving of three-wheeler bearing registration
No.HR-65-0889 being driven by respondent No.1 (Surinder Singh).
ANALYSIS OF RECORD
11. Claimant-Jasbir Singh was examined as PW-1. He provided a
clear, consistent and credible account of the accident and testified that on
16.04.2004, he was traveling as a pillion rider on a moped driven by Gurnam
Singh at a moderate speed and on the correct side of the road when the
offending three-wheeler, being driven in a rash and negligent manner by
respondent Surinder, struck their vehicle from behind. As a result, both
riders fell and sustained multiple injuries. PW-1 explicitly attributed the
accident to the reckless driving of the respondent.
12. During his extensive cross-examination, the appellant/
claimant's testimony remained unshaken. He provided a plausible and
FAO-2584-2006 (O&M) -12-
medically corroborated explanation for the delay in lodging the FIR, stating
that due to the severity of his injuries, he was initially taken to a traditional
healer before receiving treatment at multiple hospitals. The delay in lodging
the FIR, therefore, cannot be viewed in isolation or as a ground to discredit
his version, particularly in light of the settled legal position that delay in
lodging FIR in cases of personal injury does not per se negate the occurrence
of the accident when supported by medical and circumstantial evidence.
13. It is settled principle of law that a delay in lodging FIR in cases
of personal injury cannot be a sole ground for rejecting a claim, especially
when the occurrence of the accident is corroborated by medical and
eyewitness testimony. The Hon'ble Supreme Court has consistently held that
procedural delays, particularly in cases where the victim is undergoing
medical treatment, must be viewed pragmatically rather than technically.
Reference at this stage can be made to the case of Ravi Vs. Badrinarayan
and others, 2011(4) SCC 693, wherein Hon'ble the Apex Court has
conclusively held that delay in lodging the FIR cannot be deemed fatal to
motor claim proceedings, provided the claimant satisfactorily explain the
delay with cogent and reasonable grounds. The relevant extracts of the Ravi
Vs. Badrinarayan's case (supra) is reproduced as under:-
"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
FAO-2584-2006 (O&M) -13-
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 scrutinised 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."
14. Gurnam Singh, who was an eye-witness, was examined as PW-
8, who was driving the moped at the time of the accident, further
substantiates the claimant's version. He unequivocally stated that on
16.04.2004, while riding his moped with the claimant as a pillion rider, the
three-wheeler in question, being driven in a rash and negligent manner, hit
them from behind, causing injuries to both riders. He also deposed that the
driver of the offending vehicle fled the scene immediately after the accident.
15. PW-8, Gurnam Singh's testimony, being that of an independent
eyewitness and the rider of the vehicle on which the claimant was traveling,
FAO-2584-2006 (O&M) -14-
is crucial in establishing the sequence of events. His deposition withstood
cross-examination, and there are no contradictions that would cast doubt on
its reliability. The Tribunal, however, failed to appreciate the corroborative
nature of his testimony and instead placed undue emphasis on procedural
technicalities.
16. The Tribunal failed to appreciate that in motor accident claim
cases, the standard of proof is preponderance of probabilities, not proof
beyond reasonable doubt. Hon'ble the Supreme Court in Anita Sharma v.
New India Assurance Co. Ltd., 2021(1) SCC(Cri) 475 has held that
standard of proof in motor accident matters is one of preponderance of
probabilities rather than beyond reasonable doubt and strict principles of
evidence and standards of proof like in criminal trial are inapplicable in the
MACT claim cases. The relevant extract of the Anita Sharma's case (supra)
is reproduced as under:-
22. Equally, we are concerned over the failure of the High
Court to be cognizant of the fact that strict principles of
evidence and standards of proof like in a criminal trial are
inapplicable in MACT claim cases. The standard of proof in
such like matters is one of preponderance of probabilities,
rather than beyond reasonable doubt. One needs to be mindful
that the approach and role of Courts while examining evidence
in accident claim cases ought not to be to find fault with non-
examination of some best eyewitnesses, as may happen in a
criminal trial; but, instead should be only to analyze the
material placed on record by the parties to ascertain whether
the claimant's version is more likely than not true. A somewhat
similar situation arose in Dulcina Fernandes v.Joaquim
Xavier Cruz (2013) 10 SCC 646. wherein this Court reiterated
that:
"7. It would hardly need a mention that the plea of
negligence on the part of the first respondent who was
driving the pickup van as set up by the claimants was
required to be decided by the learned Tribunal on the
FAO-2584-2006 (O&M) -15-
touchstone of preponderance of probabilities and
certainly not on the basis of proof beyond reasonable
doubt. (Bimla Devi v. Himachal RTC [(2009) 13 SCC
530 : (2009) 5 SCC (Civ) 189 : (2010) 1 SCC (Cri)
1101])
(emphasis supplied)"
17. The medical evidence on record further substantiates the
claimant's case. PW-2, Dr. Bimla Gauri, deposed that she, along with other
senior medical officers, examined the claimant and found him to have
sustained a fracture of the left femur shaft, resulting in a 36% disability due
to severe restrictions in knee movement and chronic osteomyelitis. She
further confirmed that the injuries were consistent with the history of a road
traffic accident. The disability certificate (Exhibit P-1) categorically states
that the impairment suffered by the claimant was a direct consequence of the
accident.
