Narendra Gupta & Ors. v. Paramjit Singh & Ors.

9. CASES TO GET THE PETITIONS DISMISSED AFTER TRANSFER OF FAVOURING DEPUTY LABOUR COMMISSIONER, RESUBMITTING THE PETITIONS AT HIS NEWLY POSTED PLACE  During investigation/enquiry of the compensation petitions, it is also found that petitions related to occurrence of accidents instituted in the W.C.A. court of concerned District. When Deputy Labour Commissioner of W.C.A. court of aforementioned District transferred to some other district, then some advocates of aforementioned district get their compensation petitions dismissed, and thereafter they instituted new petitions again in aforementioned district where the then Deputy Labour Commissioner was transferred by showing fake address in the petitions.

10.

INSTITUTION OF PETITIONS IN OTHER DISTRICT INSTEAD OF INSTITUTING PETITIONS IN THE DISTRICT OF ACCIDENT SPOT/PLACE  During investigation/enquiry of the compensation petitions, it is also found that some compensation petitions were not instituted in the court of district of place/spot of accident, rather they were instituted in the court of other district by mentioning only temporary address instead of mentioning original address of the petitioner. It is also pertinent to mention here that this temporary address also remains incomplete.

11.

CASES RELATED TO FAKE VAKALATNAMA compensation petitions related to road accidents, this fact has also come into light that actual/main advocate who has filed the claim petition, does not submit his own Vakalatnama in the concerned court, he submits Vakalatnama on behalf of such Advocate, who does not file the compensation petitions by mentioning his mobile number on the compensation petitions. compensation petitions related to road accidents, this fact has also come into light that advocate who has submitted compensation petition in the concerned court, he mentioned name of such fake person in place of name of Advocate, whose whereabouts could not be ascertained. Whereas such case was pursued by the advocate who submitted this petition in camouflage manner....”. (8) It cannot be ignored, that it was after the Allahabad High Court and the Hon'ble Apex Court took cognizance of the fake and fraudulent claims, that there has been sudden spurt of filing of claim petitions in Motor Accident Claim Tribunal in Delhi relating to accidents which have taken place in other States i.e. Haryana, Uttar Pradesh etc. It is this which is a serious concern making it obligatory for the Tribunals in Delhi to carefully scrutinize these cases so as to rule out any foul play. (9) In this regard, reference is made to the case of Jai Prakash Vs. M/s. National Insurance Co. Ltd. reported in 2010 (2) SCC 607 wherein the Hon'ble Apex Court has reaffirmed the mandate of the statute to be meticulously followed [which has now been reaffirmed in the case of Bajaj Allianz General Insurance Co. Ltd. Vs. Union of India & Ors. in Writ Petition (Civil) NO. 534/2020 vide orders dated 16.03.2021 & 16.11.2021], relevant portion of which is quoted as under: “..... 4.2) The Legislature tried to reduce the period of pendency of claim cases and quicken the process of determination of compensation by making two significant changes in the Act, by Amendment Act 54 of 1994, making it mandatory for registration of a motor accident claim within one month of receipt of first information of the accident, without the claimants having to file a claim petition. Sub-section (6) of section 158 of the Act provides: “As soon as any information regarding any accident involving death or bodily injury to any person is recorded or report under this section is completed by a police officer, the officer-in-charge of the police station shall forward a copy of the same within thirty days from the date of recording of information or, as the case may be, on completion of such report to the Claims Tribunal having jurisdiction and a copy thereof to the concerned insurer, and where a copy is made available to the owner, he shall also within thirty days of receipt of such report, forward the same to such Claims Tribunal and insurer". Sub-section (4) of Section 166 of the Act reads thus:- "The Claims Tribunal shall treat any report of accidents forwarded to it under sub-section (6) of section 158 as an application for compensation under this Act". Rule 150 of Central Motor Vehicle Rules, 1989 prescribes the form (No.54) of the Police Report required to be submitted under section 158(6) of the Act. 4.3) This Court in General Insurance Council v. State of A.P. [2007 (12) SCC 354] emphasised the need for implementing the aforesaid provisions. This Court directed: "It is, therefore, directed that all the State Governments and the Union Territories shall instruct all police officers concerned about the need to comply with the requirement of Section 158(6) keeping in view the requirement indicated in Rule 150 and in Form 54, Central Motor Vehicles Rules, 1989. Periodical checking shall be done by the Inspector General of Police concerned to ensure that the requirements are being complied with. In case there is non-compliance, appropriate action shall be taken against the erring officials. The Department of Road Transport and Highways shall make periodical verification to ensure that action is being taken and in case of any deviation immediately bring the same to the notice of the State Governments/Union Territories concerned so that necessary action can be taken against the officials concerned." 4.4) But unfortunately neither the police nor the Motor Accidents Claims Tribunals have made any effort to implement these mandatory provisions of the Act. If these provisions are faithfully and effectively implemented, it will be possible for thevictims of accident and/or their families to get compensation, in a span of few months. There is, therefore, an urgent need for the concerned police authorities and Tribunals to follow themandate of these provisions. Problem (iv)

