Md. Abul Mazid Etc. Vs. Faruque Shaikh and anr. - Court Judgment

Excerpt:
- - but ultimately after about 5 (five) months, precisely on 30th march, 2003 they informed the dimapur police on the basis of which g. the claimants in support of their claims examined themselves, the doctor who treated them as well as their employer to prove their monthly income. but can it be said that a claim petition filed by a claimant claiming compensation under the provisions of the act for the injury sustained by him arising out of the use of a motor vehicle can be defeated because of the failure of the driver/owner to discharge his duties imposed by section 134 of the act? a claim petition cannot be defeated solely on the ground that the owner/driver has failed to discharge his burden as imposed by section 134 of the act. the learned tribunal while recording the finding that..... b.p. katakey, j.1. by these 2 (two) appeals, the claimants have challenged the judgment and award dated 5th august, 2005 passed by the learned member, motor accident claims tribunal, dimapur in m.a.c. case nos. 66 and 67 of 2003 dismissing the claim of the claimants/appellants for compensation under the provisions of the motor vehicles act, 1988 (in short 'the act').2. the fact in brief is that the appellants as claimants filed m.a.c. case nos. 66 and 67 of 2003 before the learned member, motor accident claims tribunal, nagaland claiming that on 25th october, 2002 while they were going on a bicycle towards purana bazar, dimapur, a scooterist driving the scooter no. nl-05/5216 in a rash and negligent manner dashed the bicycle and as a result of which they suffered bodily injuries for.....

Judgment:

B.P. Katakey, J.

1. By these 2 (two) appeals, the claimants have challenged the judgment and award dated 5th August, 2005 passed by the learned Member, Motor Accident Claims Tribunal, Dimapur in M.A.C. Case Nos. 66 and 67 of 2003 dismissing the claim of the claimants/appellants for compensation under the provisions of the Motor Vehicles Act, 1988 (in short 'the Act').

2. The fact in brief is that the appellants as claimants filed M.A.C. Case Nos. 66 and 67 of 2003 before the learned Member, Motor Accident Claims Tribunal, Nagaland claiming that on 25th October, 2002 while they were going on a bicycle towards Purana Bazar, Dimapur, a scooterist driving the scooter No. NL-05/5216 in a rash and negligent manner dashed the bicycle and as a result of which they suffered bodily injuries for which they had to be hospitalised for necessary treatment. It has further been averred in the claim petitions that they could not inform the police in time because of the treatment taken by them in different hospitals; but ultimately after about 5 (five) months, precisely on 30th March, 2003 they informed the Dimapur Police on the basis of which G.D. entry No. 176/03 was registered and the police upon investigation submitted a report dated 31st March, 2003 to the effect that the accident occurred and arising out of which the appellants suffered bodily injury. Thereafter another report dated 19th August, 2003 was submitted by the Investigating Agency certifying that the accident did not occur in Purana Bazar area; but somewhere in Assam. The owner-cum-driver and the Insurance Company on receipt of summons filed a written statement. The owner in the written statement has admitted the accident stating that the accident occurred in Purana Bazar area in Dimapur on 25th October, 2002 and the appellants received bodily injury arising out of the use of the said motor vehicle. It has further been contended in the written statement that the vehicle was duly insured by the Insurance Company, the present respondent No. 2 by issuing a valid policy of insurance covering the risk of the third party and therefore if any amount is payable as compensation, the Insurance Company has to indemnify the owner. The Insurance Company also filed a written statement denying the claim of the claimants in the claim petitions. The claimants in support of their claims examined themselves, the doctor who treated them as well as their employer to prove their monthly income. The owner was also examined as DW. 1 in both the cases. The Insurance Company also examined 2 (two) witnesses viz., the Insurance Investigator and Investigating Officer who conducted the investigation on the basis of the G.D. entry No. 176/2003. The learned Tribunal thereafter by the impugned judgment and award rejected the claim petitions tiled by the claimants and hence the present appeals.

3. I have heard Mr. B.N. Sharma, the learned Counsel for the appellants/claimants, Mr. A.R. Sharma, the learned Counsel for the respondent No. 1 and Mr. T.B. Jamir, the learned Counsel appearing on behalf of the respondent No. 2, Insurance Company.

4. Mr. B.N. Sharma, the learned Counsel for the appellants submits that the learned Tribunal has dismissed the claim petitions filed by the claimants/appellants basically on the ground of delay in filing the First Information to the police, which was lodged after about 5 (five) months of the date of occurrence. It has further been submitted that the learned Tribunal has disbelieved the accident solely on the basis of second Police Report submitted by the DW 3 on 19th August, 2003, even though DW 3 in his deposition made a categorical statement that the said Mice Report was submitted by him as per instruction of his superior officer and he was made to sign the said Police Report prepared by such superior officer. It has further been submitted that the learned Tribunal has presumed that there was no accident solely on the ground that there was no information given by the driver of the motor vehicle/scooter as required under Section 134 of the Act, therefore, there was no inspection of the vehicle by the authorised persons as required under Section 136 and there was no report submitted by the police under Section 158(6) of the Motor Vehicles Act. According to the learned Counsel as because those reports were not submitted or the driver did not inform the police, that shall not be the ground for rejection of the claim of the claimants for compensation. The learned Counsel, therefore, submits that it is a fit case where this Court may after setting aside the judgment and award passed by the learned Member, Motor Accident Claims Tribunal, Dimapur remit the case to the learned Tribunal for giving a fresh decision on the matter, more particularly, on the quantum of compensation payable to the claimants.

