YOGENDER PAL GUREJA Vs. PARO DEVI

JUDGEMENT

(1.) THE appellant, who is the owner of the offending vehicle has preferred the present appeal so as to challenge the impugned Award dated 24. 12. 2004 whereby the Tribunal has made liable the appellant to pay the compensation amount along with the driver of the offending vehicle. Brief summary of the facts of the present appeal are:-

(2.) MR. K. K. Buchar, learned counsel for the appellant raised two main contentions to assail the findings of the Tribunal. The first contention raised by the counsel for the appellant is that there is no evidence on record to show that the motorcycle of the appellant was involved in the accident resulting into the death of the deceased Mr. Singheshwar Tanti. Second contention raised by the counsel for the appellant is that the Tribunal has wrongly held the appellant to be liable to pay the compensation amount although the liability was of the insurer to pay the compensation amount. On the first contention, the counsel for the appellant very strongly contended that once the accident involving the motorcycle of the appellant was not proved then how the liability of the appellant could be fixed to pay the compensation amount. Counsel further contended that it is admitted case of the parties that there was no eye witness of the occurrence of the accident and only witness produced by the claimants/respondents was one Mr. Lakshmi Narain, whose evidence creates more suspicion than any reliability. Referring to the testimony of the said witness counsel for the appellant contended that the said witness is a procured one. Had he been accompanying the deceased then he alone would have lodged a complaint to the police. Not only this, he would have at least accompanied the deceased to the hospital and also would have given his statement to the police. The said witness Mr. Lakshmi narain hails from the same village of the deceased and possibility cannot be ruled out that with a view to help the claimants he gave statement to support the compensation claim of the claimants/respondents. The counsel thus submitted that looking into the conduct of the said witness the testimony of the said witness cannot inspire any confidence. The other witness, who claimed himself to be an eye witness Mr. Vineet Paswan was not produced by the respondents/claimants whose testimony before the criminal Court was disbelieved by the criminal Court and which led to the acquittal of the appellant in the criminal case. Even the postmortem report was not proved in accordance with law by summoning any Doctor. The counsel for the appellant thus contended that no cogent evidence was led before the Tribunal to prove the involvement of the motor cycle of the appellant in causing the accident in question. On the second contention raised by the appellant so as to dispute his liability to pay the compensation amount, counsel for the appellant contended that the vehicle in question was fully insured as on the date of the accident i. e. , 22. 8. 88, in asmuch as the insurance premium for the same was paid by the appellant through cheque dated 19. 8. 98. Counsel for the appellant further contended that simply because the insurance company did not get the cheque encashed till 25. 8. 88 that would not mean that the insurance of the said vehicle commenced from 23. 8. 88. The learned Tribunal also failed to take note of Ex. R2w1/b, which was sent on 7. 6. 89 by the appellant to the insurance company reminding them of the appellant not receiving the insurance policy, the counsel contended. Another limb of argument advanced by the counsel for the appellant to support his contention about the issuance of the insurance policy w. e. f. 19. 8. 88 was renewal of the same very policy by the same insurance company w. e. f. 19. 8. 89. The contention of the counsel for the appellant is that had the earlier policy been effective from 23. 8. 88 till 22. 8. 89, then the subsequent policy could not have been issued by the insurance company w. e. f. 19. 8. 89 till 18. 8. 90 and that too by giving a bonus of 25% on account of no claim bonus based on the previous policy. Counsel thus contended that the Tribunal has wrongly given much weightage to the copy of the premium register placed on record by the insurance company which document in itself could not have established that the policy in question was not issued w. e. f. 19. 8. 88 till 18. 8. 89. Strengthening his arguments further, counsel contended that the insurance company withheld the best evidence comprising of copy of the proposal form, cover note and the policy records and in the absence of such documentary evidence, the Tribunal ought to have drawn inference against the insurance company instead of ignoring the documents placed and proved on record by the appellant. Refuting the said submissions made by the counsel for the appellant, Mr. S. L. Gupta, counsel for the respondent insurance company sought to urge that the vehicle in question i. e. , motor vehicle bearing registration no. DBT -5451 was earlier insured w. e. f. 2. 6. 87 till 1. 6. 88, the same was renewed by the appellant only w. e. f. 23. 8. 88 and the benefit of the bonus was available with the insured as the renewal was available for 90 days from the date of expiry of the previous policy, therefore, by no stretch of imagination the said insurance policy which was effective from 23. 8. 88 could have covered the risk as on the date of the accident which occurred one day prior to the date of insurance of the policy. Counsel for the respondent insurance company further submitted that copy of the premium register was duly proved on record as Ex. R3w1/a, which clearly shows that the period of insurance of the said policy was effective from 23. 8. 88 till 22. 8. 