ORIENTAL INSURANCE CO. LTD. Vs. BAKUNVARBA HARISINH HEMANTSINH

JUDGEMENT

(1.) This appeal under Section 173 of the Motor Vehicles Act, 1988 at the instance of the Insurance Company is directed against the judgment and award dated 15th February, 2008 passed by the Motor Accident Claims Tribunal (Auxiliary) at Ahmedabad (hereinafter referred to as "the Tribunal") in Motor Accident Claim Petition No. 23/1992. The respondent Nos. 1 to 4 herein (hereinafter referred to as "the claimants") filed a claim petition before the Motor Accident Claims Tribunal seeking compensation of Rs. 10,09,716 from the appellant and respondent Nos. 5 and 6 for the death of Harisinh Hemantsinh Zala, who was the husband of respondent No. 1 and father of respondent Nos. 2 to 4, in a vehicular accident that is alleged to have taken place on 12th August, 1991. The claimants filed the above referred claim petition before the Tribunal wherein it was stated that the respondent No. 3-Vijaysinh Harisinh Zala and his deceased father had gone shopping at Teen Darwaza and at 7.30, both of them were going on foot and they had reached near the Bank of India at Bhadra, at which point of time, since they were to go towards Premabhai Hall, they had tried to cross the road, when the respondent No. 6 who was riding a scooter bearing registration No. GJ-1-D-5252, came from the opposite side from the direction of UCO Bank with great speed and without taking any care and without sounding the horn and in a manner that was dangerous to the life of human beings, and dashed against his father due to which he fell down. The said respondent did not stop and went ahead whereupon he (the respondent No. 3) had started shouting and people had gathered there and caught hold of the scooterist. That on account of the collision with the scooter, his father had sustained injuries on his head and other parts of the body as a result whereof, his father had expired on 15th August, 1991. It was the case of the claimants that the deceased was serving with the Ahmedabad District Co-operative Bank since the last twenty-seven years. At the time of the accident, he was aged 50 years and was hale and hearty and was working as an Assistant Senior Inspector at the said bank and his annual income was Rs. 92,543 and he also had income from agricultural land owned by him at Dholka. Before the Tribunal, the claimants in support of their say examined the respondent No. 3-Vijaysinh Harisinh Zala as well as one Prakashbhai Jagjivanbhai Patel as eye-witness and Dr. Ranjitbhai Vijayshankar Acharya, the Neurosurgeon who has treated the deceased prior to his death. Various other documentary evidences also came to be produced by the parties. The Tribunal after appreciating the evidence on record came to the conclusion that the accident had in fact taken place on account of the negligence of the scooter driver and that the monthly income of the deceased was Rs. 7,100. Considering the prospective income of the deceased at Rs. 10,650 and applying a multiplier of 11 and deducting one-third of the income for his personal expenditure, the Tribunal worked out the future loss of dependency at Rs. 9,37,200. The Tribunal further awarded a sum of Rs. 15,000 for pain, shock and suffering, Rs. 10,000 for loss of love and affection, Rs. 10,000 for loss of expectation of life and Rs. 2,000 for funeral expenses. Thus, in all, a sum of Rs. 9,77,200 came to be awarded with interest at the rate of 7.5% per annum. Being aggrieved, the appellant -Insurance Company has preferred the present appeal.

