Sunita Devi And Others vs Naresh Kumar And Another on 9 February, 2010

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Punjab-Haryana High Court

Sunita Devi And Others vs Naresh Kumar And Another on 9 February, 2010

Bench: K.C.Puri

FAO No. 3761 of 2009                                      1




IN THE HIGH COURT OF PUNJAB AND HARYANA AT
               CHANDIGARH




                                      FAO No. 3761 of 2009
                                      Date of decision 9.2.2010.



Sunita Devi and others

                                     ...... Appellants.

  versus


Naresh Kumar and another
                                     ...... Respondents.

Present : Mr. P.R.Yadav, Advocate for the appellants.

Mr. P.S.Saini, Advocate for Insurance Company. K.C.PURI. J.

This is an appeal directed by claimants claiming an amount of Rs.10lacs on account of death of Rajinder Singh in a motor vehicular accident on 6.8.2007 alleged to have caused by using motor cycle bearing registration No.HR-35D-2511.

The case of the claimant as set forth is that Rajinder Singh was going from village Mandola towards village Zainabad on a motor cycle bearing registration No.HR-35-D/2511. When it reached near Baba Nalawala, then a stray cow all of sudden came in front of the motor cycle and in order to escape Rajinder Singh fell down. Rajinder Singh received FAO No. 3761 of 2009 2 grievous injuries and was brought to Civil Hospital, Rewari from where he was taken to AIIMS, New Delhi and he succumbed to his injuries on 24.8.2007. A DDR No.11 of 27.8.2007 at Police Station Dahina was lodged. Respondent No.1, is the registered owner of the motor cycle and respondent No.2 National Insurance Company is the insurer of the motor cycle and are jointly and severally liable to pay the compensation amount.

Respondent No.1 filed written statement controverting the allegations and inter alia pleaded that present petition has been filed only to extract the money from the answering respondents.

Respondent No.2 National Insurance Company filed written statement controverting the allegations in the petition and has pleaded that no accident has taken place within the jurisdiction of Police Station Khol. DDR No.11 dated 27.8.2007 was lodged afterwards with an ulterior motive to extract money from the Insurance Company. The motor cycle No.HR-35-D/2511 was not involved in the accident.

Following issues were framed :-

1. Whether the accident in question resulting into the death of Rajender Singh son of Shri Prithvi Singh took place arising out of the use of offending vehicle Hero Honda motor cycle bearing registration No.HR-35-D/2511 by its owner/respondent No.1?

OPP

2.Whether the above named petitioners are entitled to claim any compensation and if so to what amount and from whom?OPP

3. Whether respondent no.1 was not holding a valid and an effective driving licence at the time of accident in question ? OPR-2.

4. Whether the insurance company/respondent no.2 is not liable to pay compensation on the grounds as alleged in the written statement ?OPR 2.

5. Relief.

FAO No. 3761 of 2009 3

The claimant examined Head Constable Maan Singh (PW-1), Dr.Akhillesh Raj Jhamad (PW-2), Chand Ram (PW-3) and herself appeared as her own witness and closed the evidence after tendering copy of DDR No.11 dated 27.8.2007, copy of the post mortem examination report, ration card, death certificate and driving licence. In rebuttal respondent No.1 tendered copy of registration and policy and closed the evidence. While determining issue No.1, it was held that no accident has taken place with the motor cycle No.HR-35-D/2511, and DDR does not prove the accident that Rajinder Singh died due to the use of motor cycle in question.

In the copy of the post mortem examination, it is mentioned that deceased received injuries while driving a scooter. Until the death of Rajinder Singh, no DDR was lodged. Except the statement of Chand Ram (PW-3), there is no evidence on the file to show that offending motor cycle was used in the occurrence. The Tribunal has discarded the testimony of (PW-3) Chand Ram for reasons given in the judgment.

Learned counsel for the appellant is fair enough to concede that not even a single document has been placed on the file to prove the fact that till the death of Rajinder Singh, offending vehicle is involved in the alleged accident. The deceased was stated to be taken to Rewari, Hospital but no record of that hospital has been produced. Doctor from AIIMS Hospital has been examined to prove the post mortem examination but the post mortem examination shows that it was an alleged history of accident with scooter. No doubt, normally the delay in lodging the report may not be fatal but it is highly unsafe to rely upon the testimony of Chand Ram, in the absence of any documentary evidence. In case he was present FAO No. 3761 of 2009 4 at the time of occurrence then he could have lodged the DDR immediately after the occurrence.

So, in view of the above discussion, finding on issue No.1 does not call for any interference.

Consequently, the appeal is without any merit and the same stands dismissed.

However, the claimants are at liberty to apply for compensation under hit and run policy.

A copy of this judgment be sent to the trial Court for strict compliance.

( K.C.PURI ) JUDGE February 09 , 2010 sv

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