Dilip Jagdish Deshmukh vs Chandrakant Mahadeo Shinde And … on 7 February, 2018

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IN THE HIGH COURT OF JUDICATURE OF BOMBAY
BENCH AT AURANGABAD

FIRST APPEAL NO.2538 OF 2017

Dilip s/o Jagdish Deshmukh,
age: 48 years, Occ: Agriculture
Milk Business, R/o Tandalwadi,
Tq.Washi, Dist.Osmanabad Appellant

Versus

01 Chandrakant s/o Mahadeo Shinde,
age: major, Occ: Business,
R/o Para, Tq.Washi,
District Osmanabad.

02 National Insurance Company Ltd.,
through the Branch Manager,
Branch Officer, Datt Chowk,
Solapur, Tq. Dist.Solapur. Respondents

Mr. Shinde, advocate holding for Mr. J.R.Patil, advocate for the
appellant.
Mr.V.R.Mundada, advocate for Respondent No.2.

CORAM : M.S.SONAK, J.
DATE : 07th February, 2018.

ORAL JUDGMENT :

1. Heard learned counsel Mr. Shinde holding for Mr. J.R. Patil,
learned counsel for appellant and, Mr. Mundada, learned counsel
for respondent no. 2. Respondent no. 1 has been duly served.

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2. On 13th July, 2017, this Court had issued notice for final
disposal of this appeal to respondents returnable on 7th
September, 2017. Record and proceeding were also called for.
Accordingly, record and proceeding have been perused for the
purpose of disposal of this appeal.

3. Mr. Shinde, learned counsel for appellant submits that the
tribunal has itself, on the basis of evidence on record, recorded a
categorical finding that the appellant was injured while travelling
on his motor cycle bearing No. MH-25-S-4522 on account of
collusion with trax bearing Registration No.Mh-25-R-1454, which
came in rash and negligent manner. After recording such
categorical finding of fact, he submits that the learned Tribunal,
has very erroneously dismissed the claim petition only on the basis
of certain discrepancies in FIR and because, FIR in this case, was
lodged 4 months after the date of the accident. Mr.Shinde submits
that the record indicates that MLC Case No.32/2011 was
registered by police on 20.05.2011 i.e. on the date of the accident.
He submits that in pursuance of the same, police also conducted
spot panchanama in which, there is clear reference about
involvement of two vehicles. Mr. Shinde submits that on the basis
of certain inconsequential discrepancies in the vehicle number and
on the basis that formal FIR was lodged after four months, the
learned Tribunal was not, at all, justified in dismissing the claim
petition in its entirety, however, even discussing the issue of
computation of quantum of compensation. He submits that the
Tribunal has dealt with the issue as if it was deciding the criminal
case. He submits that the view taken by the Tribunal is in direct
conflict with the decision of the Hon’ble Supreme Court in Ravi

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Vs. Badrinarayan others, 2011 (4) MhLJ 514 and, therefore,
impugned award, to the extent it dismisses the claim of the
appellant, may be reversed and the matter may be remanded to the
Tribunal only for computation of quantum of compensation
payable to the appellant.

4. Mr.Mundada, learned Counsel for Respondent No.2 –
Insurance Company, submits that delay in lodging FIR in this case
is of four months and that should be regarded as fatal to the
maintainability of the claim petition. He submits that there are
serious discrepancies as regards vehicle number and, therefore,
the Tribunal has very rightly concluded that vehicle bearing
no.MH-25-R-1454 cannot be said to have been involved in the
accident. He submits that the vehicles, which have been referred
to in the FIR, have not been insured by the Insurance Company.
He submits that there is also no evidence that trax no.MH-25-R-
1454 has been insured with Respondent No.2-Insurance Company.
He too relies upon decision of the Hon’ble Supreme Court in the
matter of State of Andhra Pradesh Vs. Madhusudan Rao (2008)
15 SCC 582, which is a decision which has been relied upon by the
learned Tribunal in order to non suit the appellant on the ground
of delay in lodging of FIR. Mr.Mundada submits that since the
close relation of the appellant is an advocate, the appellant should
have known the requirements of filing FIRs, at the earliest
instance. He submits that since close relation of the appellant is
an advocate, possibility of collusion with the police machinery,
cannot be ruled out. He submits that since there is shadow of
doubt created as to whether vehicle bearing registration no.MH-25-
R-1454 was at all involved in the accident, learned Tribunal was

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very much justified in dismissing the claim petition. For all these
reasons, Mr. Mundada submits that there is no merit in this
appeal and it deserves dismissal.