5. Courts have always been concerned that the full compensation amount does not reach and benefit the victims and their families, particularly those who are uneducated, ignorant, or not worldly-wise. Unless there are built-in safeguards they may be deprived of the benefit of compensation which may be the sole source of their future sustenance. This court has time and again insisted upon measures to ensure that the compensation amount is appropriately invested and protected and not frittered away owing to ignorance, illiteracy and susceptibility to exploitation. [See Union Carbide Corporation v. Union of India - 1991 (4) SCC 584 and General Manager, Kerala State Road Transport Corporation v. Susamma Thomas - 1994 (2) SCC 176]. But in spite of the directions in these cases, the position continues to be far from unsatisfactory and in many cases unscrupulous relatives, agents and touts are taking away a big chunk of the compensation, by ingenious methods. Reports of Amicus Curiae 6. In this background, to find some solutions, on 9.9.2008, this Court requested Shri Gopal Subramaniam, to assist the Court as Amicus Curiae. The learned amicus curiae with his usual thoroughness and commitment has examined the issues and submitted a series of reports and has also made several suggestions for consideration. He has also referred to and relied on a series of zealous directions issued by a learned Single Judge of the Delhi High Court to expedite and streamline the adjudication of motor vehicle claims and disbursement of compensation.

7. Having considered the nature of the problems and taking note of the several suggestions made by the learned Amicus Curiae and after hearing, we propose to issue a set of directions to the police authorities and Claims Tribunals. We also propose to make some suggestions for implementation by Insurance Companies and some suggestions for the consideration of the Parliament and the Central Government. Directions to Police Authorities

8. The Director General of Police of each State is directed to instruct all Police Stations in his State to comply with the provisions of Section 158(6) of the Act. For this purpose, the following steps will have to be taken by the Station House Officers of the jurisdictional police stations:

(i) Accident Information Report in Form No. 54 of the Central Motor Vehicle Rules,1989 (`AIR' for short) shall be submitted by the police (Station House Officer) to the jurisdictional Motor Vehicle Claims Tribunal, within 30 days of the registration of the FIR. In addition to the particulars required to be furnished in Form NO. 54, the police should also collect and furnish the following additional particulars in the AIR to the Tribunal:

(i) The age of the victims at the time of accident;

(ii) The income of the victim;

(iii) The names and ages of the dependent family members.

(ii) The AIR shall be accompanied by the attested copies of the FIR, site sketch/ mahazar/photographs of the place of occurrence, driving licence of the driver, insurance policy (and if necessary, fitness certificate) of the vehicle and postmortem report (in case of death) or the Injury/Wound certificate (in the case of injuries). The names/addresses of injured or dependant family members of the deceased should also be furnished to the Tribunal.

(iii) Simultaneously, copy of the AIR with annexures thereto shall be furnished to the concerned insurance company to enable the Insurer to process the claim.

(iv) The police shall notify the first date of hearing fixed by the Tribunal to the victim (injured) or the family of the victim (in case of death) and the driver, owner and insurer. If so directed by the Tribunal, the police may secure their presence on the first date of hearing.

9. To avoid any administrative difficulties in immediate implementation of sections 158(6) of the Act, we permit such implementation to be carried out in three stages. In the first stage, all police stations/claims Tribunals in the NCT Region and State Capital regions shall implement the provisions by end of April 2010. In the second stage, all the police stations/claims Tribunals in district headquarters regions shall implement the provisions by the end of August

2010. In the third stage, all police stations/Claims Tribunals shall implement the provisions by the end of December, 2010. The Director Generals shall ensure that necessary forms and infrastructural support is made available to give effect to Section 158 (6) of the Act.

10. Section 196 of the Act provides that whoever drives a motor vehicle or causes or allows a motor vehicle to be driven in contravention of the provisions of Section 146 shall be punishable with imprisonment which may be extended to three months, or with fine which may extend to Rs. 1000/-, or with both. Though the statute requires prosecution of the driver and owner of uninsured vehicles, this is seldom done. Thereby a valuable deterrent is ignored. We therefore direct the Director Generals to issue instructions to prosecute drivers and owners of uninsured vehicles under Section 196 of the Act.

