Again, coming to the point regarding delay
in lodging the FIR, it can be seen that the fact of
death of Ratnakar was informed to police and
thereafter enquiry under Section 174 of the Code of
Criminal Procedure was conducted wherein the inquest
panchanama was carried out and then the dead body was
sent for post mortem. Important point to be noted is
that when on that day i.e. on the day when inquest
panchanama was prepared, there was an opportunity to
the claimants or on behalf of them, FIR could have
been lodged against unknown vehicle. Same has not
been done. Whatever FIR has been lodged on 23-04-
2014, is also against unknown person. Therefore,
this clear delay in lodging the FIR and then not
examining the police constable who had recorded the
statements of respondents no.01 and 02 or the
Investigation Officer, is required to be viewed
against the claimants. {Para 13}
14. No doubt, Motor Vehicles Act, 1988, is a
beneficial legislation; but then liberal
interpretations and benefit can be given when the
accident is proved. When accident itself is not
proved, though the burden was on the claimants; then
question of liberal interpretation does not arise.
The point no. I is, therefore, answered in the
negative.
IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
AURANGABAD BENCH, AT AURANGABAD.
First Appeal No. 0186 of 2019
Kavita Ratnakar Ghodke, Vs Sandip Sarjerao Jadhav,
CORAM : SMT. VIBHA KANKANWADI, J.
DATE : 15TH JULY 2019.
ORAL ORDER :
01. Present appeal has been filed by the
original claimants, challenging the dismissal of
their claim petition under Section 166 of the Motor
Vehicles Act, 1988, by learned Member of the Motor
Accident Claims Tribunal, Newasa, District
Ahmednagar, in Motor Accident Claim Petition No. 22
of 2016, on 27042018. [Parties are addressed by
their nomenclature before the Tribunal.]
02. The claimants are the legal heirs i.e. widow
and children of Ratnakar Dattatraya Ghodke. Ratnakar
was 52 years old industrial worker and also a
businessman running grocery shop having income from
all sources around Rs. 15,000/ per month. He was
proceeding with claimant no.03 on 29032014 on their
motorcycle bearing no. MH17/M4726 to village
Wakadi, Taluka Shrirampur, District Ahmednagar. They
were proceeding from Pravara Sangam. At that point,
another motorcycle came from back side, gave dash to
their motorcycle which the deceased was driving; as a
result of which, deceased as well as claimant no.03
fell down and became unconscious. They were shifted
to hospital by unknown persons. Deceased was
seriously injured and, therefore, thereafter he was
referred to City Care Hospital, Ahmednagar.
Ultimately, he succumbed to his injuries on 0404
2014. It has been stated that the another vehicle,
which was involved in the accident, was belonging to
respondent no.02, bearing no. MH17/AY9996. It was
driven by respondent no.01. It is the contention of
the claimants, that due to the negligence on the part
of respondent no.01, the said accident had taken
place. The fact of death of deceased was reported to
police. Respondent no.01 has been prosecuted. The
said vehicle was insured with respondent no.03 and
therefore, from all the respondents, the claimants
have claimed compensation of Rs. 10,00,000/ together
with interest jointly and severally.
03. Respondents no.01 and 02 filed their common
written statement at Exhibit 22, whereas respondent
no.03 filed its own written statement at Exhibit 23.
All of them have denied age, occupation and income of
the deceased. They have clearly denied that any such
accident, as narrated in the petition, had ever taken
place. The allegation in respect of accident
occurred due to the rashness and negligence on the
part of respondent no.01 has been denied
specifically. Alternatively, the Insurance Company
has taken statutory defences.
04. Taking into consideration the rival
contentions, issues were framed. The claimants as
well as the Insurance Company has led evidence.
Taking into consideration the evidence as well as
proved documents on record, the learned Tribunal has
come to the conclusion that the claimants have proved
that Ratnakar died due to the accidental injuries in
the accident which had taken place at about 04.30
p.m. on 29032014. However, the learned Tribunal
has held that the claimants have failed to prove that
the motorcycle driven by respondent no.01, owned by
respondent no.02 and insured with respondent no.03,
was involved in the accident. The claim petition has
been, therefore, dismissed. Hence, the present first
appeal by the original claimants.
05. Heard learned Advocate Ms. M.V. Manal
appearing for the appellants. Heard learned Advocate
Mr. K.D. Mote appearing for respondents no.01 and 02.
So also, heard learned Advocate Mr. V.N. Upadhye
appearing for respondent no.03.
06. Learned Advocate appearing for the
appellants has submitted that the learned Tribunal
has not considered the evidence on record properly.