18. Further, PW-3, Dr. C.R. Khatri, who treated the claimant at
L.N.J.P. Hospital, corroborated the nature and extent of the injuries. He
testified that the claimant was referred from CHC Shahabad with a history of
a road accident and was diagnosed with a femur shaft fracture with left foot
drop. He further deposed that the claimant underwent surgical intervention
on 11.05.2004, which involved open reduction, internal fixation with a broad
dynamic compression plate, and bone grafting. His deposition further
established that the claimant required prolonged hospitalization and post-
operative care.
19. The medical records and the testimonies of PW-2, Dr. Bimla
Gauri, and PW-3, Dr. C.R. Khatri, clearly indicate that the claimant
FAO-2584-2006 (O&M) -16-
sustained serious injuries as a result of the accident. The Tribunal, however,
failed to accord due weight to this unimpeachable medical evidence and
instead relied on conjectures and surmises to dismiss the claim.
20. The Tribunal has committed an error in dismissing the claim
petition by adopting a hyper-technical and rigid approach, contrary to settled
legal principles. The evidence on record, including the unshaken testimonies
of the claimant and the eyewitness, coupled with corroborative medical
evidence, unequivocally establishes that the accident occurred due to the
rash and negligent driving of the three-wheeler by respondent Surender. The
delay in lodging the FIR was reasonably explained and is not a justifiable
ground for rejecting the claim. In light of the foregoing, the dismissal of the
claim petition is legally unsustainable and warrants interference by this
Court.
21. So far as Issue No.3 i.e. whether respondent no.1 was not
holding a valid and effective driving licence on the date of alleged accident?,
is concerned, the learned Tribunal has decided the issue in favour of the
driver of the offending vehicle i.e. respondent No.1 and against the
Insurance Company. Meaning thereby, the Insurance Company is held liable
to pay the compensation.
22. With respect to determination of compensation, the record
contains evidence of hospital admission, the claimant's earning and expenses
incurred for medical treatment and hospitalization. Consequently, this Court
shall adjudicate the compensation in accordance with the documentary
evidence on the record.
FAO-2584-2006 (O&M) -17-
SETTLED LAW ON COMPENSATION
23. Hon'ble Supreme Court has settled the law regarding grant of
compensation with respect to the disability. The Apex Court in the case of
Raj Kumar Vs. Ajay Kumar and Another (2011) 1 Supreme Court Cases
343, has held as under:-
General principles relating to compensation in injury cases
5. The provision of the Motor Vehicles Act, 1988 ('Act' for
short) makes it clear that the award must be just, which
means that compensation should, to the extent possible,
fully and adequately restore the claimant to the position
prior to the accident. The object of awarding damages is
to make good the loss suffered as a result of wrong done
as far as money can do so, in a fair, reasonable and
equitable manner. The court or tribunal shall have to
assess the damages objectively and exclude from
consideration any speculation or fancy, though some
conjecture with reference to the nature of disability and
its consequences, is inevitable. A person is not only to be
compensated for the physical injury, but also for the loss
which he suffered as a result of such injury. This means
that he is to be compensated for his inability to lead a full
life, his inability to enjoy those normal amenities which
he would have enjoyed but for the injuries, and his
inability to earn as much as he used to earn or could
have earned. (See C.K. Subramonia Iyer v. T.
Kunhikuttan Nair, AIR 1970 Supreme Court 376, R.D.
Hattangadi v. Pest Control (India) Ltd., 1995 (1) SCC
551 and Baker v. Willoughby, 1970 AC 467).
