Oriental Insurance Co Ltd vs Sudesh Mishra & Ors
2014 Latest Caselaw 4057 Del

$~9
*     IN THE HIGH COURT OF DELHI AT NEW DELHI

                                       Date of decision: 1st September, 2014

+     MAC.APP. 628/2012
      ORIENTAL INSURANCE CO LTD                   ..... Appellant
                     Through: Mr. Pradeep Gaur, Advocate.

                          versus

    SUDESH MISHRA & ORS                        ..... Respondent
                  Through: Mr. Peeush Sharma, Advocate for R-1 to
                         6.
CORAM:
HON'BLE MR. JUSTICE JAYANT NATH

JAYANT NATH, J. (Oral)

1. The present appeal is filed seeking to impugn award dated 17.03.2012 by the appellant passed by the Tribunal under Section 166 read with Section 140 of the Motor Vehicles Act, 1988.

2. The brief facts are that the deceased- Ram Murti Mishra died on 28.01.1999 , while driving his two wheeler scooter near Sarita Vihar, New Delhi. The offending vehicle a Maruti Car over took the scooter rashly and neligently and suddenly stopped at the gate of Pocket-B, Sarita Vihar, without giving any signal or blowing any horn. It thereby blocked the way of the deceased, resulting in the deceased hitting the car from behind. As a result, the deceased fell on the road and suffered grievous injuries.

3. The Tribunal held that the accident took place due to the rash and negligent driving of the offending vehicle which was insured with the appellant company.

4. Based on the evidence of the parties, the Tribunal awarded a total compensation of Rs 8,43,040/- excluding interim compensation already awarded.

5. Learned counsel appearing for the appellant has made two submissions.

6. The first submission of the appellant is that the Tribunal has erroneously come to the conclusion that the offending vehicle driven by respondent No.8 was driven in a rash and negligent manner. He points out that in fact as per FIR which was lodged subsequent to the accident, by Sh Vasant Kumar Tiwari, Chowkidaar of Sarita Vihar, the police had recommended closure of the case. Hence he submits that the conclusion of the appellant is erroneous.

7. A perusal of the impugned award shows that the Tribunal has noted the sequence of facts as narrated in the FIR but has not accepted the said narration of facts. Respondents 1 to 7 had produced Sh. Hari Nath, PW2 who was also an eye-witness to the incident. The Tribunal based on the evidence of PW-2, concluded that a reading of the evidence of PW-2 and FIR shows that the Maruti car was stationed on the road in such a manner that it blocked the passage of other vehicles purporting to cross or enter the gate. The car apparently stopped at the gate as per the Tribunal to make inquires. Based on these facts and the testimony of PW-2, the Tribunal concluded that the accident took place due to the rash and negligent driving of the offending vehicle.

8. I may examine the submission of the appellant. We may look at the evidence of PW-2 Sh Hari Nath. Relevant portion of his evidence reads as follows:-

"1. That the deponent witnessed accident which took place on 28.01.1999 at about 9 pm between Scooter bearing No.DL3SC5646 and Maruti Car Number DL6CB1925 which took place infront of gate of pocket-B, Sarita Vihar, New Delhi.

2.That the deponent was going back to his residence on his cycle and when he reached opposite pocket-B Gate Sarita Vihar, New Delhi at that time he was paddling his cycle at slow speed on his left side for going towards khaddar after passing through the Apolo Hospital a scooter bearing Registration No. DL 3SC 5646 was also going ahead of the deponent at a slow speed at that very time a car bearing Reg. No. DL6CB/1925 came from behind at a very fast speed in a rash and negligent manner and passed between the cycle of the deponent and the said scooter and suddenly took a right turn for going to the gate of the pocket B sarita Vihar without giving any signal and without blowing any horn and blocked the way of the said scooterist with the result the rear backside of the said car struck with the front of the said scooter and the scooterist fell down on the road and received serious grevious injuries on his person. The said car stopped after covering some distance when the people shouted to stop the car."

9. The only cross examination by the Insurance company of PW-2 is as follows:-

"I do not know Sudesh Mishra. The gate of Sarita Vihar comes in my way when I have to return to my house. It is wrong to suggest that my statement was recorded by the police. It is wrong to suggest that I was not there i.e. at the spot at the time of accident. It is correct that the injured was removed to the Hospital by the car driver. It is wrong to suggest that I was not present at the spot".

