Smt. Usha Rani vs Pritam Singh And Ors.
2004 Latest Caselaw 1265 Del

JUDGMENT

R.S. Sodhi, J.

1. This appeal is directed against the judgment/Award of the Motor Accident Claims Tribunal in Case No.113/84, whereby the Tribunal by its award dated 3.1.1995 has held that no accident took place with the offending vehicle and that the Insurance Company was not liable to discharge the claim even if the claim had been proved.

2. Brief facts of the case as noted by the Motor Accident Claims Tribunal are as follows:-

Claimants are legal heirs of Jag Mohan deceased. He was aged 29 years old and was employed in M.C.D. And earning Rs.896/- p.m. On 19.2.84 he bought some wheat bags and was traveling in truck NO. PVO-4695 with wheat bas for carrying the same to general tore Punjabi Bagh. It was being run by respondent No.1 under employment of Respondent NO.2 and was returned with respondent No.3. The truck was being run rashly and negligently. Driver, when reached crossing of general store on Ring Road, there was red light. He did not care for the same and tried to cross the same but on finding a constable there, suddenly applied the brakes, due to it window of the truck opened. Jagmohan fell outside the truck and was crushed under the same truck. Claimants claims.5 lakhs as compensation under M.V.Act."

3. It is contented by counsel for the appellant that the reasoning of the learned Tribunal on the factor of accident is incorrect inasmuch as it has disbelieved, PW-5, a Constable who was an eye-witness and at whose instance F.I.R., Exhibit PW-4/1 was registered. He submits that the Tribunal has on conjectures and surmises come to a wrong conclusion.

4. Counsel for the Insurance Company says that the stand of the Insurance Company is that the accident has not taken place by the offending vehicle but even if the accident has taken place involving the offending vehicle, the Insurance Company is not liable under the policy for the death of the passenger in a goods vehicle.

5. Heard counsel for the parties and have gone through the judgment under challenge as also the evidence on record. It appears to me that PW-5 an eye-witness to the occurrence is Constable Ranbir Singh, who deposes to the effect that on 19.2.1984 he was posted in Traffic Unit Punjabi Bagh Circle. While on duty on General Store Chowk he noticed a truck no.PB04695 approaching the ring road from Raja Garden going towards Britannia. The traffic light had just turned red and the truck in the attempt to cross the light swirled to the left. In that process the deceased fell out of the truck and was crushed under its rear wheel. The truck stopped at a short distance. It was impounded and the driver taken into custody. On the basis on information supplied by this witness an F.I.R. Exhibit PW-4/1 was registered. During the course of investigation it appears, the statement of this witness was recorded. PW-6 is Sh.Ishwar Singh who deposes to the effect that he had sold Wheat to the deceased which was not loaded in Truck No.PBO4695 for carriage to Punjabi Bagh. The deceased was traveling in the aforesaid truck along with his goods.

6. PW-2 is the Investigating Officer who states that on 19.2.1984 he was posted at P.S.Punjabi Bagh and received a daily dairy no. 18-A dated 19.2.1984 for the purpose of investigation of the accident case. He reached the spot found Truck No. PBO4695 and dead body of a male person. He recorded the statement of Constable Ranbir Singh, 813-T who was present on duty. On the statement of the Constable he got F.I.R.No.102/84 registered under Section 279/304-A IPC. The site plan was prepared. The drier Pritam Singh was arrested on the spot and presented before the Metropolitan Magistrate. On completion of investigation, challan was filed. Which case is now pending before the Metropolitan Magistrate, Delhi.

7. From the statement of the aforesaid witnesses it can hardly be said that no accident took place in which the offending vehicle was involved resulting in the death of Shri.Jagmohan Lal.

8. The reasoning of the learned Judge in trying to disect the case appears to be faulty. I see no reason why personal knowledge should be imported into the judgment. There is positive evidence on record to eye-witness and also investigation has taken place, a challan filed and the matter pending in the criminal court. The veracity of PW-5 and PW-2 can hardly be challenged, in view of the fact that they are independent witnesses and have no axe to grind.

9. The truck was taken into custody on the spot, the body was recovered from the rear wheel of the offending vehicle and taken into custody.

10. For the purposes of Motor Vehicle Act, surely, it cannot be said that the accident has not taken place resulting in the death of Shri.Jagmohan Lal. That being the case, I set aside the finding of the court below. As regards the question whether the Insurance Company would be liable to pay compensation in the first instance as held in New India Assurance Co.Ltd. Vs. Asha Rani and Ors., , that the Insurance Company may not be itself liable to discharge the award of compensation.et in M/s National Insurance Co.Ltd. Vs. Baljit Kaur and Ors., , it has been held that in the first instance the Insurance Company must discharge the award but would be well within its right to recover the same from the owner and the drive of the offending vehicle. This has further been followed by the Supreme Court in Sri Pramod Kumar Agrawal and Ors. Vs. Smt.Mushtari Begum and Ors., .

11. Accordingly, the Insurance Company would be liable to pay the amount of compensation awarded in the first instance but would be well within its right to recover the same from the owner and the driver of the offending vehicle.

12. In view of the above and since the Tribunal has not adjudicated the claim of the claimant as regards compensation I remand the matter to the Tribunal to hear the parties and decide on the claim and quantum of compensation to be awarded. The judgment under challenge is set aside.

13. FAO 119/1985 is allowed. Parties to appear before the Motor Accident Claims Tribunal on 24th November, 2004 Considering that this is a very old case, the Tribunal shall make all endeavors to dispose of the same as expeditiously as possible, preferably, within a period of six months from the date of appearance of parties before it.