Madhya Pradesh High Court
The Oriental Insurance Co. Ltd. ... vs Smt. Janubai And 6 Others on 6 September, 2021
Equivalent citations: AIRONLINE 2021 MP 1958
Author: Rohit Arya
Bench: Rohit Arya
1 MA-2044-2013
The High Court Of Madhya Pradesh
MA-2044-2013
(THE ORIENTAL INSURANCE CO. LTD. KHARGONE THROUGH TP HUB Vs SMT. JANUBAI AND 6
OTHERS AND OTHERS)
5
Indore, Dated : 06-09-2021
Heard through Video Conferencing.
Shri Sudhir Dandwate, learned counsel for the appellant.
Shri Anil Malviya, learned counsel for respondents no.1 to 5.
This is an appeal under Section 173(1) of the Motor Vehicles Act at the instance of the Insurance Company challenging the illegality, validity and propriety of the award dated 09.07.2017 in Claim Case No.20/2012.
The facts relevant and necessary for disposal of the appeal are in narrow compass: The deceased Peeral Singh died in an accident while he was standing on the road side in the route of Khargone Julwania having been hit by a passenger vehicle driven rashly and negligently. Initially, son of the deceased filed FIR on the same date with an allegation that his father was found dead lying on the road side having been hit by an unknown vehicle.
2. During investigation, the vehicle with registration no.MP-10A-8907 was found to have been involved and accordingly seized. On 09.10.2009, an 2 MA-2044-2013 eye witness Mahesh AW-2 has confirmed the involvement of the vehicle in the accident causing death of the deceased. During trial, before the Tribunal, Mahesh AW-2 has been examined as an eye witness to the accident. His testimony withstood the cross examination. It may also be mentioned that Mahesh AW-2 has been examined during the criminal trial as well and his testimony that he was going on the motorcycle when the offending vehicle seem to have hit the deceased, who died on the spot remained intact. The Tribunal with the evidence of the wife of the deceased AW-1 Janubai and Mahesh AW-2 has concluded with the affirmative finding of fact of occurrence of the accident due to rash and negligent driving of the offending vehicle causing the death of the deceased Peeral Singh. There is no dispute about the Insurance of the vehicle and coverage of the risk. Consequently, the Tribunal has awarded a compensation to the tune of Rs.10,41,000/-.
3. Shri Dandwate, learned counsel for the appellant while criticizing the impugned award contends that the testimony of AW-2 Mahesh claiming to be an eye witness riding motorcycle having witnessed the offending vehicle driven rashly and negligently and caused accident in question is at variance with the statement of DW-1 Abhay Tiwari, Police Inspector of the concerned police station, who has deposed before the Tribunal that Mahesh in his statement under Section 161 of Cr.P.C. has stated to have been travelling in the bus, therefore, the testimony of AW-2 Mahesh is doubtful 3 MA-2044-2013 and could not have been treated to be an eye witness. Shri Dandwate does not dispute about (i) that the offending vehicle was plying on the said route in question on 05.10.2009 (ii) the vehicle was insured with the appellant- Insurance Company (iii) factum of death of the deceased Peeral Singh.
4. Shri Anil Malviya, learned counsel for the respondents contends that AW-2 Mahesh has also been examined during criminal trial as prosecution witness. He has deposed same facts that he was riding the motorcycle while the accident occurred by the offending vehicle resulting in death of the deceased. The aforesaid testimony has withstood in the cross examination therefore, the Tribunal did not commit any error while accepting Mahesh AW-2 as eye witness having witnessed the occurrence of the accident by the offending vehicle resulting in the death of the deceased Peeral Singh.
5. Before adverting to the rival contentions advanced by the parties as aforesaid, it is expedient to reiterate the settled law that in a case of accident claim tried by the Tribunal, evaluation of the evidence brought on record is on the touch stone of preponderance of probabilities, strict rule of evidence are not applicable by and large for recording and appreciation of the evidence by the Tribunal. In the context of the facts adumbrated in the preceding paragraphs, it is well evident that Mahesh AW-2 has maintained his testimony as an eye witness having seen occurrence of the accident, while he was riding the motorcycle behind the bus. There is no reason to 4 MA-2044-2013 disbelieve him only for the reason that Police Inspector Abhay Tiwari has deposed that Mahesh was sitting in the bus at the time of occurrence of the accident as stated in his statement under section 161 of Cr.P.C. Infact statement under Section 161 of Cr.P.C. are unsigned statements recorded by the Police for the investigation purpose. Hence, the deposition of Abhay Tiwari before the Tribunal infact is a weak evidence as against the statement of AW-2 Mahesh, as discussed above.
Consequently, this Court is of the view that the Tribunal has not committed any illegality in the matter of appreciation of evidence on record to arrive at a conclusion that AW-2 Mahesh was an eye witness to the accident. Hence, issue of the involvement of the offending in the accident causing unnatural death of the deceased has been rightly held in affirmative.
Accordingly, the appeal is hereby dismissed and the award is upheld. E-certified copy as per rules.
(ROHIT ARYA) JUDGE RJ Digitally signed by REENA JOSEPH Date: 2021.09.07 14:41:47 +05'30'