Allowed

Shriram General Insurance Co. Ltd. v. Akeela Bano

Rajasthan HC17 Jan 2023CMA/1710/2022

Case brief

AI extract

What is this about?

In this Civil Miscellaneous Appeal, the High Court of Rajasthan set aside an award of Rs. 858,212 against the appellant Insurance Company. The Court held that the Tribunal erred in accepting the vehicle's involvement in the accident based solely on a police challan when no proper investigation was conducted, the FIR was initially against an unknown vehicle, and the mechanical report showed no dama

What did the court decide?

The award dated 22.06.2022 declaring motorcycle No. RJ06-SN-3333 involved in the accident and granting compensation to the claimants was set aside.

Shriram General Insurance Co. Ltd. Vs Akeela Bano — Execution and Attachment | Rajasthan HC (2023)

¶1

HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR

¶2

S.B. Civil Misc. Appeal No. 1710/2022

¶3

Shriram General Insurance Co. Ltd., Through Regional Manager, Shriram General Insurance Co. Ltd. Branch Office E-8, Riico Industrial Area, Sitapura, Jaipur. (Insurer Of Motor Cycle No. Rj 06-Sn-3333)

¶4

----Appellant

¶5

Versus

¶6

Akeela Bano W/o Late Sujauddin @ Sajauddin Lohar, Aged About 36 Years, R/o Momin Mohalla, Gulamandi, Bhilwara.

¶7

Shri Mohd. Saddiq S/o Late Sujauddin @ Sajauddin Lohar, Aged About 11 Years, Minor Through Their Mother And Natural Guardian Respondent No. 1 R/o Momin Mohalla, Gulamandi, Bhilwara.

¶8

Kumari Gajala Bano D/o Late Sujauddina @ Sajauddin Lohar, Aged About 9 Years, Minor Through Their Mother And Natural Guardian Respondent No. 1 R/o Momin Mohalla, Gulamandi, Bhilwara.

¶9

Shri Mohd. Eliyas S/o Late Sujauddin @ Sajauddin Lohar, Aged About 6 Years, Minor Through Their Mother And Natural Guardian Respondent No. 1 R/o Momin Mohalla, Gulamandi, Bhilwara.

¶10

Smt. Khairunisha W/o Late Shri Nasiruddin, Aged About 70 Years, R/o Momin Mohalla, Gulmandi, Bhilwara.

¶11

Shri Sayeed Ahmed S/o Shri Sayeed Mumtaj Ali, Aged Adult R/o 292 Near Chhoti Masjid, Gulmandi, Bhilwara (Raj.) (Owner Of Motor Cycle No. Rj-06-Sn-3333)

¶12

Shri Satyanarayn S/o Shri Shankar Lal Bhambi, Aged Adult R/o Labour Colony, Bhilwara. (Raj.) (Driver Of Motor Cycle No. Rj-06-Sn-3333)

¶13

----Respondents

¶14

For Appellant(s) : Mr. Vishal Singhal For Respondent(s) : Mr. Pushkar Taimini for Mr. Sanjay Nahar

¶15

(2 of 11)

¶16

[CMA-1710/2022]

¶17

HON'BLE MS. JUSTICE REKHA BORANA

¶18

Order

¶19

17/01/2023

¶20

The present appeal has been preferred against the award dated 22.06.2022 whereby the claim petition preferred by the claimants has been allowed and an award for an amount of Rs.858212/- has been passed in their favour.

¶21

The case of the appellant-Insurance Company is that it was a specific case wherein the vehicle has falsely been implicated/implanted in the accident and in pursuance to the same, the award has wrongly been passed in favour of the claimants.

