Momina Khatun vs Saleha Begum And Anr

Heard Mr. S.K. Goswami, the learned counsel for the appellant as well as Mr. K.K. Bhatta, the learned counsel for the respondent No. 2. Mr. K.U. Ahmed, the learned counsel appears for respondent No. 1.

This is an appeal against the Judgment dated 29.02.2016 passed by the learned Additional District & Sessions Judge-cum-Member, Motor Accident Claims Tribunal, Hojai, Sankardev Nagar in MAC Case No. 237/2010, by which the claim of the appellant was dismissed. Be it stated herein that prior to passing of the impugned Judgment, the claim of the appellant had been dismissed by the Tribunal vide Judgment dated 22.03.2013. Against the said order, the appellant preferred MAC Appeal No. 146/2013 which came to be disposed of vide Order dated 04.03.2014 by remanding the matter back to the Tribunal for a fresh decision by permitting the claimant to adduce additional evidence. After the matter was remanded back, the Tribunal again dismissed the claim vide the impugned Judgment dated 29.02.2016. Being aggrieved thus, the appellant is once more again before this Court through the instant appeal.

Brief facts of the case may be narrated at the outset.

It is the case of the claimant that on 11.02.2010 at about 10.00 am, her husband late Abdul Hamid who was going toward Puthimari village from Balikotia Hospital by riding his bicycle. At that moment, the offending vehicle bearing Registration No. AS-2 D-9339 knocked him down from the back side and he fell on the hard surface of the road. He sustained injuries and became senseless. He was then taken to BP Civil Hospital, Nagaon whereafter, he was shifted to Dispur Hospital and then to Guwahati Medical College Hospital (GMCH), Guwahati. He took medical treatment in the GMCH upto 02.03.2010 and was discharged on that date. Subsequently, he expired on 04.03.2010 at his own residence. As a result of his death, his wife who is the appellant herein, filed the claim application before the Tribunal under Section 166 of the MV Act, 1988 claiming an amount of Rs. 17 lakhs as compensation considering the fact that the deceased was an LP School teacher. The learned Tribunal however, upon finding that no charge sheet was filed by the police and that there was no post-mortem report, dismissed the claim of the appellant. Non-impleadment of the driver of the vehicle involved in the accident was also one of the grounds for dismissal of the claim.

Mr. S.K. Goswami, the learned counsel submits that lack of post-mortem report and non-filing of a charge sheet by the Investigating Authority by itself cannot be the ground for dismissing the claim of the appellant inasmuch as the evidence on record clearly establishes the fact that the deceased was knocked down while riding his bicycle on 11.02.2010 by the offending vehicle belonging to the respondent No. 1 and which was duly insured with the respondent No. 2. The view taken by the Tribunal is therefore not only erroneous but also a hyper technical view. To substantiate his submission, Mr. S.K. Goswami has led me to the evidence of the claimant witnesses who are marked as PWs 1 to 10 by the Tribunal. The learned counsel submits that PW 9 who is the Radiologist of Dispur Hospital, Guwahati deposed on oath that he conducted CT Scan upon the deceased on 12.02.2010 after he was admitted as a Road Traffic Accident (RTA) Patient. According to him, he recorded the history of the patient and the injury suffered by him to be due to a RTA. Similarly, the PW10 who is the Registrar of Surgery in the GMCH clearly deposed on oath that the deceased was admitted to the hospital due to RTA. He deposed that the deceased was suffering from head injury and was in a semi-coma condition and he was admitted in the hospital for 18 days.