5. On consideration of rival contentions and on perusal of
record as well as impugned judgment and award, this is a fit case
to set aside the impugned award passed by the learned Tribunal to
the extent it non suits the appellant and fails to determine
compensation due and payable to the appellant.

6. The Tribunal, upon evaluation of material on record has
recorded following categorical findings of fact in paragraph no. 13
of the impugned judgment and award which reads as follows :

13. I have also gone through the oral
evidence of claimants witnesses i.e. CW.No. 2
to CW No. 7. It appears from their oral
evidence that, claimant on 20/5/2011 was
traveling by his motor cycle no. MH-25-S-4522
in slow speed by correct side of the road and
when claimant reached near Ganpat Vasti, at
that time one Trax Cruiser jeep No. MH 25
R/1454 came in high speed in rash and
negligent manner and driver of said vehicle
could not control the speed of jeep and given
forceful dash to his motor cycle due to which
claimant fall down on the road and sustained
grievous multiple head injuries.

7. However, after recording aforesaid categorical findings of fact,
the learned Tribunal has non-suited the appellant and denied
compensation only on the following two grounds :

a) That there was delay of four months in lodging FIR and

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therefore, a shadow of doubt is created as to whether such an
accident took place or in any case, whether Trax No. MH 25 R 1454
was at all involved in the accident.

b) FIR in paragraph no. 7 makes reference to Trax No. MH 25 R
1464 and in paragraph no. 12 to Trax No. MH 25 R 4554. In
contrast, it is the case of appellant that the trax which was
involved in the accident bears registration No. MH 25 R 1454.

8. Both the reasons stated by the learned Tribunal are entirely
unsustainable and therefore, the impugned judgment and award
to the extent it non-suits the appellant is required to be set aside.

9. Insofar as first reason as regards delay in lodging FIR is
concerned, the appellant has explained that as his brother is an
advocate and upon realising that FIR may not have been lodged,
caused the formal FIR to be lodged on 10.09.2011 i.e. almost 4
months after the date of accident which took place on 20.05.2011.
Evidence on record, however, establishes that on the date of
accident i.e. on 20.5.2011, when the appellant was moved to the
hospital for treatment and was in no position to lodge FIR, MLC
No. 30/2011 was registered at Washi police Station in respect of
the accident, from out of which, the claim arises. The record also
indicates that spot panchanama was carried out by the police in
pursuance of MLC no. 30/2011 registered on 20.05.2011 and, in
the spot panchanama, very clearly, involvement of two vehicles i.e
Motor Cycle No. MH 25 S 4522 and Trax No. MH 25 R 1454 has
been mentioned. Besides, there is oral evidence on record which
completely corroborates the fact that the accident did not take

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place on 20.05.2011 in which, these two vehicles were involved.
On the basis of oral as well as documentary evidence, the learned
Tribunal has recorded a categorical finding of fact at paragraph no
13 of the impugned judgment and award. At paragraph no. 16 of
the impugned judgment and award, the learned Tribunal has noted
the following :-

16. After perusal of spot panchanama it
shows that M.L.C. No. 30/2011 is registered on
20.05.2011 at Washi police station and accident
was taken place on Saramkundi vicinity near
Gapat Vasti road. In the spot panchanama, the
numbers of involvement of suit vehicles are
mentioned as Motor cycle No. MH-25/S-4522
and Jeep No. MH-25/R-1454. While in
paragraph no. 7 of the FIR the numbers of suit
vehicles are mentioned as MH-25/R-1464 and
in paragraph no. 12 of FIR it is mentioned suit
Jeep No. MH-25 R-4554. There are variance in
the numbers of suit vehicles in the claim
petition.

