Punjab-Haryana High Court
Shri Ram General Insurance Company Ltd vs Santosh & Ors on 15 December, 2014
FAO No. 10077 of 2014 1
IN THE HIGH COURT OF JUDICATURE FOR THE STATES OF
PUNJAB AND HARYANA, AT CHANDIGARH
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FAO No. 10077 of 2014 (O&M)
Decided on: December 15, 2014
Shri Ram General Insurance Company Limited .. Appellant
Versus
Smt. Santosh and others .. Respondents
Coram: Hon'ble Mr. Justice Mahavir S. Chauhan
Present: Mr. Rajbir Singh, Advocate for the appellant.
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1. Whether Reporters of local papers may be allowed to see the
judgment? Yes/No
2. To be referred to the Reporter or not? Yes/No
3. Whether the judgment should be reported in the Digest?
Yes/No
Mahavir S. Chauhan, J. (ORAL)
This is Insurer's appeal against award dated July 03, 2014 passed by learned Motor Accident Claims Tribunal, Hisar (for short "the Tribunal") awarding in favour of respondent Nos. 1 to 3 (here-in-after referred to as, "the claimants") compensation amounting to Rs. 10,05,200/- with interest at the rate of 7% per annum from the date of filling of the claim application till realisation.
2. As per case of the claimants, at or around 08.00 p.m. on February 29, 2012 Kuldeep Singh, aged 26 years, an electrician by avocation,died in an accident which took place between the motor-cycle bearing registration No. HR 51F 4498 driven by him and a vehicle bearing registration No. HR 46 2344 being driven by Rajesh Kumar, respondent No.
5. Widow, mother, father and brother of Kuldeep Singh, respondent Nos.1 to 4, respectively, filed claim application No. 42 of 2012 under Section 166 VIRENDRA SINGH ADHIKARI 2014.12.16 13:36 I attest to the accuracy and authenticity of this document High Court Chandigarh FAO No. 10077 of 2014 2 of the Motor Vehicles Act, 1988 (for short 'the Act') claiming compensation for loss of dependency caused by death of Kuldeep Singh. The application was contested by the driver, the owner and the insurer (appellant herein) of the offending four wheeler.
3. Learned Tribunal framed issues, took evidence and on appreciation of the evidence adduced on record by the parties came to the conclusion that the accident took place due to rash and negligent driving of the vehicle bearing registration No. HR 46 2344 being driven by Rajesh Kumar, respondent No. 5 and while dismissing the claim application qua respondent No.4, awarded compensation in favour of the claimants (respondents No. 1 to 3) holding the appellant and respondent No. 5, Rajesh Kumar, driver and respondent No. 6, Roshan Lal, owner of the offending vehicle, jointly and severally liable to pay the compensation.
4. Feeling aggrieved by the afore-said award, the present appeal has been filed by the insurer of the offending vehicle.
5. Though there is delay in filing/refiling of the appeal but I have heard learned counsel for the appellant on merits besides perusing the impugned award.
6. Learned counsel for the appellant submits that the learned Tribunal has committed an error of fact by holding that the accident was caused by respondent No. 5 by rashly and negligently driving the offending vehicle only on the basis of a report submitted by the investigating agency under Section 173 of the Criminal Procedure Code, 1973 even though the First Information Report was lodged against an unknown vehicle and PW4, Satish Kumar has admitted in his cross-examination that he was not present at the time of the occurrence.
VIRENDRA SINGH ADHIKARI2014.12.16 13:36 I attest to the accuracy and authenticity of this document High Court Chandigarh FAO No. 10077 of 2014 3
7. It is also argued by the learned counsel for the appellant that the learned Tribunal has wrongly assessed income of the deceased at Rs. 5700/- per month even though the claimants have failed to bring any evidence, whatsoever, to prove income of the deceased.
8. Age of the deceased, as assessed by the learned Tribunal and liability of the appellant to pay the amount of compensation are not in dispute.
