Laxmipriya Routray Vs Bhagabati Sarangi

1 . Instant appeal under Section 173 of the Motor Vehicles Act, 1988 (hereinafter referred to as ‘the M.V. Act’) is filed by the claimants assailing the impugned judgment dated 14^th November, 2014 passed in M.A.C. Case No. 117 of 2006 by the learned Presiding Officer, 4^th MACT, Puri, whereby, the claim application under Section 166 of the M.V. Act was dismissed on the grounds inter alia that the findings and the decision not to allow compensation in their favour to be not tenable in law and hence, liable to be interfered with and set aside with a direction for payment of compensation with determination of the same.

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2 . The appellants are the wife and children of the deceased, who said to have met with an accident in the night of 17^th March, 2006. After the death of the deceased, the appellants filed the

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application for compensation. The claim application under Section 166 of the M.V. Act was filed against the respondents demanding compensation for a sum of Rs.15,00,000/- on account of the death of the deceased in the vehicular accident. The learned Tribunal considered the pleadings on record and after framing issues and receiving evidence only from the side of the claimants, disbelieved the involvement of the alleged vehicle and dismissed the claim application. The impugned decision dismissing the plea for compensation is under challenge at the behest of the claimants.

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3 . Heard Mr. Mishra, learned counsel for the appellants and Mr. Mallik, learned counsel for respondent No.2 Insurance Company.

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The hearing of the appeal was taken up on 5^th March, 2024 and by then, the LCR had not been received, however, considering the submissions of learned counsel for both the sides and on production of the certified copies of the depositions in MAC Case No. 117 of 2006 with other relevant documents besides order of the learned SDJM, Bhubaneswar in I.C.C. Case No. 3932 of 2007, such hearing was concluded.

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As earlier stated, learned Tribunal reached at a conclusion that involvement of the alleged vehicle and negligence of the driver concerned could not be established, hence, declined the compensation dismissing the claim application filed under Section 166 of the M.V. Act.

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From the side of the claimants, two witnesses were examined, one of whom is claimed to be present at the spot along with the deceased, when the accident took place. The documents, such as, F.I.R., final form stood marked as Exts.1 & 2 respectively. Besides

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Ext.3, a certified copy of statement under Section 161 Cr.P.C., order of cognizance (Ext.4) in I.C.C. Case No. 3932 of 2007 was referred to. It is the contention of the appellants that the alleged vehicle was involved and on account of the rash and negligent driving of the said vehicle, a mini truck bearing registration No.OR-05-W-6573, the deceased met with the accident and received multiple injuries and later, while under treatment at a hospital, succumbed to it on 4^th July, 2006, hence, therefore, learned Tribunal was not justified to dismiss the claim application, morefully when, in connection with the alleged accident, the learned S.D.J.M., Bhubaneswar took cognizance of the offences under Section(s) 379 and 304-A IPC against the driver of the vehicle in question by order dated 19^th January, 2009, which prima facie proved the occurrence. The further contention is that the learned Tribunal should have examined and appreciated the facts on record and evidence received in its entirety and allowed compensation in favour of the appellants.

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Mr. Mishra, learned counsel for the appellants would submit that in a motor accident case, the Tribunal is required to consider the evidence as a whole and not to dismiss the claim application merely for the reason that the investigation into the incident by the local police resulted in submission of final form. It is further submitted that the case under Section 304-A IPC is prima facie established against the driver of the offending vehicle in view of the order dated 19^th January, 2009 in I.C.C. Case No. 3932 of 2007, hence, it was not correct on the part of learned Tribunal to reject the same and dismiss the claim application. While advancing the above argument, Mr. Mishra, learned counsel for the appellants referred to the evidence of the witnesses examined before learned Tribunal and documents, such as, F.I.R. etc.

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including the medical examination report dated 18^th March, 2006 in respect of the deceased.

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On the contrary, Mr. Mallik learned counsel for respondent No.2 Insurance Company submits that the involvement of the offending vehicle failed to be established. According to Mr. Mallik, learned Tribunal did not commit any error while denying compensation since the offending vehicle could not be traced. The police investigation, as it is further submitted, could not reveal such involvement of the alleged vehicle. According to Mr. Mallik, it was not within the knowledge of the claimants regarding any such involvement of the vehicle in question and was never brought to the notice of the local police either about the vehicle but later on, knowledge about the same is said to have been gathered, which is outrightly an afterthought. The evidence has been led before the learned Tribunal alleging about the vehicle to have caused the accident, which is not established after police investigation and hence, Mr. Mallik, learned counsel lastly submits that learned Tribunal was not at fault to dismiss the plea of the appellants.

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Perused the medical examination report of the deceased dated 18^th March, 2006 which reveals him of having received multiple fracture injuries to be grievous in nature. The said report suggests that the deceased was examined for having received bleeding injuries due to a vehicular accident and hence, admitted at Nilachal Hospital, Bhubaneswar. The F.I.R. was lodged on 4^th April, 2006, whereas, the alleged accident took place on 17^th March, 2006. On a reading of the F.I.R., the accident is said to have taken place on the fateful day at about 11.30 p.m. while the deceased was travelling in a motorcycle. In fact, the deceased