11. The Transport Department, Health Department and other concerned departments shall extend necessary cooperation to the Director-Generals to give effect to Section 158(6). Directions to the Claims Tribunals 12. The to instruct all Claims Tribunals in his State to register the reports of accidents receive under Section 158 (6) of the Act as applications for compensation under Section 166 (4) of the Act and deal with them without waiting for the filing of claim applications by the injured or by the family of the deceased. The Registers, forms and other support is extended to the Tribunal to give effect to Section 166 (4) of the Act.

13. For complying with section 166(4) of the Act, the jurisdictional Motor Accident Claims Tribunals shall initiate the following steps: (a) The Tribunal shall maintain an Institution Register for recording the AIRs which are received from the Station House Officers of the Police Stations and register them as miscellaneous petitions. If any private claim petitions are directly filed with reference to an AIR, they should also be recorded in the Register. (b) The Tribunal shall list the AIRs as miscellaneous petitions. It shall fix a date for preliminary hearing so as to enable the police to notify such date to the victim (family of victim in the event of death) and the owner, driver and insurer of the vehicle involved in the accident. Once the claimant/s appear, the miscellaneous application shall be converted to claim petition. Where a claimant/s file the claim petition even before the receipt of the AIR by the Tribunal, the AIR may be tagged to the claim petition.

(c) The Tribunal shall enquire and satisfy itself that the AIR relates to a real accident and is not the result of any collusion and fabrication of an accident (by any `Police Officer - Advocate – Doctor' nexus, which has come to light in several cases).

(d) The Tribunal shall by a SUMMARY

ENQUIRY ascertain the dependent family members/legal heirs. The jurisdictional police shall also enquire and submit the names of the dependent legal heirs. (e) The Tribunal shall categories the claim cases registered, into those where the insurer disputes liability and those where the insurer does not dispute the liability. (f) Wherever the insurer does not dispute the liability under the policy, the Tribunal shall make an endeavour to determine the compensation amount by a summary enquiry or refer the matter to the Lok Adalat for settlement, so as to dispose of the claim petition itself, within a time frame not exceeding six months from the date of registration of the claim petition. (g) The insurance companies shall be directed to deposit the admitted amount or the amount determined, with the claims tribunals within 30 days of determination. The Tribunals should ensure that the compensation amount is kept in Fixed deposit and disbursed as per the directions contained in General Manager, KSRTC v. Susamma Thomas [1994 (2) SCC 176]. (h) As the proceedings initiated in pursuance of Section 158(6) and 166(4) of the Act, are different in nature from an application by the victim/s under Section 166(1) of the Act, Section 170 will not apply. The insurers will therefore be entitled to assist the Tribunal (either independently or with the owners of the vehicles) to verify the correctness in regard to the accident, injuries, age, income and dependents of the deceased victim and in determining the quantum of compensation.

14. The aforesaid directions to the Tribunals are without prejudice to the discretion of each Tribunal to follow such summary procedure as it deems fit as provided under Section 169 of the Act.

MANY TRIBUNALS INSTEAD OF HOLDING AN INQUIRY INTO THE CLAIM BY FOLLOWING SUITABLE SUMMARY PROCEDURE, AS MANDATED BY SECTION 168 AND 169 OF THE ACT, TEND TO CONDUCT MOTOR ACCIDENT CASES LIKE REGULAR CIVIL SUITS.

THIS SHOULD BE AVOIDED.