6. The heads under which compensation is awarded
in personal injury cases are the following :
Pecuniary damages (Special Damages)
(i) Expenses relating to treatment, hospitalization,
medicines, transportation, nourishing food, and
miscellaneous expenditure.
(ii) Loss of earnings (and other gains) which the injured
would have made had he not been injured, comprising :
(a) Loss of earning during the period of treatment;
(b) Loss of future earnings on account of
permanent disability.
FAO-2584-2006 (O&M) -18-
(iii) Future medical expenses. Non-pecuniary damages
(General Damages)
(iv) Damages for pain, suffering and trauma as a
consequence of the injuries.
(v) Loss of amenities (and/or loss of prospects of
marriage).
(vi) Loss of expectation of life (shortening of normal
longevity).
In routine personal injury cases, compensation will be
awarded only under heads (i), (ii)(a) and (iv). It is only in
serious cases of injury, where there is specific medical
evidence corroborating the evidence of the claimant, that
compensation will be granted under any of the heads (ii)
(b), (iii), (v) and (vi) relating to loss of future earnings on
account of permanent disability, future medical expenses,
loss of amenities (and/or loss of prospects of marriage)
and loss of expectation of life.
xxx xxx xxx xxx
19. We may now summarise the principles discussed
above :
(i) All injuries (or permanent disabilities arising from
injuries), do not result in loss of earning capacity.
(ii) The percentage of permanent disability with reference
to the whole body of a person, cannot be assumed to be
the percentage of loss of earning capacity. To put it
differently, the percentage of loss of earning capacity is
not the same as the percentage of permanent disability
(except in a few cases, where the Tribunal on the basis of
evidence, concludes that percentage of loss of earning
capacity is the same as percentage of permanent
disability).
(iii) The doctor who treated an injured-claimant or who
examined him subsequently to assess the extent of his
permanent disability can give evidence only in regard the
extent of permanent disability. The loss of earning
capacity is something that will have to be assessed by the
Tribunal with reference to the evidence in entirety.
(iv) The same permanent disability may result in different
percentages of loss of earning capacity in different
persons, depending upon the nature of profession,
occupation or job, age, education and other factors.
20. The assessment of loss of future earnings is
explained below with reference to the following
Illustration 'A' : The injured, a workman, was aged 30
years and earning Rs. 3000/- per month at the time of
FAO-2584-2006 (O&M) -19-
accident. As per Doctor's evidence, the permanent
disability of the limb as a consequence of the injury was
60% and the consequential permanent disability to the
person was quantified at 30%. The loss of earning
capacity is however assessed by the Tribunal as 15% on
the basis of evidence, because the claimant is continued
in employment, but in a lower grade. Calculation of
compensation will be as follows:
a) Annual income before the accident : Rs.
36,000/-.
b) Loss of future earning per annum
(15% of the prior annual income) : Rs. 5400/-.
c) Multiplier applicable with reference to age : 17
d) Loss of future earnings : (5400 x 17) : Rs.
91,800/-
Illustration 'B' : The injured was a driver aged 30 years,
earning Rs. 3000/- per month. His hand is amputated and
his permanent disability is assessed at 60%. He was
terminated from his job as he could no longer drive. His
chances of getting any other employment was bleak and
even if he got any job, the salary was likely to be a
pittance. The Tribunal therefore assessed his loss of
future earning capacity as 75%. Calculation of
compensation will be as follows :
a) Annual income prior to the accident : Rs.
36,000/- .
b) Loss of future earning per annum
(75% of the prior annual income) : Rs. 27000/-.
c) Multiplier applicable with reference to age : 17
d) Loss of future earnings : (27000 x 17) : Rs.
4,59,000/-
Illustration 'C' : The injured was 25 years and a final
year Engineering student. As a result of the accident, he
was in coma for two months, his right hand was
amputated and vision was affected. The permanent
disablement was assessed as 70%. As the injured was
incapacitated to pursue his chosen career and as he
required the assistance of a servant throughout his life,
the loss of future earning capacity was also assessed as
70%. The calculation of compensation will be as
follows :
a) Minimum annual income he would
have got if had been employed as an
Engineer : Rs. 60,000/-
FAO-2584-2006 (O&M) -20-
b) Loss of future earning per annum
(70% of the expected annual income) : Rs. 42000/-
c) Multiplier applicable (25 years) : 18
d) Loss of future earnings : (42000 x 18) : Rs. 7,56,000/-
[Note : The figures adopted in illustrations (A) and (B) are
hypothetical. The figures in Illustration (C) however are based
on actuals taken from the decision in Arvind Kumar Mishra
(supra)].
