M/S MAQSOD AND CO HYDERABAD vs. THE COMMNER OF INCOME TAX HYD

1 Neutral Citation No. - 2023:AHC:175147 Court No. - 33 Reserved A.F.R. Case :- FIRST APPEAL FROM ORDER No. - 22 of 2001 Appellant :- Navneet Nain Alias Navneet Agarwal Respondent :- New India Assurance Co. Ltd. And Another Counsel for Appellant :- R.K. Porwal Counsel for Respondent :- Arvind Kumar Hon'ble J.J. Munir,J. 1. This is a claimant’s appeal, arising out of a judgment and award of the Motor Accident Claims Tribunal/ the 9th Additional District Judge, Etawah dated 31.08.2000, rejecting the claim petition. 2. On the 6th of July, 1994 at about 8:15 p.m., Navneet Nain alias Navneet Agarwal, a resident of Kanpur, went over to meet a certain Oberoi, a contractor in that city. Navneet Nain rode his motorcycle, bearing Registration No. UP-75/1227 to destination. He was returning home located at 111/155, Harsh Nagar, VIP Road, Kanpur. Nain riding his motorcycle on the VIP Road had reached the gate of a certain G.C. Colony, situate two kilometers from Police Station Cantt. towards the east. A car, bearing Registration No. DDQ-8855, appeared on the spot and hit the motorcycle head on. In consequence of the four Wheeler's impact, the rider was thrown down. He sustained serious injuries to his person, including fractures and head injury. Nain’s motorcycle too was badly damaged. It is Navneet Nain’s case that he was riding his motorcycle at a moderate speed, keeping to the left hand side of the road when the accident happened. The offending car was driven at a high speed, negligently and without due care and caution by its driver. In fact, it was driven negligently. The driver of the offending car hit the ill-fated motorcycle on the wrong side of

2 the road. The road was broad enough on the spot, where the accident happened, for both vehicles to pass safely, and there was no traffic at the time of the mis-happening. There was no occasion for the driver of the offending car to move to his right and knock down Nain’s motorcycle. According to Nain, the accident happened exclusively on account of negligent driving of the offending car’s driver. Had the car driver been careful and vigilant, the accident would never have happened. The driver, it is said, did not watch out on the road ahead. The driver of the offending car failed to observe the degree of care, caution and control, which were imperative in the circumstances on his part. After the accident, Nain was conveyed to the K.P.M. Hospital by Head Constable Ganesh Prasad, where he was examined and admitted. 3. Nain remained admitted to the K.P.M. Hospital until 07.07.1994. Since he was unconscious, his identity could not be established. His identity was established on 07.07.1994, whereupon he was referred to the L.L.R. Hospital, Kanpur. In order to secure better treatment, he was shifted on 07.07.1994 to Madhuraj Nursing Home (P) Ltd., 113/121-A, Swaroop Nagar, Kanpur and admitted there. He remained an indoor patient at Madhuraj Nursing Home from 07.07.1994 to 08.08.1994. Nain was then shifted to the Regency Hospital on 08.08.1994 and discharged from that Hospital on 02.09.1994. Until time when the claim petition was instituted, he was bed ridden and his condition critical. According to his case, Nain had undergone acute mental shock, pain and suffering. He has suffered a permanent disability to the extent of 70%, being a case of organic brain damage. The accident has left Nain with a permanent debilitation to his brain resulting in the loss of memory too. The accident caused Nain to lose his capacity to

3 work as a contractor entirely. It has resulted further in loss of memory, besides a headache and impairment of attention. He is virtually crippled. According to Nain, he is doomed forever and his future lost. It is urged to be a case of total loss of earning as Nain has been rendered unfit to work as a contractor. It is also his case that on account of deprivation of his bodily functions, he has been put to great inconvenience and disadvantage, which he would face in his daily routine all through life. The injuries sustained have caused Nain to suffer a lot in body, mind and finance. 4. It is, particularly, pleaded by Nain that being bed ridden, he cannot visit, supervise or do the work of a contractor. He has been deprived of the pleasures of life. He would be leading a miserable life all through. He has spent a substantial sum of money and would require a lot of it to secure future treatment. The ill-fated motorcycle was damaged too. According to Nain’s case, prior to the accident, he was working as a contractor, carrying on his business under the name and style of Gopi Engineering and Contractors. During the assessment year 1992-93, his annual income was Rs.96,380/-, whereon income tax was paid. When the accident happened, Nain was working as a contractor at Kanpur. He had a bright future ahead of him and good future prospects. The accident resulted in pecuniary loss to him and caused deprivation of his earnings as a contractor in their entirety. 5. Nain, therefore, claimed damages in the total sum of Rs.27,89,100/- setting forth in the claim petition damages, separately under the principal heads of pecuniary and general damages.