¶22

It has been argued by learned counsel Shri Vishal Singhal on behalf of appellant that at the first instance, the FIR qua the accident was registered against an unknown vehicle. Subsequently, a challan has been filed against the driver of the motorcycle No.RJ06-SN-3333 without any evidence pertaining to the fact that the said vehicle was involved in the said accident. Learned counsel submitted that it is an admitted case on record that no investigation by the police authorities regarding the accident in question was made. Further, the vehicle in question was not seized by the police but was surrendered by the insured himself in the police station and it is an admitted case that the vehicle was seized by the Investigating Officer in the police station itself and that too after 21 days of the accident. Learned counsel further submitted that the mechanical report of the vehicle also specifies that there was no damage to the motorcycle in question and therefore also, it is proved on record that the said vehicle was not involved in the accident.

¶23

(3 of 11)

¶24

[CMA-1710/2022]

¶25

Regarding the quantum of compensation, learned counsel submitted that there was no proof of income of the deceased available on record. He submitted that the income certificate as placed on record was admittedly issued after the date of death of the deceased which could not have been relied upon by the learned Tribunal. Learned counsel also submitted that the evidence led by the witnesses was also not reliable as it was clear on record that AW.3-Mohd. Sadiq, the alleged eye witness, was an interested witness and his evidence qua the accident in question could not have been relied upon.

¶26

Per contra, learned counsel for the respondents/claimant Shri Pushkar Taimini submitted that it was clearly established on record that motorcycle No. RJ06-SN-3333 was involved in the accident and the factum was proved beyond reasonable doubt by documentary as well as oral evidence. Learned counsel submitted that it is an admitted case that the insurance company did not conduct investigation in the matter and therefore, in absence of any investigation report by the insurance company, there was no reason why the version of the claimants could not have been relied upon. Learned counsel submitted that AW.3-Mohd. Sadiq specifically admitted that he had witnessed the accident and had even seen and noted the number of vehicle i.e. the motorcycle involved in the accident. There was nothing on record to disbelieve the statements of the said witness. Regarding the quantum of compensation, learned counsel submitted that there was sufficient evidence available on record to prove the income of the deceased and therefore, the compensation as awarded in favour of the claimants is just and does not deserve to be interfered with.

¶27

(4 of 11)

¶28

[CMA-1710/2022]

¶29

Heard learned counsel for the parties and perused the material available on record.

¶30

It is an admitted fact that the FIR qua the accident in question was registered against an unknown vehicle at the first instance. AW-2 Shankerlal, who was the Investigating Officer, in his cross-examination admitted that the information received by him was regarding an unknown vehicle. He, in his crossexamination stated as under:

¶31

“ ;g dguk lgh gS fd eq>s rks fjiksVZ vKkr okgu eksVjlkbZfday ls ,DlhMsUV gksus dh feyh FkhA ”

¶32

He, further in his cross-examination, admitted that the vehicle was seized after 21 days of the accident and also that the same was seized at the police station itself. He further specifically admitted that the factum of the involvement of the motorcycle was concluded by him only on the basis of the information as given by Mohd. Sadiq and Abdul Jabbar. When questioned regarding owner of the vehicle, the witness submitted that he gathered the said information from the office of DTO, Bhilwara. The complete statements as made by the said witness Shanker Lal in his cross-examination on 05.08.2019 are reproduced hereunder for ready reference:

¶33

“ ;g dguk lgh gS nq?kZVuk ds 21 fnu i’pkr~ xkMh tCr dh xbZ FkhA ;g dguk lgh gS fd okgu dh tCrh Fkkus ls gh dh FkhA ;g dguk xyr gS fd pktZ’khV ds lkFk layXu xokg lwph es of.kZr p’enhn lk{kh eks- lnhd vkSj vCnqy tokj e`rd ds feyus okys Fks ;g dguk xyr gSA ;g lgh gS fd nq?kZVuk dh fjiksVZ vKkr okgu ds f[kykQ gqbZ FkhA ;g dguk lgh gS fd eksgEen lnhd jaxjst vkSj vCnwy tokj fclk;rh ds crk;s tkus ds ek= dkj.k ls eSaus eks- lkbZfdy RJ06 SN 3333 ds fo:} nq?kZVuk gksuk ekuk gSA eSaus RJ06 SN 3333 ds ekfyd dh tkudkjh izkIr djus gsrq DTO HkhyokM+k ls ekywekr dh FkhA ;g dguk lgh gS DTO HkhyokM+k ls iwNrkN dk dksbZ gokyk