88. Counsel also submitted that the said premium register was being maintained by the insurance company in its regular course of business and authenticity of the same is beyond any doubt and therefore, no credence can be given to the documents placed by the appellant on record, which were fabricated by the appellant so as to escape from his liability to pay the compensation amount. I have heard learned counsel for the parties at considerable length and perused the record. It is a settled legal position that a case arising under the motor Vehicles Act, for claim of compensation has not to be proved so meticulously as required to be proved before the civil court. Sections 168 and169 of the Motor Vehicles Act envisage a summary enquiry but unfortunately long trials are being conducted by the Tribunals ignoring the said mandate of the law. The accident in question which had taken place on 22. 8. 1988 and culminated into passing of an award dated 24. 12. 2004, yet to receive a finality. Filing of lengthy pleadings, proving documents by summoning the witnesses, lengthy examination of the parties including cross examination and then addressing final arguments with long adjournments have in fact defeated the very object and intendment of social piece of legislation to provide a speedier remedy to the victims of the accident. It should be an endeavor of the tribunals not to deal with the motor accidents cases arising under the Motor vehicles Act in a manner as if they are trying civil disputes. It is not legal alone but pious duty of the Tribunals to give due sanctity to the social scheme of the Act for providing solace and succor to the victims of the accident as speedily as possible. It should be the endeavor of the MACT not to delay the disposal of any motor accident case more than a period of two years, unless there are extraordinary reasons to accomplish the deadline. Sections 168 and 169 of the Motor Vehicles Act clearly contemplates holding of a summary enquiry into any claim and the Tribunal to follow such a summary procedure as it thinks fit. Sections 168 and 169 of the Motor Vehicles Act are reproduced as under: 168. Award of the Claims Tribunal. On receipt of an application for compensation made under section 166, the Claims tribunal shall, after giving notice of the application to the insurer and after giving the parties (including the insurer) an opportunity of being heard, hold an inquiry into the claim or, as the case may be, each of the claims and, subject to the provisions of section 162 may make an award determining the amount of compensation which appears to it to be just and specifying the person or persons to whom compensation shall be paid and in making the award the Claims tribunal shall specify the amount which shall be paid by the insurer or owner or driver of the vehicle involved in the accident or by all or any of them, as the case may be: provided that where such application makes a claim for compensation under section 140 in respect of the death or permanent disablement of any person, such claim and any other claim (whether made in such application or otherwise) for compensation in respect of such death or permanent disablement shall be disposed of in accordance with the provisions of Chapter X. (2) The Claims Tribunal shall arrange to deliver copies of the award to the parties concerned expeditiously and in any case within a period of fifteen days from the date of the award. (3) When an award is made under this section, the person who is required to pay any amount in terms of such award shall, within thirty days of the date of announcing the award by the Claims Tribunal, deposit the entire amount awarded in such manner as the Claims Tribunal. 169. Procedure and powers of Claims Tribunals. (1) In holding any inquiry under section 168, the Claims Tribunal may, subject to any rules that may be made in this behalf, follow such summary procedure as it thinks fit. (2) The Claims Tribunal shall have all the powers of a Civil Court for the purpose of taking evidence on oath and of enforcing the attendance of witnesses and of compelling the discovery and production of documents and material objects and for such other purposes as may be prescribed; and the Claims Tribunal shall be deemed to be a Civil Court for all the purposes of section 195 and Chapter xxvi of the Code of Criminal Procedure, 1973 (2 of 1974 ). (3) Subject to any rules that may be made in this behalf, the Claims Tribunal may, for the purpose of adjudicating upon any claim for compensation, choose one or more persons possessing special knowledge of and matter relevant to the inquiry to assist it in holding the inquiry. As would be evident that Section 169 (2) confers the Claims tribunals with the power of the civil court for the purposes of taking evidence on oath and enforcing the attendance of the witness etc. , but vesting of such powers of the civil court should not be construed to mean that in every case full-fledged trial like a civil case has to take place in trying the compensation cases. The Tribunals, necessarily have to follow the summary procedure but wherever there are certain complex or intricated issues involved in a particular case, the necessary powers as envisaged under Section 169 (2) can be resorted to. Adverting back to the facts of the present case, counsel for the petitioner has taken number of objections so as to assail the findings of the tribunal. On the issue no. 1 i. e. , whether the deceased died in a road accident caused by the motor vehicle being driven in a rash and negligent manner by the appellant. Counsel for the appellant contended that no eye witness was available at the site and if PW-1 Shri Laxmi Paswan was the eye witness then why he had not accompanied the victim of the accident to the hospital, more particularly when he hails from the same village as that of the deceased and why such eye witness did not report the matter to the police, although as per his own statement he was crossing the road along with the deceased. As per counsel for the appellant such circumstances cause serious doubt on the veracity of the statement made by the said eye witness Shri Laxmi Paswan. The appellant also raised suspicion on the post mortem