National Insurance Company Limited vs Garmansri Tripura And Anr.

Heard Mr. A. Nandi, learned counsel appearing for the appellant as well as Ms. S. Debgupta, learned counsel appearing for the respondents.

This is an appeal by the insurer under Section 173 of the Motor Vehicles Act from the judgment and award dated 12.12.2014 delivered in T.S.(MAC) 56 of 2013 by the Motor Accidents Claims Tribunal, Gomati District, Udaipur. In this appeal, the insurer has taken seriously a ground of collusiveness between the claimant and the owner.

Mr. Nandi, learned counsel appearing for the appellant as at the outset submitted that out of the same accident and on the same ground taken by the National Insurance Company in the appeal being MAC APP 62 of 2015 by the judgment and order dated 03.05.2015 [National Insurance Company Limited vs. Shri Subi Chandra Tripura & another] has observed as under:

"9. It would be pertinent to mention here that one of the injured persons Sadhan Tripura appears to be the owner of the truck bearing No.TR-03-C-1842. The FIR was lodged by his son Rahul Ch. Tripura on the date of the accident itself. The contents of the complaint have been quoted hereinabove. The contents of the FIR clearly show that Rahul Ch. Tripura had stated that his father along with 30/35 other persons were travelling in the truck to attend a CPI(M) meeting. From the police record, it is apparent that the meeting was to be addressed by Sri Jitendra Choudhury, the then Forest Minister of the State. In this FIR, it is not stated that Rahul Ch. Tripura came to know about the accident from somebody else. The FIR is written in such a manner as if Rahul Ch. Tripura himself was present and knew all the facts of the accident. Here it would also be pertinent to note that Sadhan Tripura, father of Rahul Ch.Tripura is the owner of the truck in question. Therefore, he could not have made a mistake about the truck number or the fact that the vehicle involved was a truck. 4(four) days later, Rahul Ch. Tripura changed his statement and got his statement recorded under section 164 of Cr.P.C. in which he stated that on 26.12.2012 his father along with 10/14 persons was travelling to attend a CPI(M) meeting by Mini bus bearing No.TR-03-1284. He states that he heard about this accident from the people who were attending the public meeting convened by the CPI(M) party. However, no names of such person were given. While appearing in Court Rahul Ch. Tripura again improved his statement and stated that he was informed by Sri Haricharan Tripura and Sri Lakhidhan Tripura and other villagers about the accident. The statement of Rahul Ch. Tripura does not inspire confidence. He is obviously a liar. In the FIR it was not stated that he had come to know about the accident from any other person. Thereafter, he got his statement recorded after 5(five) days in which he not only changed the number of the vehicle but the vehicle was changed from a truck to a bus. It is apparent that because the truck was owned by none else than his father and because his father was also travelling in the truck, he realized or must have been legally advised that the burden to pay the compensation would not fall upon the Insurance Company because passengers cannot be carried in a truck which is a goods vehicle and, therefore, this false story was set up that a bus was involved.

The learned trial Court believed the statements of the claimant and Rahul Ch. Tripura and did not even permit the Insurance Company to lead evidence. Therefore, I had recorded the evidence of the Fire Service Officer which is already referred to above and had also recorded the statement of Sri Dhruba Jyoti Debbarma who was the Police Officer who had recorded the FIR and had investigated the matter. The statement of Sri Dhruba Jyoti Debbarma was recorded on two days. On 18.4.2016 Sri Dhruba Jyoti Debbarma stated that on 26.12.2012 he was posted as S.I. at Manubazar Police Station and he received a written complaint from Rahul Ch. Tripura about the accident of a mini truck bearing registration No.TR-03-C-1842 on the basis of which he recorded FIR No.88 of 2012 under Sections 279/338/304(A) of IPC. He stated that after he recorded the FIR, then he went to the place of occurrence. He was very evasive in giving many replies to the questions put by the Court. When he was specifically asked whether Sadhan Tripura was the owner of the truck, he stated that he could not admit or deny this fact. When asked whether this truck had been used to bring people for the rally of the CPI(M), he again gave a very evasive answer but he stated that he had recorded the gist of the FIR in the following terms:-