5. Mr. A.R. Sharma, the learned Counsel appearing on behalf of the owner of the vehicle who has been impleaded as respondent No. 1 in the present appeals has submitted that the owner of the vehicle has admitted that the accident took place in the Purana Bazar area of Dimapur on 25th October, 2002 and though he was cross-examined by the Insurance Company before the learned Tribunal, the Insurance Company did not challenge the factum of accident; but only put the suggestion regarding the place of accident. The learned Counsel, therefore, submits that even if the accident did not take place in Dimapur i.e. within the State of Nagaland; but took place somewhere in Assam then also, in view of the provisions contained under Section 166(2) of the Act, the claim petitions before the learned Tribunal at Dimapur filed by the claimants are maintainable as the Dimapur Branch of New India Assurance Company issued the policy covering the risk.

6. Mr. T.B. Jamir, the learned Counsel appearing on behalf of the respondent No. 2, Insurance Company has submitted that though the filing of the F.I.R. may not be a condition precedent for filing a claim petition claiming compensation under the provision of the Act, it is a relevant factor for deciding whether actually any accident occurred or not. It has been submitted that to claim compensation under the provision of the Act, the basic requirement which needs to be proved by the claimant is the factum of accident, and therefore, non-filing of the F.I.R. or delay in filing the F.I.R. will be one of the relevant factors for considering whether any such accident actually occurred or not. According to the learned Counsel, in the instant case, the learned Tribunal on the basis of the Police Report dated 19th August, 2003 submitted by the Investigating Officer, viz., DW 3 has come to the finding that there was no accident at all occurred and hence the claim petitions were rightly dismissed by the learned Tribunal.

7. It appears from the judgment and award passed by the learned Tribunal that the learned Tribunal has recorded the finding that no accident did occur in Dimapur on 25th October, 2002 involving the motor vehicle bearing registration No. NL-05/ 5216 (Scooter). The learned Tribunal has come to the finding on the basis of the second Police Report dated 19th August, 2003 which was submitted by the Investigating Officer, DW 3 to the effect that no accident did occur in Dimapur. The learned Tribunal also based his finding that no accident took place on 25th October, 2002 as the driver of the vehicle did not carry injured person to the nearest hospital as required under Section 134 of the Act and there was no inspection of the vehicle by the Competent Authority as required under Section 136 of the Act and also no Police Report was submitted as required under Section 158(6) of the Act.

8. Section 134 of the Motor Vehicles Act imposes a duty on the driver, which includes the owner, to take all reasonable steps to secure medical attention for the injured person who suffered injury as a result of a motor accident which he was driving or of which he is the owner, unless it is not practicable to do so on account of mob fury or any other reason beyond his control. The said provision also provides that it shall be the duty of every Medical Practitioner or the Doctor on duty in the hospital to immediately attend to the injured person, render medical aid or treatment. Clause (b) of Section 134 requires a driver which includes the owner to give on demand by a Police Officer any information required by him. Clause (c) of the said section also required the driver or owner to give information to the insurer in writing about the occurrence of the accident immediately. No doubt some duties have been imposed on the driver/owner of the vehicle involved in an accident; but can it be said that a claim petition filed by a claimant claiming compensation under the provisions of the Act for the injury sustained by him arising out of the use of a motor vehicle can be defeated because of the failure of the driver/owner to discharge his duties imposed by Section 134 of the Act? The answer is obviously No. A claim petition cannot be defeated solely on the ground that the owner/driver has failed to discharge his burden as imposed by Section 134 of the Act.

9. The next ground on which the learned Tribunal rejected the claim of the appellants is non-inspection of the vehicle involved in the accident as required under Section 136 of the Act, which provides, that when any accident occurs in which a motor vehicle is involved, any person authorised in this behalf by the State Government may, on production if so required by his authority inspect the vehicle and for that purpose may enter at any reasonable time any premises where the vehicle may be, and may remove the vehicle for examination, The said provision provides for getting vehicle involved in an accident examined by a duly authorised person. Non-inspection of such vehicle involving in the accident by such authorised person also cannot defeat a claim petition preferred by the claimant, claiming compensation. The learned Tribunal has also rejected the claim of the claimants because of not forwarding a copy of the information received by him along with the report to the Claims Tribunal having jurisdiction as required under Sub-section (6) of Section 158 of the Act. Section 158 of the Act provides that any person driving a motor vehicle in any public place shall, on being so required by a Police Officer in uniform authorised on this behalf by the State Government, produce the certificate of insurance, certificate of registration, driving licence and in case of transport vehicle the certificate of fitness and the permit, relating to the use of such vehicle. Sub-section (4) of Section 158 requires the owner of the motor vehicle to give such information to such Police Officer as required by him. Sub-section (6) of the said section provides that as soon as any information is received regarding any accident involving death or bodily injury of any person a copy of such information together with the report is required to be forwarded to the Claims Tribunal. The said provision of Section 158 does not say that unless such report is submitted by the police, the claim application of the claimant cannot be entertained.