4 6. At the time of institution of the claim petition, Nain was residing in House No.14/4, Mohalla Shah Qamar, City and District Etawah. He was aged 37 years. Nain’s business, as a contractor, would yield him income to the tune of Rs.9000/- per month. His wife was aged 31 years. He has two sons, one aged 10 years and the other approximately 9. Another dependent of his was Smt. Pushpa Devi, his mother aged 55 years. 7. A written statement was filed by Anil Kumar, the owner of the offending car. He was arrayed as opposite party No.1 to the claim petition and respondent No.2 to this appeal. He will hereinafter be referred to as ‘the owner’. In his written statement, the owner has not denied the factum of accident involving the offending car, but set up a plea of confession and avoidance. He has said that the accident occurred due to the motorcyclist’s mistake because he lost balance, tripping on his vehicle. In consequence, the driver of the offending car did his best to avert the accident, but could not save Nain from receiving injuries. It is the owner’s case that the compensation claimed is excessive. Navneet Nain, who shall hereinafter be called the claimant, is not self-employed as a contractor and never earned Rs.9000/- per month as claimed. The driver of the offending car has not been impleaded as a party, rendering the claim petition bad for non-joinder. He has also pleaded that when the accident happened, the driver of the offending car was driving the car according to rule of the road, following the traffic rules. He was moving on the road giving side to other vehicles and traffic, and sounding the horn where necessary. It is the owner’s case in the alternative that in case the offending car be found answerable for the injury, the liability would fall on the shoulders of the New India Assurance Company Ltd., with

5 whom the offending car was insured on the date of the accident. 8. The New India Assurance Company Ltd., Branch Office, Railway Station Road, Etawah through its Branch Manager, the insurer of the offending car, has been arrayed as opposite party No.2 to the claim petition and respondent No.1 to this appeal. The aforesaid Insurance Company shall hereinafter be referred to as ‘the Insurer’. The Insurer filed a separate written statement on 09.05.1995, which was twice amended. The Insurer has generally denied the claimant’s case and averred that the accident did not happen in the manner pleaded by the claimant. It is the Insurer’s case that the owner and the claimant are close relatives and they have colluded to set up a case of bogus accident in order to enforce a baseless claim against the Insurer. It is also pleaded in the alternative that the motorcycle was being ridden by the claimant negligently, which led to the accident. The mishap, therefore, does not entitle the claimant to any compensation. The monthly income of the claimant has also been denied. 9. On the pleadings of parties, the Tribunal framed the following issues (translated into English from Hindi): “1. Whether on 06.07.1994 at about 8:15 in the evening at the VIP Road in front of the G.C. Colony Gate, within the local limits of Police Station Cantt., City and District Kanpur Nagar, the driver of car bearing Registration No. DDQ- 8855, driving it at a high speed and negligently, caused Navneet Agarwal to suffer grievous injuries? 2. Whether at the time of the accident, the driver of the car bearing No. DDQ-8855 and the rider of the motorcycle held valid driving licences? If not, its effect?