"Gist of FIR:-

On 26-12-2012 evening there was a Mass meeting of CPIM of Kalachara where Sri Jitendra Chowdhury, Forest Minister Tripura proposed to attend the meeting while supporters of CPIM from Tuikumba are proceeding with TR 03-C-1842 mini truck at that time at about 1630 hours in between Kalachara and Tuikumba on NH 44 road met an accident due to rush and negligence driving of the driver. As a result 38 passengers received injury and shifted to Kalachara PHC. At Kalachara PHC above two injured persons died. Thereafter 22 persons referred to TSD hospital, UDP."

He also stated that he reached the place of occurrence at about 7.55 p.m. and when he reached the spot, there was no truck or other vehicle on the spot. He was asked what effort he made to trace out this truck and then he replied that he had engaged a source to trace out the truck. He was asked a question as to what happened to the truck whether it fell down into a ditch or whether it fell down on the side of the road. The witness remained silent and did not answer the question and then stated that he does not know because he did not see any vehicle. Next he was asked whether he met anybody at the spot and this time he stated that there was no person at the spot. He also stated that he had again recorded the statement of Rahul Ch. Tripura after 5 days and he recorded the statements of other witnesses almost more than a month later on 04.02.2013. He could give no explanation as to why he did not record the statement of the witnesses of more than a month. The following specific question was put to the witness:

"Question: When Rahul Ch. Tripura changed the statement after 4 (four) days and said that the vehicle involved in the accident was not a truck, but a mini bus, why did you not examine any of the fire service officials to find out who was the true culprits?"

The witness remained silent and did not answer the question.

Therefore, after recording the aforesaid statement of Sri Dhruba Jyoti Debbarma, I felt that the statement may not be wholly correct because in view of the demeanour of the witness I felt that it may not be totally true. Therefore, the Registrar General was directed to ask the Police Station Manubazar to produce the G.D. Entry book for the period 26.12.2012 to 31.12.2012. This book was produced on the next date and the G.D. Entry No.885 and 889 dated 26.12.2012 read as follows:

"G.D.E. No.885:

1640 hrs. This time received an information by H/C Pravat Tripura over telephone who was on duty at Kalachara market to the effect that today on 26/12/12 at about 1630 hours a road traffic accident took place at Kalachara near by Christian Church. As a result large number of people received bleeding injuries on their persons. Noted in G.D and self, S.I. D.J Debbarma with staffs left for Kalachara to verify the matter. Charge of P/S will remain S.I. D. Chattarjee within all govt. properties No A/P in the P/S custody."

"G.D.E. No.889:

1800 hrs. Sentry has been changed in due time by his next reliever with all govt. properties. No A/P in the P/S custody.

This time S.I. D.J. Debbarma along with P/S staffs retd. P/S after verify MNB P/S GDE NO-885, Dt-26/12/12."

GD Entry No.885 was recorded at 1640 hours, i.e. 4.40 p.m. and GD Entry No.889 had been recorded at 6 p.m. This clearly shows that the statement of Sri D.J. Debbarma that he had reached the place of occurrence at 7.55 p.m. is absolutely false. His earlier statement that he came to know about the accident only when the complaint was filed is also absolutely false. The G.D. Entry shows that information about the accident was received at 4.40 p.m. and immediately S.I. D.J. Debbarma along with staff of the Police left for Kalachara to verify the matter. Therefore, they must have reached the place of occurrence within 15 to 20 minutes, i.e. before the Fire Service staff arrived. If the officials of the Fire Service staff could see the truck, how could the Police Officials not see the truck? This clearly showed that Sri D.J. Debbarma had made a false statement in Court and when he was confronted with these two G.D. Entries, he stated that on the previous day, i.e. 18.4.2016 he was perplexed. He was then asked a clear-cut question whether the statement made by him on 18.4.2016 was incorrect or correct. He then replied as follows:

"The statement made by me yesterday was incorrect. After perusal of the G.D. Entry I state that at about 4.40 p.m. I had received information about the accident and thereafter, I visited the spot of the accident and I returned from the spot of the accident to the police station at 6 p.m."