10. In view of aforesaid overwhelming documentary as well as
oral evidence, delay in recording formal FIR can certainly not be
said to be fatal to the claim of the appellant. Mr.Shinde, learned
Counsel for the appellant is quite right in his criticism that learned
Tribunal has dealt with the matter as if dealing with the criminal
case in which delay in recording FIR may have its own
implications. This is quite clear from paragraph 18 of the
impugned judgment and award wherein the learned Tribunal has,
after quoting Section 154 of Cr.P.C., relied upon decision of Hon’ble
Supreme Court in the case of Madhusudan Rao (supra) and ruled
that a shadow of doubt is created about police papers, involvement
of vehicle in Crime No.109/2011 and claim of claimant.

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11. The decision of the Hon’ble Supreme Court in the case of
Madhusudan Rao, (supra) was in the case of charge under
Section
498A of I.P.C. and it is, in this context, observations were made as
regards effect of delay in lodging FIR on the veracity of criminal
prosecution. Such observations could not have been read entirely
out of context by the learned Tribunal in order to non suit the
appellant to claim compensation on account of injury suffered by
him in the accident.

12. In Ravi (supra), the Hon’ble Supreme Court, at paragraphs
20 to 23, has categorically ruled that delay in lodging FIR cannot
be a ground to doubt claimant’s case. Said paragraphs are
transcribed below for ready reference:-

20 It is well-settled that delay in lodging FIR
cannot be a ground to doubt the claimant’s
case. Knowing the Indian conditions as they
are, we cannot expect a common man to first
rush to the Police Station immediately after an
accident. Human nature and family
responsibilities occupy the mind of kith and kin
to such an extent that they give more
importance to get the victim treated rather than
to rush to the Police Station. Under such
circumstances, they are not expected to act
mechanically with promptitude in lodging the
FIR with the Police. Delay in lodging the FIR
thus, cannot be the ground to deny justice to
the victim. It cases of delay the Courts are
required to examine the evidence with a closer
scrutiny and in doing so; the contents of the
FIR should also be scrutinized more carefully.
If Court finds that there is no indication of
fabrication or it has not been concocted or
engineered to implicate innocent persons then,
even if there is a delay in lodging the FIR, the
claim case cannot be dismissed merely on that

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ground.

21 The purpose of lodging the FIR in such
type of cases is primarily to intimate the police
to initiate investigation of criminal offences.
Lodging of FIR certainly proves factum of
accident so that the victim is able to lodge a
case for compensation but delay in doing so
cannot be the main ground for rejecting the
claim petition. In other words, although
lodging of FIR is vital in deciding motor
accident claim cases, delay in lodging the same
should not be treated as fatal for such
proceedings, if claimant has been able to
demonstrate satisfactory and cogent reasons for
it. There could be variety of reasons in genuine
cases for delayed lodgment of FIR. Unless kith
and kin of the victim are able to regain a
certain level of tranquility of mind and are
composed to lodge it, even if, there is delay, the
same deserves to be condoned. In such
circumstances, the authenticity of the FIR
assumes much more significance than delay in
lodging thereof supported by cogent reasons.

22 In the case in hand, the Claims Tribunal
as well as the High Court committed grave error
in not appreciating the mental agony through
which Suresh was passing, whose son was
severely injured.

23 In the light of the aforesaid discussion,
we are of the considered opinion that the MACT
as well as High Court committed error in
coming to the conclusion that lodging the FIR
belatedly would result in dismissal of the claim
petition.

13. It is obvious that doubt expressed by the Tribunal and the
approach of the learned Tribunal in non suiting appellant on the
basis of such doubt, is entirely contrary to the law laid down by

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the Hon’ble Supreme Court in the case of Ravi (supra).

14. Learned Tribunal also failed to appreciate that in the matters
of this nature, relevant test for evaluation of evidence is the test of
preponderance of probabilities and not test of proof beyond
reasonable doubt. In the present case, the learned Tribunal has
virtually extended some sort of benefit of doubt to the
owner/driver/insurer of the trax bearing No.MH-25-R-1454. This
is contrary to the principles which are ordinarily applicable in the
matters of this nature. In Bimla Devi others Vs. Himachal
Road Transport Corporation another (2009) 13 SCC 530; and
Dulcina Fernandes others Vs. Jaoquim Xavier Cruz
another, 2014 (2) MhLJ 510, the Hon’ble Supreme Court has
reiterated that in Claim Petitions under
Motor Vehicles Act, 1988,
the claimants have to establish their case on preponderance of
probabilities and the stand of proof beyond reasonable doubt is not
at all applicable. Learned Tribunal, in the present case, has not
adverted to this principle and, therefore, the impugned judgment
and award, to the extent it non suits the appellants warrants
interference.

