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NATIONAL INSURANCE CO.LTD. versus BALA DEVI & ORS

High Court of Punjab and Haryana, Chandigarh

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National Insurance Co.Ltd. v. Bala Devi & Ors - FAO-232-2004 [2006] RD-P&H 4292 (18 July 2006)

FAO No.232 OF 2004 1

IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH.

FAO NO.232 OF 2004

DATE OF DECISION: April , 2006

National Insurance Co.Ltd. ........Appellant.

VERSUS

Bala Devi and others .........Respondents.

CORAM:- HON'BLE MR.JUSTICE S.D.ANAND
Present: Mr.Inderjit Sharma, Advocate

for the appellant-Insurance Company.

Mr.Ashit Malik, Advocate

for respondents 1 to 5.

---

S.D.ANAND, J.

The present appeal is directed against the award dated 6.6.2003 passed by Presiding Officer, Motor Accident Claims Tribunal, Kurukshetra (hereinafter referred to as 'the Tribunal').

The pleadings related facts, as relevant for disposal of this appeal, are as under:

On 3.2.2001, Ved Parkash (deceased) was proceeding from village Tigri to Kurukshetra on his Scooter bearing registration No.HR-08-2430.

PW Suraj Kumar was the pillion rider. The Scooter was being driven at a normal speed and on the correct hand side of the road. At about 9.00 P.M., the duo reached near village Kheri Brahmana. At that point of time, the FAO No.232 OF 2004 2

offending vehicle (a tractor-trolly bearing registration No.HR08A-7915) came from the opposite direction. It was being driven by respondent No.6- Malkiat Singh at a rash speed and in a negligent manner. Apart therefrom, it came over to the wrong hand side of the road and hit the Scooter, by which Ved Parkash (deceased) and Suraj Kumar were travelling. On account of the impact, the scooterists fell off the Scooter and sustained multiple injuries on different parts of their body. The driver of the offending vehicle sped away from the spot after causing the impugned accident.

Respondents No.1 to 5, (petitioners before the learned Tribunal, hereinafter referred to as 'the petitioners') raised a claim for compensation of Rs.3,00,600/- against the appellant before this Court, respondent No.6 Malkiat Singh and respondent No.7 Deepak Kumar in their capacity as Insurer, driver and registered owner respectively of the offending vehicle.

The plea raised by the petitioners was contested by the present appellant and also respondents No.6 and 7 by filing separate written statements. Respondents No.6 and 7 challenged the locus standi of petitioners to file the petition. The maintainability of the petition in the present form was challenged. The factum itself of impugned accident was denied. It was averred that the FIR was false and had been lodged by the petitioners in order to extort a false claim. A plea raised, in the alternative, was that respondent No.6 held a valid driving licence to drive the allegedly offending vehicle and further that it was under Insurance cover with the present appellant and, thus, respondents No.6 and 7 were not liable to make any payment, even if the petition filed by the petitioners were to be allowed.

The present appellant challenged the locus standi of the FAO No.232 OF 2004 3

petitioners to file the petition for compensation. It also denied the existence of any cause of action on the part of the petitioners to file the petition.

While averring that the allegedly offending vehicle was not at all involved in the impugned accident, a plea was raised that the petition had been filed by the petitioners in collusion with respondents No.6 and 7.

The trial proceeded on the following issues:

1. Whether the accident in question took place on account of rash and negligent driving of Malkiat Singh.

2. Whether Ved Parkash died in this accident and the petitioners are entitled to claim compensation on account of the same. If so, to which extent and from whom? OPP

3. Whether the insured violated the terms and conditions of the insurance policy, if so, to what effect? OPR3

4. Whether this petition is result of collusion between the petitioners and respondent Nos.1 and 2. If so, to what effect? OPR3

The Tribunal recorded findings favourable to the petitioners and against the present appellant and respondents No.6 and 7 under Issue Nos.1 and 2. It was held under the former Issue that the impugned accident had occurred on account of rash and negligent driving of the offending vehicle by Malkiat Singh. The finding recorded under Issue No.2 was that the petitioners were entitled to a total compensation of Rs.3,00,600/- which was directed to be payable jointly and severally by the present appellant and also respondents No.6 and 7 with interest @ 9% per annum from the date of filing of the petition till the realization thereof. Issue No.3 was disposed of against the present appellant by recording a finding that it had not been able to prove that there had been any violation of terms and conditions governing the Insurance Policy relatable to the offending vehicle. In the light of the FAO No.232 OF 2004 4

finding under Issue No.1, Issue No.4 was disposed of against the present appellant and in favour of the petitioners.

Feeling aggrieved, the Insurance Company has come up in appeal.

I have heard learned counsel for the appellant and also learned counsel for the respondents and gone through the records of the case.