6 3. Whether the accident led Navneet Agarwal to sustain injuries, that have caused him a permanent handicap? 4. Whether at the time of the accident, Car No. DDQ-8855 was insured with opposite party No.2? 5. How much is the claimant entitled to in compensation and from which opposite party?” 10. In support of his case, the claimant examined himself as PW-1, Himanshu Awasthi as PW-2, Vineet Agarwal as PW-3, Dr. S.C. Gupta, Senior Orthopaedic Surgeon, District Hospital, Etawah as PW-4 and Smt. Susma Agarwal as PW-5. In addition, documentary evidence was also led on behalf of the claimant, both relating to the accident as well as the certification of the injury sustained, the ensuing handicap, the proof of the claimant’s income and the expenses incurred in the treatment. 11. On behalf of the owner, no witness was produced. The Insurer produced in the witness-box, Ravindra Pandey, DW-1, a private investigator and Dinesh Chandra Tiwari, a record keeper in the office of the S.S.P., Kanpur Nagar, as DW-2. Documentary evidence was also produced on behalf of the Insurer, that includes the G.D. Entry about the accident dated 06.07.1994 made at the Police Station. This bears Paper No.82-Kha. 12. Heard Mr. R.K. Porwal, learned Counsel for the claimant in support of the appeal and Mr. Arvind Kumar, learned Counsel appearing on behalf of the Insurer. No one appears on behalf of the owner. 13. Mr. Porwal has criticised the award in regard to findings on Issues Nos. 1 and 2. He submits that there is no evidence on record for the Tribunal to have concluded that the accident did not take place involving the offending car. Rather, it is established from the evidence of two eye-witnesses, to wit, PW-

7 1 and PW-2 that the accident was caused by the offending car owing to its rash and negligent driving. It is, particularly, emphasized that the owner of the offending car has admitted the factum of the accident in the written statement, which according to Mr. Porwal, is the best evidence on the issue. The Tribunal could not have gone against the owner's admission to conclude that his vehicle was not involved. It is submitted that the owner has admitted the factum of accident, but attempted to avoid his liability, saying that it was the claimant, who was negligent in riding his vehicle that led the offending car to hit the ill-fated motorcycle, despite the driver doing his best to avert the accident. It is also argued that the owner of the offending car has not been produced by the Insurer to substantiate their defence. 14. The testimony of DW-2 has been criticised by the learned Counsel for the claimant on the ground that he is a Record Keeper in the S.S.P. Office and has proved the extract of the G.D. written by another person at the police station. DW-2 is not an eye-witness of the accident or the man, who has taken the claimant to the hospital from the site of the accident. It is urged that the Tribunal's finding that the injured dashed against a Sheesam tree in an inebriated state, based on the G.D. Entry alone, is mere conjecture. 15. Mr. Arvind Kumar, on the other hand, has supported the Tribunal's finding on Issue No.1 and submits that the Tribunal has drawn a natural and sound conclusion on the totality of evidence on record. He, particularly, submits that if the Constable, who got the G.D. Entry made at the police station on 06.07.1994, had seen the accident himself or informed about it, there is no reason why he would not have mentioned the fact

8 while getting the Entry recorded in the G.D. The Constable is a public functionary and not inimical or favourably disposed to either party. The G.D. Entry, being closest in point of time to the occurrence, should be believed for every word of it. It is argued that the stand of the owner in admitting the factum of accident shows that there is collusion between the owner and the claimant. According to Mr. Arvind Kumar, the fact that the claimant got an FIR lodged as late as on 1st September, 1994 shows that the entire case set up therein, is the result of an afterthought – a planned strategy to defraud the Insurer in collusion with the owner. 16. This Court has carefully considered the submissions advanced by learned Counsel for the parties and perused the record. Here, this Court has considered the Tribunal's finding, vis-a-vis Issue No.1. The moot question is if the accident, which led to grievous and debilitating injuries to the claimant, was caused by the offending car, or it was the result of the motorcycle dashing against a Sheesam tree. There is no denying the fact that there are two eye-witnesses of the accident, nominating the offending car as the causal agent. They are PW-1, the claimant himself, and, the other, Himanshu Awasthi, PW-2. Both the witnesses have consistently spoken about the time, place and manner of the accident and the fact that the accident was caused by the offending car resulting in injury to the claimant. The testimony of the two eye-witnesses, notwithstanding its consistency, has to be judged for its worth in the background of circumstances, which may lend support to it or erode its credibility. It is true that both the eye-witnesses consistently mention the presence of one of them, to wit, Himanshu Awasthi, PW-2, as an eye-witness. The witness PW-