9. While deciding issue No. 1 pertaining to factum and manner of accident, learned Tribunal has relied upon evidence of PW3, Budh Ram an eye witness of the occurrence, PW4, Satish Kumar, who reported the matter to the police after he was informed about the factum and manner of occurrence by PW3, Budh Ram, report (Exhibit P2) submitted by the investigating agency under Section 173 of the Criminal Procedure Code, 1973, charge sheet, Exhibit P1, whereby the learned Criminal Court framed charge against respondent No.5 after having found a prima facie case against him, statement (Exhibit P4) made by PW4 Satish Kumar under Section 161 of the Criminal Procedure Code, 1973, Site Plan of the place of occurrence, Exhibit P5, Memorandum of Recovery, Exhibit P7, whereby the offending vehicle was taken in possession by the investigating agency and Post Mortem Report, Exhibit P6, with regard to cause of death of the deceased. Not only PW3, Budh Ram has given an eye-witness account of the accident but from the charge sheet, Exhibit P1, it is clearly made out the respondent No. 5, driver of the offending vehicle, is facing criminal proceedings arising out of the occurrence that claimed life of the deceased. In case, respondent Rajesh Kumar was not negligent in driving the offending vehicle at the time of accident, resulting into the death of Kuldeep VIRENDRA SINGH ADHIKARI 2014.12.16 13:36 I attest to the accuracy and authenticity of this document High Court Chandigarh FAO No. 10077 of 2014 4 Singh, he could make a statement before the police officials to this effect. In case, the police officials of the concerned Police Station were not ready to hear him, he could certainly approach the higher police authorities to say that he had been falsely implicated in the criminal case and/or the accident did not take place in the manner as alleged in the First Information Report. He, however, is not shown to have done so. His long silence in itself is sufficient to presume that at the relevant time he was negligent in driving the offending vehicle as a result whereof the accident leading to the death of Kuldeep Singh took place. In this regard a reference may also be made to Girdhari Lal V. Radhey Shyam, 1993 (2) PLR 109, Sudama Devi & Ors. Versus Kewal Ram & Ors., CXLIX-(2008-1) The PLR 444 and Ram Sarup & Ors. Versus Om Parkash & Ors., CXLIX-(2008-1) The PLR 461.
10. Respondent No.5, driver of the offending vehicle, who had better knowledge than anyone else as regards the factum and manner of accident, has shied away from the witness stand for inexplicable reasons. From this curcumstance learned Tribunal has rightly raised a presumption to the effect that case set up by the appellant and respondents No. 5 and 6 in their respective written replies was untrue because while driver of the offending vehicle has failed to substantiate the stand adverted to by him in the written reply, version of owner and insurer (the present appellant) indisputably was based on the information received by them from driver of the offending vehicle (respondent No. 5) herein and, therefore, it must be rejected for want of evidence (per Inder Singh V. Haryana State, 1987 ACJ 94 and Madhya Pradesh State Road Transport Corporation versus Vaijanti & Ors., 1995 ACJ 560.
11. The contention of the learned Counsel for the appellant that the VIRENDRA SINGH ADHIKARI 2014.12.16 13:36 I attest to the accuracy and authenticity of this document High Court Chandigarh FAO No. 10077 of 2014 5 claimants have failed to prove the factum and manner of accident, therefore, must fail it being without merit.
12. As regards income of the deceased, suffice it to say that the learned Tribunal, faced with the handicap of absence of tangible evidence in proof of income of the deceased, has assessed his income by taking him to be a daily wage earner. This, in my view, was the only course available to the learned Tribunal to assess the deceased's income and the income of the deceased so assessed by the Tribunal cannot be said to be excessive. Contention of learned counsel as regards assessed income of the deceased, therefore, fails and is rejected.
13. In the light of the above discussion, it cannot be said that the appellant is not liable to pay the amount of compensation as awarded by the learned Tribunal. Once it is found that the appellant cannot escape his liability to pay the amount of compensation, there is no merit in this appeal.
14. The appeal, therefore, fails and is dismissed.
Civil Miscellaneous No. 27808-CII of 2014 Appeal challenging award dated July 03, 2014 having been dismissed, this application seeking stay of operation of the aforesaid award is rendered infructuous and is disposed of accordingly.
[Mahavir S. Chauhan] Judge December 15, 2014 adhikari VIRENDRA SINGH ADHIKARI 2014.12.16 13:36 I attest to the accuracy and authenticity of this document High Court Chandigarh