# Navneet Nain @ Navneet Agarwal v. The New India Assurance Co. Ltd. & Anr

- **Citation:** (2023) 9 ILRA 299
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2023-08-29
- **Case number:** First Appeal From Order No. 22 of 2001
- **Bench:** J.J. Munir
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/navneet-nain-navneet-agarwal-v-the-new-india-assurance-co-ltd-anr-50773
- **Pages:** 12

## Headnote

Civil Law - Motor Vehicles Act, 1988 -
Section 161(3))(a) - claimant's appeal -
arising from a judgment and award of the Motor
Accident Claims Tribunal - by which Tribunal
rejected the claim petition - accident was
caused by the negligent driving of the car's
driver - claimant was hospitalized multiple
times and suffered a permanent disability of
70%, including organic brain damage and loss
of memory and causing significant financial
and personal loss to him - claim petition -
claiming Rs.27,89,100/- for pecuniary and
general damages - the owner of the offending
car, did not deny the accident but claimed it
was due to claimant's negligence - the insurer
company also denied the claimant's case on
the ground that the claimant and the owner
colluded to fabricate the accident to claim
insurance benefits - the Tribunal framed
several issues, including the cause of the
accident and the validity of driving licenses -
rejected the claim petition - Evaluation of
Evidence - the court agreed with the
Tribunal's findings, noting that the evidence
did not support the claimant's version of
events - held, there is nothing on record to
show it being a case of 'hit and run' either -
hence, there is no force in this appeal -
accordingly, fails and is dismissed - and the
records were sent back to the District Judge.
(Para - 33, 34, 35)
300 INDIAN LAW REPORTS ALLAHABAD SERIES
Appeal Dismissed. (E-11)

List of Cases cited:

## Text

_Characters 0–39,907 of 41,501. This is a partial read: ask again with offset=39907 for what follows._

9 All. Navneet Nain @ Navneet Agarwal Vs. The New India Assurance Co. Ltd. & Anr.
299
the
Council
can
always
take
into
consideration various factors, including the
reservation/comment
of
the
State
Government, if any, before deciding to
allow or reject such applications.

E. CONCLUSION

(40) For all the aforesaid reasons, the
above-captioned writ petitions are disposed
of with the following directions :-

i.
Impugned
letter
dated
18.05.2023 issued by the Secretary of the
Board and consequential order, if any, in
reference to the impugned letter dated
18.05.2023 are hereby quashed.

ii. Liberty is granted to the State
Government/Board to take action on the
issue, in accordance with law, if so desires.

iii.
If
the
State
Government/Board refers any issue in
respect of the petitioners/institutions to the
PCI, this Court hope and trust that the PCI
shall make an earnest endeavour to
consider
and
decide
the
same,
in
accordance with law,
after
affording
opportunity to the aggrieved person(s)
expeditiously.

(41) All pending applications also
stands disposed of in terms of the above
final order.

(42) Needless to say, this Court has
not expressed any opinion on the merits of
any individual cases, which shall be guided
by
their
own
individual
facts
and
circumstances.

(43) There shall be no order as to
costs.
----------
(2023) 9 ILRA 299
APPELLATE JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 29.08.2023

BEFORE

THE HON'BLE J.J. MUNIR, J.

First Appeal From Order No. 22 of 2001

Navneet Nain @ Navneet Agarwal
 ...Appellant
Versus
The New India Assurance Co. Ltd. & Anr.
 ...Respondents

Counsel for the Appellant:
Sri R.K. Porwal

Counsel for the Respondents:
Sri Arvind Kumar

Civil Law - Motor Vehicles Act, 1988 -
Section 161(3))(a) - claimant's appeal -
arising from a judgment and award of the Motor
Accident Claims Tribunal - by which Tribunal
rejected the claim petition - accident was
caused by the negligent driving of the car's
driver - claimant was hospitalized multiple
times and suffered a permanent disability of
70%, including organic brain damage and loss
of memory and causing significant financial
and personal loss to him - claim petition -
claiming Rs.27,89,100/- for pecuniary and
general damages - the owner of the offending
car, did not deny the accident but claimed it
was due to claimant's negligence - the insurer
company also denied the claimant's case on
the ground that the claimant and the owner
colluded to fabricate the accident to claim
insurance benefits - the Tribunal framed
several issues, including the cause of the
accident and the validity of driving licenses -
rejected the claim petition - Evaluation of
Evidence - the court agreed with the
Tribunal's findings, noting that the evidence
did not support the claimant's version of
events - held, there is nothing on record to
show it being a case of 'hit and run' either -
hence, there is no force in this appeal -
accordingly, fails and is dismissed - and the
records were sent back to the District Judge.
(Para - 33, 34, 35)
300 INDIAN LAW REPORTS ALLAHABAD SERIES
Appeal Dismissed. (E-11)

List of Cases cited:

1. Ravi Vs Badrinarayan & ors., (2011) 4 SCC
693,

2. Saroj & ors. Vs Het Lal & ors., (2011) 1 SCC
388.
(Delivered by 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 illfated motorcycle on the wrong side of 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
9 All. Navneet Nain @ Navneet Agarwal Vs. The New India Assurance Co. Ltd. & Anr.
301
resulting in the loss of memory too. The
accident caused Nain to lose his capacity to
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.

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
302 INDIAN LAW REPORTS ALLAHABAD SERIES
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 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. DDQ8855 and the rider of the motorcycle held
valid driving licences? If not, its effect?

