Admittedly, in this case, the claimants have filed the claim petition on 17.10.2001. The Insurance Company filed counter thereafter. This means, the Insurance Company had knowledge that an allegation is made by the claimant with regard to the involvement of the lorry bearing registration No. ABT 3 in this accident. When the Insurance Company had knowledge that the claimants have alleged involvement of the lorry bearing registration No. ABT 3 in the accident, the Insurance Company should verify the facts. The possibility of falsely involving the vehicle in an accident cannot be ruled out. But as seen from the recitals of the counter, the Insurance Company had not taken any specific stand. At one stage, it doubted the involvement of the offending vehicle in the accident and at another stage, the insurance company had pleaded that the deceased himself had contributed to the accident. Thus, the insurance company had no clear view with regard to the involvement of the offending vehicle in the accident. When the Insurance Company entertains a doubt with regard to the involvement of a vehicle in the accident, it should appoint an investigator to enquire into the allegations as to whether a particular vehicle had plied on the particular route at particular time on a particular day or not. Fact should be verified. If the Insurance Company collects any such evidence to establish that the vehicle was not involved in the accident, then, they must contest the matter and adduce evidence in support of their case. When they come to know that the police investigation is false or that a vehicle is falsely implicated in a case, they must approach the superior police officers and see that necessary action is taken against the erring police officers who have filed a false charge-sheet implicating the vehicle which has no involvement in the accident. They must also challenge the charge-sheet in appropriate proceedings. What happened during the course of investigation and how the police have come to know about the involvement of the vehicle and whether it is due to Finding of the driving licence of the driver of the offending vehicle at the place of accident or due to the version of the eye witnesses, all those aspects cannot be gone into at this stage. The possibility of police coming to know about the involvement of a vehicle or an accused through some unknown source also cannot be ruled out. The police officers do commit certain mistakes and involve innocent persons in criminal cases. Due to over enthusiastic attitude also, they commit mistakes. What is the fact is to be ascertained. It has to be seen whether police investigation resulted in finding the truth or not. If at all the findings of the police are found to be totally incorrect, it is for the insurance company to adduce some evidence to show that the contents of the charge-sheet are false. It is a fact that P.W. 2 deposed that the offending vehicle was not stopped at the place of accident. If that version is correct, there is no possibility of falling of driving licence at the place of accident. Admittedly, the accident occurred during the night time. Even if P.W. 2 had witnessed the accident and noted the offending vehicle number, admittedly he did not get down from the lorry in which he was travelling. It appears that it being night time, he could not have observed the place of accident and he might not have observed each and every object fallen at the place of accident. It is only during the course of preparation of panchanama at the place of accident that the panchas and the police are expected to observe each and every item and note them in their panchanama. The very purpose of conducting panchanama and the scene of offence is to show the location of the dead body, location of offending vehicle, time, marks or falling of any other objects at the place of accident.
{Para 19}
20. During the course of arguments, learned counsel for the respondents/insurance company submitted that the version of P.W. 2 that the offending vehicle was not stopped at the place of accident supports the version of the insurance company that there is no possibility of falling of the driving licence of the driver of the offending vehicle at the place of accident. As discussed above, since there is no clear evidence to show the distance between the offending lorry and the lorry in which P.W. 2 was travelling, the version of P.W. 2 that the offending vehicle did not stop at the place of accident need not be given much importance. Of course, this circumstance indicates that P.W. 2 also did not see the occurring of the accident. Even if we discard the evidence of P.W. 2, charge-sheet shows that there are two other eye-witnesses. Unless it is shown that police investigation is false, we cannot reach to a definite conclusion. When there is reasonable doubt in a claim petition arising out of the motor accidents, the benefit of doubt should go to the claimants. The possibility of the driver of the offending lorry stopping the offending vehicle at the place of the accident and looking at the scene and fleeing away from the place of accident also cannot be ruled out. Unless there is reliable evidence to show that the contents of the charge-sheet are false, on mere surmise, it cannot be said that the contents of the charge-sheet or the police investigation is false.