The only plank raised by the learned counsel for the present appellant was that there was sufficient evidence available on the file to prove that the petition had been filed by the petitioners in collusion with respondents No.6 and 7. In order to buttress that plea, learned counsel pointed out that no proper/complete postal/contact address of the driver and the registered owner had been furnished by the petitioners, that no process fee and registered AD for issuance of notice to them had been filed and that they had put in appearance on the next date of hearing on their own. All these circumstances, the learned counsel proceeded to argue, are a clear pointer to the fact that there was a collusion between the petitioners and respondents No.6 and 7. In that very context, learned counsel pointed out that the FIR does not contain registration number of the allegedly offending vehicle and it also did not give any indication about the identity of the driver who was allegedly driving it at the time of the impugned accident. It was argued that the surfacing of registration number of the tractor trolly after 19 days is a circumstance which goes a long way to prove that the petitioners had also colluded with the police, apart from being hand in glove with respondents No.6 and 7.

The plea was resisted by learned counsel for the respondents who argued that respondents No.6 and 7 opted to put in appearance as they FAO No.232 OF 2004 5

became cognizant of the pendency of the petition on account of the visit of the Insurance Surveyor to their residence on 20.5.2001. It was also argued that the present is, in fact, a case of presentation of absolutely truthful version because if the petitioners and respondents No.6 and 7 were to collude, they could have made out a perfect presentation in the pleadings before the Tribunal.

On the basis of the material obtaining on the file, I find the plea raised on behalf of the petitioners to be completely bereft of merit.

There is material on the file to prove that a Surveyor appointed by none else or other than the appellant before this Court itself, visited the residence of respondents No.6 and 7 on 20.5.2001 at Kaithal and Babyal (Ambala) respectively. He went over there to hold investigation into the impugned accident as a Surveyor appointed by the Insurance Company. It would be relevant to point out here that it was vide order dated 22.3.2006 that Hemant Gupta, J. directed the Insurance Company to produce the Surveyor's report. A plea had been raised before this Court on behalf of respondents No.6 and 7 that they put in appearance after obtaining knowledge of the pendency of the petition from the visit of the Surveyor. It was in the light thereof that Hemant Gupta, J. ordered the present appellant i.e. the Insurance Company to produce that report. As would be apparent from the perusal thereof, the report upholds the factum of impugned accident. The present appellant cannot wriggle out of the fact that its own Agent had recorded a finding upholding the factum of the impugned accident.

In fact, the material obtaining on the file completely falsifies the plea of collusion. It may be noticed that the deceased and also the FAO No.232 OF 2004 6

injured had sustained multiple and grievous injuries on different parts of their bodies. Deceased Ved Parkash died as a result thereof, while Suraj Kumar remained hospitalized for a considerable period. It is also in evidence that the FIR was recorded on the basis of statement of Malkiat Singh, a relation of the deceased and also the injured, who happened to be available by the side of the injured when the Investigating Officer visited the Lok Naik Jai Parkash Hospital, Kurukshetra. It was at that point of time that the Medical Officer attending upon the injured had declared that the latter (injured) was unfit to make a statement. In the course of the FIR, the first informant neither gave the registration number of the offending vehicle nor did he give any idea about the identity of the driver of the offending vehicle. Even when Suraj Kumar- injured was examined by the Investigating Officer on 22.2.2001 at the latter's residence, all that he indicated was that the impugned accident had been caused by a red coloured 325 Escorts Tractor (with a tractor trolly). It was only in the course of the investigation by the Police that it transpired that the impugned accident was caused by the offending vehicle which was being driven in a rash manner at that point of time. By the very nature of things, an FIR is only aimed at intimating an occurrence to the Police. It cannot and does not purport to be a complete encyclopedia of all the attending facts. There is nothing unnatural if the registration number of the offending vehicle and the name of the driver thereof at the relevant point of time transpires in the course of investigation of the matter by the Investigating Officer.

It would not be out of context to notice that the log book of the allegedly offending vehicle was neither produced by respondents No.6 and 7 nor requisitioned by the appellant before this Court. If the appellant had FAO No.232 OF 2004 7

any apprehension that the petitioners were colluding with respondents No.6 and 7, there was nothing to stop it from requisitioning the log book of the offending vehicle, the production thereof would have enabled it (appellant) to prove the whereabouts of the offending vehicle at the relevant point of time. If it was found, on perusal of the log book, that the vehicle was not at the site of the accident and was available elsewhere at the relevant point of time, it would have gone a long way to prove the appellant's apprehension/ grievance of collusion between the petitioners and respondents No. 6 and 7.

The plea of collusion fails and it is so held accordingly. The finding recorded by the learned Tribunal under that Issue shall stand affirmed. As already indicated in the earlier part of this judgment, the findings recorded by the Tribunal under the other Issues were not assailed before this Court. Hence, those shall stand affirmed.

Resultantly, the appeal is held to be devoid of any merit and is dismissed. There shall be no order as to costs.

( S. D. ANAND )

April 26, 2006 JUDGE

SRM


Copyright

Reproduced in accordance with s52(q) of the Copyright Act 1957 (India) from judis.nic.in, indiacode.nic.in and other Indian High Court Websites

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