FAO 842 of 2003 and MAC. App. 422 of 2009. Case: Rajesh Tyagi and Ors. Vs Jaibir Singh and Ors.. High Court of Kerala (India)
| Case Number | FAO 842 of 2003 and MAC. App. 422 of 2009 |
| Counsel | For Respondents: Sanjay Jain, ASG, Kirtiman Singh, CGSC, Prerna Shah Deo, Waize Ali Noor, Astha Jain and Rahul Jain, Advocates |
| Judges | J.R. Midha, J. |
| Issue | Code of Civil Procedure, 1908 (CPC) - Order XII Rule 6; Sections 173, 340; Indian Evidence Act, 1872 - Section 165; Motor Vehicles Act, 1988 - Sections 112, 113, 119, 122, 132, 132(1)(c), 133, 134, 146, 149, 163A, 166, 166(4), 168, 169, 169(1), 177, 179, 181, 183(1), 184, 185, 187, 192, 192A, 194, 196, 199, 3, 4, 5, 56, 66(1) |
| Citation | 2015 (I) ACC 838 (Del) |
| Judgement Date | December 12, 2014 |
| Court | High Court of Kerala (India) |
Order:
J.R. Midha, J.
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Mr. Sidharth Luthra and Mr. Anup J. Bhambhani, learned Amicus Curiae submit that they had convened a meeting yesterday in terms of the order dated 8th December, 2014 which was attended by Mr. Kirtiman Singh, learned Standing Counsel for the Ministry of Road Transport and Highways, Mr. Saleem Ahmed, learned Standing Counsel for Delhi Police, Mr. Anil Shukla, Joint Commissioner of Police (Traffic) and Mr. Jayant Sud, Advocate. It is submitted that Delhi Police has shown their concern with respect to paras 24, 28, 36, 46, 48, 49, 56(s), 56(t), 92, 101(f), 101(g) and 101(h) and 102(i) of the Detailed Accident Report (DAR). The learned Amicus Curiae have handed over the minutes of the meeting held on 11th December, 2014, which are taken on record. Mr. Sidharth Luthra, learned Amicus Curiae, has handed over a letter dated 11th December, 2014 of Mr. Anil Shukla, Joint Commissioner of Police (Traffic) containing the response of Delhi Police to the Detailed Accident Report (DAR). It is submitted that the Investigating Officer may find it difficult to collect the particulars of the bank account of the driver (para 24); to ascertain whether the vehicle has been taken away by the driver with/without the consent of the owner (para 28); to ascertain whether driver was employed on monthly or daily basis (para 36); to ascertain whether the driver/owner made payment of any compensation to the victim [para 41(b)]; to ascertain name and particulars of the Designated Officer of the Insurance Company (para 46); to ascertain the date of appointment of the Designated Officer (para 48); to ascertain bank account particulars of the Insurance Company (para 49); to ascertain whether the injured got reimbursement of medical expenses from his employer or under a mediclaim policy [para 56(s)]; to ascertain whether the injured was provided cashless treatment by the Insurance Company [para 56(t)]; to ascertain proof of employment of the driver (para 92); to ascertain proof of legal representatives of the deceased [para 101(f)]; to collect photograph, specimen signature and identity proof of legal representatives of the deceased [para 101(g)]; to collect particulars of the bank account of the legal representatives of deceased [para 101 (h)] and to collect proof of reimbursement of the medical expenses of the victim by the employer or under a mediclaim policy [para 102(i)].
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This Court is of the view that the concern of the Joint Commissioner of Police has been taken care of in paras 77 to 82 of Part X and paras 103 to 108 of part XI of the Detailed Accident Report (DAR). The Investigating Officer has to demand the information mentioned in paras 18, 19, 20, 21, 22, 23, 24, 25, 26, 27, 28, 29, 30 and 41(b) of Part III and the documents mentioned in paras 91, 92, 93, 94, 95, 96, 97 of Part XI of DAR from the driver of the offending vehicle and in the event of his failure to furnish the same, the Investigating Officer shall mention the same in para 77 of the DAR to seek direction from the Claims Tribunal to the driver to furnish the same directly to the Claims Tribunal. Similarly, information mentioned in paras 34, 35, 36, 38, 40 and 41(b) of Part IV of the DAR and the documents mentioned in paras 92, 93, 94, 95, 96 and 97 of Part XI of DAR have to be produced by the owner of the offending vehicle and upon his failure, the Investigating Officer shall mention the same in para 78 of the DAR to seek direction to the owner to furnish the same on affidavit along with the documents directly to the Claims Tribunal. Similarly, the information in paras 46, 47, 48, 49 of Part V of the DAR has to be furnished by the concerned Insurance Company and in the event of their failure, the Investigating Officer shall mention the same in para 79 of the Detailed Accident Report (DAR) to seek direction to the Insurance Company to furnish the requisite information on affidavit along with or documents directly to the Claims Tribunal. Likewise, the information with respect to paras 55 and 56 of Part VII and the documents mentioned in paras 101 and 102 of Part XI of the DAR has to be furnished by the legal representatives of the deceased and in the event of their failure to disclose the same, the Investigating Officer shall mention the same in para 80 of the Detailed Accident Report (DAR) to seek direction to the legal representatives of the deceased to furnish the same on affidavit along with original documents directly to the Claims Tribunal.