Though it has been held that deceased Ratnakar died
due to accidental injuries, the claim petition has
been dismissed on the ground of noninvolvement of
the motor vehicle owned by respondent no.02.
Claimant no.03 Ganesh has examined himself. He was
also deceased with the deceased at the relevant time
and had received injuries. He has given the first
information report. The fact is that he was only 22
years old at the relevant time and the fact that
after the accident, he had also become unconscious.
He had not lodged the report immediately. However,
after death of Ratnakar, when the FIR has been
lodged, further investigation has been carried out by
the police. Statement of respondent no.01 was
recorded by police in which he has clearly admitted
that he had given dash to the vehicle driven by
deceased. He has admitted that he himself also fell
down from his vehicle and had received injuries. The
injury certificate of respondent no.01 was produced
on record, which clearly showed that he had received
those injuries in road traffic accident. He was
examined on the same day of accident i.e. 29032014.
This was the connecting evidence to hold that
respondent no.01 had caused the said accident. The
other police papers were also on record on the basis
of which learned Tribunal ought to have come to the
conclusion that the motorcycle belonging to
respondent no.02, driven by respondent no.01 and
insured with respondent no.03, was involved in the
accident. Under those circumstances, taking into
consideration that the Motor Vehicles Act is a
beneficial legislation, the petition ought to have
been allowed.
07. Per contra, learned Advocates representing
the respondents supported the reasons given by the
learned Tribunal and submitted that ample opportunity
was available to the claimants to prove the accident
as they have narrated in the petition. However, that
opportunity has not been utilized properly. All the
papers were before the Tribunal and, therefore, the
Tribunal has come to correct conclusion based on the
documents which were before it.
08. The fact is not disputed that Ratnakar died
on 040-4-2014 due to accidental injuries caused to
him on 29-03-2014 at about 04.30 p.m. on Pravara
Sangam road. The point in dispute was the
involvement of motorcycle bearing no. MH17/AY9996
owned by respondent no.02, insured with respondent
no.03. It was contended by the claimants that the
said vehicle was driven by respondent no.01 at the
relevant time. Therefore, taking into consideration
the scope of the first appeal, following points arise
for determination. Findings and reasons for the same
are as follows :
(I) Whether the claimants have proved that
Ratnakar had received accidental injuries due to the
dash given by motorcycle bearing no. MH17/AY9996 ?
(II) Whether the claimants were entitled to get
compensation ? If yes, what would be the quantum ?
09. Learned Advocate appearing for the
appellants claimants has relied on the police
papers, especially the statement of respondent no.01
and the injury certificate of respondent no.01. It
will not be out of place to mention here, that in
order to prove injury certificate or in support of
that injury certificate, surprisingly the Insurance
Company has led evidence and examined the Medical
Officer Dr. Vijay Gade from Rural Hospital, Newasa.
He has proved the contents of the injury certificate.
In fact, when the injury certificate was the
certified copy issued by police, it could have been
directly read in evidence considering it as a public
document for a limited purpose while considering
motor accident claim petition. Even if we consider
the contents of the injury certificate, at the most,
the fact which can be revealed is that respondent
no.01 was examined at about 06.00 p.m. on 29032014
for the injuries which he had sustained in a road
traffic accident. Except this finding, there cannot
be any different finding based only on this document.
No further details are recorded in that injury
certificate regarding the fact of accident. Even the
said witness Dr. Vijay Gade would not have told
anything else than the contents of the injury
certificate.
10. In order to prove the involvement of the
vehicle belonging to respondent no.02, the claimants
have examined claimant no.03 only. His examination
in chief is nothing but replica of his petition. But
in cross examination, he has admitted that his father
was admitted in the hospital for about 08 days and
thereafter he expired and, therefore, there was delay
in lodging the FIR. Thus, it is tried to be
extracted from him, as to why there was delay in
lodging the FIR. However, the fact further to be
considered is, the accident had taken place on 29-03-
2014, Ratnakar expired on 04-04-2014, yet, FIR has
been lodged on 23-04-2014. It cannot be stated that
this delay was only on the count, that the father had
received injuries and then expired. Interestingly,
he gives statement in his cross, that in the
hospital, it was not disclosed that the injuries have
been sustained due to another motorcycle. But then
he has denied the suggestion that as the vehicle
driven by his father slipped, they had sustained
injuries. In cross examination, he has clearly
admitted that since he had received minor injuries,
he had no physical inability to give FIR and since in
the police papers it has been transpired that the
respondent no.01 was involved in the accident, he is
saying so. That means, when as per his own
contention, after the alleged dash, he as well as his
father fell down and became unconscious. There was
no occasion for him to note down the number of the
vehicle. To a limited extent, the fact can be
considered that since in the accidents as they occur
in fraction of seconds, it is impossible to note down
the number of the vehicle. But then subsequent
conduct of the parties is required to be considered
in order to assess the involvement of that vehicle.