¶34

(5 of 11)

¶35

[CMA-1710/2022]

¶36

pktZ’khV esa ugha gSaA ;g ckr lgh gS fd okgu ekfyd dks xkM+h Fkkus esa ykdj tCr djus dk vyx ls dksbZ uksfVl ugha fn;k gSA dsoy 133 MV Act dk uksfVl fn;k FkkA rQrh’k ds vuqlkj erd iSny FkkA eks- lkbZfdy us Vddj ekjh FkhA oDr nq?kZVuk erd vdsyk FkkA ;g dguk xyr gS fd vKkr okgu gksus ls ifjoknh i{k ls feykHkxr djds xyr okgu ds f[kykQ rQrh’k djds pyku is’k fd;k gksA ;g dguk xyr gS eSa >wBs c;ku ns jgk gWA ”

¶37

A perusal of the statements as made by the Investigating Officer makes it clear that no investigation regarding the accident in question was made by him. He has admitted that the involvement of the vehicle was based on the information given by Mohd. Sadiq.

¶38

So far as his information regarding owner of the vehicle is concerned, his version was that the same was received from the office of DTO, Bhilwara. In the very next sentence, it was admitted by him that no documents pertaining to any information having been called for and having been received from the office of DTO, Bhilwara are available in the charge-sheet. Meaning thereby, the conclusion of the vehicle in question being involved in the accident was reached by the Investigating Officer solely on the basis of the information given by Mohd. Sadiq.

¶39

So far as AW-3 Mohd. Sadiq is concerned, he specifically stated that he was an eye witness to the accident and had seen the number of the vehicle in question. He further admitted that he had taken the injured to hospital after the accident where subsequently he expired. The family members of the deceased had arrived at the hospital by that time. Had the number of the vehicle involved in the alleged accident been noted by Mohd. Sadiq, the FIR in question would not have been lodged against an

¶40

(6 of 11) [CMA-1710/2022]

¶41

unknown vehicle. It is admitted on record that the family members of the deceased had reached the hospital. Had Mohd. Sadiq known the number of the vehicle, he would definitely have informed the same to the family members of the deceased. Admittedly that was not done and the FIR was registered against an unknown vehicle.

¶42

Further, it is clear on record that the summons issued to Mohd. Sadiq during the present proceedings before the Tribunal, were not served on him and the report of the process server was that no person of such name resided at the address given. Despite the notices having received unserved, Mohd. Sadiq appeared in the witness box on the date fixed i.e. 05.08.2019. How he, who alleges to be a stranger to the family of the deceased, came to know about the date for recording of the evidence being fixed on 05.08.2019 is totally incomprehensible. On being cross-examined on the said aspect, he vaguely replied that he was informed by some person in his locality that some person had come to get the summons served on him and therefore, as per his information, he appeared before the Court on 05.08.2019. Interestingly, the statements of Mohd. Sadiq, who claims to be an eye witness, had not been recorded by the Investigating Officer and the same does not find place in the investigation/police papers although, the witness stated that his statements were recorded by the police.

¶43

There is one more glaring fact that Mohd. Sadiq has stated himself as well as one Abdul Jabbar to be the eye witnesses to the accident. Admittedly, the statements of Abdul Jabbar had also neither been recorded by the Investigating Officer nor has he been

¶44

(7 of 11) [CMA-1710/2022]

¶45

produced in the witness box by the claimants in the present proceedings. Further, the so called eye witnesses were not the

¶46

witnesses to any police proceedings like नक्शा नजरी or फ्ቖ� पंचनामा

¶47

लाश prepared on the date of accident. One more important aspect which cannot be ignored is that Mohd. Yusuf, the person who lodged the FIR has not come in the witness box.

