The Oriental Insurance Company ... vs Haseena Akhter And Ors
2023 Latest Caselaw 518 j&K/2

                                                                  Serial No. 27
                                                                Regular Cause list

       HIGH COURT OF JAMMU & KASHMIR AND LADAKH
                      AT SRINAGAR

                             MAC App No. 45/2020
                              CM No. 280/2021
                              CM No. 3705/2020

The Oriental Insurance Company Limited
                                                    ..... Petitioner/Appellant(s)
Through:        Mr. Nissar A. Dendru, Advocate

                                        V/s
Haseena Akhter and Ors.
                                                               .....Respondent(s)
Through:        Mr. M. Altaf Khan, Advocate

CORAM:
                Hon'ble Mr. Justice Sanjeev Kumar, Judge.
                                ORDER(ORAL)

01.05.2023

1. This appeal under Section 173 of the Motor Vehicle Act,

1988 [the Act] is directed against the award dated 30 th July,

2018, passed by learned Motor Accidents Claims Tribunal

Srinagar [the Tribunal] in a claim petition bearing No.

134/2009 titled as "Haseena Akhter and Others Vs. M/S Malik

Construction Company and others." The impugned award

whereby the Tribunal has held the respondents (claimants)

entitled to compensation of Rs. 12,49,435/- is assailed by the

appellant Insurance Company primarily on the ground that

issue No. 1 and 3 have not been correctly decided by the

Tribunal, in that, the Tribunal has failed to appreciate that there

was sufficient documentary evidence in the shape of copy of

FIR and Final report submitted by the police to the competent

court of law to indicate that the accident in question which led

to the death of predecessor in interest of the claimants was due

to mechanical failure of another vehicle i.e., SRTC bus No.

JK01Y/0543.

2. Before alluding to the grounds of challenge, It is

necessary to first set out issue No. 1 and 3 herein below:-

"Issue No. 1.

Whether on 28.03.2009 a Tipper bearing regd. No. JK02Q/8242 being driven by respondent No. 2 rashly and negligently on Snnagar - Jammu NHW road and on reaching near Ghanderkoot, the said vehicle collided/struck against the SRTC Bus being driving by the Mohammad As/am Páhalwan from Srinagar towardsKishta war, causing thereby multiple fatal injuries to the deceased and he succumbed to the same on way to hospital. ? (OPP)

Whether the aforementioned accident took place due to the contributory negligence of both the drivers of involved vehicles i.e. tipper bearing regd. No. K02Q18242 and SRTC Bus JKO1 W0543. 2 OPR-3)"

3. As would be seen, the onus to prove issue No. 1 was on

the claimants whereas the onus to prove issue No. 3 was on the

appellant Insurance Company (OPR-3). With a view to

discharge the burden of issue No. 1, the claimants interalia

examined Bashir Ahmad Wani and Nazir Ahmad Bhat as two

eye witnesses to the accident. PW Bashir Ahmad Wani in his

deposition stated that on the date of accident i.e., 28.03.2009,

he was travelling with the deceased in SRTC bus from Srinagar

towards Kishtwar. When their bus reached near Chanderkoot

one Tipper bearing No. JK02Q/8242 (the offending vehicle)

which was coming from the opposite direction in high speed

collided with the SRTC bus in which the deceased and the

witness were travelling. This happened due to the driver of the

offending vehicle loosing the control over the brakes. The PW

Bashir Ahmad Wani was subjected to cross examination by the

appellant Insurance Company. The witness categorically

denied that the accident had happened due to locking of the

steering of the SRTC bus. He explained that the offending

vehicle hit the SRTC bus from the driver side with the result of

that steering of the SRTC bus was broken and entered into the

deceased's stomach. This caused serious injuries to the

deceased who later on succumbed to these injuries.

4. To the similar effect is the testimony of PW Nazir

Ahmad Bhat. PW Nazir Ahmad Bhat submitted that he was

also accompanying the deceased and was, at the relevant point

of time, sitting on tool box. The deceased was driving his

vehicle on his side on normal speed, meanwhile the offending

vehicle came from the wrong side and hit the SRTC bus, as a

result whereof the deceased got stuck in the steering. He was

also cross examined by the appellant Insurance Company and

during cross examination the suggestion made by the appellant

Insurance Company that the accident had occurred because of

locking of the steering of the SRTC bus was refuted by the

witness.

