The High Court
Case Details
{1} fa61119.odt IN THE HIGH COURT OF JUDICATURE OF BOMBAY BENCH AT AURANGABAD FIRST APPEAL NO. 611 OF 2019 Zishan @ Mohammad Ismail Javed Sayyad, age: 13 years, Occ: Education, through Parental Guardian Mr. Javed Suleman Sayyad, age: 42 years, Occ: Business, R/o Ward No. 2, Subhedar Wasti, Shrirampur, Tq. Shrirampur, District Ahmednagar. Versus 01 Vijay s/o Punjaajai Kolhe, age: majaor, Occ: Business, R/o Saraswati Colony, Ward No.7, Shrirampur, Tq. Shrirampur, District Ahmednagar. 02 Branch Manager, The New India Assurance Co. Ltd., Offce at Parag Plaza, Dr. Chutephale Marg, Shivajai Cross Road, Shrirampur, Tq. Shrirampur, District Ahmednagar. Appellant Respondents Mr. R. A. Tambe, advocate for the Appellant Mr. Y. H. Lagad, advocate holding for Mr. R. R. Karpe, advocate for Respondent No.1. Mr. Dhananajaay P. Deshpande, advocate for Respondent No.2. CORAM : SANDIPKUMAR C. MORE J. Reserved on Pronounced on : 19th August, 2022. : 19th September, 2022. JUDGMENT : {2} fa61119.odt 1 The appellant – Zishan @ Mohammad Ismail Javed Sayyad, through his guardian – father Javed Suleman Sayyad, has preferred this appeal against the jaudgment and award dated 06.04.2017, passed by the learned Member, Motor Accident Claims Tribunal, Shrirampur, District Ahmednagar (herein after referred to as “the learned Tribunal”) in M. A. C. P. No. 280 of 2012, whereby claim of the appellant/claimant has been refused. 2 The background facts are as under: On 09.06.2009, the appellant was present by the side of the road along with his mother and brother. However, at the relevant time, one Rizwan Rafq Shaikh, who was driving the motorcycle bearing Registration No.MH-17-P-5390, recklessly gave dash to the appellant wherein the appellant suffered severe head injauries. The appellant was immediately taken to the hospital and admitted there for 3/4 days for treatment and there was an expenditure of Rs.10,000/- to Rs.15,000/- for his medical treatment. The concerned Police Station registered an offence against the driver of the said motorcycle. Present Respondent No.1 was the registered owner of the said offending motorcycle which was insured with Respondent No.2 – Insurance Company covering {3} fa61119.odt the date of the accident. The appellant, before the learned Tribunal, claimed compensation of Rs.2,00,000/-. However, the learned Tribunal was pleased to dismiss the Claim Petition by observing that the motorcycle rider, against whom the concerned Police Station fled charge sheet, was not driving the motorcycle at the relevant time and that the accident took place as the appellant claimant himself was negligent. 3 The learned Counsel for the appellant-claimant submits that the learned Tribunal drew its own inference by ignoring the documentary evidence on record and erroneously held that Rizwan was not driving the offending motorcycle at the time of accident and that the appellant himself was negligent. He further
Legal Reasoning
submits that though the First Information Report was lodged after about two months of the accident by the father of the appellant- claimant against one Riyan Umar Faruq, but subsequently during investigation, it was found that Rizwan was driving the offending motorcycle. However, still the learned Tribunal has ignored all these things including the evidence of Rizwan, who himself had stated that he was driving the offending motorcycle. He further submits that the learned Tribunal also ignored evidence of Investigating Offcer, who fled charge sheet against Rizwan since it {4} fa61119.odt was Rizwan and not Riyan who drove the offending motorcyle at
Legal Reasoning
the time of the accident. Moreover, the learned Counsel for the Insurance Company, before the learned Tribunal, had also not cross examined Rizwan on the aspect of alleged intentional collusion between him and the appellant’s father. Even no such suggestion about the alleged collusion was given to the Investigating Offcer Mr. Thorat by the Counsel of the Insurance Company before the learned Tribunal. The learned Counsel for the appellant, besides oral submissions, has also relied upon following jaudgments: (i) In the case of Smt. Neha Nilesh Arlekar & others Vs. Mr. S. D. Rocky & others, (First Appeal No. 23 of 2015, decided by this Court on 25.02.2022 at Panajai (Goa) bench of this Court; and (ii) In the case of Reliance General Insurance Company Ltd. Vs. Kum. Rizwana Khatoon Mehboob Khan & another, (First Appeal St. No. 1289 of 