(2.) Mr. K.K. Nair, learned Advocate for the appellant submitted that the challenge to the impugned judgment and award is to the very factum of accident and the involvement of the vehicle in question. It was submitted that the Tribunal was not justified in holding that the accident had in fact taken place. Referring to the decision of the Supreme Court in the case of Jai Prakash v. National Insurance Company Ltd. & Ors., 2010 1 Scale 8, it was submitted that the Tribunal is required to inquire and satisfy itself that the AIR relates to a real-accident and is not the result of any collusion and fabrication of an accident (by any 'police officer, Advocate or doctor' nexus which has come to light in several cases). It was argued that in an action based on tort, it is imperative that the claimant has to establish that (1) the accident did take place in the manner alleged and it was the cause of injury/death complained of, (2) it was caused by the particular vehicle, and (3) the person who had caused the accident and his negligence had caused the accident, whereas, all the above aspects have not been proved in the present case. It was submitted that it is the case of the claimants that the original respondent No. 2 - Ajitkumar Dahyabhai Patel who was alleged to be riding the scooter of the opponent No. 1 - Somabhai Gandabhai Patel which was insured with the appellant herein, rashly and negligently, knocked down the deceased who was crossing the road in the company of his son. It was pointed out that the owner of the scooter was stated to be a Member of Parliament staying at Viramgam. The scooterist is residing at Vasna Bhatta and the applicants and the deceased resided at Fatehpura which is in the same locality. It is alleged that the rider tried to flee with the scooter but the public collected and caught hold of him about 100 to 150 feet from the scene of incident. Despite this, the respondent No. 3 - Vijaysinh simply noted down the number of the scooter and the name and address of the rider and allowed him to go. Vijaysinh, however, did not file a police complaint but took his father home in a rickshaw; despite the fact that his father had sustained serious injuries, he did not take him to the V.S. Hospital which was on his way to the residence or to any other doctor; after reaching home, when the deceased complained of pain, Vijaysinh contacted Dr. R.V. Acharya, a Neurologist and as per his instructions took Harisinh to Ashirwad Hospital where he was admitted. Curiously, he did not inform the doctor about the alleged accident. Subsequently, when Harisinh died in the hospital on 15th August, 1991, no post-mortem was performed. It was pointed out that thereafter at a belated stage, a complaint came to be filed before the Metropolitan Magistrate on 8th October, 1991 against the scooter rider who was prosecuted and Criminal Case No. 3903/1991 was initiated against him. It was submitted that the very narration of the accident itself shows that the story put up is highly improbable, inasmuch as the accident is alleged to have taken place in the Bhadra area which is a crowded place all throughout the day and especially in the evening. The accident is alleged to have taken place near the Karanj Police Station and, therefore, presence of police personnel would be expected, especially in the evening time. If an accident, as alleged, had happened and people had collected, the police would certainly have taken cognizance of the event and taken note of the same. Moreover, despite the fact that witness Prakashbhai has advised Vijaysinh to lodge a complaint, he did not file a first information report and permitted the rider to go, after simply noting down the number of the scooter and the name and address of the rider. It was submitted that the fact that the claimants and rider Ajitbhai reside in the nearby locality cannot be a mere coincidence. It was pointed out that Vijaysinh did not inform Dr. Acharya of the accident as narrated in the claim petition but as per Dr. Acharya, the history given was fall from scooter, which would mean that in all probability, Harisinh must have been the pillion rider on the scooter. It was argued that though Harisinh died in the hospital on 15th August, 1991, no postmortem of the dead body was performed and though the accident had taken place on 12th August, 1991, no first information report was lodged at the police station but a criminal complaint was filed before the Metropolitan Magistrate on 8th October, 1991. Referring to the record of the case, it was pointed out that the doctor in his deposition had admitted the contents of the two certificates issued by him to be true which were consequently exhibited at Exhibits 64 and 65, wherein he has stated that the cause of death was Intra Cerebral Haemorrhage, which, in the absence of any external injury, was attributed to high blood pressure and not fall from scooter. Since it was not an MLC case and was not sent to V.S. Hospital, the police was not informed. It was submitted that from the contents of the two certificates, it is evident that the deceased did not die on account of the alleged accident. It was pointed out that despite the contents of the said documents having been proved; the claimants did not elicit any explanation from Dr. Acharya in this regard. It was pointed out that in the year 1991, accident cases were being handled only by the public hospitals. Under the circumstances, had it been an accident case, Dr. Acharya would have referred the patient to the V.S. Hospital and would also have informed the police. It was submitted that no other documentary evidence to show that the deceased was admitted to Ashirwad Hospital has been produced nor have any bills been produced evidencing payment to Ashirwad Hospital and for purchase of any medicine.