Thereafter, the following question was put to him:

"Court question :- Now tell me the truth what was the type of vehicle involved in the accident and did you see the vehicle?

Answer :- I saw the vehicle. It was a truck."

This witness was cross-examined but in the cross-examination nothing has come out. From the aforesaid facts, it is more than apparent that the vehicle involved in the accident was truck No.TR- 03-C-1842. This truck was being used to ferry the supporters of the CPI(M) party to attend the rally being addressed by Sri Jitendra Choudhury, the then Forest Minister. Unfortunately, the truck turned over and three persons died; one of them being the owner of the truck Sadhan Tripura. The FIR also reflected that the vehicle involved in the accident was a truck but it appears that after 3/4 days the legal heirs of Sadhan Tripura and the other claimants realized that if they pursue the truth that the accident had occurred with the truck, they would not get compensation from the Insurance Company and the burden would fall on the legal heirs of Sadhan Tripura who would not be able to pay this amount. It is more than obvious that to avoid this, a false case was set up that the vehicle involved in the accident was a bus.

What is most unfortunate is that the police officials willingly became a part and parcel of this conspiracy. Sri Dhruba Jyoti Debbarma in his statement recorded in the High Court has stated that he reached the spot immediately after the accident and saw the vehicle which was a truck. When the statement of Sri Dhruba Jyoti Debbarma was recorded, he had started trembling and he apologized and stated that he had helped making this change under pressure. This Court would have taken very serious action against Sri Dhruba Jyoti Debbarma but I feel that he can be let off with a warning to be careful in future but the copy of this judgment shall be placed on his service record. I am letting off this young officer only for the reason that finally he has told the truth in Court and also for the reason that it appears that he was pressurized by people much higher up, both in the police and other people in power and was compelled to act in an illegal manner.

This trouble has occurred because the FIR was not lodged immediately. As soon as the police officials had reached the spot, they should have noted down all the facts and lodged the FIR. It appears that under political and other pressure, the police officers were not permitted to do their duty. If the rule of law is to be maintained in our country, then police officers must be permitted to do their duty. The uniform must be respected. At the same time, police officers should not willingly join with claimants and others to falsify the facts of the case only with a view to fasten the liability on Insurance Companies. Most of the Insurance Companies in India are Public Sector Insurance Companies and they are trustees of public money. The manner in which the liability has been shifted on the Insurance Company shows total dishonesty by police and other officials. At the same time, I must commend the Fire Service Officials who did not change their record.

In view of the above discussion, I am clearly of the view that the accident occurred with truck No.TR-03-C-1842 and not with bus No.TR-03-1284. Therefore, the appeal is allowed and the impugned award of the learned Tribunal is set aside.

It appears from the record that the claim petition emerges from the same accident and projecting the stereotype of the fact. In this case also, the bus bearing registration No. TR-03-1284 (Mini bus) was held responsible for the accident.

In view of the categorical finding returned by this court in National Insurance Company Limited vs. Shri Subi Chandra Tripura & another, this court has to hold that this appeal is squarely covered by the said judgment dated 03.05.2016 and as corollary to that this impugned judgment and award dated 12.12.2014 is bound to be interfered with to the extent that the insurer-appellant does not have any liability to pay the compensation as determined. When indemnity cannot be evoked, the liability remains with the tortfeaser. It is ordered accordingly.

Having held so, this appeal stands allowed in terms of the above. There shall be no order as to the costs. Send down the LCRs forthwith.