Delhi High Court
The Oriental Insurance Co Ltd. vs Rajender & Ors. on 17 May, 2017
$~25 & 26
* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Decided on: 17th May, 2017
+ MAC.APP. 364/2017 & CM Nos.14236 & 14360/2017
THE ORIENTAL INSURANCE CO LTD. ..... Appellant
Through: Mr. S.P.Jain and Mr. Himanshu
Gambhir, Advocates.
Versus
RAJENDER & ORS. ..... Respondents
Through: Mr. S.N. Parashar, Advocate.
+ MAC.APP. 373/2017 & CM No.14465/2017
THE ORIENTAL INSURANCE CO LTD. ..... Appellant
Through: Mr. S.P.Jain and Mr. Himanshu
Gambhir, Advocates.
Versus
BALRAM & ORS. ..... Respondents
Through: Mr. S.N. Parashar, Advocate.
CORAM:
HON'BLE MR. JUSTICE NAJMI WAZIRI
NAJMI WAZIRI, J (Oral)
1. At joint request, the appeals are taken up for disposal.
2. MAC. APP. No.364/2017 and MAC. APP. No.373/2017 impugn the
Award dated 25.01.2017 passed in Suit No.5172/16 and Suit No.4914/16
granting a compensation of Rs.12,69,000/- and Rs.45,000/- in favour of
respondent No.1/injured Rajender and Balram, respectively alongwith
interest at the rate of 9% per annum from the date of filing of the claim
MAC. APP. Nos. 364 & 373 of 2017 Page 1 of 5
petition i.e. 10.01.2013 till realization of amount. Since both these appeals
have arisen from the same accident that occurred on 08.08.2012, they are
being disposed off by this common judgment.
3. The facts of the case are that on 08.08.2012 a motor vehicle accident
occurred near the Main Bus Stand, Village Pooth Khurd, Delhi, which was
recorded as DD No.78-B in Police Station Bawana. The injured were taken
to the Hospital for treatment. There was no eye witness to the accident. The
pillion rider viz. Rajender (respondent No. 1 in MACA No.364/16) was
injured alongwith his driver viz. Balram (respondent No. 1 in MACA
No.373/16). The police reached the accident spot but since they did not find
any eyewitness, they went to Maharishi Valmiki Hospital in the PCR Van
and collected the MLC of the injured. Although it was specifically stated by
the doctors that one of the injured - Balram, was fit to give his statement at
the time, their statements were recorded 53 days later i.e. on 30.09.2012
when the complainants/ injured had gone to the Police Station with the
details of the offending vehicle, the names of its driver and owner alongwith
with their respective fathers' names. The DAR proceedings were filed about
three months thereafter on 10.01.2013, which identified the offending
vehicle as DL-8SL-1703, a two-wheeler scooter insured with the appellant.
Since the appellant had not examined either the owner or the driver of the
offending vehicle, an inference has been drawn against them for not having
disputed the statement of Balram. The DAR and the FIR were taken as
sufficient evidence to hold the insurer liable. The Tribunal reasoned as
under:-
"9. Petitioner in his affidivit (Ex.PW2/A) filed in evidence
reiterated the facts of his claim petition, as described above.
MAC. APP. Nos. 364 & 373 of 2017 Page 2 of 5
According to him, motorcycle no HR-26Y-1727; on which he
was riding was being driven by his friend Balram, in a proper
manner. When they reached near DSIDC office, Village Kliiird
Pooth Bawana Road, respondent no. 1 came there suddenly,
driving his scooter no. DI-8SL-1703, in a rash, negligent and
.dangerous way and hit their motorcycle from left side. He
suffered serious injuries, mainly on his legs. He was taken to
Maharishi Valmiki Hospital, for treatment. He suffered
permanent disability to the extent of 44%.
The facts as disclosed by petitioner Sh. Rajender are
supported by other injured Balram, in his affidavit (Ex.PWl/A).
Being injured, both of these witnesses are natural eye witnesses
of accident. No contradiction appeared in their deposition,
despite cross-examination by counsel for respondent no. 3, I
have no reason to disbelieve their testimonies. In his cross-
examination, petitioner explained that he became unconscious
after the accident. He did not know as who took him to
hospital.
It is explained by Id. Counsel for petitioner that his client
suffered severe injuries which pained for log time and hence, he
could not give any statement to the police and it was reason for
delay in FIR.
As mentioned above, according to respondents no. 1 & 2,
accident in question was caused due to negligence of driver of
motorcycle i.e. Balram. No evidence was adduced by said
respondents to prove this fact. Considering evidence on record,
as discussed above, it is well established that accident in
question was caused due to rashness or negligent driving of
scooter no. DL-8SL-1703 by respondent No.1 (Main Pal).
Apart from deposition of petitioner and other injured, the
fact that petitioner suffered injuries is also supported by his
medical record i.e. MLC, discharge slip, medical bills and from
disability certificate (Ex.PW2/l4).
This issue is therefore, decided in favour of petitioner and
MAC. APP. Nos. 364 & 373 of 2017 Page 3 of 5
against the respondents."
4. Mr. S.P. Jain, the learned counsel for the appellant states that the DD
Entry itself does not specify which vehicle was involved. A detailed
complaint was made by the injured 53 days after the accident with the
readymade details of the offending vehicle. According to him, if the case
was so simple and clear i.e. the identity of the offending vehicle was known
on the day of the accident, then a statement to this effect, i.e. merely of two
lines could have been made when the policemen reached the Hospital to
meet the injured, as per the DD entry. However, there is no evidence in this
regard. The Court notes that this issue has not been dealt with in the
impugned order. Therefore, for it to conclude that the alleged offending
vehicle was the one involved in the accident is without any basis.
5. Counsel further contends that the claim petitions were cooked-up
stories against the insurer primarily because why would a bonafide injured
person want a reduction of the awarded amount. The claimants have sought
such rejection because they suspected that the case would be taken up in
appeal - hence they had filed a review application seeking reduction of the
awarded amount. The review application was rejected on 23.02.2017.
6. From the aforesaid facts, it is apparent that it was a hit and run case,
the offending vehicle was never identified by the injured party and its
identification to the police 53 days later was at leisure and perhaps to
unjustly inure to their benefit.
7. The story of a two-wheeled scooter is fanciful because a simple
statement that the offending vehicle was a scooter or its registration number
could have been given to the police when the injured were in the hospital
MAC. APP. Nos. 364 & 373 of 2017 Page 4 of 5
immediately after the accident and the doctors had opined that they were fit
to give their statements i.e. they were conscious and could speak cogently.
However, choosing not to speak of an offending vehicle which had caused
them such hurt and injury would only mean that there was no such offending
vehicle. Besides, the old scooter/two wheeler itself would not be of much
value i.e. less than Rs.50,000/-, but, the compensation award of Rs.
12,69,000/- for Rajender and Rs. 45,000/- for Balram would have more than
compensated a pliable party for the value of the insured scooter. From the
preceding discussions, the claim petitions reek of suspicion and are without
any basis. The appellant's liability is not made out. Hence the appeals are
allowed. The impugned orders are set aside. The pending applications also
stand disposed off.
8. The statutory deposits be returned to the appellant.
NAJMI WAZIRI, J.
MAY 17, 2017
sb