(3.) Vehemently opposing the appeal, Mr. Satyajit Sen, learned Advocate for the respondents No. 1 to 4-claimants submitted that sufficient evidence by way of the depositions of the witnesses as well as documentary evidence has been adduced by the claimants before the Tribunal. The Tribunal, upon due and proper appreciation of the evidence on record, has found that the accident had in fact taken place and has accordingly held that the accident had taken place on account of the rash and negligent act of the driver of the scooter. Reference was made to the first information report lodged by the respondent No. 3-Vijaysinh which came to be registered as Karanj Police Station M. Case No. 32/1991, to point out that in connection with the accident in question, a complaint had been duly lodged against the rider of the scooter-Ajitkumar Dahyabhai Patel. Pursuant to the said first information report, the police had carried out investigation and a charge-sheet came to be submitted, pursuant to which, trial had taken place. From the evidence on record, it was pointed out that the claimants had examined two eye-witnesses namely, Vijaysinh and Prakashbhai Jagjivanbhai Patel, both of whom had deposed as regards the manner in which the accident had taken place. It was argued that the appellant Insurance Company, in cross-examination of the said witnesses, has not been able to dislodge what has been stated by them in their examination-in-chief. Referring to the written statement of the owner of the scooter, it was pointed out that he has admitted the occurrence of the accident. Besides, in other proceedings before the Consumer Forum in respect of the personal accident claim, both, the Consumer Disputes Redressal Forum, Ahmedabad city in Complaint No. 1550 of 1994 as well as the Consumer Disputes Redressal Commission, Gujarat State, after appreciating the evidence on record, have believed that such an accident had in fact taken place and the amount awarded in the said proceeding has already been paid by the insurance company. Thus, in the light of the overwhelming evidence which has been brought on record by the claimants, the Tribunal was wholly justified in holding that the claimant had proved the occurrence of the accident and that the appellant had failed to prove that no such accident had taken place. Insofar as the certificates (Exhs. 64 and 65) on which strong reliance has been placed on behalf of the appellant, it was submitted that Dr. Acharya is not an eye-witness and, as such, his submissions on the effect of the accident are not relevant. As regards the submission made on behalf of the appellant that the entire case was one of collusion between the claimants, the doctor and the police, it was submitted that on the contrary, there is collusion between the Surveyor, the Doctor and the Insurance Company to thwart a genuine claim of the claimants. It was pointed out that before the consumer forum, the same two certificates were produced and it was proved that the Surveyor had obtained the certificates from the doctor. Referring to the certificates (Exhs. 64 and 65), it was pointed out that the same are typed certificates and only signed by the doctor and that the Consumer Forum did not rely upon such certificates. It was argued that the certificates at the most are in the nature of an opinion of the concerned Medical Officer and such opinion is rebuttal. It was contended that the facts have to be seen versus opinion. According to the learned Counsel, the opinion of Dr. Acharya given by way of two certificates was required to be ignored vis-a-vis the evidence of the eye-witnesses who have seen the accident. It was submitted that once the claimants have led evidence to establish the occurrence of the accident, the burden shifts on the Insurance Company to prove that the accident had not taken place. Therefore, it was the duty of the insurance company to call the scooterist in the witness box. They, however, have not summoned the said scooterist, and consequently, he has neither been examined nor cross-examined on behalf of the appellant. Besides, the Surveyor who obtained the certificates from Dr. Acharya has also not been examined. It was argued that the burden to prove collusion was on the Insurance Company. Moreover, the theory of collusion and fraud has to be pleaded in the written statement. Referring to the written statement filed by the Insurance Company, it was submitted that no such plea regarding collusion has been pleaded therein. It was emphatically argued that what has been contended before this Court had not been stated before the Tribunal and, as such, the Tribunal did not commit any error while holding that the vehicular accident had in fact taken place. Reliance was placed upon Section 140 of the Act for contending that in view of the liability to pay compensation on the principle of no fault, the judgment in criminal case would have no relevance. Once the accident is proved, the claimants are entitled to compensation.