¶48

Learned Tribunal while deciding issue No.1, has reached to a conclusion of the motorcycle being involved in the accident only on the basis of the fact that the police agency, which is a reliable agency, has in its investigation found vehicle No.RJ06-SN-3333 to be involved and a charge-sheet has been filed against its driver. It is clear that the said finding of the learned Tribunal is totally contrary to the material available on record. Admittedly, no investigation was conducted by the Investigating Officer and the challan has been filed against the driver of the vehicle in question only on the basis of information given by Mohd. Sadiq which, in the opinion of this Court, is totally unreliable. It is admitted on record that the vehicle was surrendered by the owner himself in the police station after 21 days of the accident and the same was seized in the police station itself. Interestingly, the mechanical examination report of the vehicle in question specifies not a single damage to the motorcycle. The report reads as under:

¶49

" महो्ቖय जी ,

¶50

उपरोक्त वि�षय में निन�े्ቖन है की थाना हाजा के मु . न . 230/13 धारा 279, 304A IPC में जप्तशु्ቖा मोटर साइकिकल TVS अपाची नंबर RJ06-SN-3333 का मन चालक द्�ारा स्टाट� कर चला कर ्ቖेखा तो मो . सा . के ्ቜेक , क्लच , गि/यर , हॉन� , लाइटें , इंडि2केटर सभी सही होकर सही काय� कर रहे हैं। मोटर साइकिकल में किकसी ्ቚकार का 2ैमेज नहीं है। मोटर साइकिकल स्टाट� होकर चलने योग्य है।”

¶51

(8 of 11)

¶52

[CMA-1710/2022]

¶53

One more important aspect of the matter is that no reply whatsoever was preferred on behalf of the driver and the owner of the vehicle in question.

¶54

In Jansi Ram vs. Vinod Kumar & Ors.; S.B. Civil Misc. Appeal No.2635/2007 decided on 06.01.2014 reported in 2014(2) TAC 602 (Raj) , it has been held as under:

¶55

“Merely because the owner of the offending vehicle made an admission that his vehicle had met with an accident, it would not prevent the learned Tribunal from dismissing the claim petition. After all, the learned Tribunal is expected to analyse the entire evidence and to adjudicate upon the issues framed by it. Instances are not lacking when a claim petition has been filed with collusion between the claimant and the owner of the offending vehicle. Thus, the Tribunal is duty bound to critically analyse the evidence produced before it.”

¶56

In Mahender vs. Girdhari & Ors.; S.B. Civil Misc.

¶57

Appeal No.4403/2009 decided on 04.12.2015, it has been held as under:

¶58

“Merely because a charge-sheet was filed or the notice u/s 133 was received, does not prove the fact of accident by alleged vehicle.”

¶59

National Insurance Co. Ltd. vs. Prabhu Devi; S.B. Civil

¶60

Misc. Appeal No.1734/2002 decided on 25.03.2014 reported in 2014(2) DNJ 788 was also a case wherein the FIR was lodged against an unnamed vehicle and after two months, the owner of the vehicle himself produced the vehicle and admitted the accident. The claim petition of the claimants therein was dismissed with the specific finding that the evidence was suspicious and involvement of the vehicle was doubtful.

¶61

The argument as raised by learned counsel for the respondents that the insurance company ought to have conducted

¶62

(9 of 11) [CMA-1710/2022]

¶63

an investigation in the matter and in absence of the same, the charge-sheet as filed by the police authorities would be the conclusive proof of an accident having happened, finds an apt reply in the Division Bench judgment of Karnataka High Court in the case of Mahadevi & Ors. vs. Shivputra & Anr.; M.F.A. No.201689/2016 (MV) decided on 20.11.2020, wherein it was observed as under:

¶64

12. A subsidiary issue raised by learned counsel for the appellant needs to be taken note of and addressed not on account of its legal validity, but because of the vehemence with which it was addressed to the court, viz., it was put before us that it was open to the insurance company to challenge the validity of charge sheet by approaching the competent authorities or the jurisdictional courts and since it has failed to do so, the conclusion drawn by the I.O. in the charge sheet is binding on the insurance company and, by the same token, on the Tribunal and this Court. For the said purpose, he placed reliance on the decision of Co- ordinate Bench of this Court dated 15.06.2011 passed in MFA No.30219/2011 (MV).

