Punjab-Haryana High Court
Iffco Tokio General Insurance ... vs Jyoti And Others on 21 December, 2022
FAO No. 5476 of 2022 (O & M) 1
IN THE HIGH COURT OF PUNJAB AND HARYANA
AT CHANDIGARH
109
*****
FAO No. 5476 of 2022 (O & M)
Date of decision : 21.12.2022
Iffco Tokio General Insurance Company Limited ......Appellant
Vs.
Jyoti and others ......Respondents
CORAM: HON'BLE MR. JUSTICE TRIBHUVAN DAHIYA
Present: Mr. Abhimanyu Batra, Advocate, for the appellant
---
TRIBHUVAN DAHIYA, J. (Oral)
This is an appeal filed by the Insurance company against the award
passed by the Motor Accident Claims Tribunal, Sonepat (for short 'the
Tribunal') dated 1.10.2022 awarding compensation to the respondents/
claimants on account of death of Rishi Parkash in a motor accident on
17.1.2021.
2. Learned counsel for the appellant has raised two fold arguments
before this Court to challenge the award in question. Firstly, it has been argued
that the FIR in question was lodged after eleven days' delay, on 28.1.2021,
which itself establishes it to be a case of false implication of the offending
vehicle in the accident only to claim compensation from the Insurance
company. Secondly, it has been contended that it has come in evidence that the
deceased was drunk at the time of accident. Therefore, he himself was
responsible for causing the accident and it cannot be said that driver of the
offending vehicle was negligently driving the vehicle leading to accident in
question.
3. Facts of the case as apparent on record are, the deceased was riding
1 of 4
a motor cycle when he was hit from behind by the offending vehicle, i.e.,
Santro car, being driven by respondent no.4. Ex.P-14 is the MLR on record,
wherein it has been noted in the column of 'the reasons for the admission' that
the patient was chronic alcoholic and smoker.
4. The Tribunal while assessing the compensation has considered the
fact of delay in lodging the FIR as well as the fact of the deceased being a
chronic alcoholic and a smoker. On the date of the accident, injured Rishi
Parkash (since deceased) was admitted to Government Hospital, Sonepat on
17.1.2021 itself, when the police was informed about the accident in question.
The Investigating Officer had, in fact, visited the hospital. On coming to know
that Rishi Parkash had already been referred to PGIMS, Rohtak, and from there
to FIMS Hospital, Sonepat, he went there. The doctor declared the injured, who
was in ICU, unfit to make a statement. Endorsement (Ex.P-4) further
established that on 19.1.2021 and on 23.1.2021, the Investigating Officer had
sought opinion of the doctor concerned for recording statement of the injured.
However, on both the occasions, he was declared unfit to make a statement. The
injured later died on 28.1.2021, when the FIR in question was lodged. In these
circumstances, in case there is any delay in lodging the FIR, the same cannot be
attributed to the claimants nor can it be taken to be a circumstance against them.
The claim for compensation cannot be declined merely because there is some
delay in lodging the FIR.
5. Secondly, so far as the arguments regarding the deceased being
under the influence of liquor is concerned, the sole reliance has been placed on
MLR (Ex.P-14) recorded by the doctor concerned as well as the discharge
summary (Ex.P-8). The MLR records that at the time of examining general
condition of the deceased, he was drowsy, dis-oriented and smelling alcohol.
2 of 4
This fact in itself is not sufficient to establish any negligence on the part of the
deceased in causing the accident in question. There is no other evidence on
record which could prima facie establish that the deceased contributed to the
accident in question in any manner. Even the driver of the offending vehicle has
not been examined before the Tribunal who could have proved the allegations.
Besides, it has also come in evidence that the motorcyclist/deceased was hit
from behind by the offending vehicle driven by respondent no.4. All these facts
sufficiently indicate that there is no error of law on the part of the Tribunal in
concluding that the accident occurred on account of rash and negligent driving
of the offending vehicle by respondent no.4. The preponderance of probabilities
based on the evidence led point to that conclusion only.
6. Further, the issue stands settled by the Supreme Court in Jiju
Kuruvila and others v. Kunjujamma Mohan and others 2013 (3) SCC
(Criminal) 849, wherein it has been held that no definite finding of negligence
of deceased can be recorded merely on the basis that he had taken liquor. Para
nos. 25 and 26 of the judgment read as under:
25. Post Mortem report, Ext.-A5 shows the condition of the deceased at
the time of death. The said report reflects that the deceased had already
taken meal as his stomach was half full and contained rice, vegetables
and meat pieces in a fluid with strong smell of spirit.
26. The aforesaid evidence, Ext.-A5 clearly suggests that the deceased
had taken liquor but on the basis of the same, no definite finding can be
given that the deceased was driving the car rashly and negligently at the
time of accident. The mere suspicion based on Ext.- B2, 'Scene
Mahazar' and the Ext.-A5, post mortem report cannot take the place of
evidence, particularly, when the direct evidence like PW.3, independent
eye-witness, Ext.-A1(FIR), Ext.-A4(charge-sheet) and Ext.-B1(F.I.
statement) are on record.
In view of the aforesaid, we, therefore, hold that the Tribunal and
the High Court erred in concluding that the said accident occurred due
3 of 4
to the negligence on the part of the deceased as well, as the said conclu-
sion was not based on evidence but based on mere presumption and
surmises.
7. In view thereof, there is no ground to interfere with the impugned
award passed by the Tribunal.
8. Dismissed.
9. Pending miscellaneous application(s), if any, stands disposed of as
having been rendered infructuous.
(TRIBHUVAN DAHIYA)
JUDGE
21.12.2022
Ashwani Whether speaking/reasoned : Yes/No
Whether reportable : Yes/No
4 of 4
