Punjab-Haryana High Court
United India Insurance Company Ltd vs Sarita And Ors on 23 December, 2014
IN THE HIGH COURT OF PUNJAB AND HARYANA
AT CHANDIGARH
FAO No.10454 of 2014 (O&M)
Date of Decision : 23.12.2014.
United India Insurance Company Limited ...Appellant
Versus
Sarita and others
... Respondents
CORAM :HON'BLE MR. JUSTICE MAHAVIR S. CHAUHAN
Present: Mr. Ram Avtar, Advocate
for the appellant.
Mahavir S. Chauhan, J. (Oral)
Award dated 20.09.2014 passed by learned Motor Accident Claims Tribunal, Hisar ("The Tribunal" in short) is under challenge in this first appeal brought by the insurer of a motorcycle bearing registration No. HR-20M-7616 (for short ' the offending vehicle').
As per case of the applicants, before the learned Tribunal (respondents No.1 to 4 herein), on 05.12.2010 Dilbagh Singh (the deceased) was coming from his fields to his village Talwandi Rana on foot on the correct left hand side of the road. At about 7.00 pm when he reached near bus stand of village Talwandi Rana, offending vehicle driven by respondent-Jagdish at a high speed and in a rash and negligent manner came there from Barwala side without blowing horn and hit Dilbagh Singh. As a result, Dilbagh Singh fell on the road, received multiple grevious injuries and was taken to Medicity Hospital, Hisar, where he was treated but on account of his serious injuries, was referred to Garg Medi Skin Hospital, Hisar. He died there on 17.12.2010. The occurrence as per the case of the applicants was witnessed by Rohtash of village Talwandi Rana.
The application was contested by the respondents by filing Pooja Saini separate written statements. Issues were framed. Evidence was taken. 2015.01.08 15:16 I attest to the accuracy and integrity of this document Chandigarh -2- FAO No.10454 of 2014 Learned Tribunal, after hearing the parties and on appraisal of the evidence returned findings on all the issues propititious to plea of the applicants and awarded compensation amounting to Rs.9,51,500/- with interest @ 7.5% per annum in favour of the applicants.
It is argued on behalf of the appellant-insurer that the applicants have failed to prove the factum and manner of occurrence, as alleged by them in the application in so far as the cause of death being the injuries suffered by the deceased in the occurrence has been said to be remote by the medical authorities and the only witness of the occurrence namely Rohtash has not been able to prove the occurrence as stated by the applicants in the application.
Nothing more has been pressed.
From the above, it transpires that the insurer does not dispute the findings of the learned Tribunal as regards the quantum of compensation and liability of the insurer to pay the same. Challenge is to the findings on issue No.1 with regard to the occurrence.
A perusal of the impugned award would show that the applicants have examined Rohtash, an eye witness of the occurrence as PW-4, besides examining Ajay Kumar, Criminal Ahlmad of the Court of Chief Judicial Magistrate, Hisar, to bring on record a copy of final report submitted by the Investigating Agency under Section 173 of the Criminal Procedure Code, 1973 ('Cr.P.C.' for short) (Exhibit P-2), a copy of first information report (Exhibit P-3), a copy of postmortem report (Exhibit P-4) as also the factum that charge in the case has been framed Pooja Saini 2015.01.08 15:16 I attest to the accuracy and integrity of this document Chandigarh -3- FAO No.10454 of 2014 against respondent No-5 Jagdish-Driver of the offending vehicle.
Learned counsel for the appellant has shown photocopy of the report dated 12.03.2011 of the doctor wherein it has been stated that possibility of death of the deceased due to injuries caused by roadside accident seems remote. Significantly, the doctor has failed to say firmly that the cause of death of the deceased are not the injuries received by him in motor vehicle accident. Even otherwise, report of medical authorities with regard to cause of death is only opinionative in nature and cannot supercede the substantive evidence brought on record by the applicants in proof of the occurrence in the form of deposition of Rohtash- PW4, an eye witness and record of criminal Court to show that respondent No.5-Driver of the offending vehicle is facing criminal proceedings. As has been held in Girdhari Lal versus Radhey Shyam, 1993(2) PLR 109, Sudama Devi and others versus Kewal Ram and others, (XLIX-(2008-1) the PLR 444 and Ram Sarup and others versus Om Prakash and others, (XLIX-(2008-1) the PLR 461 pendency of criminal proceedings against driver of the offending vehicle in itself is sufficient to reach a conclusion that he has been negligent in driving the offending vehicle and it is on account of his negligent driving of the driver of the offending vehicle that life of deceased has been prematurely terminated. In case respondent No.5-Jagdish was not negligent in driving the offending vehicle at the time of the accident resulting into death of the deceased, he could make a statement before the police officials to that effect. In case the police officials of the concerned police Station were not ready to hear him, he could certainly approach higher authorities to say that he was falsely implicated in the criminal case or the accident did not take place in the manner stated in the first Pooja Saini 2015.01.08 15:16 I attest to the accuracy and integrity of this document Chandigarh -4- FAO No.10454 of 2014 information report. He has chosen not to do so. His silence in itself is sufficient to presume that at the time of the accident, he was negligent and as a result of his negligence, the accident leading to death of Dilbagh Singh took place.
There is another aspect of the matter. Respondent No.5- Jagdish-driver of the offending vehicle who had knowledge of the factum and manner of occurrence better than anybody else on this earth, has shied away from the witness stand. His reluctance to enter the witness box raises a presumption in terms of clause (g) appended to Section 114 of the Indian Evidence Act, 1872 ("Act" in short) to the effect that evidence of Jagdish- respondent No.5 which could be, but has not been brought on record, if brought on record would have demolished plea of the appellant and his co- respondents in the claim application to the effect that the occurrence in the manner as stated by the applicants did not take place. Even otherwise, non- appearance of driver of the offending vehicle to support case pleaded by the respondents in the claim application leads to an inference that case pleaded in the written reply was untrue as has been held in Inder Singh versus Haryana State 1987 ACJ 94, Madhya Pradesh State Road Transport Corporation versus Vaijanti and others 1995 ACJ 560 In view of the above, there is no reason in sight to interfere with the well reasoned award passed by the learned Tribunal.
Dismissed.
Miscellaneous application, if any, pending shall stand disposed of with the decision of the main appeal.
December 23, 2014 (MAHAVIR S. CHAUHAN) Pooja Saini Pooja Saini JUDGE 2015.01.08 15:16 I attest to the accuracy and integrity of this document Chandigarh