9 2 has also been mentioned in the FIR lodged a month and a three quarters after the accident happened. 17. In the cross-examination of the witnesses too, the claimant as well as PW-2 have not squarely been confronted with the questions, if indeed the accident happened on account of the motorcycle dashing against the Sheesam tree, or the fact why PW-2, Himanshu Awasthi has not been mentioned in the earliest record of the accident. But, the fact remains that the G.D. Entry, which is the earliest account of the accident, recorded with the police station soon after the accident, clearly mentions the cause of the accident being the motorcycle dashing against the Sheesam tree. The G.D. Entry, Paper No. 82-Kha, dated 06.07.1994 reads: "इस समय C/- 1198 CP अमर नाथ यादव मुतैना थाना चकेरी OP जाजमऊ ने थाना आकर एक व्यक्ति व हालत मजरूब बेहोश दोहरा वक्ष श्याम का रंग पेन्ट शर्ट पहने दाखिल किया तथा तहरीर कराया कि मैं अपने आवास आ रहा था तो वापस आने पर VIP रोड, जी०सी० कालोनी गेट के सामने यह बेहोश हालत में थे सड़क के किनारे खड़े एक शीशम के पेड़ के पास पड़ा था तथा एक मोटर साईकिल शीशम के पेड़ से टकराई पड़ी है। इस आदमी का एक्सीडेन्ट लगता है कि अचानक मोटर साईकिल के शीशम से टकराने के कारण हुआ है। इसके पास शराब सी बू भी आ रही है। मैं वास्ते उपचार व आ०का० फोन पर सूचना दे रहा हूँ। एवं शीघ्र ही चिट्टी मजरूबी बनाकर वास्ते इलाज द्वारा HG 3278 गणेश प्रसाद K.P.M. अस्पताल रवाना किया गया।" 18. This Entry has neither been proved by the Record Keeper with the office of the S.S.P. nor by its author, who entered it in the G.D. at the police station concerned, or by the Constable Amarnath Yadav, at whose instance it was made. The extract of the G.D. Entry, bearing Paper No. 82-Kha, is part of an official record maintained at the police station in the ordinary course of business. It is maintained in the course of State business. It is maintained like a clock-work record of facts, all through 24 hours about the happenings at the station and the business

10 there. There is no reason to disbelieve, at least what is apparently recorded therein, the document being a public document, maintained in the manner indicated above, even in the absence of Constable Amarnath Yadav, who got the Entry made and one who ought to have been ideally produced by the Insurer. What cannot be ignored is the fact that it does not mention a word about the accident involving a car or the presence of any other person, besides the Constable himself. It appears to record facts that the witness noticed post event, that is to say, after the accident. How much afterwards, cannot be said or inferred from the G.D. Entry. PW-1, the claimant, in his cross-examination by the Insurer has said: "टक्कर के बाद मैं बेहोश हो गया था व बीच-बीच में होश आ जाता था। मौके पर सोनू व हिमांशु अवस्थी आ गये थे जिन्होनें घटना देखी थी मुझे मौके से दोनो गवाह व कांस्टेबिल मुझे अस्पताल ले गये थे।" 19. The owner has not asked anything material in the cross- examination, which may have bearing on the factum of the other witness's presence at the time of the accident or about the possibility of the claimant informing the Police, how the accident happened. PW-2, in his examination-in-chief, has supported the factum of accident involving the offending car, as already said, and asserted the fact that he went along with the Police to the K.P.M. Hospital to get the injured admitted. He has testified in his examination-in-chief to the following effect: "दि. 6.7.94 की बात है मैं कानपुर कैण्ट एरिया में जी०सी० कालोनी के सामने गेट के पास शाम करीब 8 बजे खड़ा था। मैनें देखा कि एक कार जिसका नम्बर D.D.Q./8855 बड़ी तेजी व लापरवाही से दक्षिण से उत्तर तरफ मेरी तरफ आ रही थी उसी समय एक मोटर साईकिल चालक उत्तर से दक्षिण तरफ जा रहा था। इतने में करीब 8.15 बजे शाम कार चालक ने मोटर साईकिल में टक्कर मारी जिससे मोटर साईकिल चालक कार की टक्कर से गिर पड़ा। कार की टक्कर से गंम्भीर चोटों के कारण, पैर में फ्रैक्चर व सिर व शरीर में भी चोट आई। इस घटना को मेरे अलावा मेरे साथ खड़े सोनू S/O S. H. तिवारी नि० कल्यानपुर जि० कानपुर एवं अन्य लोगों ने देखा है। दुर्घटना के समय पुलिस कर्मी आ गये जिनकी मदद से मैने एवं