2018, decided on 07th October, 2021, by this Court at the Principal Seat at Bombay; wherein it has been observed that while deciding the motor accident claim petitions, principles of preponderance of probabilities are to be taken into consideration while recording fnding about negligence and no strict proof of evidence, as required in criminal matters, is needed. {5} fa61119.odt 4 On the contrary, learned Counsel for Respondent No.1- owner, has submitted that Rizwan, in fact, drove the offending motorcycle at the time of accident and the same was insured with Respondent No.2-Insurance Company at the relevant time. 5 On the other hand, learned Counsel for Respondent No.2 – Insurance Company, has supported the impugned jaudgment and award and submitted that the First Information Report was lodged belatedly and that too against one Riyan and not Rizwan. He submits that involvement of the vehicle in the accident was shown due to collusion between appellant’s father and Rizwan Shaikh, who, in fact, was not driving the motorcycle at the relevant time. He further submits that though the mother and brother of the appellant were present at the time of accident, being eye witnesses, they were not examined. As such, on the point of negligence of the appellant himself, the learned Tribunal has recorded correct fnding in the absence of evidence of appellant’s mother and brother. He also submits that though the doctor, who had given the disability certifcate to the appellant was examined, no functional disability is proved. With these submissions, learned Counsel for Respondent No.2 – Insurance Company prayed for {6} fa61119.odt dismissal of the appeal. 6 I have carefully gone through the impugned jaudgment and award along with the record and proceedings of original Claim Petition inclusive of entire oral and documentary evidence. 7 On perusal of the impugned jaudgment, it is evident that the learned Tribunal, after considering the evidence on record, has come to the conclusion that Rizwan Rafk Shaikh, against whom charge sheet in respect of accident has been fled, was not driving the offending motorcycle, but his brother Riyan, was driving the motorcycle at the relevant time and since he did not possess valid driving licence, the police machinery falsely showed Rizwan, being driver in collusion with father of the appellant. Further, the learned Tribunal has also held that the accident took place due to own fault of the appellant-claimant himself who suddenly came before the offending motorcycle. 8 Admittedly, on perusal of the First Information Report at Exhibit-38, it is evident that father of the claimant had lodged report in respect of the accident after about two months of the incident and he had specifcally stated to the police that the {7} fa61119.odt offending motorcycle was being driven by Riyan Umar Faruq. However, in the First Information Report itself, he has stated that since he was busy in providing medical treatment to his son, he could not lodge the report of the accident immediately. It has been held by the Hon’ble Apex Court in various decisions that mere lodging of the First Information Report in the cases of accident belatedly, cannot render the entire story doubtful but other circumstances are also to be taken into consideration for arriving at such conclusion. Though the First Information Report does not reflect the name of Rizwan, being driver of the offending motorcycle, but the Investigating Offcer, after carrying out the investigation, has found that Rizwan was driving the motorcycle at the relevant time and Riyan was the pillion rider. Moreover, Respondent No.1, who was the registered owner of the offending motorcycle at the relevant time, has also deposed in his evidence that at the time of accident, Rizwan Rafq Shaikh was driving the said motorcycle. He had even examined Rizwan as his witness, who himself has admitted that the motorcycle was being driven by him at the relevant time. Not only this, but the third witness of present Respondent No.1 – ASI Thorat, who was the Investigating Offcer in respect of the crime regarding accident, has also stated that Rizwan Rafq Shaikh was driving the offending motorcycle {8} fa61119.odt and he was made accused. It is specifcally stated by this witness that the Station In-charge, at the time of reducing the First Information Report of father of the appellant-claimant, in writing, mentioned the name of the driver of the said motorcycle as Riyan Umar Faruq Shaikh by