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
9 All. Navneet Nain @ Navneet Agarwal Vs. The New India Assurance Co. Ltd. & Anr.
303
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-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 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 eyewitnesses 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
304 INDIAN LAW REPORTS ALLAHABAD SERIES
the offending car resulting in injury to the
claimant. The testimony of the two eyewitnesses, 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-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 िाथ यादव मुत िा
थािा चिेरी OP िािमऊ िे थािा आिर एि व्यकक्त व हाित
मिरूब बेहोश दोहरा वक्ष श्याम िा रंर् पेन्ट शटग पहिे दाकिि
किया तथा तहरीर िराया कि मैं अपिे आवास आ रहा था तो
वापस आिे पर VIPरोि, िी०सी० िािोिी र्ेट िे सामिे यह
बेहोश हाित में थे सड़ि िे कििारे िड़े एि शीशम िे पेड़ िे
पास पड़ा था तथा एि मोटर साईकिि शीशम िे पेड़ से टिराई
पड़ी ह । इस आदमी िा एक्सीिेन्ट िर्ता ह कि अचािि मोटर
साईकिि िे शीशम से टिरािे िे िारण हुआ ह । इसिे पास
शराब सी बू भी आ रही ह । मैं वास्ते उपचार व आ०िा० फोि
पर सूचिा दे रहा ह ाँ। एवं शीघ्र ही कचट्टी मिरूबी बिािर वास्ते
इिाि द्वारा HG 3278 र्णेश प्रसाद K.P.M. अस्पताि
रवािा किया र्या।"

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
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:

"टक्िर िे बाद मैं बेहोश हो र्या था व बीच-बीच में होश
आ िाता था। मौिे पर सोिू व कहमांशु अवस्थी आ र्ये थे किन्होिें
घटिा देिी थी मुझे मौिे से दोिो र्वाह व िांस्टेकबि मुझे अस्पताि
िे र्ये 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
9 All. Navneet Nain @ Navneet Agarwal Vs. The New India Assurance Co. Ltd. & Anr.
305
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:

"कद. 6.7.94 िी बात ह मैं िािपुर ि ण्ट एररया में
िी०सी० िािोिी िे सामिे र्ेट िे पास शाम िरीब 8 बिे िड़ा
था। म िें देिा कि एि िार किसिा िम्बर D.D.Q./8855 बड़ी
तेिी व िापरवाही से दकक्षण से उत्तर तरफ मेरी तरफ आ रही थी
उसी समय एि मोटर साईकिि चािि उत्तर से दकक्षण तरफ िा रहा
था। इतिे में िरीब 8.15 बिे शाम िार चािि िे मोटर साईकिि
में टक्िर मारी किससे मोटर साईकिि चािि िार िी टक्िर से कर्र
पड़ा। िार िी टक्िर से र्ंम्भीर चोटों िे िारण, प र में फ्र क्चर व
कसर व शरीर में भी चोट आई। इस घटिा िो मेरे अिावा मेरे साथ
िड़े सोिू S/O S. H. कतवारी कि० िल्यािपुर कि० िािपुर एवं
अन्य िोर्ों िे देिा ह । दुघगटिा िे समय पुकिस िमी आ र्ये
किििी मदद से म िे एवं अन्य िोर्ों िे घायि िो K.P.M.
हाकस्पटि िािपुर में भती िराया। यह घटिा िार चािि
DDQ/8855 िी र्िती तेिी व िापरवाही िे िारण हुई ह ।"

20. In his cross-examination, relevant
on the point, PW-2 has testified:

"िार व मोटर साईकिि में आमिे-सामिे से टक्िर हुई थी
िार मोटर साईकिि िे पास आिे पर िापरवाही से पूवी पटरी िी
ओर चिी आई एवं उसिे मोटर साईकिि में टक्िर मार दी। िार 810 सेिेण्ि िे किये रुिी होर्ी हम िोर्ों िे घायि िो उठािे िा
प्रयास किया िब ति घायि िो उठाया तब ति िार उत्तर िी ओर
भार् र्ई।

म िें व सोिू िा िाम घायि िो बता कदया था किििर पची
िाम पता दे दी थी। म िें घायि िा िाम पता िोट िर किया था।
दुघगटिा िे िरीब 2 माह बाद थािा ि ण्ट िे सबइन्सपेक्टर िे मेरे व
सोिू िे ब्याि किये थे म िें यही ब्याि दरोर्ा िो कदये थे। पुकिस िेस
में िािपुर न्याया. में अभी ति मेरा िोई ब्याि िही हुआ ह ।

मेरी घायि से िोई ररश्ता व व्यवहार िही ह । आि िी
तारीि िी सूचिा मुझे सम्मि द्वारा प्राप् हुई ह इसकिये र्वाही देिे
आया ह ाँ।"

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 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.
306 INDIAN LAW REPORTS ALLAHABAD SERIES

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 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:

"कविय ह कि एि व्यकक्त मोटर साईकिि सवार िाम पता
अज्ञात व हाित मिरूब वास्ते इिाि भेिा िा रहा ह ।

ररपोटग सेवा में प्रेकषत ह ।"

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 मरीि िो र्ल्ती से चोट िर्ी ह । इसिे किये िािूिी
िायगवाही हो चुिी ह । मुझे यहां अभी िोई िािूिी िायगवाही िही
िरिी ह । मुझे िविीत िे पूणगरूप से होश में आ िािे िे बाद
िायगवाही िरिी ह । मुझे सारे ितरे समझा कदये र्ये ह ।

मैं इिाि िी अिुमकत देता ह ाँ।"

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
9 All. Navneet Nain @ Navneet Agarwal Vs. The New India Assurance Co. Ltd. & Anr.
307
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 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
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
308 INDIAN LAW REPORTS ALLAHABAD SERIES
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.

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
9 All. Navneet Nain @ Navneet Agarwal Vs. The New India Assurance Co. Ltd. & Anr.
309
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. 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 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
310 INDIAN LAW REPORTS ALLAHABAD SERIES
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 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.