15. Insofar as second reason is concerned, again, the learned
Tribunal has grossly erred in laying over emphasis upon
discrepancies and paragraphs no.7 and 8 of the FIR. M.L.C.
No.30/2011, registered on 20.05.2011 and spot panchanama
carried out in pursuance of the same very clearly state registration
no. of the trax/Jeep as “MH-20-R-1454”. In the claim petition also,
the appellant has stated this number. In the evidence led before
the Tribunal also, this is the number, which is stated. Incidentally,

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reference is necessary to written statement filed on behalf of
Respondent No.2 – Insurance Company, in which also, there was
no categorical denial that trax no.MH-25/R-1454 was involved in
the accident. Denial was to the statement that the accident had
taken place on account of rash and negligent driving of the driver
of the suit jeep/trax. Positive statement was made in the written
statement filed by Respondent No.2-Insurance Company that it is
the appellant-claimant, who himself contributed to the accident by
driving his motor cycle in high speed. Further, defence was taken
that driver of the trax/jeep did not have requisite valid license,
and, therefore, he violated terms and conditions of the insurance
policy and, therefore, Respondent No.2-Insurance Company should
be exonerated. In the light of such pleadings, it is indeed
surprising that Respondent No.2-Insurance Company should
argue in this case that there was some doubt as regards
involvement of Jeep/Trax No.MH-25-R-1454 in the accident out of
which the claim arises. It does not behore of the insurance
company to take such an inconsistent stand and to take some
undue advantage out of patently erroneous finding or rather doubt
expressed by the learned Tribunal in the impugned judgment and
award.

16. Merely because in paragraph no.7 of the FIR, reference to
Registration No. is “1464” instead of correct number “1454” or that
in paragraph no.12 of the FIR, reference is to registration no.”4554″
instead of correct number “1454”, the Tribunal was not, at all,
justified in non suiting the appellant. It is very obvious that such
minor discrepancies are clerical and inadvertent. In any case, there
is overwhelming documentary and oral evidence establishing

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involvement of Jeep/Trax MH-25-R-1454. As noted earlier, there is
no denial as regards involvement of this vehicle in the pleadings of
the parties. By ignoring all these cogent and relevant material and
by overemphasizing on the so called discrepancies in the FIR, the
Tribunal, in the facts and circumstances of the present case, was
not at all justified in non suiting the appellant. Accordingly, even
the second reason stated by the learned Tribunal for non suiting
the appellant is unsustainable and is required to be set aside.

17. The learned Tribunal was not at all justified in not
computing the quantum of compensation though, evidence was led
on this aspect by the parties. The Tribunal had framed an issue as
regards compensation but has failed to answer the same. Perhaps,
in the light of doubt as regards involvement of Jeep/Trax No.MH-
25-R-1454 in the accident. This is not a correct approach. The
learned Tribunal was required to answer all the issues because the
appellate Court could have then disposed of the entire matter
without necessity of any remand.

18. In the aforesaid circumstances, impugned judgment and
award, only to the extent it non suits the appellant and denies
compensation, is hereby set aside. The matter is remanded to the
learned Tribunal for only determination of compensation in
accordance with law and on its own merits. Since the evidence is
already led, there is no question of leading any further evidence.
Thereafter the Tribunal shall compute the compensation and make
its award within a period of two months from the date of
production of authenticated copy of this order before it.

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19. Appeal is consequently allowed. Respondent No.2-Insurance
Company is directed to pay cost of Rs.10,000/- (Rs.Ten Thousand)
to the appellant within a period of four weeks from today. Such
costs be deposited before the learned Tribunal within four weeks
from today. The appellant shall be at liberty to withdraw such
costs unconditionally.

20. Parties to appear before the Tribunal on 26th February, 2018
at 10.30 a.m. and produce authenticated copy of this judgment
and order.

M.S.SONAK
JUDGE
dyb

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