11 अन्य लोगों ने घायल को K.P.M. हास्पि टल कानपुर में भर्ती कराया। यह घटना कार चालक DDQ/8855 की गलती तेजी व लापरवाही के कारण हुई है।" 20. In his cross-examination, relevant on the point, PW-2 has testified: "कार व मोटर साईकिल में आमने-सामने से टक्कर हुई थी कार मोटर साईकिल के पास आने पर लापरवाही से पूर्वी पटरी की ओर चली आई एवं उसने मोटर साईकिल में टक्कर मार दी। कार 8-10 सेकेण्ड के लिये रुकी होगी हम लोगों ने घायल को उठाने का प्रयास किया जब तक घायल को उठाया तब तक कार उत्तर की ओर भाग गई। मैनें व सोनू का नाम घायल को बता दिया था लिखकर पर्ची नाम पता दे दी थी। मैनें घायल का नाम पता नोट कर लिया था। दुर्घटना के करीब 2 माह बाद थाना कैण्ट के सबइन्सपेक्टर ने मेरे व सोनू के ब्यान लिये थे मैनें यही ब्यान दरोगा को दिये थे। पुलिस केस में कानपुर न्याया. में अभी तक मेरा कोई ब्यान नही हुआ है। मेरी घायल से कोई रिश्ता व व्यवहार नही है। आज की तारीख की सूचना मुझे सम्मन द्वारा प्राप्त हुई है इसलिये गवाही देने आया हूँ।" 21. Notwithstanding the consistency in the two witnesses' stand about the accident, if there were any truth to it, there is no reason why Constable Amarnath Yadav, who got the Entry promptly made at the Police Station, would not have mentioned the most essential fact that the accident happened because of a collision with the offending car. The claimant himself says that he was not throughout unconscious, but intermittent between a conscious and unconscious state. If this were so, he would have informed the policemen about the cause of the accident. Assuming that the claimant, being the victim of an accident and badly injured, was too feeble or confounded to communicate, the fact would most certainly have been communicated to the Constable by PW-2 and the other man Sonu, who according to PW-2, went along with the Police to the K.P.M. Hospital to get the claimant admitted. The G.D. Entry, Paper No.82-Kha, was made at the instance of Constable Amarnath Yadav, who is, as rightly pointed out by Mr. Arvind Kumar, neither favourably nor

12 inimically disposed towards the parties. If he had been informed about the involvement of the offending car in the accident, there is no earthly reason why he would have got it noted in the G.D. Entry that he found the claimant lying unconscious near a Sheesam tree, and saying that in his assessment the claimant had collided with the tree. The G.D. Entry, in the manner it describes, what the Constable saw, does not even remotely refer to the presence of an eye-witness of the accident, informing him about how it all happened. The Constable indulged in some guesswork, because apparently there was no one to inform him how the accident happened. 22. More than that, the earliest record in the hospital is the one from K.P.M. Hospital dated 06.07.1994, bearing Paper No.13-Ga/4. It is signed by the Medical Officer, K.P.M. Hospital, Birhana Road, Kanpur. It mentions the description of the injured in the following words: “Examined an unknown male person aged about 40 years S/o unknown R/o unknown dated 6/7/1994 time 9.15 p.m. B/B HG 3278 Ganesh Prasad of P.S. Cantt. Distt. Kanpur Nagar.” 23. There is then a description of the mark of identification, a medicolegal description of the four injuries sustained, followed by the Doctor's opinion. 24. Nowhere in this report is there a mention of the presence of PW-2, Awasthi, or the fact that the injuries were the cause of a motor accident. If indeed PW-2 had accompanied the injured to the K.P.M. Hospital, he would have definitely mentioned the fact to the Doctor, who would have made a record of it in his report that it is a medicolegal case relating to a motor accident. In the letter of reference (Chitthi Majrubi) from Police Station Cantt., that precedes the examination of the claimant by the