24. Hon'ble Supreme Court in the case of National Insurance
Company Ltd. Vs. Pranay Sethi & Ors. [(2017) 16 SCC 680] has clarified
the law under Sections 166, 163-A and 168 of the Motor Vehicles Act, 1988,
on the following aspects:-
(A) Deduction of personal and living expenses to determine
multiplicand;
(B) Selection of multiplier depending on age of deceased;
(C) Age of deceased on basis for applying multiplier;
(D) Reasonable figures on conventional heads, namely, loss
of estate, loss of consortium and funeral expenses, with
escalation;
(E) Future prospects for all categories of persons and for
different ages: with permanent job; self-employed or fixed
salary.
The relevant portion of the judgment is reproduced as under:-
"Therefore, we think it seemly to fix reasonable sums. It
seems to us that reasonable figures on conventional
heads, namely, loss of estate, loss of consortium and
funeral expenses should be Rs.15,000, Rs.40,000 and
Rs.15,000 respectively. The principle of revisiting the
said heads is an acceptable principle. But the revisit
FAO-2584-2006 (O&M) -21-
should not be fact-centric or quantum-centric. We think
that it would be condign that the amount that we have
quantified should be enhanced on percentage basis in
every three years and the enhancement should be at the
rate of 10% in a span of three years. We are disposed to
hold so because that will bring in consistency in respect
of those heads."
25. Hon'ble Supreme Court in the case of Erudhaya Priya Vs.
State Express Tran. Corpn. Ltd. 2020 ACJ 2159, has held as under:-
"7. There are three aspects which are required to be
examined by us:
(a) the application of multiplier of '17' instead of '18';
The aforesaid increase of multiplier is sought on the
basis of age of the appellant as 23 years relying on the
judgment in National Insurance Company Limited v.
Pranay Sethi and Others, 2017 ACJ 2700 (SC). In para
46 of the said judgment, the Constitution Bench
effectively affirmed the multiplier method to be used as
mentioned in the table in the case of Sarla Verma (Smt)
and Others v. Delhi Transport Corporation and Another,
2009 ACJ 1298 (SC) . In the age group of 15-25 years,
the multiplier has to be '18' along with factoring in the
extent of disability.
The aforesaid position is not really disputed by learned
counsel for the respondent State Corporation and, thus,
we come to the conclusion that the multiplier to be
applied in the case of the appellant has to be '18' and not
'17'.
(b) Loss of earning capacity of the appellant with
permanent disability of 31.1%
In respect of the aforesaid, the appellant has
claimed compensation on what is stated to be the settled
principle set out in Jagdish v. Mohan & Others, 2018
ACJ 1011 (SC) and Sandeep Khanuja v. Atul Dande &
Another, 2017 ACJ 979 (SC). We extract below the
principle set out in the Jagdish (supra) in para 8:
"8. In assessing the compensation payable the
settled principles need to be borne in mind. A
victim who suffers a permanent or temporary
disability occasioned by an accident is entitled to
the award of compensation. The award of
compensation must cover among others, the
following aspects:
FAO-2584-2006 (O&M) -22-
(i) Pain, suffering and trauma resulting from
the accident;
(ii) Loss of income including future income;
(iii) The inability of the victim to lead a normal
life together with its amenities;
(iv) Medical expenses including those that the
victim may be required to undertake in
future; and
(v) Loss of expectation of life."
[emphasis supplied]
The aforesaid principle has also been emphasized
in an earlier judgment, i.e. the Sandeep Khanuja case
(supra) opining that the multiplier method was logically
sound and legally well established to quantify the loss of
income as a result of death or permanent disability
suffered in an accident.
In the factual contours of the present case, if we
examine the disability certificate, it shows the
admission/hospitalization on 8 occasions for various
number of days over 1½ years from August 2011 to
January 2013. The nature of injuries had been set out as
under:
"Nature of injury:
(i) compound fracture shaft left humerus
(ii) fracture both bones left forearm
(iii) compound fracture both bones right forearm
(iv) fracture 3rd, 4th & 5th metacarpals right hand
(v) subtrochanteric fracture right femur
(vi) fracture shaft femur
(vii) fracture both bones left leg
We have also perused the photographs annexed to
the petition showing the current physical state of the
appellant, though it is stated by learned counsel for the
respondent State Corporation that the same was not on
record in the trial court. Be that as it may, this is the
position even after treatment and the nature of injuries
itself show their extent. Further, it has been opined in
para 13 of Sandeep Khanuja case (supra) that while
applying the multiplier method, future prospects on
advancement in life and career are also to be taken into
consideration.
