Oriental Insurance Company Ltd vs Premlata Shukla And Others Reported In ... on 22 July, 2016

[Cites 2, Cited by 4]

Jammu & Kashmir High Court

Oriental Insurance Company Ltd vs Premlata Shukla And Others Reported In ... on 22 July, 2016

2. The appellant Insurance Company primarily challenges the finding in respect of liability of the Insurance Company alleging that the accident in this case did not occur on account of the vehicle insured with the appellant Insurance Company. The vehicle and its driver have been unnecessarily added to the case.

3. The accident in this case happened on 02.09.1997. Lal Din and his wife were going on National Highway No.1, Logate Morh, Tehsil and District Kathua. They were walking on the road and Lal Din was moving across the road. It is stated that Lal Din was hit by Tata Sumo vehicle bearing registration No.JK02G/5355. As a result of which, he sustained injuries and he was taken to hospital where he was declared dead.

4. Consequent to the death of Lal Din, the claim was filed by his wife and parents. Petitioner No.1 was examined in support of the claim petition. PW-1 is one Mohd. Shafi who is brother in law of the deceased Lal Din.

PW-2 is Rakesh Kumar who is an independent witness. Petitioner No.1, Sharifan - widow of the deceased stated that she was walking along with her husband, an agriculturist and rearing buffaloes and cattle. She stated that they were coming from the village Bhora Khatara, when the accident took place and her husband died by the vehicle hitting him. She stated that the accident happened due to the rash and negligent driving of the driver of the Tata Sumo vehicle bearing registration No.JK02G/5355.

5. PW-Mohd. Shafi also supported the statement made by Sharifan wife of the deceased. PW-2 Rakesh Kumar eye witness stated that the deceased was known to him. He saw the accident which took place on 02.09.1997 when Tata Sumo bearing registration No.JK02G/5355 was driven in rash and negligent manner by the driver hit the deceased on the road and he died. In cross examination, he stated that Tata Sumo was coming from Jammu side and he was also coming from the same side on his scooter. He did not inform the Police about the accident because he was concentrating on taking the injured to the hospital. He denied the suggestion that the Tata Sumo vehicle did not cause the accident. He also denied the suggestion that the accident did not take place in his presence.

6. On behalf of the Insurance Company S.S.Jaral RW-1 was also examined. He reported that no such accident happened because of the rash and negligent driving of the driver of the vehicle. On this Issue Nos.1 and 3 were framed by the Court which reads as follows:

ISSUE NO.1 Whether the accident involving death of Sh. Lal din had occurred on 2.9.97 due to negligence of driver of vehicle bearing registration no.JK02G/5355? OPP 3 ISSUE NO.2 Whether it is a hit and run case and petitioners claim in its present form is not maintainable? OPR-3 In both the issues, the Court came to the conclusion on the evidence in the following manner:

12. It is the case of the petitioners that on 2.9.97 a rashly and negligently driven Tata Sumo bearing registration No.JK02G/5355 hit the deceased at Logate Morh as a result of which he died on spot. The learned counsel for the insurer has submitted that since no criminal case was registered in the police station involving Tata Sumo No.Jk02G/5355, it cannot be said that the deceased died in a vehicle accident. On the other hand, the learned counsel for the petitioners has argued that the registration of the criminal case is not the condition precedent to claim compensation under section 166 of the Act and on this score the claim petition cannot be dismissed.

13. This fact cannot be denied that the provisions regarding the claim under the Act are enacted while keeping in view the social welfare or justice to the community and whenever the accident takes place in which the claimant sustained injuries or some one dies and it is proved that it was due to the accident, the claimants are always entitled to compensation irrespective whether the police has registered the case regarding the accident or not because no claim case can be left over on the mercy of the police. It is also a settled principle that every case is decided on the appreciation of its own pleadings, circumstances and the evidence recorded in it, if such accident and injuries are proved the compensation should be awarded. Such claim cannot be left over on the mercy of the criminal case or its papers. The party has right to prove his case by leading evidence before the Tribunal and the Tribunal may consider it in absence of the criminal case.

14. It is an admitted fact that no criminal case has been registered in the police station involving the offending vehicle in the alleged accident. However, the petitioners have led evidence in order to prove the fact that the accident was caused due to the rash and negligent driving by the driver of the offending vehicle. The petitioner Sharifan is the widow of the deceased and she has stated that she was with her husband at the time when the accident took place. She has categorically stated that a rashly and negligently driven Tata Sumo No.JK02g/5355 hit her husband when he was crossing the road as a 4 result of which he died on spot. Her statement has been corroborated by Mohd. Shafi PW-1 and Rakesh Kumar PW-2 who are also the eyewitnesses of the alleged accident. They have categorically stated that the said accident was the result of negligence on the part of the driver of the offending Tata Sumo. There is no ground to disbelieve the statements of the eyewitnesses of the alleged accident because there is no evidence in rebuttal. Rakesh Kumar PW-2 is an independent witness in this case and there is no ground to doubt his testimony because it has not been pointed out by the learned counsel for the insurer as to why this witness should give a false statement.

