Delhi High Court
Tata Aig General Insurance Co. ... vs Vandna & Ors. on 4 July, 2022
* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Judgment delivered on: 04th July, 2022
+ MAC.APP. 249/2020 & CM APPL. 39784/2021
TATA AIG GENERAL INSURANCE CO. LTD. .... Appellant
versus
VANDNA & ORS. ..... Respondents
Advocates who appeared in this case:
For the Appellant: Mr. Sunder Prakash Jain, Advocate
For the Respondents: Mr. Pankaj Kumar Deval, Advocate for R-1 to R-6.
CORAM:-
HON'BLE MR. JUSTICE SANJEEV SACHDEVA
JUDGMENT
SANJEEV SACHDEVA, J.
1. Appellant impugns judgment dated 29.02.2020 whereby the
claim petition filed by the wife, daughter, two sons, and mother and
father of the deceased has been allowed and compensation awarded.
2. Subject accident took place on the night of 04.04.2018 when as
per the claimants the deceased was going from Khandsa Road Sabji
Mandi via the service road of Rajiv Chowk in a goods carrier three-
wheeler.
Signature Not Verified
Digitally Signed By:KUNAL
MAGGU
Signing Date:08.07.2022 21:02:41
This file is digitally signed by PS
to HMJ Sanjeev Sachdeva.
3. At about 9.00 p.m. when he reached near Om Nagar Mor,
Shanti Nagar, Gurugram, the offending vehicle, a Maruti WagonR
being driven in a rash and negligent manner approached from the
opposite direction/wrong side and hit the vehicle of the deceased from
the front side with a great force. Due to the forceful impact, the
deceased sustained grievous injuries. He succumbed to his injuries on
11.04.2018.
4. Learned counsel for the appellant-Insurance Company contends
that this is not a case of an accident but a murder which has been
given the colour of an accident. He submits that the brother of the
deceased had himself made a complaint to the police that it is not a
case of an accident but his brother has been murdered. Reliance is
also placed on the MLC history wherein it is recorded that the
deceased has been assaulted.
5. Learned counsel submits that since it is not a case of an
accident but a case of murder, the insurance company is not liable to
pay any amount as compensation.
6. This is disputed by the Claimants. It is contended that there is
no material to show that the deceased has been murdered. Learned
Counsel for the claimants relies upon the testimony of the police
officer as well as the doctor who conducted the post-mortem to
contend that even the police had registered a case of death by road
Signature Not Verified
Digitally Signed By:KUNAL
MAGGU
Signing Date:08.07.2022 21:02:41
This file is digitally signed by PS
to HMJ Sanjeev Sachdeva.
accident and that the examining doctor has opined that the injuries
sustained are on account of an accident.
7. Trial Court has held that there is overwhelming evidence to
establish that the accident was caused due to rash and negligent
driving of the offending vehicle.
8. In support of the claim, the claimant had examined the wife of
the deceased as PW-1 and one Harish Kumar as PW-2 who is an
eyewitness to the accident. He has deposed that on 04.04.2018 at
about 9 pm, a WagonR car and blue colour Tempo collided with each
other on the service road of Om Nagar, Gurugram. He had deposed
that the accident had taken place on account of the negligence of the
driver of the WagonR car.
9. In the cross-examination Harish Kumar has stated that he runs a
sweet shop at the spot of the accident and he was present in his shop
and had witnessed the accident. He had deposed that the injured had
suffered head injury and blood was oozing out of his head after the
accident.
10. Claimants also examined Dr. Vinay Kumar, Specialist Forensic
Medicine, BJRM Hospital, Delhi as PW-3. Said witness had
conducted the post-mortem of the deceased. He has deposed that as
per his opinion the cause of death was 'Cranio cerebral damage
Signature Not Verified
Digitally Signed By:KUNAL
MAGGU
Signing Date:08.07.2022 21:02:41
This file is digitally signed by PS
to HMJ Sanjeev Sachdeva.
consequent upon blunt force impact'. He stated that all injuries were
ante mortem in nature. In his cross-examination he has stated that the
injuries mentioned in his report were suggestive of the history of
accident. He had stated that as per his Post Mortem report, there was
no injury on the person of the deceased which could suggest that the
death could have been on account of assault.
11. The insurance company has examined HC Dham Singh from
PS Shivaji Nagar, Gurugram, Haryana as R2W2. Said witness has
deposed that he was the first IO of the case and he had come to know
about the accident only and the alleged factum of the attack was not
brought to his notice.
12. Said witness stated that he had recorded the statement of one
Sh. Harish who was a public person in respect of the accident in
question and also recorded the statement of the father of the deceased
and that the offending vehicle was taken into custody on 04.04.2018
but the seizure memo was prepared on 07.04.2018 as the FIR was
lodged on 07.04.2018 only.
13. One Surender Pal brother of the deceased was examined by the
Insurance Company as R2W3. Said witness had deposed that he
reached the spot of the incident after about 2 hours. He had stated that
his sister-in-law Ms. Vandana and her family members from the
parental side had struck a deal with the opposite party for
Signature Not Verified
Digitally Signed By:KUNAL
MAGGU
Signing Date:08.07.2022 21:02:41
This file is digitally signed by PS
to HMJ Sanjeev Sachdeva.
compromising the matter for the amount of Rs. 3 Lakhs. He deposed
that he had told the police that his deceased brother was attacked and
that he had not met with any accident.