mistake only. On perusal of the remaining documents excluding the First Information Report in respect of the crime regarding the accident, the name of Rizwan Rafq Shaikh is mentioned as a driver of offending motorcycle. The charge sheet has also been fled against Rizwan Rafq Shaikh only and not against Riyan Umar Faruq Shaikh. Though Rizwan Rafq Shaikh claimed in his evidence that the appellant-claimant suddenly came in front of his motorcycle and got injaured, without there being any fault on his part, but all the documents in respect of the crime indicates negligence of Rizwan Rafq Shaikh only. 9 The learned Tribunal has recorded its fnding that according to Rizwan, he had told his involvement in the accident, being the driver of the offending motorcycle, to the father of the appellant-claimant on the very day of the accident, but still father of the appellant lodged the First Information Report only against Riyan Umar Faruq Shaikh by mentioning him as driver of the offending motorcycle and this fact has created doubt, which {9} fa61119.odt resulted into recording further fnding that Riyan was not holding any valid licence and, therefore, to avoid the liability of paying compensation to the appellant, Rizwan posed himself as a driver of the motorcycle. However, this fnding does not get support from any material evidence on record. This appears to be an inference drawn as per the own wish of the learned Tribunal. In fact, the Insurance Company i.e. present Respondent No.2 did not examine any witness including Riyan to establish that Riyan was driving the offending motorcycle at the relevant time. Nothing is brought on record by the Insurance Company to show that Riyan was not having valid licence. As such, when the entire material on record, except the First Information Report, is indicating that Rizwan was driving the offending motorcycle at the time of accident, there was no reason for the learned Tribunal to disbelieve the said fact and draw an erroneous inference, which is not supported by any material. It appears that the learned Tribunal must have drawn such an inference only because there was delay in lodging the First Information Report and the mentioning of name of Riyan as driver of the offending motorcycle in the First Information Report. Therefore, aforesaid inference is defnitely contrary to the other material on record when Rizwan himself had stated that he was driving the offending motorcycle involved in the accident and that {10} fa61119.odt the crime in respect of the accident was registered against him after due investigation. 10 Further, the learned Tribunal, relying on the evidence of Rizwan, has held that the appellant-claimant himself was negligent since he suddenly came in front of the motorcycle. However, the papers of investigation do not show any negligence of the appellant-claimant. The learned Tribunal appears to have been relied on the evidence of Rizwan since the mother and brother of the appellant-claimant are not examined though they were present at the scene of the accident, being an eye witnesses. However, when the documents on record are indicating a different story about the guilt or negligence of Rizwan, the fact of non examination of mother and brother of the appellant-claimant hardly matters. 11 Considering all these aspects, I come to the conclusion that the learned Tribunal has not properly appreciated the evidence on record and recorded a fnding that the accident took place due to own negligence or fault of the appellant-claimant and that there was collusion between Rizwan and the father of the appellant. In fact, there was no cross examination of the {11} fa61119.odt Investigating Offcer on this aspect on behalf of Respondent No.2- Insurance Company. No such suggestion was put to Rizwan in cross examination on behalf of the Insurance Company. Thus, the fnding in respect of such collusion, recorded by the learned Tribunal, is itself erroneous on the face of it. 12 So far as the jaudgments, relied upon by the learned Counsel for the appellant, are concerned, same indicate settled position of law that in motor accident claim petitions, fnding of negligence arrived at by the learned Tribunal on the principle of preponderance of probabilities and strict proof of evidence is not required. As such, considering the facts of the present case, the learned Tribunal could have gathered that in the accident, there was no fault of the appellant-claimant and father of the claimant had told