Punjab-Haryana High Court
New India Insurance Company vs Hardeep Kaur And Ors on 15 September, 2016
Author: Rekha Mittal
Bench: Rekha Mittal
FAO No.6469 of 2012(O&M) 1
and other connected matters
IN THE HIGH COURT OF PUNJAB AND HARYANA
AT CHANDIGARH
Date of decision:15.9.2016
1. FAO No.6469 of 2012(O&M) &
XOBJC-23-CII of 2013
The New India Assurance Co. Ltd. ....Appellant
VERSUS
Hardeep Kaur and others .....Respondents
Present: Mr. D.K. Parjapati, Advocate for
Mr. R.S. Madan, Advocate for the appellant.
Mr. L.S. Sidhu, Advocate for respondents No.1 to 4.
Mr. Gopal Mittal, Advocate for respondents No.5 and 6
(cross-objectors).
*****
2. FAO No.2777 of 2013(O&M)
Hardeep Kaur and others ....Appellants
VERSUS
Ravi Singla and others .....Respondents
Present: Mr. L.S. Sidhu, Advocate for the appellants.
Mr. Gopal Mittal, Advocate for respondents No.1 and 2.
Mr. D.K. Parjapati, Advocate for
Mr. R.S. Madan, Advocate for respondent No.3.
*****
3. FAO No.1398 of 2014(O&M)
Sunehri Devi and others ....Appellants
VERSUS
The New India Assurance Co. Ltd. and others .....Respondents
Present: Mr. Ankush Singla, Advocate for the appellants.
Mr. D.K. Parjapati, Advocate for
Mr. R.S. Madan, Advocate for respondent No.1.
Mr. Gopal Mittal, Advocate for respondents No.2 and 3.
Mr. L.S. Sidhu, Advocate for respondents No.4 to 7.
For Subsequent orders see FAO-1398-2014, FAO-2777-2013, -- and 1 more.
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FAO No.6469 of 2012(O&M) 2
and other connected matters
CORAM: HON'BLE MRS. JUSTICE REKHA MITTAL
REKHA MITTAL, J.
This order will dispose of FAO No.6469 of 2012, cross objections No.23-CII of 2013, FAO No.2777 of 2013 and 1398 of 2014 as these have emerged out of the same award dated 17.09.2012 passed by the Motor Accident Claims Tribunal, Patiala (in short 'the Tribunal') whereby compensation has been awarded in regard to death of Balkar Singh in a motor vehicular accident that took place on 08.08.2006. For brevity, the facts are taken from FAO No.6469 of 2012.
The parties shall be referred to as the claimants, the insurance company and the cross-objectors for the sake of convenience. FAO No.6469 of 2012
Counsel for the insurance company would contend that Balkar Singh allegedly sustained injuries on 08.08.2006 and the First Information Report (in short 'FIR') at the behest of Bhoma Singh CW-2 was lodged on 09.08.2006 against an unknown trolley tractor make Eicher of red colour and unknown driver. The application for claiming compensation was filed by the claimants in March 2010, more than three years after the alleged accident in August 2006. Bhoma @ Ghoma, author of the FIR, appeared in the witness box and tendered into evidence his affidavit (Ex.CW2) wherein he has deposed that they came to know later that accident was caused with tractor No.PB-42B-5077 which belongs to respondent No.1. In his cross examination by counsel for respondent No.2 before the Tribunal, he has stated that he did not know number of the tractor and For Subsequent orders see FAO-1398-2014, FAO-2777-2013, -- and 1 more.
2 of 7 ::: Downloaded on - 18-09-2016 04:23:46 ::: FAO No.6469 of 2012(O&M) 3 and other connected matters voluntarily stated it was dark and the person was of Kulwana. He further reiterated that he has got no knowledge about the number of the tractor. Narang Singh CW-3 another alleged eye witness to the occurrence has deposed that in the year 2010, with best efforts, he came to know about the tractor and disclosed the matter to LRs of deceased at village Dutal. Similarly, widow of the deceased Hardeep Kaur has deposed that she came to know about the registration number of offending tractor on 07.01.2010 and gave application to the Senior Superintendent of Police, Patiala and Human Rights Commission (Ex.C1 and C2) but no action has been taken by the police. It is vehemently argued that keeping in view the facts elicited in cross examination of Bhoma @ Ghoma coupled with the fact that testimony of Narang Singh and Hardeep Kaur is conspicuously silent as to what was the source of their knowledge/information with regard to particulars of the tractor that caused the accident after a period of more than 3 years, the tractor in question has been falsely indicted in the proceedings for claiming compensation by taking advantage of the fact that the said tractor stood insured with the insurance company. In addition, it is submitted that it has been proved on record that after due investigation of FIR No.172 dated 09.08.2006 registered at the instance of Bhoma @ Ghoma, the police submitted an untraced report and the same was accepted by the Court, sufficient to corroborate contention of the insurance company that the tractor in question has been falsely implicated in the proceedings. Counsel for the cross-objectors (owner and driver of the alleged offending vehicle) has echoed the arguments advanced by counsel for the insurance company.
For Subsequent orders see FAO-1398-2014, FAO-2777-2013, -- and 1 more.
3 of 7 ::: Downloaded on - 18-09-2016 04:23:46 ::: FAO No.6469 of 2012(O&M) 4 and other connected matters Counsel for the insurance company, in the alternative, has challenged liability of the insurer on the premise that Jagtar Singh, driver of the alleged offending vehicle, was not holding a valid driving licence as there was no endorsement of 'transport' on his driving licence. However, counsel for the cross-objectors has refuted contention of the insurance company and supported the findings of the Tribunal that driving licence possessed by the driver was a valid one.