9. We also look at the relevant portion of the FIR. The relevant

portion states as follows:-

"One Maruti Car DL 6B 1925 was trying to enter the gate of pocket-C and stood there. Immediately thereafter one scooter which came at a very fast speed driven by its driver hit the stationary Maruti Car from behind and the scooter and the driver both fell down and the driver fainted."

10. The important point is that the eye-witness PW-2 categorically stated that the offending vehicle struck the front of the said scooter. There is no proper cross examination of PW-2 on this testimony. The statement of the Chowkidaar as narrated in the FIR was not confronted to PW-2 during his cross-examination by the counsel for the appellant. On the other hand the appellant did not summon the said chowkidaar or file the full records of the proceeding in the criminal court.

11. Learned counsel for the appellant was asked as to what was the outcome of the criminal proceedings. It appears that the appellant has no information about the outcome of the criminal proceedings.

12. Merely because the findings of the tribunal on facts is at variance on the sequence of facts as stated in the FIR would not be a ground for interfering with the findings of facts recorded by the tribunal. The Supreme Court in the case of Iqbal Singh Marwah & Anr vs Meenakshi Marwah & Anr (2005) 4SCC 370 in paragraphs 32 held as follows:

32. Coming to the last contention that an effort should be made to avoid conflict of findings between the civil and criminal Courts, it is necessary to point out that the standard of proof required in the two proceedings are entirely different. Civil cases are decided on the basis of preponderance of evidence while in a criminal case the entire burden lies on the prosecution and proof beyond

reasonable doubt has to be given. There is neither any statutory provision nor any legal principle that the findings recorded in one proceeding may be treated as final or binding in the other, as both the cases have to be decided on the basis of the evidence adduced therein.

13. There is nothing on record to show that the Tribunal has recorded any finding which can be held to be erroneous. In view of the above facts, there is no merit in the first contention of the learned counsel for the appellant.

14. Now coming to the second submission of learned counsel. He has further submitted that the Tribunal has not given recovery rights to the appellant from the owner of the offending vehicle. He submits that the cheque issued for the insurance policy by the insured was dishonoured. Hence, the insurance policy had been terminated and the appellant was not liable. Any case, it is submitted that at least recovery rights should have been given to the appellant.

15. Perusal of the record shows that this plea was rejected by the Tribunal as subsequent to the alleged dishonour of the cheque, there is nothing on record to show that the insurance company either recalled the insurance policy or cancelled the cover note.

16. Perusal of the statement of R2W1 Mr. Sandeep Raina, Stenographer of Insurance company who entered in the witness box shows that he has not mentioned anything about the communication having been sent to the insured regarding the dishonour of the cheque or revocation of the insurance policy.

17. In view of the evidence placed on record by the appellant insurance company that there is no reason to accept the present second contention of

learned counsel for the appellant.

18. There is no merit in the present appeal. The same is dismissed.

19. As per interim order passed on 30.05.2012, the entire award amount was directed to be deposited before this Court and the same has been deposited with UCO Bank, Delhi High Court. 50 % of the award amount was directed to be released in favour of respondents 1 to 7. On 31.07.2012, it was noted that as respondent No.6 expired during the pendency of the claim petition which fact was not noted in the Award and respondent No.4 is stated to have expired during the pendency of this appeal, the interim order was modified and the award amount in respect of claimants except the share of respondents No.4 and 6 was directed to be deposited. On 06.12.2012, C.M.20369/2012 was allowed and the name of respondent No. 4 was deleted as his sole legal heir was his mother who was already on record. Let the balance amount as deposited with accumulated interest be released to the Claimants proportionately as per directions in the Award (Except respondent Nos. 4 and 6). The appellant may also deposit the share of respondent Nos. 4 and 6 with accumulated interest. The same may be released to the widow of the deceased, respondent No.1.

20. The statutory amount deposited by the appellant at the time of filing of appeal may be refunded to the appellant.

JAYANT NATH, J.

SEPTEMBER 01, 2014 ks