5. There is no evidence in rebuttal produced by appellant

Insurance Company to at least discharge the burden of the issue

No. 3. The issue no. 3 therefore remained unproved. The

Tribunal, upon analysis of the evidence on record came to the

conclusion that the claimants had, by leading cogent evidence,

discharged the onus of issue No. 1 and held that the accident

that took place on 28.03.2009 due to collision between the

SRTC bus and the offending vehicle was due to rash and

negligent driving by the driver of the offending vehicle. The

Tribunal did not accept the contention of the appellant

Insurance Company that the accident was as a result of

mechanical failure of the vehicle or there was contributory

negligence by the deceased who, at the relevant point of time,

was driving the SRTC bus. The Tribunal proceeded to pass the

award which is impugned in this appeal.

6. Having heard learned counsel for the parties and perused

the material on record, I am of the view that the Tribunal has

correctly arrived at the conclusion that the claimants had

sufficiently discharged the onus of issue No. 1 and proved that

the accident in which the deceased driver of the SRTC bus got

killed was due to rash and negligent driving by the driver of the

offending vehicle. The Tribunal has relied upon the statement

of two eye witnesses examined by the claimants i.e., Bashir

Ahmad Wani and Nazir Ahmad Bhat. Both witnesses have

been subjected to cross examination by the appellant Insurance

Company but nothing favouring the appellant Insurance

Company could be elicited from their cross examination. Both

the witnesses have in unison deposed that the accident took

place due to rash and negligent driving of driver of the

offending vehicle which resulted into a collision with the

SRTC bus on the driver side. The impact of the accident broke

the steering of SRTC bus which pierced into the stomach of the

deceased. I find no contrary evidence to dislodge aforesaid

finding of fact returned by the Tribunal.

7. Mr. Nissar A. Dendru, learned counsel for the appellant

Insurance Company submits that the Trial court did not take

note of the copy of the FIR and final report placed on record,

which documents were admissible in evidence. So far as the

FIR is concerned it is only a first narration of the commission

of an offence, and, therefore does not contain any details as to

how and in what manner the offence has been committed. From

reading of the FIR it would transpire that as per the information

received by the police station there was an accident near

Chanderkoot involving two vehicles which had collided head

on. There is thus no material in the FIR to come to the

conclusion as to whether it was a case of negligence of driver

of one of the two colliding vehicles or a case of contributory

negligence by the drivers of both the vehicles.

8. It is true that the Investigating Officer made a thorough

investigation in the matter and came to the conclusion that the

accident which consumed the life of deceased driver of SRTC

vehicle was due to a mechanical failure of the SRTC bus and,

therefore, no negligence was attributable to the drivers of either

of the vehicles. But neither the Investigating Officer was

produced by the Insurance Company to prove the final report

nor was any opportunity to the claimants given to cross

examine the Investigating Officer. In the face of clear

testimonies of two eye witnesses who had been subjected to

cross examination by the appellant Insurance Company, the

Tribunal correctly ignored the final report and relied upon the

testimony of eye witnesses recorded on oath before the court.

9. The judgment relied upon by Mr. Nissar A. Dendru

rendered in the case of "Oriental Insurance Company Ltd. Vs.

Premlata Shukla and Ors." is not applicable to the facts of the

instant case. In the aforesaid case, the FIR was not only placed

on record but the same had been marked and proved at the

instance of one party and, therefore, the Hon'ble Supreme

Court came to the conclusion that it is the said FIR which had

been relief upon by the claimants also to prove the factum of

accident, as such, the claimants could not be permitted to turn

around and contend that a part of the contents of the FIR were

correct and other contents contained in the rest part had not

been proved.

10. In the instant case, neither the FIR nor the final report has

been proved by producing the Investigating Officer. As already

observed the appellant Insurance Company has not discharged

the burden of issue No. 3 by leading any evidence except

placing on record a copy of the final report and some internal

inquiry conducted by the officer of the appellant Insurance

Company. It may not be out of place to notice that even the

officer of the Insurance Company who had conducted the

internal inquiry was not produced by the appellant Insurance

Company.

11. In view of the aforesaid, no fault can be found with the

well reasoned judgment of the Tribunal. The appeal is devoid

of any merit and same is accordingly dismissed. The amount of

compensation if deposited in the Registry of this Court be

released in favour of the claimants after due verification and

completion of requisite formalities.

(Sanjeev Kumar) Judge SRINAGAR:

01.05.2023 "Mir Arif"

Whether order is speaking: Yes/No Whether order is reportable: Yes/No