21. Learned standing counsel for the insurance company submitted that the insurance company has appointed the investigator, but however, the report of the said investigator is not available in the records of the insurance company. When such an important document is not filed by the insurance company, normally, adverse inference has to be drawn against the insurance company. Admittedly, none were examined on behalf of the insurance company. Mere taking a plea that the offending vehicle was not involved in the accident or that there is contributory negligence would not help the insurance company in the absence of any reliable evidence in support of their contentions, A pleading cannot be taken as proved unless there is evidence to prove the same.
IN THE HIGH COURT OF ANDHRA PRADESH AT HYDERABAD
M.A.C.M.A. No. 2128 of 2005
Decided On: 26.03.2014
K. Rajani Vs. M. Satyanarayana Goud
Hon'ble Judges/Coram:
B. Chandra Kumar, J.
1. Challenging the order dated 03.05.2005 passed in O.P. No. 2133 of 2001 by the Motor Vehicles Accidents Claims Tribunal - cum - III Additional Chief Judge, City Civil Court, Hyderabad ('the Tribunal', for brevity), the claimants filed this appeal.
2. The appellants herein are the claimants and the respondents herein are the respondents before the Tribunal and for the sake of convenience, the parties will be hereinafter referred to as per their array before the Tribunal.
3. The first claimant is the wife, second claimant is the minor daughter, third claimant is the minor son and the fourth claimant is the mother of the deceased original claimant. The brief facts of the case are as follows:--
4. On the fateful day of 19.09.2001 at about 10:00 p.m., the deceased was proceeding on a scooter bearing registration No. AP 23 A 9260 slowly on the extreme left side of the road from Pragnapur to Siddipet. It is alleged that the offending lorry bearing registration No. ABT 3, belonging to the first respondent and insured with the second respondent insurance company, being driven by its driver in a rash and negligent manner and at high speed, came and dashed against the scooter of the deceased from behind. The deceased sustained fatal injuries and died on the spot. The scooter was also completely damaged. The police, Gajwel, registered a case in Crime No. 104 of 2001 under Section 304A IPC. The claimants further contended that the deceased was aged about 30 years at the time of accident and he was running a wine shop in the name and style of 'Sri Sairam Wines' and earning Rs. 10,000/- per month. It is also contended that the deceased also used to do civil contract works in addition to the wine business. The claimants claimed a total compensation of Rs. 8,00,000/-.
5. The owner of the vehicle - first respondent remained ex parte. The second respondent -Insurance Company contested the matter on various grounds. The age, occupation and the income of the deceased, as contended by the claimants, have been denied. The Insurance Company averred that it is not admitting the involvement of the vehicle in the accident and further contended that the accident occurred by unknown vehicle. However, it is further averred that the accident occurred due to negligence of the deceased as he was riding a scooter without having driving licence and without observing the traffic rules and confusing the driver of the alleged offending vehicle.
6. The Tribunal framed the following issues for trial:--
1. Whether the accident in question took place on 19.09.2001 at about 10:00 p.m. due to rash and negligent driving of the lorry bearing No. ABT 3 by its driver?
2. Whether the petitioners being L.R.s of the deceased are entitled for compensation? If so, to what amount and from whom?]
3. To what relief?
7. On behalf of the claimants, the first claimant herself was examined as P.W. 1 and P.Ws. 2 and 3 were examined and Exs. A.1 to A. 10 were marked. On behalf of the respondents, no oral and documentary evidence has been adduced except marking the copy of the Insurance Policy as Ex. B. 1.
8. On issue No. 1, the Tribunal came to the conclusion that the claimants have failed to prove the involvement of the offending vehicle in the accident. On issue No. 2, the Tribunal came to the conclusion that since the claimants have failed to prove the involvement of the offending vehicle in the accident, no award can be passed against the respondents. Holding so, the Tribunal dismissed the claim petition.
9. Heard both the learned counsel.
10. The main question that arises for consideration in this appeal is whether the claimants have proved the involvement of the offending vehicle in the accident; and what is the just and reasonable compensation to which the claimants are entitled.