Counsel for the claimants, on the contrary, has supported the findings of the Tribunal on issue No.1 with the submissions that statement of Bhoma @ Ghoma CW-2 corroborated by Narang Singh CW-3 along with the fact that Jagtar Singh, driver of the vehicle, did not appear in the witness box is more than sufficient to prove that the accident was caused due to rash and negligent driving of tractor No.PB-42B-5077 by its driver. Another submission made by counsel is that the untraced report submitted before the Sub Divisional Judicial Magistrate, Samana, was accepted without issuing any notice to the complainant, therefore, acceptance of untraced report cannot be taken seriously to negate version of the claimants and testimony of the witnesses examined to discharge onus of issue No.1.
I have heard counsel for the parties, perused the paper-book and the records of the Tribunal.
The claimants have relied upon FIR (Ex.C5) lodged at the instance of Bhoma @ Ghoma CW-2. There is no dispute that the FIR was lodged against an unknown tractor make Eicher having red colour and unknown driver. Bhoma @ Ghoma in his examination-in-chief has stated that later they came to know that accident was caused with tractor No.PB- For Subsequent orders see FAO-1398-2014, FAO-2777-2013, -- and 1 more.
4 of 7 ::: Downloaded on - 18-09-2016 04:23:46 ::: FAO No.6469 of 2012(O&M) 5 and other connected matters 42B-5077 but in his cross examination by counsel for respondent No.2 before the Tribunal, he has candidly stated that he did not know number of the tractor. The testimony of Bhoma @ Ghoma is not at all sufficient to connect the tractor in question with the accident. The statements of Hardeep Kaur and Narang Singh are conspicuously silent as to what is the basis of their information/knowledge gained in the year 2010 that the accident was caused by tractor No.PB-42B-5077. In absence of any explanation by the witnesses coupled with the fact that the police has already submitted an untraced report after investigation of FIR No.172 dated 09.08.2006, I find merit in the contentions of the insurance company that the claimants have failed to adduce satisfactory much less cogent and convincing evidence to prove that the accident was caused due to rash and negligent driving of tractor No.PB-42B- 5077.
To be fair to the claimants, counsel had invited attention of the Court to cross examination of Ravi Singla RW-1, owner of the vehicle. A relevant extract from his testimony, referred to by counsel for the claimants, reads as follows:-
"The tractor was purchased by me in the year 2005. It is Eicher tractor. It is correct that Jagtar Singh son of Amta Singh (respondent No.2) is my driver and he is of village Kulana. At present he is not my driver. Voluntarily stated that when accident occurred at that time Jagtar Singh was not my driver. In those days, there was no driver of the tractor. Voluntarily stated that tractor was standing in his house."
Counsel for the claimants has tried to derive some benefit from voluntary statement of RW1 i.e. "that when accident occurred, at that time Jagtar Singh was not my driver", by contending that Ravi Singla has admitted the factum of accident.
For Subsequent orders see FAO-1398-2014, FAO-2777-2013, -- and 1 more.
5 of 7 ::: Downloaded on - 18-09-2016 04:23:46 ::: FAO No.6469 of 2012(O&M) 6 and other connected matters As per the settled position in law, statement of a witness is to be read as a whole. Equally true is that if statement of a witness is read by picking sentences from here and there divorced of the remaining part of testimony, it may result in miscarriage of justice. Ravi Singla filed his affidavit Ex.RW1/A by way of examination in chief and categorically deposed that tractor owned and possessed by him has not caused any accident of deceased Balkar Singh. He has never admitted the factum of accident much less having been caused with the tractor while being driven by Jagtar Singh.
This brings the Court to the aspect, whether non-examination of alleged driver of the alleged offending vehicle is sufficient to hold that the accident was caused due to rash and negligent driving of tractor No.PB-42B- 5077 by its driver. The answer, obviously, appears to be negative. The claimants could derive an advantage of failure of the driver to appear in the witness box had they were otherwise successful in proving that the accident was caused due to striking of scooter of the deceased with the tractor bearing No.PB-42B-5077. Further, the untraced report submitted by the police and accepted by the Court will not lose its relevance and evidentiary value merely because it was accepted without notice to the complainant more particularly in the circumstances that there is nothing on record to suggest that the complainant ever expressed any grievance against the order passed by the Judicial Magistrate. Analyzed from any angle, the claimants have failed to discharge onus of issue No.1, therefore, findings recorded by the Tribunal determining the issue in favour of the claimants and against the insurance company and cross objectors cannot be allowed to sustain and accordingly set aside.
For Subsequent orders see FAO-1398-2014, FAO-2777-2013, -- and 1 more.
6 of 7 ::: Downloaded on - 18-09-2016 04:23:46 ::: FAO No.6469 of 2012(O&M) 7 and other connected matters In view of the discussion made hereinbefore, though the second contention raised by the insurance company is of academic relevance only but as Jagtar Singh was holding a driving licence LMV (commercial) when examined in the light of judgment passed by Hon'ble the Supreme Court of India Nagashetty Vs. United India Insurance Co. Ltd., 2001(4) RCR (Civil) 597, I find myself unable to accept the submissions of the insurance company that the alleged driver was not holding a valid driving licence.
For the foregoing reasons, the appeal filed by the insurance company and the cross objections filed by the owner and driver of the alleged offending vehicle are allowed. As a natural corollary, the claim application for grant of compensation is ordered to be dismissed. Consequently, FAO Nos.2777 of 2013 and 1398 of 2014 are dismissed having been rendered infructuous.
SEPTEMBER 15, 2016 (REKHA MITTAL) 'D. Gulati' JUDGE Whether speaking/reasoned : yes/no Whether reportable : yes/no
For Subsequent orders see FAO-1398-2014, FAO-2777-2013, -- and 1 more.
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