13 Medical Officer at the K.P.M. Hospital, also dated 06.07.1994, there is not a word about the injured being the victim of an accident. The Chitthi Majrubi dated 06.07.1994, in its material part, reads: "विनय है कि एक व्यक्ति मोटर साईकिल सवार नाम पता अज्ञात व हालत मजरूब वास्ते इलाज भेजा जा रहा है। रिपोर्ट सेवा में प्रेषित है।" 25. The Medical Officer at the K.P.M. Hospital, as would appear from his opinion, decided to refer the claimant to the L.L.R. Hospital, Kanpur. He drew up a separate letter of reference dated 07.07.1994, Paper No.13-Ga/5 addressed to the Emergency Medical Officer, L.L.R. Hospital, Kanpur. This letter mentions the name of the patient as Navneet Nain Agarwal son of Gopi Chand Agarwal, resident of 111/155, Harsh Nagar, Kanpur. It mentions that his injuries have been recorded and goes on to say that his condition is not satisfactory. The letter closes with a remark that the Emergency Medical Officer at the L.L.R. Hospital may see the patient and do the needful. Apparently, by the time that this letter was written, the patient had regained consciousness or his identity otherwise established, but there is not a word about the involvement of a motor accident. Subsequently, when the claimant was admitted to the care of Madhuraj Nursing Home (P) Limited on 07.07.1994, the consent letter for surgery signed by Akash Jain, apart from the printed proforma, which is in the English language, carries a note in Hindi-Devanagari, saying: "मेरे मरीज को गल्ती से चोट लगी है। इसके लिये कानूनी कार्यवाही हो चुकी है। मुझे यहां अभी कोई कानूनी कार्यवाही नही करनी है। मुझे नवनीत के पूर्णरूप से होश में आ जाने के बाद कार्यवाही करनी है। मुझे सारे खतरे समझा दिये गये है। मैं इलाज की अनुमति देता हूँ।"

14 26. In the discharge ticket from the Regency Hospital dated 02.09.1994, where the claimant was last treated, there is a description of the clinical details of the injuries and the final diagnosis. It mentions the final diagnosis as Organic Brain Disease with UTI. The clinical details read: “Patient was admitted as a case of organic brain damage with # Femur Lt. with I Tr. Lt. with UTI with drug induced EPS. He was managed conservatively by which he improved and discharged with proper advice.” 27. In the discharge ticket also, there is not a hint about the patient being the victim of a motor accident or in any manner a medicolegal case. In fact, there is no medical record to show that the claimant was, at any time, treated as a medicolegal case, the victim of a motor accident, either in the documents that are on record or others that would have logically been produced, were it a case of a motor accident. The consistent absence of mention of the fact, that the claimant was the victim of a motor accident, in the G.D. Entry and the earliest medical records, belies the testimony of PW-1 and PW-2 in the witness- box and renders it, by the circumstances, too incredible to believe. The Tribunal has disbelieved the presence of PW-2, and in the opinion of this Court, rightly so. If PW-2 were present at the time of the accident, there is no reason why he would not have shared this fact with the Constable or the Homeguard, and, in turn, why this fact would not have figured in the G.D. Entry made at the instance of the Constable Amarnath Yadav or by the Doctors at the K.P.M. Hospital, where the Homeguard got the claimant admitted for emergency medical attention. 28. The fact that PW-2 disclosed his name to the patient and slipped a chit of paper in the victim's pocket carrying the details of his identity, which lasted with the victim long enough to

15 mention this witness a month and a three-quarters later when the FIR was lodged, also makes the story absolutely incredible. The witness was taken to different hospitals and subjected to life-saving treatment. In the process, the witness would either have lost the slip of paper, carrying the PW's name or someone would have found it and called the said witness, whereafter there would be mention about the motor accident as the cause of the claimant's injury in medical records, much earlier than the lodging of the FIR. The lodging of the FIR, after a month and a three-quarters, may not be a circumstance to discredit it, but in the totality of circumstances that this Court has noticed hereinbefore, we are in agreement with the Tribunal that the FIR appears to be the product of deliberate design, lodged after premeditation in order to make out a sustainable claim against the Insurer. At least, that appears to have been the attempt. The Tribunal has entirely disbelieved the case of an accident involving the offending car for valid reasons assigned and this Court for those reasons and the ones added here, is inclined to agree with the Tribunal. 29. This Court must notice here, notwithstanding our conclusion hereinabove recorded regarding the effect of the delay in lodging the FIR in the circumstances obtaining, the authority of the Supreme Court relied upon by Mr. Porwal in support of his contention that the delay in lodging the FIR, does not make the claimant’s case suspect. The decision relied upon on behalf of the claimant is Ravi v. Badrinarayan and others, (2011) 4 SCC 693. Ravi (supra) was also an injury case, where the accident happened on 06.10.2001 at 8.30 in the morning. It was a case where the victim of the accident, Ravi, a child of 8 years, who had gone out to relieve himself in the open in front of his house, was injured by a truck, that was reversing. The