report as the same was not proved in accordance with the law and even the physical test report of the alleged offending vehicle was not proved on record. All these contentions raised by the counsel for the appellant have been extensively dealt with by the tribunal with full justification and reasoning. I do not find that there is any perversity or illegality in the findings given by the Tribunal while deciding the said controversy. The name of the said witness does appear at page 3 of the FIR as an eye witness of the accident and therefore, it cannot be said that the said Shri Laxmi Paswan was not an eye witness to the accident. Even in the examination-in-chief of the said witness, he categorically stated that his statement was recorded by the police in the hospital, which deposition would clearly show that said eye witness was present in the hospital. Simply because the police arrived at the spot not at the instance of the said eye witness but on account of information given by some other person would not mean that the said Shri Laxmi Paswan was not present at the site also. I also do not agree with the contention raised by the counsel for the appellant that the post mortem report was not firmly proved on record. The post mortem report which is given from the government run mortuary/hospitals can be taken to be correct on its face value at least in cases arising under the Motor Vehicles act, subject to it being open to challenge by the opposite party, only when some serious doubts are raised over the genuineness of such a report. Had there been any doubt on the authenticity of the post mortem report, the appellant could have taken steps to challenge the genuineness and creditworthiness of the said post mortem report. In the post mortem report death of the deceased has been spelt out to be on account of vehicular accident and such a finding clearly belied the theory propounded by the appellant claiming the death of the victim due to his falling down on the road on account of giddiness. I also fully subscribe to the observations of the Tribunal, disbelieving the said theory as the same was never pleaded by the appellant in his written statement and was for the first time propounded during his cross examination. Based on the above discussion, the first contention raised by the counsel for appellant is thus rejected. Coming to the second contention raised by the counsel for the appellant, I find that there is merit in it. The insurance company did not place the primary evidence on record and simply placed reliance on the entry of the premium register which show validity of the insurance policy w. e. f. 23. 8. 88 to 22. 8. 89. The insurance company came up with a plea that relevant records were weeded out, and such weeding out of the records cannot place the insurer at any disadvantageous position. The proposal form, copy of the receipt of the premium, copy of the cover note and the duplicate copy of the insurance policy were the basic documents which could have clearly proved the validity of the insurance policy. Although, authenticity of the premium register in the normal circumstances also cannot be doubted but some unanswered questions by the insurance company in the facts of the present case cannot be ignored or overlooked. There has not been any doubt that the appellant had issued the cheque bearing no. 492470 for a sum of Rs. 238/- towards the premium of the said policy and the said cheque bears the date of 19. 8. 1988. The certificate of UCO Bank proved on record by the insurance company as Ex. R3w2/b clearly shows that the said cheque was bearing the said date of 19. 8. 98 and not of 23. 8. 88. There is no doubt that the said certificate also shows that the amount of the said cheque was debited in the SBI account no. 1697 of the appellant on 25. 8. 88 but then the crucial question to be answered was why the subsequent policy was issued w. e. f. 19. 8. 89 and not from 23. 8. 89. The subsequent policy effective from 19. 8. 89 to 18. 8. 90 has been duly proved on record as Ex. RX (Annexure E ). The said policy clearly shows that the bonus of Rs. 59/- has been given while calculating the premium and the said grant of bonus eventually means that no insurance claim was taken by the appellant in the previous insurance policy. Counsel for the insurance company has not been able to satisfy this court as to how the subsequent policy could overlap the period of the earlier policy if the contention of the insurance company is accepted as correct. If the earlier policy was effective from 23. 8. 88 till 22. 8. 89, then certainly subsequent policy would have been effective from 23. 8. 89 till 22. 8. 90. The contention of the counsel for the respondent that the bonus was given as the policy was renewed within a period of 90 days from the date of expiry of the earlier policy holds equally good as far as even if the period of the earlier policy is reckoned from 19. 8. 88 till 18. 8. 89. In the light of the aforesaid discussion, the findings of the tribunal so far as the involvement of the motor vehicle of the appellant in causing the said accident is concerned, is upheld and so far the same holding the appellant liable to pay the compensation amount is set aside. Counsel for the appellant did not advance any arguments on the quantum of compensation and therefore, the pleas raised by the appellant in this regard are not being dealt with. In view of the aforesaid discussion, the respondent no. 6 shall be liable to pay the entire compensation amount with up-to-date interest in terms of the impugned award in favour of the claimants. Let 50% of the award amount if the same has been paid by the appellant to the claimants be paid back by the insurance company to the appellant with interest @ 7% per annum from the date of deposit till final payment and the same shall be adjusted in the final payment to be made by the insurance company to the claimants in terms of the impugned award. With these directions, the appeal stands disposed of.