11. It is not in dispute that one N. Sridhar Rao lodged the complaint with the police, Gajwel and a case in Crime No. 104 of 2001 was registered under Section 304(a) IPC. The contents of the FIR go to show that an unknown vehicle has dashed against the scooter from its behind and the deceased died on the spot. Ex. A. 1 is the copy of the FIR. Ex. A.2 is the copy of the charge-sheet. Ex. A.3 is the inquest report. Ex. A.4 is the copy of the post-mortem report. The contents of Ex. A.2 go to show that the police, having received the information about the accident, went to the place of accident and conducted panchanama of the place of accident and seized one driving licence of the accused G. Narsing Rao, S/o. Babulal. The contents of the charge-sheet also go to show that one Karre Venkataswamy and Komeri Vinod were shown as eyewitnesses in the charge sheet. The charge-sheet bears the date as 28.02.2002, but it was filed before the Court on 16.05.2002. It is also necessary to mention that the claim petition was filed before the Tribunal on 17.10.2001 itself and the second respondent filed counter on 23.07.2002.
12. P.W. 1 is the wife of the deceased. She is not an eyewitness to the occurrence of the accident, but however, relevant documents have been marked in her evidence. The only suggestion given to this witness is that she has not filed any documents showing the involvement of the vehicle and that her claim is excessive and exorbitant.
13. P.W. 2 - K. Venkata Swamy is the eyewitness to the occurrence of the incident. As seen from his evidence, he deposed that on the date of accident, he was proceeding towards Karimnagar side in a lorry behind the offending vehicle. According to this witness, the driver of the offending lorry drove the same in rash and negligent manner and at high speed and dashed against the scooter of the deceased. He further deposed that the driver of the offending vehicle did not stop the same at the place of accident and that he has noted the vehicle number and according to him he requested his two co-passengers to assist the deceased. He further deposed that he has given the vehicle number to a pan shop owner at a distance of 8 kilometres from the accident. He further deposed that he does not know the names of two co-passengers.
14. Admittedly, P.W. 2 did not give any police complaint. Admittedly, the co-passengers also did not give any report to the police. As seen from the contents of the FIR, the dead body of the deceased was found on the road and the place of accident indicated that the scooter was hit by an unknown vehicle.
15. The learned counsel for the claimants had relied on the judgment of the Apex Court in the case between Parameshwari v. Amir Chand and others MANU/SC/0358/2011 : 2011 ACJ 1613. In that case, the evidence of the eyewitness was initially disbelieved on the ground that he did not lodge any police complaint. In the circumstances, the Apex court observed that merely because the eyewitness has not lodged any police complaint, his evidence cannot be disbelieved.
16. Learned counsel for the claimants had also relied on the judgment of the Apex Court in the case between Bimla Devi and others v. Himachal Road Transport Corporation and others MANU/SC/0577/2009 : (2009) 13 SCC 530. In the said case, the Apex Court observed as follows:--
It was not necessary to be borne in mind that strict proof of an accident caused by a particular bus in a particular manner may not be possible to be done by the claimants. The claimants were merely to establish their case on the touchstone of preponderance of probability. The standard of proof beyond reasonable doubt could not have been applied.
17. In the same judgment, the Apex Court also observed as follows:--
It is difficult to believe that the police officers would fabricate a case against the respondents.
18. In the instant case, the contents of Ex. A.2 go to show that the police recorded the statements of P.W. 2 and other two eye witnesses and concluded that the accident occurred due to rash and negligent driving of the driver of the offending vehicle and based on the same, filed charge-sheet. By that time, the first informant - N. Sridhar babu went to the scene of offence. None were present there. Admittedly, it was night time. According to P.W. 2, he was travelling in a lorry behind the offending lorry and the offending vehicle was not stopped at the place of accident. What distance was being maintained between the offending vehicle and the lorry in which P.W. 2 was travelling is not clear from the evidence. Whether the version of P.W. 2 is believable or not, but the fact remains that the police have filed charge-sheet against the driver of the offending lorry. Unfortunately, the driver of the offending vehicle died on 08.01.2003 before the commencement of trial in the criminal case. The judgment of the criminal case with regard to the rash and negligent driving of the driver of the offending vehicle is not filed. The inquest was conducted in the hospital over the dead body of the deceased. The copy of the panchanama conducted at the place of accident is not filed. Of course, the contents of the charge-sheet go to show that the driving license of the driver of the offending vehicle was seized from the place of accident. Whether the version of the police is correct or not or whether the conclusions reached by the police have to be accepted or not are the important points that arise for consideration. Besides P.W. 2, as per the contents of the charge-sheet, there are other two eye witnesses. Of course, they were not examined before the Tribunal. At this stage, it is very difficult to say whose version is correct.