16 FIR in the case came to be lodged on 26.01.2002, more than three and a half months after the occurrence. In Ravi, discounting the delay in lodging the FIR as a fact discrediting the claimant’s case, it was held by their Lordships of the Supreme Court: “16. The cumulative effect of the aforesaid events clearly established that the accident had taken place on 7-10-2001 at about 8.30 in the morning on account of rash and negligent reversing of the truck by driver Badrinarayan, owned by Respondent 2 Prahlad Singh. Under these circumstances, it cannot be said that delay in lodging the FIR could have proved fatal to the claim case filed by Ravi. Narration of the aforesaid events would show the bona fides of Suresh. As mentioned hereinabove, a consistent stand has been taken right from the beginning till the lodging of the FIR. The chronological events narrated hereinabove inspire confidence and it does not smack of a concocted case which has been filed against the driver and the owner of the vehicle only with an intention to get compensation. 17. It is well settled that delay in lodging the FIR cannot be a ground to doubt the claimant's case. Knowing the Indian conditions as they are, we cannot expect a common man to first rush to the police station immediately after an accident. Human nature and family responsibilities occupy the mind of kith and kin to such an extent that they give more importance to get the victim treated rather than to rush to the police station. Under such circumstances, they are not expected to act mechanically with promptitude in lodging the FIR with the police. Delay in lodging the FIR thus, cannot be the ground to deny justice to the victim. 18. In cases of delay, the courts are required to examine the evidence with a closer scrutiny and in doing so the contents of the FIR should also be scrutinised more carefully. If the court finds that there is no indication of fabrication or it has not been concocted or engineered to implicate innocent persons then, even if there is a delay in lodging the FIR, the claim case cannot be dismissed merely on that ground. The purpose of lodging the FIR in such type of cases is primarily to intimate the police to initiate investigation of criminal offences.

17 19. Lodging of FIR certainly proves the factum of accident so that the victim is able to lodge a case for compensation but delay in doing so cannot be the main ground for rejecting the claim petition. In other words, although lodging of FIR is vital in deciding motor accident claim cases, delay in lodging the same should not be treated as fatal for such proceedings, if claimant has been able to demonstrate satisfactory and cogent reasons for it. There could be a variety of reasons in genuine cases for delayed lodgement of FIR. Unless kith and kin of the victim are able to regain a certain level of tranquillity of mind and are composed to lodge it, even if, there is delay, the same deserves to be condoned. In such circumstances, the authenticity of the FIR assumes much more significance than delay in lodging thereof supported by cogent reasons.” 30. Now, the facts in Ravi’s case show that soon after the accident on 07.10.2001 at 8.00 p.m., the Police had arrived at the Hospital, where the injury report had been drawn up mentioning the fact that injuries were caused on account of a motor accident. Ravi’s case is, therefore, clearly one where the delay in lodging a formal FIR is inconsequential. The principle in Paragraph Nos.17, 18 and 19 of the report in Ravi have to be understood in the background of a very assuring circumstance that within the cognizance of the Police and on the credit of the medical records, it was surely a case of motor accident. In the present case, the circumstances in stark contrast have been noticed, where there is no police record of the accident in the manner described in the delayed FIR prior to lodging it or anything of it mentioned in medical records. Therefore, the principle in Ravi about the delay in lodging the FIR, not being fatal to the motor accident claim, is not attracted. 31. The insistence by Mr. Porwal, that the owner’s admission about the factum of accident is decisive, draws much for its strength on the principle laid down by the Supreme Court in Saroj and others v. Het Lal and others, (2011) 1 SCC 388.