The FIR was lodged in this case on 23-04-2014 and
then his supplementary statement has been recorded on
07-07-2014. In his supplementary statement, he has
stated that he had made enquiry with Newasa Rural
Hospital and came to know abut the injuries and MLC
case papers of respondent no.01, that he had
sustained injuries in accident and, therefore, he
says that the said accident was caused by respondent
no.01.
11. The claimants are also relying on statement
of respondent no.01 dated 10072014 recorded by
police. The said statement appears to be part of
chargesheet of which certified copy had been
produced. The said statement has been taken as
statement of the accused and therefore, for criminal
case, it may not be admissible in evidence. As
regards civil case is concerned, no doubt, the
question arises as to whether in absence of
examination of the person who had recorded it,
whether it can be read in evidence, that too, without
deciding whether certified copy of such statement can
be read in evidence. It appears that from this
angle, submissions were not made before the Tribunal.
Even if for the sake of arguments, we take the said
statement as it is, in which it was stated by
respondent no.01, that due to the dash of his
motorcycle to the motorcycle driven by deceased,
deceased as well as his pillion rider fell down;
statement is made that after they had sustained
injuries, he immediately asked Ratnakar and Ganesh,
as to what is their name and then came to know about
their names and then he had called some other persons
and made arrangements for medical help. That means,
he intended to say that Ratnakar as well as Ganesh
were conscious when he made enquiries with them.
This is contrary to what has been stated in the FIR.
In the FIR, it is stated that after they fell down
from the motorcycle after the dash, they had raised
hue and cry; however, motorcycle rider did not stop
and fled away. Under such circumstance, how the
claimants can rely on his statement, is a question,
rather it gives an example as to how the vehicle
belonging to respondent no.02 has been involved in
the case. Ultimately, respondent no.01 says that he
will not be able to say how the accident took place
and who was at fault. Therefore, the alleged
connection between the medical examination of
respondent no.01 and the accidental injuries caused
due to the accident, cannot be said to have been
established merely by producing the injury
certificate as well as statement of respondent no.01
taken by police. The police head constable who had
taken his statement, has not been examined by the
claimants for the reasons best known to them.
12. The chargesheet also contains statement of
respondent no.02 which is alleged to have been taken
on 07-07-2014, who has echoed thereafter with
claimant no.03 Ganesh and then has stated that
respondent no.01 had carried out repairs to his
motorcycle and then handed it over to respondent
no.02. Again, at the cost of repetition, it can be
said that without examining the said police constable
who had recorded statement of respondent no.02, his
statement cannot be considered. This is with the
fact, that in their written statement, respondents
no.01 and 02 have clearly denied involvement of the
motorcycle bearing no. MH17/AY9996 in the said
accident.
13. Again, coming to the point regarding delay
in lodging the FIR, it can be seen that the fact of
death of Ratnakar was informed to police and
thereafter enquiry under Section 174 of the Code of
Criminal Procedure was conducted wherein the inquest
panchanama was carried out and then the dead body was
sent for post mortem. Important point to be noted is
that when on that day i.e. on the day when inquest
panchanama was prepared, there was an opportunity to
the claimants or on behalf of them, FIR could have
been lodged against unknown vehicle. Same has not
been done. Whatever FIR has been lodged on 23-04-
2014, is also against unknown person. Therefore,
this clear delay in lodging the FIR and then not
examining the police constable who had recorded the
statements of respondents no.01 and 02 or the
Investigation Officer, is required to be viewed
against the claimants.
14. No doubt, Motor Vehicles Act, 1988, is a
beneficial legislation; but then liberal
interpretations and benefit can be given when the
accident is proved. When accident itself is not
proved, though the burden was on the claimants; then
question of liberal interpretation does not arise.
The point no. I is, therefore, answered in the
negative.
15. As regards point no.II, in view of the fact
that the claimants had failed to prove negligence on
the part of respondent no.01, thereby involvement of
the vehicle motorcycle belonging to respondent no.02
and insured with respondent no.03, claimants are not
entitled to get compensation.
16. There is no error either on facts or on the
point of law by the learned Tribunal in assessing the
evidence on record. There is no merit in the present
appeal. Hence, the first appeal is hereby dismissed.
There shall be no order as to costs.
( Smt. Vibha Kankanwadi )
JUDGE
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