Delhi High Court
Bajaj Allianz General Insurance ... vs Smt. Nirmala Devi & Ors on 20 July, 2017
$~12
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Decided on: 20th July, 2017
+ MAC.APP. 619/2014 and CM 11138/2014
BAJAJ ALLIANZ GENERAL INSURANCE
CO. LTD ..... Appellant
Through: Mr. Apoorv Chandra Saxena, Adv.
versus
SMT. NIRMALA DEVI & ORS ..... Respondents
Through: Mr. S.N. Parashar and Mr.J.S.
Dagar, Advocates for R-1 & 2
CORAM:
HON'BLE MR. JUSTICE R.K.GAUBA
JUDGMENT (ORAL)
1. The motor vehicular accident, which is the cause of action for
the impugned judgment of the Motor Accident Claims Tribunal
(Tribunal), assailed in the present appeal, was subject matter of
investigation by police through FIR no.714/2007 of police station
Najafgarh registered on 05.08.2007. From the FIR, it is revealed that
there were possibly two vehicles involved, one being motor cycle
bearing no.DL-9SL-6329 (hereinafter, the first motor cycle) and, the
other, motor cycle bearing no.DL-4NB 5357 (hereinafter, the second
motor cycle). The claim of the first and second respondents (MACP
187/09) was for compensation on account of death of their son Rakesh
Kumar, he being described in the petition as the driver of the first
motor cycle.
2. The petitioners claimed compensation on structured formula on
the principle of no fault liability under Section 163A of the Motor
Vehicles Act, 1988 in which context the question of negligence would
be irrelevant. They claimed that the accident had occurred involving
the second motor cycle, it having been collided against the first motor
cycle. In the evidence, it is indicated that one more person had died in
the same collision, she being described as a girl named Medha. As per
the evidence, the other deceased Medha was riding on the pillion of
the first motor cycle of which deceased Rakesh Kumar was the driver.
3. The parents of Medha had also filed similar accident claim
(MACT 896/08/07) which was decided by a separate judgment dated
11.01.2010 by another Tribunal. In the said claim case titled
Durgawati and Ors. Vs. Rajinder Singh and Anr., the second claimant
in the present case (father of the deceased Rakesh Kumar) was
impleaded as the first respondent, he being the registered owner of the
first motor cycle, it being insured against third party risk with National
Insurance Co. Ltd. (second respondent of said other case). As per the
copy of the judgment dated 11.01.2010, Medha was described to be a
pillion rider on the second motor cycle. This would be in contrast to
the claim made in the present petition.
4. The claim on account of death of Rakesh Kumar was contested
by the appellant insurance company, it being the insurer of the second
motor cycle, on the ground that there was no collision between the two
vehicles, the first motor cycle having collided against central verge
and an electricity pole. Reference in this regard is made to the
conclusion reached by the police upon investigation, as per the report
under Section 173 Cr. PC filed. The insurance company seeks
reference to copies of statements under Section 161 Cr. PC of two
persons, they being Rakesh Kumar and Piyush, copies whereof have
been submitted. Rakesh Kumar and Piyush are described here as the
persons travelling on the second motor cycle, former being the driver
and the latter being the pillion rider. The said statements are the basis
of the above noted conclusion by the police in the report under Section
173 Cr. PC.
5. The Tribunal rejected the defence raised by the insurance
company and upheld the claim based on the plea of involvement of the
second motor cycle in the accident leading to the death, awarding
compensation under Section 163A of the Motor Vehicles Act.
6. The insurance company assails the judgment of the Tribunal
seeking reference to the copy of the report under Section 173 Cr. PC
and to the statements of the above-mentioned persons under Section
161 Cr. PC.
7. The basic flaw in the submission of the insurance company is
that statements under Section 161 Cr.PC cannot be treated as
substantive evidence. When the claim petition, from which the
present proceedings arise in appeal, was being inquired into, the
claimants had examined Umed Singh (PW-2), a retired Sqn. Leader,
who deposed on the strength of his affidavit (Ex. PW2/A), describing
the sequence of events confirming the collision between the two motor
cycles. It does appear that the name of Umed Singh (PW-2) does not
figure in the police record. But then, there cannot be a thumb rule that
a person whose name is not mentioned in the police investigation
could not have been an eye witness. If Rakesh Kumar and Piyush, the
riders of the other motor cycle, had given a narration about the
sequence different from the one on which the present case was based,
in their respective statements to the police, they being the persons who
were obviously present at the scene since the motor cycle on which
they were riding was also found in damaged condition at the scene,
they would have been available to the insurance company as witnesses
to contradict the case of the claimants. The insurance company,
despite opportunity, chose not to have them summoned to discredit of
version of PW-2. In this view, the contentions urged on the basis of
unsubstantiated record of the police, or with reference to the pleadings
in the other claim case, cannot be accepted.
8. The appeal is devoid of substance and is dismissed. The
pending application also stands disposed of.
9. The insurance company shall now satisfy the award by requisite
deposit with the Tribunal within 30 days.
10. The statutory amount shall be refunded after proof of the award
having been satisfied.
R.K.GAUBA, J.
JULY 20, 2017
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