18 The learned Counsel for the claimant has drawn this Court’s attention to the holding in Saroj (supra), where it is observed: “18. On considering the rival arguments, it must be said that the petition could not have been dismissed in totality. Presuming it to be a hit- and-run case, the appellants were entitled to at least Rs. 25,000 as per the provisions of Section 161(3)(a) of the Motor Vehicles Act. Therefore, both the courts below have obviously failed to note this provision. But that is not the end of the matter. In our opinion, both the courts below have completely erred in giving the finding that it was a hit-and-run case and that the vehicle concerned belonging to Respondent 2 was not involved in the accident. Insofar as that finding is concerned, it was an admitted position in the pleadings of Respondent 2 that firstly, the Tata 207 vehicle bearing Registration No. HR 38 L 6592 was involved in an accident with the motorcycle bearing Registration No. HR 26 P 9413 which took place on 16-9-2005 at 3.30 p.m. and secondly, the said vehicle was being driven by Respondent 1. This admission in the pleadings which we have quoted in the order was itself sufficient to hold that the vehicle concerned belonging to Respondent 2 was involved in the accident. This admission was never traversed by Respondent 2 and, thus, there was no occasion to hold that the said vehicle was not involved and that it was a hit-and-run case. It is surprising that not only the Tribunal but the High Court also should have ignored the vital admission on the part of Respondent 2. It was nobody's case that this admission of Respondent 2 was in collusion between Respondent 2 and the appellants. Once this position is clear, there is no occasion for holding that the vehicle was not involved in the accident and on that count exonerating the three respondents.” 32. The principle in Saroj cannot be relied upon by the claimant, because the facts there show that there was no case of a collusion between the owner of the offending car and the claimant. Rather, the remark there is that there was no case of collusion between parties. Here, there is an emphatic case of a collusion between the owner and the claimant pleaded by the Insurer, that has been pressed before the Tribunal as well as this Court. In the face of a case of collusion and circumstances

19 that we have noticed to support that case by the Insurer, the admission of the owner serves more as a link to strengthen collusion rather than serving the claimant’s cause. 33. Mr. Porwal has submitted, with much emphasis, that the fact, that the owner of the vehicle has not disputed the accident involving the car, clinches the issue. Before the Tribunal, it was asserted on behalf of the Insurer that the claimant and the owner are related, a fact that was denied by the owner’s witness, PW-5 as well as other witnesses. The Tribunal has not recorded a positive finding about a case of collusion between the owner and the claimant, but on the totality of evidence, has disbelieved the claimant’s case about the involvement of the offending car in the accident. The stand taken by the owner in the circumstances that no one had reported the car to the Police, or spoken about his car’s involvement prior to the belated FIR lodged a month and a three quarters after the accident, strongly suggests a case of collusion between the owner and the claimant. If the owner was such an honest and upright man that knowing the fact about involvement of his car in the accident, month’s after it had happened through a report to the Police, admitted it before the Tribunal, there is no reason why he did not come forward at the earliest himself to disclose the accident to the Police, or may be, to the claimant and his relatives. It is not the claimant's case that the owner came forward himself and confided in him. 34. Also, the fact that though the owner contested the claim by filing a written statement, he discretely chose to stay away from the witness-box hints at his complicity. If one were to assume that the vehicle being insured, the owner was not bothered to participate in the matter beyond putting in his

20 written statement, there is no reason why the owner who had admitted to a very material fact-in-issue, to wit, the involvement of his car in the accident, would not be produced in evidence by the claimant. The ellusiveness of the owner from the witness- box, both at his own instance and at the instance of the claimant, is suggestive of the fact that both the owner and the claimant did not want him (the owner) risk facing cross- examination in Court, or may be uncomfortable questions by the Court. 35. These circumstances suggest a cooked up story by the claimant, who no doubt has suffered the accident, may be in a case of dashing against a tree, to collude with the owner and claim compensation for himself. This Court, therefore, does not find any force in the submissions advanced on behalf of the claimant on the premise of the owner’s admission about the accident. There is nothing on record to show it being a case of ‘hit and run’ either. 36. There is no force in this appeal. It, accordingly, fails and is dismissed. Costs easy. 37. Let the records of the Tribunal be sent down at once by the office through the District Judge, Etawah. Order Date :- 29.8.2023 Anoop (J.J. Munir, J.) Digitally signed by :- ANOOP KUMAR SINGH High Court of Judicature at Allahabad