THE TRIBUNAL SHALL TAKE AN ACTIVE ROLE IN DECIDING AND EXPEDITIOUS DISPOSAL OF THE APPLICATIONS FOR COMPENSATION and make effective use of Section 165 of the Evidence Act, 1872, to determine the just compensation....” (10) Now coming to the present case, on the basis of the claim petition, limited number of documents placed on record, certain glaring aspects have emerged which are as under:  That the accide nt in question had taken place on 13.07.2019 at 2:54 PM and the FIR was registered at Police Station Thanesar Sadar, Kurukshetra, Haryana on the same date i.e. 13.07.2019 at 11:30 PM. The said FIR was registered on the basis of complaint of Narender Kumar Gupta (present petitioner) who had alleged that he along with his wife Mithlesh Gupta, daughters Ankita & Priya, brother Harish Kumar, Bhabhi Rekha Gupta, nephew Jagrit Gupta, Anmol Gupta and mother Smt. Geeta Devi were going to Amritsar in a bus bearing No. UP-17-AT-4406. It has been alleged that the driver of the bus was driving the bus at a very high speed, rashly and negligently and when they reached near Village Sanwala, GT Road, District Kurukshetra, Haryana, the driver of the bus who was intoxicated at that time, hit the bus in the divider as a result of which the bus turned over and all the passengers sustained injuries. According to Narender Kumar Gupta, while the passengers were trying hard to evacuate, the bus caught fire and his mother Smt. Geeta Devi was burnt alive and expired at the spot itself whereas the other passengers suffered grievous injuries in the accident. Therelevant portion of the statement of Sh. Narender Kumar Gupta is as under: “...... Jo bus no. UP­17­AT­4406 ka chaalak apni bus ko badi tez raftari gaflat laparvahi se chla raha tha. Jisko maine va dusri sawariyon ne kayi bar samjhaya lekin vah naam pata namallom chaalak bus ko gaflat vah laparvahi se chalata raha. Jo bus ke chaalak ne nasha bhi kiya hua tha. Jab aaj dinank 13.07.2019 ko samay karib 2.45 ASM par rat ko bus ka chaalak nashe ke halat me tez raftari gaflat laparvahi me chalata hua Pratapgarh More se aage Rakba Gaon Saanwla, GT road, Nazdik Kongstore Resort thoda pehle pahuncha to bus chaalak ne bus ko gaflat se GT Road ke divider se takra diya. Jo divder se takrane ke bad bus GT Road par hi palat gayi va sawariyan niche utarne lagi to kuch der baad bus me aag lag gyi. Jo bus me aag lagne par bus ke andar aag bujhane ka koi yantr nahin tha. Jo is accident me lagi choton ke karan va jalne ke karan meri mata Geeta Devi ki moka part hi maut ho gayi va merei bhabhi ki behen Kusum ko baayen kandhhey me fracture aaya hai....”. The above written complaint made by Narender Kumar Gupta, on the basis of which the present FIR was registered, has not been placed on record.  That the present claim petition has been filed after Two Years and Eleven Months of the accident in question.  That the certified copy of the charge­sheet has not been filed. The only documents placed on record are the photocopy of FIR; copy of Aadhar Card; copy of Driving License of the respondent no.1; copy of Registration Certificate of offending vehicle; copy of Cover Note of the Insurance Policy of the offending vehicle; copy of the medical documents and copy of photographs of the offending vehicle. In fact, there is no information on record whether any charge-sheet has been filed by the Investigating Agency before the competent court or Kurukshetra, Haryana or not. The entire record has been withheld from this Court/ Tribunal which is liable to be read against the petitioner.  That the first information of accident i.e. the Daily Diary/ General Diary regarding the accident has not been placed on record and apparently concealed since this document would reveal the first information regarding the history of accident.  That the various documents i.e. the statements of witnesses recorded under Section 161 Cr.P.C.; Case Diaries; Seizure memo of the bus; Mechanical Inspection Report etc. have not been placed on record and concealed for which an adverse inference is likely to follow.  That there is absence of material on record to confirm the satisfactory compliance of provisions of Section 158(6) of Motor Vehicles Act. Neither the status of the Criminal Case instituted before the concerned court at Kurukshetra, Haryana, Order dated 26.04.2022 Page No. 17 of 20 has been placed on record nor the status of the proceedings in compliance of provisions of Section 158(6) of Motor Vehicles Act (before the competent Court/ Tribunal) has been placed before this Tribunal [Reference is made to the judgment in the case of Jai Prakash Vs. National Insurance Co. Ltd. reported in 2010 (2) SCC 607 Para 12].  That intimation of accident to Claims Tribunal and Insurance Company within 24 hours of the accident have been withheld [Section 158(6) of Motor Vehicles Act].  That investigations of Road Accident by the Investigating Agency have been withheld.  That Driver's & Owner's Form and verification have been withheld (as per the initial report the driver was unknown).  That Site Plan (Form ­VIII), Mechanical Inspection Report (Form-IX); Verification Report (Form X) and report under Section 173 of Cr.P.C. have been withheld.  That the certified copy of the MLC/ Postmortem Report has not been placed on record and only photocopies have been filed.  That the Mechanical Inspection Report which could confirm the technical defect or the rashness and negligence of driver of the bus, has been withheld. (11) Going by the pleadings of the petitioner and the FIR, it was the driver of the bus who hit the bus with the divider as a result of which the bus over-turned and when the passengers were evacuating, there was a blast in the bus. No doubt, two persons expired in the accident in question whereas others sustained injuries and the FIR bearing No. 206/2019 was registered at Police Station Thanesar Sadar, Kurukshetra, Haryana under Section 304-A/337/338 IPC yet there is no information with regard to any Final Report/ ChargeSheet being filed the Investigating Agency. (12) The petitioner is stated to be a resident of E-16/622, Padam Singh Road, Bapa Nagar, Karol Bagh, Delhi – 110005 and this Court/ Tribunal has the jurisdiction to try the present petition. However, the manner in which the present claim petition has been filed after Two Years and Eleven Months of the accident in question and that too without placing on record the certified copy of the Final Report/ Charge-Sheet and other relevant documents i.e. first DD/ GD; Statements of witnesses recorded under Sections 161 Cr.P.C.; Mechanical Inspection Reports; Seizure Memo of the bus etc. raises a suspicion in the mind of the Court/ Tribunal regarding the correctness of the version placed before the Tribunal. I may note that it is the duty of the Claims Tribunal to elicit the truth relating to genuineness of the claims and relevant facts. (13) I may also note that vide order dated 22.04.2022 this Court had made specific observations to the effect that the certified copy of the charge-sheet, statements of witnesses along with the case diaries had not been filed nor there was any information regarding the compliance of Section 158 (6) of Motor Vehicles Act. Despite the same, the necessary details have not been furnished for which an adverse inference is drawn. (14) It is not open for this Court/ Tribunal to carry out a parallel trial and give any findings on facts, on the basis of incomplete material, since the same is likely to come in the way of trial of the criminal case pending before the Kurukshetra Courts, Haryana. I am now informed by the Reader attached to the Court that as per the information available on the e-courts portal, the criminal case is still pending before the Court of Ld. ACJM, Kurukshetra, Haryana which is now listed on 21.11.2022. For reasons best known to the petitioner, the said information has also been withheld by the petitioner. (15) This being the background, the present Claim Petition is hereby Dismissed. (16) File be consigned to Record Room.”