10. Section 166 of the Motor Vehicles Act provides for filing of an application for compensation arising out of an accident of the nature specified under Sub-section (1) of Section 165 of the Act and upon filing of such application the Claims Tribunal is to pass an award after giving opportunity to all the persons concerned. Sub-section (2) of Section 166 provides that such claim application can be filed either to the Claims Tribunal having jurisdiction over the area in which the accident occurred, or to the Claims Tribunal within the local limits of whose jurisdiction the claimant resides or carries on business or within the local limits of whose jurisdiction the defendant resides. In the instant case the claimants are the residents of Dimapur and the Dimapur Branch of New India Assurance Company, respondent No. 2 issued the insurance policy. Sub-section (4) of Section 166 empowers the Claims Tribunal to treat the report of the accident forwarded to it by the police under Section 158(6) as an application for compensation under the Act. Therefore, it is not that as because no report of the accident as forwarded by the police as required under Section 158(6) of the Act, the claim petition filed by the claimant under Section 166(1) is not maintainable.

11. The other ground on which the learned Claims Tribunal has rejected the claim petition is that the Investigating Officer i.e. DW 3 on 19th August, 2003 has submitted a report that no accident took place in Purana Bazar area of Dimapur. The learned Tribunal while recording the finding that no accident took place on 25th October, 2002 has failed to take into consideration evidence of DW 3 i.e. Investigating Officer who submitted such report who has in clear terms stated before the learned Tribunal that the said report dated 19th August, 2003 was prepared by his superior Police Officer and he was compelled to sign it. The learned Tribunal has also failed to take into consideration the first Police Report dated 31 st March, 2003 whereby the Investigating Officer i.e. DW 3 has stated that the accident did take place about which he came to know after examination of the owner of the vehicle also. From the evidence of the DW 3 i.e. Investigating Officer, it is therefore, clear that the second report dated 19th August, 2003 was not submitted by him on the basis of any investigation; but he was compelled to sign it by his superior officer and which was in fact written by the superior officer. Therefore, the said document cannot be the basis for holding that no accident took place on 25th October, 2002 either in Purana Bazar area in Dimapur or in any place in Assam. The learned Tribunal has committed illegality in recording such finding that no accident did take place.

12. From the reading of the different provisions of the Act, it is evident that though immediately after the accident the driver or the owner as a duty to inform the police about the accident and the Medical Officer who treated the injured person who received injury arising out of use of such motor vehicle in that accident to inform the nearest Police Station, a claim petition filed by the claimant for the death or bodily injuries suffered by a person arising put of the use of motor vehicle in an accident cannot be dismissed on the ground of not informing the police on the ground of delay in informing police. However, non-furnishing the information or delay in furnishing the information in a given case may be one of the relevant factors to decide as to whether an accident did take place. But in the instant (case) it is evident from the deposition of the PWs as well as the owner and the DW 3 that accident took place, in which the claimants suffered some sort of injuries for which they were treated in different hospitals.

13. The learned Tribunal in the instant case has rejected the claim petitions filed by the claimants on the grounds discussed above, and therefore, did not proceed further to ascertain as to whether the claimants suffered any bodily injuries, there was any negligence on the part of the driver/owner of the motor vehicle involved in the accident and to what amount the claimants are entitled to as compensation.

14. This Court having already recorded the finding that an accident did occurr on 25th October, 2002, remit the case to the learned Tribunal for deciding the claim petitions filed by the claimants after recording its finding as to whether the claimants suffered any bodily injuries in the said accident occurred, arising out of the use of the motor vehicle concerned, whether there was any negligence on the part of the driver/owner of the motor vehicle and also to which amount the claimants are entitled to as compensation. Such findings shall be recorded by the learned Tribunal on the basis of the material already on record. It is open to the parties to file necessary application before the learned Tribunal praying for adducing additional evidence if so desires. The learned Tribunal thereafter on the basis of such evidence including the evidence already on record shall pass the judgment in accordance with law.

15. The judgment and award dated 5th August, 2005 by the learned Member, Motor Accident Claims Tribunal in M.A.C. Case Nos. 66 and 67 of 2003 is set aside. The learned Tribunal is directed to take the M.A.C. cases on record.

16. The appeals are accordingly allowed to the extent indicated above. No cost.

Registry is directed to send down the record forthwith.