15. Besides the evidence led by the petitioners, their case is further corroborated by the pleadings and evidence adduced by the insurer. In his objections the insurer has categorically admitted that the driver of the offending vehicle was not holding a valid and effective driving licence at the time of accident. It is further pleaded that the alleged accident took place due to the negligence of deceased because he suddenly crossed the road. As such, the insurer has categorically admitted that the accident did take place but it was due to the negligence of the deceased. Such type of evidence is sufficient to lend credence to the story put forth by the petitioners about the alleged accident. There is yet another circumstance in the case which corroborates the version of the petitioners regarding the death of the deceased in the alleged accident. The petitioners have placed on record an attested copy of FIR, which reveals that the deceased died in a vehicular accident due to the rash and negligent driving of some unknown vehicle. The postmortem report reveals that the deceased has died due to head injury leading to vital organ i.e. brain and the said injury was received by him in a vehicular accident. It is difficult for the Tribunal to disbelieve the evidence adduced by the petitioners and they have categorically proved that the deceased died in a vehicular accident due to the negligence of the driver of the offending vehicle.

7. On analyzing the evidence, it is clear that there is overwhelming evidence to prove that the accident in this case was happened on highway at about 3.30 PM and PW-2 Rakesh Kumar an independent eye witness has seen the accident. A FIR has been lodged, but there is no reference to the vehicle number. This is the cause of the controversy.

8. The learned counsel for the appellant Insurance Company relies upon the two decisions of the Supreme Court in case titled Oriental Insurance Company Limited Vs. Premlata Shukla and others reported in 2007 ACJ 1928 stating that if FIR is to be relied upon for all purposes, the absence of the vehicle number and the name of the driver of the offending vehicle would disentitle the claimants to make a plea of accident caused by the vehicle insured with the appellant. Relevant paras of the aforesaid judgments read as follows:

9. Where an accident occurs owing to rash and negligent driving by the driver of the vehicle, resulting in sufferance of injury or death by any third party, the driver would be liable to pay compensation therefor. Owner of the vehicle in terms of the Act also becomes liable under the 1988 Act. In the event vehicle is insured, which in the case of a third party, having regard to sub-section (2) of Section 147 of the Act, is mandatory in character, the Insurance Company would statutorily be enjoined to indemnify the owner.

10.The insurer, however, would be liable to reimburse the insured to the extent of the damages payable by the owner to the claimants subject of course to the limit of its liability as laid down in the Act or the contract of insurance. Proof of rashness and negligence on the part of the driver of the vehicle, is therefore, sine qua non for maintaining an application under Section 166 of the Act.

14.Once a part of it is relied upon by both the parties, the learned Tribunal cannot be said to have committed any illegality in relying upon the other part, irrespective of the contents of the document been proved or not. If the contents have been proved, the question of reliance thereupon only upon a part thereof and not upon the rest, on the technical ground that the same had not been proved in accordance with law, would not arise.

15.A party objecting to the admissibility of a document must raise its objection at the appropriate time. If the objection is not raised and the document is allowed to be marked and that too at the instance of a party which had proved the same and wherefor consent of the other party has been obtained, the former in our opinion cannot be permitted to turn 6 round and raise a contention that the contents of the documents had not been proved and, thus, should not be relied upon. In Hukam Singh, 1969 PLR 908, the law was correctly been laid down by the Punjab and Haryana High Court stating;

(8). Mr. G.C. Mittal, learned counsel for the respondent contended that Ram Partap had produced only his former deposition and gave no evidence in Court which could be considered by the Additional District Judge. I am afraid there is no merit in this contention. The Trial Court had discussed the evidence of Ram Partap in the light of the report Exh. D1, produced by him. The Additional District Judge while hearing the appeal could have commented on that evidence and held it to be inadmissible if law so permitted. But he did not at all have this evidence before his mind. It was not a case of inadmissible evidence either. No doubt the procedure adopted by the trial Court in letting in a certified copy of the previous deposition of Ram Partap made in the criminal proceedings and allowing the same to be proved by Ram Partap himself was not correct and he should have been examined again in regard to all that he had stated earlier in the statement the parties in order to save time did not object to the previous deposition being proved by Ram Partap himself who was only cross-examined. It is not a case where irrelevant evidence had been let in with the consent of the parties but the only objection is that the procedure followed in the matter of giving evidence in Court was not correct. When the parties themselves have allowed certain statements to be placed on the record as a part of their evidence, it is not open to them to urge later either in the same Court or in a court of appeal that the evidence produced was inadmissible. To allow them to do so would indeed be permitting them both to appropriate and reprobate."

9. In the same lines, he relies upon the judgment passed in National Insurance Company Limited Vs. Rattani and others reported in 2009 ACJ 925. The issue is 7 whether the absence of vehicle number in the FIR will disentitle the claim.

10. On the contrary, I find that the Tribunal has recorded the statement of the insurer in the response to the claim petition which is in above Para-15. This Court finds that in not one place but in many places, it has clearly stated that the accident did happen but the denial of liability however is on the account of the fact that the driver the vehicle Tata Sumo did not have a valid insurance.

11. The pleadings of the Insurance Company seem to be misplaced and totally contrary to each other. The evidence of the Insurance Company is not based on sound material. Mere assertion is of no available. On the one hand, they take a plea that the accident is admitted but the negligence is attributed to the deceased or the driver of the Tata Sumo. On the other hand, they say that no such accident happened. No tangible material has been produced before the Tribunal to contradict the oral and documentary evidence based on which the finding has been rendered. The factum of accident is not in dispute. The nature of accident is admitted. A new plea now raised is not justified.

12. In this view of the matter, I am not inclined to take a different view from that of the findings of the Tribunal. There is no dispute on quantum of the compensation.

13. Accordingly the appeal is dismissed.

(Ramalingam Sudhakar) Judge Jammu, 22.07.2016 Varun

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Jammu & Kashmir High Court