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Mr. Sidharth Luthra, learned Amicus Curiae submits the following clauses be incorporated in the Mechanical Inspection Report (Annexure-A to the Detailed Accident Report):
"(i) Make, Model Name, Colour and Type of Vehicle.
(ii) In case of HTV/MGV/LGV.
(a) Whether Lateral Under Run Protective Device (LUPD) and Rear Under Run Protective Device (RUPD) installed? (For vehicle weighing 3.5 ton or more).
(b) Whether speed governor installed and functional or otherwise?
(iii) Whether vehicle modified by?
(a) Installing CNG/LPG Kit.
(b) Change of vehicle body.
(iv) Condition of tyres? Whether original or retreaded?
(v) Whether horn was installed and functional?
(vi) If the vehicle was educational institution bus, whether the vehicle was fitted with the doors that can be shut and whether the vehicle had a suitable inscription to indicate that they are in the duty of an educational institute, as per the guidelines laid down in M.C. Mehta v. Union of India, I (1998) SLT 582: I (1998) CLT 46 (SC): (1998) 1 SCC 676 and M.C. Mehta v. Union of India, X (1998) SLT 6: (1999) 1 SCC 413?"
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The aforesaid suggestions are useful and are being incorporated in the Mechanical Inspection Report Form attached to the Detailed Accident Report (DAR).
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Mr. Jayant Sud, Advocate, for the accused in Criminal Revision Petition No. 338/2009 submits that it should be clarified that the particulars filled up in para 73 (driving aggressively) and para 74 (irresponsible behaviour) of the Detailed Accident Report is the opinion of the Investigating Officer on the basis of the investigation and should not be construed as an admission of the accused.
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Under Section 168 of the Motor Vehicles Act, 1988, the Claims Tribunal has to hold an inquiry into the claim. Section 169(1) further stipulates that in holding such an inquiry under Section 168, the Claims Tribunal may follow such summary procedure as it thinks fit. The scope of an inquiry under Sections 168 and 169 of the Motor Vehicles Act has been discussed in Mayur Arora v. Amit, IV (2010) ACC 885: 2011(1) TAC 878. It is clarified that the Claims Tribunal Agreed Procedure is a summary procedure for conducting an inquiry in terms of Sections 168 and 169 of the Motor Vehicles Act, 1988. It is further clarified that the Investigating Officer has to fill up the Detailed Accident Report on the basis of investigation and the Detailed Accident Report is not to be construed as an admission/confession of the accused.
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Mr. Anup J. Bhambhani, learned Amicus Curiae has also handed over a note containing suggestions for being incorporated in the Road Transport and Safety Bill, 2014 from the book "Road Accidents: Prevention, Attention and Compensation" by Mr. Arun Mohan, Senior Advocate. The copy of the said note has been handed over to Mr. Sanjay Jain, learned ASG, who shall take up the same with the Ministry of Road Transport and Highways.
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Learned Standing Counsel for the Delhi Police submits that the modified Claims Tribunal Agreed Tribunal be implemented with effect from 1st February, 2015 to enable the police to amend their Standing Order and Manual for investigation of motor accident cases and to give necessary training to the Investigation Officers.
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Mr. Sidharth Luthra and Mr. Anup J. Bhambhani, learned Amicus Curiae submit that the Claims Tribunal Agreed Procedure be modified initially for a period of six months but the implementation thereof be reviewed after a period of three months.
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On careful consideration of the submissions of learned ASG, learned Amicus Curiae and learned Standing Counsel for Delhi Police, the Claims Tribunal Agreed Procedure formulated by the this Court vide order dated 21st December, 2009 is hereby modified. The modified Claims Tribunal Agreed Procedure is appended to this order and shall form part of this order.
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This Court is hopeful that the Modified Claims Tribunal Agreed Procedure appended to this order shall streamline the inquiry contemplated in Sections 168 and 169 of the Motor Vehicles Act and the claimants would get the compensation within 90 to 120 days of the accident. The salient features of the modifications carried out in the Claims Tribunal Agreed Procedure are as under--
(i) Format of the intimation of the accident by the Investigating Officer (Clause 2)
The intimation of the accident by the Investigating Officer to the Claims Tribunal and Insurance Company within 48 hours of the accident has to be in Form-I of the modified Claims Tribunal Agreed Procedure.
(ii) List of documents to be collected by the Investigating Officer (Clause 3)
The list of documents to be collected by the Investigating Officer is given in Clause 3.
(iii) Format of the Details Accident Report (DAR) to be filed by the Investigating Officer
The Details Accident Report (DAR) to be filed by the Investigating Officer within 30 days of the accident shall be in Form-II of the modified Claims Tribunal Agreed Procedure
(iv) Duty of the Investigating Officer to seek directions from the Court in the event of failure of driver/owner/claimant/Insurance Company to disclose relevant information and produce documents before the Investigating Officer.
In the event of failure of the driver, owner, Insurance Company and/or claimants to disclose relevant information and documents required by the Investigating Officer to complete the Detailed Accident Report (DAR), the Investigating Officer shall seek necessary directions from the Claims Tribunal in Part X of Form-II of...
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