Mr. S.K. Goswami, the learned counsel by referring to the discharged certificate of B.P Civil Hospital, Nagaon marked as Exhibit-3 submits that the deceased was taken immediately to the hospital after the accident where he was diagnosed of having head injury, bleeding through nose and face lacerated injury. The Medical Officer at BP Civil Hospital referred him to GMCH Hospital for further treatment. The learned counsel submits that thereafter, the deceased was taken to Dispur Hospital and was admitted on 12.02.2010 and thereafter, discharged on 13.02.2010. During his admission in the said hospital, CT Scan of his brain was done and the test revealed that the deceased was having multiple haemorrhagic contusion on the frontal region of his head. He was then discharged from the said hospital on 13.02.2010 for better treatment at the GMCH. The deceased was then admitted to GMCH on 13.02.2010 and was discharged on 02.03.2010. The learned counsel submits that the Medical Certificate issued by the GMCH, exhibited by the appellant as Exhibit-6 also clearly reveals that the deceased suffered head injury due to RTA. Besides this, the learned counsel Mr. S.K. Goswami, submits that from the evidence of DW-1 and DW-2 who are the investigating Officer and the registered owner of the accident vehicle, it is clear that the deceased met with an accident on 11.02.2010 on being hit by the offending vehicle from the back side and as a result, he sustained grievous injury on his person, more particularly, on his head. He therefore submits that from the evidence led by the appellant before the Tribunal, there cannot be any dispute that the deceased sustained grievous injury because of the accident and which ultimately was the cause of his death. The Tribunal therefore could not have dismissed the claim and therefore, the impugned Judgment may be interfered with by this Court. In support of his submission, the learned counsel refers to the following decisions:-

1) Bimla Devi and Others Vs. Himachal Road Transport Corporation and Others, 2009 (2) TAC 693 (SC).

2) Ravi Vs. Badrinarayan and Others, 2011 (1) TAC 867 (SC).

3) Hilaria Malong Vs. Md. Sajahan Ali and Another, 2018 (2) TAC 140 (Gau).

4) Tamil Nadu State Transport Corporation Ltd. Vs. M. Bojan and Others, 2015 (2) TAC 80 (Mad.).

Mr. K.K. Bhatta, the learned counsel for the respondent No. 2 submits that from the evidence available on record, there are contradictions on the model and make of the vehicle involved. The vehicle has been described as Indica by some of the witness while other witnesses have described the vehicle as Wagon R while the I.O has described the vehicle as Swift. He submits that the driver of the offending vehicle has not been made a party to the claim and being a vital witness, things would have been clear had he been made a party to the claim. Therefore, for non-joinder of necessary party, the claim petition itself was liable to be rejected. By referring to the deposition of PW9, PW10 and DW1, the learned counsel submits that there are no conclusive evidence to establish that the deceased expired due to the accident said to have happened on 11.02.2010. The learned counsel further refers to the cross examination of DW2 to contend that there are no material to show that the deceased expired due to the accident. He also submits that from the evidence of DW2 itself, it can be seen that there was a breach of a policy and for which reason, the Insurance Company at any rate cannot be held to be liable. Even if this Court finds that the appellant should be awarded compensation for the accident and that the Insurance Company should pay the amount, Court may grant liberty to the respondent No. 2 to recover the same from the owner of the vehicle.

Mr. K. U. Ahmed, the learned counsel for the respondent No. 1 submits that from the evidence of the owner herself, it is clear that the vehicle was duly insured at the relevant time and was driven by the driver holding a valid license and therefore in the event, the claimant is found to be entitled to compensation, the respondent No. 1 has to be indemnified by the insurer of the vehicle i.e. the respondent No. 2.

I have heard the submissions made by the learned counsels for the rival parties and I have perused the materials available on record.

As may be noticed, the Tribunal vide the impugned Judgment has framed 5 issues. For better appreciation, the issues framed may be abstracted below:-

" Issues:-

(i) Is there any cause of action for filling the claim case?

(ii) Whether the claim petition is maintainable in its present form?

(iii) Whether the vehicle No. AS 02-D-9339 was involved in the accident and it was driven with rash and negligent manner and the husband of the claimant sustained injuries in the said accident and succumbed to his injuries?

(iv) Whether the claimant is entitled to compensation and whom is it payable?

(v) To what relief/ reliefs are the parties entitled?"