14. The Tribunal in the impugned award has noticed that the
allegation of the Insurance Company was with regard to manipulation
by the Police of converting a case of murder into a case of accident.
15. The Tribunal has noticed that the alleged manipulation by the
police officials revolves around the statement of Sh. Surender Pal the
brother of the deceased, which was recorded by the Investigator
appointed by the insurance company. On the other hand the claimants
had examined Sh. Harish Kumar and eye witness of the accident
whose statement was also recorded by the Investigating Officer under
section 161 Cr.PC.
16. The Tribunal has noticed that the eye witness had been cross
examined at length by the Counsel for the insurance company and
even in his cross-examination, he had categorically stated that he had
witnessed the accident when he was sitting in his shop at the spot.
17. The Tribunal has thereafter relied upon the evidence of Dr.
Vijay Kumar Singh, who had carried out the post mortem upon the
body of the deceased and his opinion that the cause of death was
cranio cerebral damage consequent upon blunt force impact and all
Signature Not Verified
Digitally Signed By:KUNAL
MAGGU
Signing Date:08.07.2022 21:02:41
This file is digitally signed by PS
to HMJ Sanjeev Sachdeva.
the injuries were ante mortem in nature. In the cross-examination the
said witness had categorically stated that there was fracture of skull
suggestive of trauma to head and the injuries mentioned in the post-
mortem report were suggestive of history of accident. He had further
deposed that there was no injury on the person of the deceased which
could suggest that the death could have been on account of assault.
18. Even the Investigating Officer in his testimony has stated that
as per him, the accident in question was caused on account of rash and
negligent driving of the driver of the offending vehicle.
19. The Tribunal has also noticed that the factum of the seizure of
the vehicle on 04.04.2018 was corroborated by the brother of the
deceased namely Sh. Surender Pal, who, in his cross-examination had
stated that he had reached at the spot of the accident after two hours
and he did not find the offending vehicle at the spot of the accident.
He had stated that the offending vehicle was stationary in the police
station when he reached the police station after his visit to the spot of
the accident.
20. The Tribunal has opined that the brother of the deceased was
not a reliable witness and his testimony is not trustworthy.
21. The Tribunal has also noticed that the insurance company had
lodged a complaint with Commissioner of Police, pursuant thereto a
Signature Not Verified
Digitally Signed By:KUNAL
MAGGU
Signing Date:08.07.2022 21:02:41
This file is digitally signed by PS
to HMJ Sanjeev Sachdeva.
report was called for by the Tribunal and in the said report it was
categorically stated that the accident in question was caused by rash
and negligent driving of the offending vehicle and there was no truth
in the statement given by Sh. Surender Pal to the investigator of the
insurance company.
22. The Tribunal has thus rightly concluded that there is
overwhelming evidence on record to conclude that the accident in
question was caused by the rash and negligent driving of the
offending vehicle and the mere statement of Sh. Surender Pal,
recorded allegedly by the Investigator of the insurance company could
not be relied upon.
23. There is no material on record except the said statement of Sh.
Surender Pal that the death did not occur on account of the accident
but is a case of murder. Further, the reliance placed by the insurance
company on the complaint given by the brother is not sustainable for
the reason that the brother admittedly is not an eye-witness to the
incident and had reached the spot after two hours.
24. On the other hand there is substantial evidence in the form of
the statements of the eye witness, the doctor who had conducted the
post mortem as also the police officers and the police report to
substantiate that the death occurred on account of the rash and
negligent driving of the offending vehicle.
Signature Not Verified
Digitally Signed By:KUNAL
MAGGU
Signing Date:08.07.2022 21:02:41
This file is digitally signed by PS
to HMJ Sanjeev Sachdeva.
25. It may further be noticed that there is no reason to doubt the
statement of Harish Kumar who has categorically deposed that he had
witnessed the accident. His statement has also been recorded under
Section 161 Cr.P.C. by the Investigating Officer. The presence of
Harish Kumar, the eye-witness cannot be doubted as he runs a sweet
shop in front of the place where the accident had taken place.
26. Further, the recording in the MLC that someone reported to the
attending doctors that it is a case of the assault stands disproved by the
testimony of the doctor who was conducted the post mortem and he in
his evidence who has categorically stated that the injuries on the body
as noticed at the time of the post-mortem do not suggest any assault
but are indicative of injuries sustained by blunt force which could be
the result of an accident.
27. Further, the Investigating Officer, as well as the doctor who
conducted the post-mortem has confirmed that an accident had taken
place. Consequently, applying the doctrine of the preponderance of
probabilities, it can safely be concluded that the death occurred on
account of an accident and consequently the insurance company
cannot escape its liability.
28. The Tribunal has thus rightly concluded that the factum of
negligence has to be decided on the touchstone of preponderance of
probabilities and a holistic view has to be taken.
Signature Not Verified
Digitally Signed By:KUNAL
MAGGU
Signing Date:08.07.2022 21:02:41
This file is digitally signed by PS
to HMJ Sanjeev Sachdeva.
29. In view of the above, there is no merit in the appeal. The appeal
is consequently dismissed.
SANJEEV SACHDEVA, J
JULY 04, 2022
rs
Signature Not Verified
Digitally Signed By:KUNAL
MAGGU
Signing Date:08.07.2022 21:02:41
This file is digitally signed by PS
to HMJ Sanjeev Sachdeva.