ANALYSIS AND DECISION

5. Having heard learned counsels for the parties present and upon perusal of the record, this Court unhesitatingly finds that the impugned order is unconscionable, absolutely unfair and cannot be sustained in law.

6. It is stated by each of the claimants supported by their respective affidavits that the claim petitions were filed by way of efiling on 14.03.2022 upon which an e-filing number was generated, and accordingly the petitions were accepted by the e-filing portal on 01.04.2022. The case was then marked to the concerned learned Tribunal and it is stated that the counsel for the claimants was regularly inquiring from the concerned Tribunal but when the matter came for consideration before the Court on 22.04.2022, there was no appearance on behalf of the petitioners because the Court staff had informed them that the matter is listed for hearing on 26.04.2022, and eventually on that day that the impugned order came to be passed.

7. This Court finds considerable merits in the submissions advanced by the learned counsel for the petitioners that the learned Tribunal did not even afford an opportunity to them to place on the judicial record the relevant certified copies of the criminal case against the driver of the offending bus. The least learned Tribunal should have done was to afford some reasonable time to the petitioners/claimants to place on record the certified copies of the relevant documents.

8. It is a well known legal idiom that „Justice hurried is justice buried‟ and that is what the learned Tribunal did in this matter when it took an unconscionable step of even doubting the version of the incident as pleaded by the claimants in the claim petition, which was a triable issue.

9. Insofar as the issue as to whether or not any claim petition had been filed at Kurukshetra, Haryana within the jurisdiction of which the motor accident had occurred, it is borne out from the record that each of the claimants submitted on affidavit that they have not instituted any petition anywhere else. Apparently, each of the claimants are permanent resident of Delhi and there was no issue as to the territorial jurisdiction of the learned Tribunal. Lastly the non-compliance of Section 158(6) of MV Act on the part of the Investigating Officer cannot be prejudice the petitioners/claimants in pursuing their claim petitions independently as per the law.

10. In view of the foregoing discussion, the impugned order dated 26.04.2022 is hereby set aside. The matter is remanded back to the learned Tribunal for a fresh hearing and proceedings/trial as per law. The applicants/petitioners shall place on the record all relevant documents on or before next date of hearing. The parties shall appear before the learned Tribunal for further hearing on 03.06.2024.

11. A copy of this order be placed in each of the above noted civil revision petitions. Nothing contained herein shall tantamount to an expression of opinion on the merits of the case.

12. A copy of this order be also sent to the learned Tribunal for necessary compliance.

DHARMESH SHARMA, J. MAY 14, 2024