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lodged report by stating therein that he received multiple injuries on account of the accident. The F.I.R. further reveals that a mini truck 407 was responsible for the said accident. It is made to understand that the deceased after treatment at Bhubaneswar and thereafter, in a hospital at Calcutta died on 4th July, 2006 alleged to be on account of the injuries sustained during the accident. According to the evidence on record, the deceased lodged the report with delay after regaining sense. The further evidence is to the effect that the treatment of the deceased continued but finally he died on 4^th July, 2006. In the meanwhile, the final form was submitted by the local police with a finding ‘fact is true but no clue’. In course of investigation, the statement of the ocular witness, namely, P.W. 2 was recorded under Section 161 Cr.P.C., which was shortly before the death of the deceased on 4^th July, 2006. The final form was submitted on completion of investigation on 27^th September, 2006. So, as it is made to understand, the investigation commenced on 4^th April, 2006 and continued for more than five months and was concluded with the final form dated 27^th September, 2006 furnished and during such period, the offending vehicle could not be detected. Perhaps during the continuance of the investigation, the appellants and for that matter, P.W.2 failed to provide any such information about the offending vehicle. However, the F.I.R. reveals about the description of the vehicle that it was a mini truck 407 with blue colour. The alleged occurrence took place during night. As per the evidence of P.W.2, the offending vehicle was without any registration number as it was a brand new one. Under what circumstances, such revelation was made and by whom that it led to the claim about the offending vehicle bearing registration No. OR-06-W-7653 to be involved in the accident. The evidence of

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P.W. 2 was received in 2014 long after the accident dated 17^th March, 2006. As stated before, the final form was submitted and it was in 2009. But, the driver of the offending vehicle was found involved considering prima facie evidence on record in I.C.C. Case No. 3932 of 2007. It is a fact that though in 2006 the final form was submitted but sometime thereafter, the complaint was filed. It is pleaded that a protest petition was filed later to the final form which led to the passing of the order of cognizance in 2009. Interestingly, the cause of death as per the Death Certificate dated 5^th July, 2006 in respect of the deceased is on account of cardio-respiratory failure with compound fracture of right knee joint. In view of the cause of death, as reported by a hospital at Calcutta, learned Tribunal apart from other reasons disbelieved claim of the appellants as it did not have any co-relation or nexus with the injuries received in accident dated 17^th March, 2006. The Court however finds that the deceased was in continuous treatment, initially for the injuries and perhaps till the time of his death on 4^th July, 2006. Whether it was on account of any complications developed later that the deceased died having nexus with the injuries received during the accident is not revealed from the record. In fact, there has been no evidence from P.W. 1 to confirm or at least to suggest that after having received injuries, the deceased husband died on account of cardio-respiratory failure after developing injury related complications while under treatment. The Court does not find any evidence from P.W. 1 and P.W. 2 to the circumstances under which the offending vehicle and its involvement could be ascertained afterwards. Such evidence is conspicuously absent. Hence, therefore, it was quite obvious for the learned Tribunal to reject the plea and the claim of the appellants. Under the above

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circumstances, even though, there has been submission of final form but the deceased having died sometime after four months from the date of accident i.e. 17^th March, 2006, whether his death was due to the injuries received or out of any medical complications developed besides the very involvement of the vehicle with the information collected and its source in view of the evidence of P.Ws. 1 & 2, the Court is of the conclusion that there is a need for a remand to the learned Tribunal to receive such further evidence from the side of the appellants. It is stated that the evidence is deficient to reach at any such conclusion about the involvement of the offending vehicle and also regarding the death of the deceased whether to be on account of the injuries or medical complications developed by him due to such injuries received during the accident, hence, therefore, a remand is justified.

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Before parting with, the Court is to observe that the evidence on record in a proceeding under Section 166 of the M.V. Act is to be appreciated in a manner unlike a criminal trial. The claimants are to prove and discharge the burden proving the case by preponderance of probabilities. A Claims Tribunal is not to be easily swayed away or be influenced by a final form submitted by the police. At times, enquiry and investigation fails to bring about the intended result, it is not to be lost sight of the fact that an accident has taken place, which is found to be true but final form was submitted since there was no clue. The model of the vehicle, its colour, as in the present case, stood described in the report promptly lodged by the deceased himself. So, therefore, the accident cannot be outrightly disbelieved. One cannot also brush aside, the evidence with a plea about the involvement of the offending vehicle with such other evidence on record like the MACA No.1232 of 2014 Page 7 of 8

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order of cognizance dated 19^th January, 2009 passed in I.C.C. Case No. 3932 of 2007, hence, with additional evidence furnished, a fresh examination and scrutiny by learned Tribunal is expedient in the interest of justice. To sum up, it is held and concluded by the Court that learned Tribunal is to take cognizance of all such aspects with further evidence on record in a manner which commensurate a proceeding under the M.V. Act and not to reject the material evidence on the premise that the case is not proved beyond reasonable doubt.

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Hence, it is ordered.

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In the result, appeal under Section 173 of the M.V. Act filed by the appellants stands allowed. As a necessary corollary, the impugned judgment dated 14^th November, 2014 passed in M.A.C. Case No. 117 of 2006 by the learned Presiding Officer, 4^th MACT, Puri is hereby set aside. It is directed that the claim application under Section 166 of the M.V. Act on being restored to file shall be disposed of providing a further opportunity for the appellants to submit additional evidence and hearing respondent No.2 and also respondent No.1, namely, owner of the offending vehicle keeping in view the settled legal position and observations made herein above.

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In the circumstances, however, there is no order as to costs.

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(R.K. Pattanaik) Judge

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Signature Not Verified

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Digitally Signed Signed by: KABITARANI MAJHI Designation: Secretary Reason: Authentication Location: OHC, Cuttack Date: 21-May-2024 15:23:42

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kabita

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Laxmipriya Routray v. Bhagabati Sarangi

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Laxmipriya Routray v. Bhagabati Sarangi

Case brief

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