The Tribunal took up the first two issues together and came to a conclusion and finding that there was cause of action in filing the claim and that the claim petition was maintainable. Thereafter, the Tribunal took up Issue No. 3 and after appreciation the evidence led by PWs 1, 2, 3, 4, 5, 7 and 8 as well as DWs 1 and 2, came to the conclusion that the claimant has miserably failed to establish the fact that the deceased was actually knocked down by the offending vehicle in the alleged accident and that he actually died for the injuries he sustained. As such, having not found any material to sustain the claim, the Tribunal decided the issue against the claimant. In so far as the Issue Nos. 4 and 5 are concerned, as the same can only be determined depending upon the outcome and finding of the Issue No. 3, the same may not be adverted to at this stage.

Coming to the conclusion of the Tribunal against Issue No. 3, it may be necessary to examine the evidence led by the claimant before the Tribunal. Dr. Bhaskar Jyoti Sarmah, who was examined as PW 9 by the claimant in his examination-in-chief deposed that on 12.02.2010, while he was working as the Radiologist at Dispur Hospital Guwahati, submitted a report on the CT Scan done upon the deceased. The CT Scan was done on the brain of the deceased and that the injury was of a serious nature. He exhibited the report as Exhibit -5 while the discharged certificate issued from the Hospital was exhibited as Exhibit 4. He further deposed that the history of the patient was mentioned as RTA on 11.02.2010 at 11.00 am and the place of occurrence was Balikotia.

Dr. Biswajit Das, who was working as the Registrar of Surgery, GMCH, Guwahati on 13.12.2010 was examined as PW 10 by the claimant. He deposed on oath that he was working as Registrar of Surgery, GMCH and the deceased was admitted on Surgical Unit - 6 and he stayed in the hospital for 18 days. He was discharged on 02.03.2010 with a medical advice. He identified the discharged certificate and his signature appended in the said certificate which was marked as Exhibit 6 and Exhibit 6 (1). He deposed that the deceased was described as a patient of RTA suffering from head injury. He was in a semi coma condition and therefore, complete investigation could not be done. The deceased was under observation for 18 days but no improvement was made and his chance of recovery was found to be very thin. In his cross examination, he deposed that he did not submit his report stating that the patient was in semi coma condition and that he may survive for any time with the injury sustained by him.

Besides the said two witnesses, it will also be important to examine what the eye witnesses had deposed before the Tribunal. The eye witnesses have been marked as PWs 3, 4, 7 and 8. PW3 Md. Saiful Islam in his examination-in-chief deposed that on 11.02.2010 at around 10.00 am, he and his father were working in their agricultural field at Bolikotia nearby Bolikotia village road and they saw the deceased who was a teacher of Puthimari LP School going towards Puthimari through the said village road. They saw a silver coloured vehicle under registration No. AS 02 B 9339 coming from behind the deceased and suddenly knocking him down from his cycle from the back side. They immediately ran to the spot and found the deceased to sustain grievous head injury and he became unconscious. The deceased was then taken to Nagaon Civil Hospital by the same vehicle which knocked him down and he accompanied him to the hospital.

PW 4, Md. Abdul Suban in his examination-in-chief deposed that on 11.02.2010 in the morning time he was grazing the cow in the agricultural field and he saw the deceased going towards Puthimari for Bolikotia side towards Balikotia village in the Puthimari road by riding his bicycle. He then saw a car coming from behind being driven in a rash and negligent manner knocking him down from behind. As a result, the deceased fell off from his bicycle on Puthimari road and became unconscious. He saw Saiful Islam (PW3) and Rajab Ali who were working in their agricultural field nearby the said village road and they all ran to the place of accident and jointly caught hold of the offending vehicle. The deceased was taken to the Nagaon Civil Hospital for treatment by the same vehicle which knocked him down.