19. Admittedly, in this case, the claimants have filed the claim petition on 17.10.2001. The Insurance Company filed counter thereafter. This means, the Insurance Company had knowledge that an allegation is made by the claimant with regard to the involvement of the lorry bearing registration No. ABT 3 in this accident. When the Insurance Company had knowledge that the claimants have alleged involvement of the lorry bearing registration No. ABT 3 in the accident, the Insurance Company should verify the facts. The possibility of falsely involving the vehicle in an accident cannot be ruled out. But as seen from the recitals of the counter, the Insurance Company had not taken any specific stand. At one stage, it doubted the involvement of the offending vehicle in the accident and at another stage, the insurance company had pleaded that the deceased himself had contributed to the accident. Thus, the insurance company had no clear view with regard to the involvement of the offending vehicle in the accident. When the Insurance Company entertains a doubt with regard to the involvement of a vehicle in the accident, it should appoint an investigator to enquire into the allegations as to whether a particular vehicle had plied on the particular route at particular time on a particular day or not. Fact should be verified. If the Insurance Company collects any such evidence to establish that the vehicle was not involved in the accident, then, they must contest the matter and adduce evidence in support of their case. When they come to know that the police investigation is false or that a vehicle is falsely implicated in a case, they must approach the superior police officers and see that necessary action is taken against the erring police officers who have filed a false charge-sheet implicating the vehicle which has no involvement in the accident. They must also challenge the charge-sheet in appropriate proceedings. What happened during the course of investigation and how the police have come to know about the involvement of the vehicle and whether it is due to Finding of the driving licence of the driver of the offending vehicle at the place of accident or due to the version of the eye witnesses, all those aspects cannot be gone into at this stage. The possibility of police coming to know about the involvement of a vehicle or an accused through some unknown source also cannot be ruled out. The police officers do commit certain mistakes and involve innocent persons in criminal cases. Due to over enthusiastic attitude also, they commit mistakes. What is the fact is to be ascertained. It has to be seen whether police investigation resulted in finding the truth or not. If at all the findings of the police are found to be totally incorrect, it is for the insurance company to adduce some evidence to show that the contents of the charge-sheet are false. It is a fact that P.W. 2 deposed that the offending vehicle was not stopped at the place of accident. If that version is correct, there is no possibility of falling of driving licence at the place of accident. Admittedly, the accident occurred during the night time. Even if P.W. 2 had witnessed the accident and noted the offending vehicle number, admittedly he did not get down from the lorry in which he was travelling. It appears that it being night time, he could not have observed the place of accident and he might not have observed each and every object fallen at the place of accident. It is only during the course of preparation of panchanama at the place of accident that the panchas and the police are expected to observe each and every item and note them in their panchanama. The very purpose of conducting panchanama and the scene of offence is to show the location of the dead body, location of offending vehicle, time, marks or falling of any other objects at the place of accident.