¶65

13. We have, with great respect, perused the entire judgment. From a perusal of the same, we do not find any law laid down in the said judgment of universal application that in all cases where charge sheets were filed, unless Insurance Company challenges the same and obtains writ of mandamus, MACTs are required to act upon the same and proceed to come to a conclusion that the vehicles named as offending vehicles in the charge sheet, without any further proof, are to be taken as the motor vehicles involved in causing the accident, even in cases where evidence produced points to the contrary.

¶66

14. Further, we find that in the said judgment, there is no discussion of the relevant provisions of Code of Criminal Procedure or other cognate provisions of law under which the police authorities would investigate and file charge sheets and on the probative value of the charge sheets vis-a-vis the involvement of a motor vehicle in causing the accident before the Tribunals trying the compensation cases. Experience of the recent past shows that instances of fraudulent/ collusive involvement of motor vehicles duly covered by insurance policy in accident cases are burgeoning and if the insurance companies are saddled with the burden of challenging the charge sheets filed throughout the country without there being no clear legal mandate to do so, their work would be seriously crippled and they would not be able to do their insurance business without enhancing the premium,

¶67

(10 of 11)

¶68

[CMA-1710/2022]

¶69

thereby further burdening the ever suffering owners of motor vehicles. Even the most liberal reading the provisions of the Motor Vehicles Act, 1988 does not spell out such a requirement.

¶70

15. The question is one of fundamental importance - what is the standard of proof applicable in these proceedings? On whom is the initial burden of proving the accident or, as in this case, involvement of the offending motor vehicle cast? Is not still the standard of proof one of "preponderance of probabilities"? Is a mere charge sheet, which in this case is shown to be deficient in truth sufficient to tip the balance only on the premise that insurance company has not dipped deep into its pockets to challenge the charge sheetwhat with the toxic nexus between the black sheep among the police, medical professionals and touts of every kind masquerading the field which has become a notorious fact of life. We are afraid, we would be muddling the field further for the already befuddled members of MACT by accepting the arguments of learned counsel for the appellants on this aspect.

¶71

Keeping in consideration the facts and the law on the point, an overall scenario makes it clear that the present is a case wherein the vehicle has falsely been implicated/implanted in the accident. There was no evidence available on record whereby it could have been concluded by the learned Tribunal that the accident was caused by the motorcycle in question. Because of the admitted facts that the FIR was firstly lodged against an unknown vehicle, no investigation was conducted by the Investigating Officer, no vehicle was seized in terms of the provision of law and no damage whatsoever was caused/reported to the alleged vehicle, this Court is of the specific opinion that the findings of the learned Tribunal regarding involvement of the vehicle in question and consequently negligence of driver of the motorcycle in question are totally contrary to the material available on record and cannot be upheld. As this Court has reached to a specific conclusion that the vehicle, that is

¶72

(11 of 11) [CMA-1710/2022]

¶73

motorcycle No.RJ06-SN-3333, was not involved in the accident, the award dated 22.06.2022 passed in favour of the claimants also cannot be upheld and the same deserves to be set aside and is hereby set aside.

¶74

The present appeal is allowed.

¶75

Stay petition and all the pending applications stand disposed

¶76

of.

¶77

No order as to costs.

¶78

(REKHA BORANA),J

¶79

66-T.Singh/-

Shriram General Insurance Co. Ltd. v. Akeela Bano

Case brief

What is this about?

What did the court decide?

Shriram General Insurance Co. Ltd. v. Akeela Bano

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

Cases cited

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