We are, thus, unequivocally of the view that there is
merit in the contention of the appellant and the aforesaid
FAO-2584-2006 (O&M) -23-
principles with regard to future prospects must also be
applied in the case of the appellant taking the permanent
disability as 31.1%. The quantification of the same on the
basis of the judgment in National Insurance Co. Ltd. case
(supra), more specifically para 61(iii), considering the
age of the appellant, would be 50% of the actual salary
in the present case.
(c) The third and the last aspect is the interest rate
claimed as 12%
In respect of the aforesaid, the appellant has
watered down the interest rate during the course of
hearing to 9% in view of the judicial pronouncements
including in the Jagdish's case (supra). On this aspect,
once again, there was no serious dispute raised by the
learned counsel for the respondent once the claim was
confined to 9% in line with the interest rates applied by
this Court.
CONCLUSION
8. The result of the aforesaid is that relying on the settled
principles, the calculation of compensation by the
appellant, as set out in para 5 of the synopsis, would
have to be adopted as follows:
Heads Awarded
Loss of earning power Rs. 9,81,978/-
(Rs.14,648 x 12 x 31.1/100
Future prospects (50 per cent Rs.4,90,989/-
addition)
Medical expenses including Rs.18,46,864/-
transport charges,
nourishment, etc.
Loss of matrimonial prospects Rs.5,00,000/-
Loss of comfort, loss of Rs.1,50,000/-
amenities and mental agony
Pain and suffering Rs.2,00,000/-
Total Rs.41,69,831/-
FAO-2584-2006 (O&M) -24-
The appellant would, thus, be entitled to the
compensation of Rs. 41,69,831/- as claimed along with simple
interest at the rate of 9% per annum from the date of
application till the date of payment.
RELIEF
26. In view of the law laid down by the Hon'ble Supreme Court in
the above referred to judgments, the present appeal is allowed. The award
dated 10.01.2006 is set aside accordingly. The appellant/claimant is entitled
to enhanced compensation as per the calculations made here-under:-
Sr. No. Heads Compensation Awarded
1 Monthly Income Rs.2,740/-
2 Loss of future prospects (40%) Rs.1,080/- (40% of Rs.2,740/-)
3 Annual Income Rs.45,360/- (Rs.3,780 x 12)
4 Loss of earning due to disability Rs.16,330/- (36% of Rs.45,360)
(36%)
6 Loss of future earning per annum Rs.2,93,940/- (Rs.16,330 x 18)
7 Medical Expenses Rs.40,000/-
8 Pain and Suffering Rs.1,80,000/-
9 Special Diet Rs.60,000/-
10 Transportation charges Rs.50,000/-
11 Attendant Charges Rs.70,000/-
12 Loss of amenities of life Rs.2,00,000/-
13 Loss of marriage prospects Rs.2,00,000/-
Total Compensation Rs.10,93,940/-
27. So far as the interest part is concerned, as held by Hon'ble
Supreme Court in Dara Singh @ Dhara Banjara Vs. Shyam Singh Varma
2019 ACJ 3176 and R.Valli and Others VS. Tamil Nadu State Transport
Corporation (2022) 5 Supreme Court Cases 107, the appellant/claimant is
FAO-2584-2006 (O&M) -25-
granted the interest @ 9% per annum on the amount of compensation from
the date of filing of claim petition till the date of its realization.
28. The Insurance Company-respondent No.2 is directed to deposit
the amount of compensation along with interest with the Tribunal within a
period of two months from the date of receipt of copy of this judgment. The
Tribunal is further directed to disburse the amount of compensation along
with interest in the account of the appellant/claimant. The appellant/claimant
is directed to furnish his bank account details to the Tribunal.
29. Respondent No.2-Insurance Company is hereby directed to
disburse the current scheduled fee to Mr. Sanjiv Pabbi, Advocate, pursuant
to the order dated 18.07.2024 passed in FAO-1682-2007 within a period of
20 days from the date of receipt of the copy of this judgment.
30. Disposed off accordingly.
31. Pending applications, if any, also stand disposed of.
(SUDEEPTI SHARMA)
JUDGE
29.01.2025
Virrendra
Whether speaking/non-speaking : Yes
Whether reportable : Yes/No
