Delhi High Court
The New India Assurance Co Ltd. vs Munni Bhandari & Ors. on 29 August, 2019
$~22
* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Decided on: 29.08.2019
+ MAC.APP. 727/2018 & CM APPL. 31680/2018
THE NEW INDIA ASSURNACE CO LTD ..... Appellant
Through: Mr. Parveen Kumar Mehdiratta,
Advocate.
versus
MUNNI BHANDARI & ORS ..... Respondents
Through: Mr. S.N. Parashar, Advocate for R-1
to R-3.
CORAM:
HON'BLE MR. JUSTICE NAJMI WAZIRI
NAJMI WAZIRI, J. (Oral)
1. This appeal impugns the award of compensation passed by the learned
MACT on 09.05.2018 in MACT No. 14706/15 on the ground that there was
no proof of negligence on the part of the driver of the insured vehicle. The
said vehicle met with an unfortunate accident, which resulted in the demise
of three occupants. The owner/driver of the vehicle stated that some other
vehicle had struck his insured vehicle, which resulted in the fatalities.
However, no proof was led in this regard. The Investigating Officer had
deposed that despite his best efforts, no other vehicle was traced which led
to the said fatalities.
2. The impugned order has considered the issue as under:-
"8. To succeed in the claim petition in view of Section
166 of the MV Act, it is for the claimant to prove that vehicle
which caused the accident was being driven rashly and
negligently by its driver. Wife of deceased i.e. petitioner No.1
deposed about the facts of the case. She was cross-examined
by Ld. Counsel for respondents but the witness is not an
eyewitness. PW -2 has been examined as an eyewitness of the
accident. PW-3 was summoned and examined who proved ITR
of the deceased and his income. Ld. Counsel for insurance
company summoned the IO to prove that accident was not
caused due to rash and negligent driving of respondent No. 1
but no plausible explanation during cross examination come
on record as to how the accident was caused. It is also
admitted by ld. counsel for insurance company that other
connected cases regarding the death of the same accident of
other claimants has been settled by the insurance company.
The question is asked as to when there was no accident or
liability of insurance company, how the said matter was settled
but no reasonable explanation is furnished in this respect. On
the other hand, the testimony of RW did not rebut the
testimony of PW to deny the claim of the petitioner and mere
denial is not sufficient to rebut the claim of the petitioner. No
witness was produced or examined by respondents as well to
prove as to how accident occurred due to the negligence of the
deceased; the respondent No. 1 was not at fault and was not
driving the vehicle in rash and negligent manner. There is no
reason to disbelieve the testimony of witnesses. I have gone
through the record and documents in respect of the accident
caused to the petitioner which is prima facie suggestive of
negligence of respondent No. 1 in driving the vehicle at the
time of accident.
Relied judgment in (Bimla Devi and Ors. v. Himachal
Road Transport Corporation and Ors.. (2009) 13 SC 530 and
the judgment in Parmeshwari v. Amir Chand (2011) 11 SCC
635 and Kusun Lata v. Satbir, (2011) 3 SCC 646).
Hon'ble Supreme Court in Bimla Devi and Ors. v/s
Himachal Road Transport Corporation and Ors. (2009) 13 SC
530 held as under:
"15. In a situation of this nature, the Tribunal
has rightly taken a holistic view of the matter. It was
necessary to be borne in mind that strict proof of any
accident caused by a particular bus in a particular
manner may not be possible to be done by the
claimant. The claimants were merely to establish
their case on the touchstone of preponderance of
probability. The standard of proof beyond reasonable
doubt could not have been applied."
3. What emanates from the above discussion is that the insurance
company has settled claims apropos demise of two of the three occupants,
who died in the unfortunate accident. This matter is pursued against the third
occupant, who too died in the same accident. The insurance company has
led no plausible explanation in the cross-examination as to how the accident
was caused. It was the contention of the claimants that the accident had
been caused due to negligence of the driver. If the negligence of some other
vehicle was found, it would have been upon the owner/driver and the
insurance company to lead the evidence in that regard. In the absence of any
such evidence against the contentions of the claimants, the Trial Court
rightly concluded that the claimants' evidence would not be disbelieved and
that the documents on record were, in the first instance, suggested on
negligence of the owner/driver. Most significantly, the insurance company
has admitted its liability apropos two of the three occupants, who had lost
their lives. Therefore, singling out these claimants who are identically
placed with the kin of the other two deceased is untenable.
4. In view of the above, there is no merit in the appeal. It is, accordingly,
dismissed.
5. Statutory amount, alongwith interest accrued thereon, be deposited
into the 'AASRA' fund.
6. Pending amounts be released to the beneficiaries of the Award in
terms of the scheme of disbursement specified therein.
NAJMI WAZIRI, J
AUGUST 29, 2019
RW