A similar narration has been made by Md. Ziaur Rahman, PW 5 as to how the deceased met with the accident and therefore, it is seen that the versions of the witnesses corroborate each other. Although, they were cross examined by the opposite party, there deposition in their examination-in-chief has not been discredited. Further, PW 8, Rehena Begum who was the occupant of the offending vehicle in her examination-in-chief deposed that on 11.02.2010 at about 10.00 am at Bolikotia Puthimari pacca road, the vehicle in which she was travelling knocked down a cyclist and as a result, the cyclist was thrown off his cycle and he fell down on the Puthimari road sustained grievous head injury. Some people working in the agricultural field nearby came running to the place of occurrence trying to assault the driver but one Anchalik Member Abdul Kadir of Bolikotia came to the rescue and controlled the crowd which had gathered in the meantime. The deceased was then taken to Nagaon Civil Hospital by the same car and he was bleeding from his nose and mouth and there was blood stain on the seat of the car. Md. Abdul Kadir was examined as PW7 and the statement of PW8 Rehena Begum has clearly been corroborated by him.

Thus, from the evidence of the above witnesses, it is clear that the deceased on 11.02.2010 was hit by the vehicle of DW2 under Registration No. AS 02 D-9339, which was validly insured with the respondent No. 2, insurance company. The Tribunal however for wants of post mortem report and charge sheet filed by the police otherwise came to a finding that the claimant failed to establish that the deceased was knocked down by the offending vehicle and that he died ultimately due to the injury sustained by him in the accident. This finding in my considered view having regard to the evidence led by the claimant, is only misconceived and erroneous and a hyper technical one.

The Apex Court in the case of Bimla Devi and Others (Supra) has held that the degree of proof in a case of a claim under the MV Act can be established on the touchstone of preponderance of probabilities and the standard of proof beyond reasonable doubt cannot be applied. In the case of Hilaria Malong (Supra) a Coordinate Bench of this Court by following the decision of the Apex Court in Union of India Vs. Bhala Rai, 2011 (ACJ) 2603 held that a casual connection between death of victim and the injury sustained by him due to the accident was sufficient to hold that the claimant will be entitled to compensation. Further, it was held that lack of post mortem examination report by itself cannot be the basis for disallowing the claim when there was sufficient evidence brought on record about the treatment of the victim for the injury suffered by him in the accident.

Similarly, the Madras High Court in M. Bojan and Others (Supra) held that the delay in filing the FIR and non-production of the post mortem report by itself cannot be the ground for disallowing the claim when it was admitted that the accident had indeed occurred. There was a delay of about 2 months in filing the FIR from the date of the accident and about 1 month, from the date of death of the deceased. Such delay by itself in my considered view cannot be the ground to reject the claim of the applicant or to disentitle compensation to the claimant.

From the evidence of DW-2, it is seen that some amount of money was given to the deceased after the accident for his treatment and thereafter, some amount was again given after he expired towards funeral expenses. The evidence on record in other words reveal that some sort of negotiation was being attempted by the parties concerned and therefore, this could be the explanation for the delay in filing the FIR. The Apex Court in the case of Ravi (Supra) held that when the owner of the vehicle categorically admitted that his vehicle was met with an accident and the injury report filled up by the attending Doctor reveals that the cause of the injury was due to the road accident, delay will not be fatal and cannot defeat the claim on this ground. The ratio in my considered view can squarely be applied to the present case as well.

Thus, upon considering the matter in its entirety, I find that the learned Tribunal committed error on facts and in law by dismissing the claim of the appellant vide the impugned Judgment. Accordingly, the same is set aside and quashed.

Although the learned counsel for the respondent No. 2 has taken the stand that the owner of the vehicle has violated the terms and conditions of the policy, but the fact remains that such stand was never taken by the insurance company before the Tribunal. Therefore, the question of there being a direction for pay and recovery will not arise.

The deceased was a primary School teacher by profession and the claimant also led evidence on his income. Therefore, the computation of the award shall be done by the Tribunal strictly and in accordance with law and as expeditiously as possible considering the fact that the accident occurred on 11.02.2010. The assessment and computation of the amount at any rate should be done within the outer limit of three months from the date of receipt of a certified copy of this order.

With the above observations and directions, the appeal stands allowed. Office to send back the LCR to the Tribunal immediately.