20. During the course of arguments, learned counsel for the respondents/insurance company submitted that the version of P.W. 2 that the offending vehicle was not stopped at the place of accident supports the version of the insurance company that there is no possibility of falling of the driving licence of the driver of the offending vehicle at the place of accident. As discussed above, since there is no clear evidence to show the distance between the offending lorry and the lorry in which P.W. 2 was travelling, the version of P.W. 2 that the offending vehicle did not stop at the place of accident need not be given much importance. Of course, this circumstance indicates that P.W. 2 also did not see the occurring of the accident. Even if we discard the evidence of P.W. 2, charge-sheet shows that there are two other eye-witnesses. Unless it is shown that police investigation is false, we cannot reach to a definite conclusion. When there is reasonable doubt in a claim petition arising out of the motor accidents, the benefit of doubt should go to the claimants. The possibility of the driver of the offending lorry stopping the offending vehicle at the place of the accident and looking at the scene and fleeing away from the place of accident also cannot be ruled out. Unless there is reliable evidence to show that the contents of the charge-sheet are false, on mere surmise, it cannot be said that the contents of the charge-sheet or the police investigation is false.
21. Learned standing counsel for the insurance company submitted that the insurance company has appointed the investigator, but however, the report of the said investigator is not available in the records of the insurance company. When such an important document is not filed by the insurance company, normally, adverse inference has to be drawn against the insurance company. Admittedly, none were examined on behalf of the insurance company. Mere taking a plea that the offending vehicle was not involved in the accident or that there is contributory negligence would not help the insurance company in the absence of any reliable evidence in support of their contentions, A pleading cannot be taken as proved unless there is evidence to prove the same.
22. As far as the claimants are concerned, on behalf of the claimants, the first claimant has been examined as P.W. 1 and the crucial document, i.e., Ex. A.2 is marked in her evidence. Even if the evidence of P.W. 2 is discarded on the ground that his version is not in consonance with the contents of the charge-sheet, but still the recitals of Ex. A.2 cannot be disbelieved at this stage.
23. In view of the above discussion, I hold that the claimants, by examining P.W. 1 and marking Ex. A.2, proved that the vehicle is involved in the accident.
24. Coming to the quantum of compensation to be awarded in this case, the deceased was aged about 32 years and the appropriate multiplier applicable to the age of the deceased is 16. According to P.W. 1, the deceased was running wine shop as partner of the firm and was earning Rs. 10,000/- per month. It is submitted that in the inquest report itself, the occupation of the deceased is shown as business. Ex. A.6 shows that the licence was issued in the name of 'Sri Sai Ram Wines'. Ex. A.8 shows that the licence was issued in the name of 'Neelima Wines'. Ex. a.9 is an unregistered partnership deed with regard to the civil contract works. According to P.W. 3, the deceased used to get Rs. 25,000/- per month towards net profit from the wine business. Admittedly, no documents have been shown to prove the income of the partnership business or the income from the wine business. Since there is no documentary evidence to prove the income of the deceased, having regard to the age of the deceased and his future prospects of income, I consider it just and reasonable to take the income of the deceased at Rs. 4,000/- per month. If, 1/4th amount is deducted towards personal expenses, then the loss of dependency would come to Rs. 3,000/- per month and Rs. 36,000/- per month. As stated above, the appropriate multiplier applicable to the age of the deceased is 16 thus, the total loss of dependency would come to Rs. 5,76,000/-. The wife of the claimant is also entitled to Rs. 1,00,000/- towards loss of consortium. The minor children are also entitled to Rs. 1,00,000/- towards loss of care and guidance for them. The claimants are also entitled for an amount of Rs. 25,000/- towards funeral expenses. Thus, the claimants are awarded a total compensation of Rs. 8,01,000/- (Rupees eight lakhs and one thousand only). (Rs. 5,76,000/- + Rs. 1,00,000/- + Rs. 1,00,000/- + Rs. 25,000/-).
25. It is settled law that irrespective of the amount claimed by the claimant, the Courts may award the amount which appears to be just and reasonable in the facts and circumstances of the case. Since the amount now awarded is excess than the amount claimed by the claimant, the claimant is directed to pay the deficit Court fees before obtaining the decree.
26. Among the total compensation awarded, the wife shall take Rs. 3,00,000/-, both the minor children shall take Rs. 2,00,000/- each and the mother of the deceased shall take the remaining amount, i.e., Rs. 101,000/-.
27. The appeal is allowed accordingly. There shall be no order as to costs.
28. Miscellaneous petitions, if any, pending in this appeal, stand closed.
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