name of Riyan being the driver of the offending motorcycle by mistake only. Further, in the jaudgment in First Appeal (Stamp) No.1289 of 2018, in the case of Reliance General Insurance Company Limited Vs. Kum. Rizwana Khatoon Mehboob Khan & others, this Court has upheld the compensation to be awarded to the tune of Rs.10,00,000/-, awarded by the Tribunal in respect of accidental injauries suffered by said Rizwana, aged about fve years. However, on going through the said jaudgment, it is evident that {12} fa61119.odt Rizwana had sustained severe injauries than the present appellant- claimant Zishan. As such, loss sustained by Rizwana on the pecuniary and non pecuniary grounds, cannot be equated with the loss sustained by present claimant Zishan and the compensation in the instant case, needs to be paid on the basis of evidence on record. 13 Admittedly, father of the claimant has produced on record certain documents in respect of medical treatment of the claimant which are the part of the record and proceedings though these documents are not exhibited. It is settled that the same can be considered in the evidence without being exhibited if found genuine. Those documents includes injaury certifcate, discharge card issued by the Unity Hospital, Shrirampur and indicate that the claimant Zishan was admitted in the said hospital from 09.06.2009 till 13.06.2009. Though there are no documents in respect of the expenditure about the said medical treatment, but considering the injauries sustained by Zishan, it can easily be inferred that the medical expenditure must have been around Rs.20,000/-. 14 Further, it is to be noted that the claimant has also {13} fa61119.odt examined witness no. 2- Dr. Bhagwat Gangadhar Murade, who has issued the disability certifcate to the appellant-Zishan showing that the claimant suffered 20% permanent disability following the head injaury sustained in the accident. The disability certifcate, to that effect, is at Exhibit-42, which reflects the aforesaid fact. However, the cross examination of this witness indicates that the claimant was not admitted in his hospital and there was no fracture to the skull of the appellant-Zishan. Further, there was no facility of CT-scan in the hospital of this witness. It is extremely important to note that this witness has clearly admitted that he issued the permanent disability certifcate only on the basis of record. Not only this, but this witness has stated that the disability certifcate was issued by him after four years of the accident and at the time of the examination of the appellant, the patient was able to speak properly and there was no visible injaury on the head of the claimant. Thus it can easily be inferred that the disability certifcate was issued by this witness only to oblige the claimant and his father. 15 I have already come to the conclusion that the learned Tribunal did not appreciate the evidence on record properly and rejaected the claim petition of the claimant on erroneous fnding. {14} fa61119.odt Therefore, the compensation amount, to be awarded to the appellant-claimant, can be assessed in lump-sum instead of assessing it on the basis of different heads. 16 Considering the overall evidence on record and the nature of injauries sustained by appellant-Zishan i.e. the claimant, I am of the opinion that an amount of Rs.75,000/- (Rs. Seventy Five thousand) in lump-sum can be awarded to the claimant-Zishan by considering the fact that he was not earning member and had to remain admitted in the hospital for treatment for about 5 days only. 17 Accordingly, I pass the following order: (i) The appeal is hereby partly allowed. (ii) The jaudgment and award dated 06.04.2017, passed by the learned Motor Accident Claims Tribunal, Shrirampur in M. A. C. P. No. 280/2012, is hereby quashed and set aside. (iii) Respondents No.1 and 2 shall, jaointly and severally, pay compensation of Rs. 75,000/- (Rs. Seventy Five thousand), {15} fa61119.odt including the award under Section 140 of the Motor Vehicles Act on the principle of no fault liability along with interest @ 8% p.a. from the date of Claim Petition till its realisation, within three months from the date of this order. (iv) The amount of Rs.25,000/- (Rs. Twenty Five thousand) already paid to the appellant- Zishan, through his father, shall be deducted from the aforesaid amount of compensation of Rs.75,000/- (Rs. Seventy Five Thousand). (v) Award be drawn accordingly. adb (SANDIPKUMAR C. MORE) JUDGE