Punjab-Haryana High Court
United India Insurance Co. Ltd vs Bhinder Kaur And Ors on 23 December, 2022
FAO-909-2018(O&M) &
FAO-6497-2018(O&M) -1-
IN THE HIGH COURT OF PUNJAB AND HARYANA AT
CHANDIGARH
(1) FAO-909-2018(O&M)
United India Insurance Company Ltd.
...Appellant
Versus
Bhinder Kaur and others
...Respondents
(2) FAO-6497-2018(O&M)
Daljeet Singh and others
...Appellants
Versus
Gurdev Singh and others
...Respondents
Date of Decision:-23.12.2022
CORAM: HON'BLE MR.JUSTICE H.S.MADAAN
Present: Mr.Gopal Mittal, Advocate
for the appellant in FAO-909-2018 and
for respondent No.3 in FAO-6497-2018
Mr.Dinesh Sharma, Advocate
for the appellants in FAO-6497-2018 and
for respondents No.1 to 4 in FAO-909-2018.
Mr.Ankur Gupta, Advocate
for respondents No.5 and 6 in FAO-909-2018 and
for respondents No.1 and 2 in FAO-6497-2018.
****
H.S. MADAAN, J.
1. By this order, I shall dispose of two FAOs i.e. FAO-909-2018
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FAO-909-2018(O&M) &
FAO-6497-2018(O&M) -2-
filed on behalf of appellant - United India Insurance Company and FAO-
6497-2018 filed on behalf of appellants - Daljeet Singh and others, which
have arisen out of the same award.
2. Briefly stated, the facts of the case are that on 13.3.2016, the
deceased Malagar Singh after closing his dry-cleaner shop was returning
to village Manderan from village Sanghol riding Panther moped bearing
registration No.PB-52-3166; at about 7:30 p.m., when he had reached a
little distance ahead of Laxmi Rice Mill, Khamanon, then a truck bearing
registration No.PB-10P-9852 (hereinafter referred to as the offending
truck) being driven by respondent No.1 Gurdev Singh in a rash and
negligent manner at high speed without observing traffic rules and
without blowing any horn came and struck the same with Moped of
Malagar Singh; resultantly Malagar Singh fell down on the road and
suffered multiple injuries on his body including head, mouth etc.; he was
removed to Civil Hospital Khamanon, but keeping in view his serious
condition, he was referred to PGI, Chandigarh, however he died on the
way near Kharar.
The accident was witnessed by one Manjit Singh.
Postmortem examination on the dead body was carried out Civil Hospital,
Khamanon on 14.3.2016. FIR No.23 dated 14.3.2016, under Sections 279,
304-A, 427 IPC was registered with PS Khamanon regarding the accident.
2. The legal representatives of deceased, namely, Smt.Bhinder
Kaur - wife aged about 45 years, Daljeet Singh aged about 28 years and
Gurjant Singh aged about 25 years - sons and Ms.Mandeep Kaur alias
Manjit Kaur aged about 28 years - married daughter, had brought a claim
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petition under Section 166 of the Motor Vehicles Act, 1988 (hereinafter
referred to as the Act) before Motor Accidents Claims Tribunal, Fatehgarh
Sahib (hereinafter referred to as the Tribunal) against respondent No.1 -
Gurdev Singh - driver, Jagdish Kumar - owner and United India
Insurance Co. Ltd. - insurer of the offending truck bearing registration
No.PB-10-P-9852.
3. Inter alia in the claim petition, the claimants contended that
the deceased was aged about 52 years and was running a dry-cleaner shop
at bus stand of village Sanghol; in addition to that he was engaged in
avocation of dairy farming and was earning Rs.30,000/- from all sources;
he was bearing the household expenses and serving the family to the best
of his ability; the claimants had spent Rs.1,50,000/- on his treatment and
transportation of dead body, funeral and performing last rites etc.
4. Notice of the claim petition was given to respondents, who
put in appearance. Respondents No.1 and 2 filed a joint written statement,
whereas respondent No.3 has filed separate written statement.
5. In the joint written statement filed on behalf of respondents
No.1 and 2, they had taken up preliminary objections that respondent
No.1 is a efficient driver and had not caused any accident and that vehicle
in question was insured with respondent No.3 - insurance company. On
merits, such respondents refuted the assertions in the claim petition.
6. In the separate written statement filed by respondent No.3
insurance company, it challenged the maintainability of the claim petition
stating that the truck in question had been wrongly involved in this case
just to get compensation; it has been so done by claimants in connivance
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with the police officials of Police Station Khamanon and a false FIR had
been got registered there to get easy compensation. Further objections had
been taken that driver of the alleged offending truck was not possessing a
valid, effective and legal driving licence at the time of alleged accident
and this fact was well within the knowledge of respondent No.2 i.e. owner
of the truck despite that he permitted respondent No.1 to drive the truck in
question showing clear negligence, in that way, the truck was being driven
in violation of the terms and conditions of the insurance policy against
rules of Motor Vehicles Act and further respondent No.1 and 2 were not
having valid RC, fitness certificate and route permit at the time of
accident. The age of the deceased being 52 years, his avocation of
working as dry-cleaner and dairy farming allegedly earning Rs.30,000/- as
claimed by the claimants were also challenged.
7. All the three respondents prayed for dismissal of the claim
petition.
8. On the pleadings of the parties following issues were framed:
1. Whether the respondent NO.1 caused death of Malagar Singh by
driving truck NO.PB-10P-9852 in a rash and negligent manner on
13.03.2016 at 07:30 P.M. in the area of Khamanon? OPP.
2. Whether the claim petition is not maintainable? OPR
3. Whether driver of the Truck No.PB-10-P-9852 was not having
valid driving licence at the time of accident and the said truck had
no valid registration certificate and other documents? OPR.
4. Whether the claimants are entitled for compensation as prayed for
from the respondents? OPP.
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5. Relief.
9. Both the parties led evidence in support of their respective
claims.
During the course of evidence, the claimant No.1
Smt.Bhinder Kaur had appeared as CW1, whereas claimant No.3 Gurjant
Singh got his statement recorded as CW2. Both of them supported the
case of the claimants on material points. CW3 Manjit Singh eye-witness
of the accident supported the case of the claimants providing the eye-
witness account of the accident. CW4 Isher Singh placed on record
certified copy of postmortem report of deceased as Ex.C1, certified copy
of FIR as Ex.C2, certified copy of charge-sheet as Ex.C3, certified copy of
challan under Section 173 Cr.P.C. as Ex.C4, certified copy of arrest memo
of Gurdev Singh as Ex.C5, certified copy of recovery memo of truck as
Ex.C6, photographs of the shop of dry-cleaner as Ex.C12 and Ex.C13,
original receipts of payment of bill as Ex.C14 and Ex.C15 and original
bill as Ex.C17.
In rebuttal, respondents No.1 and 2 tendered in evidence
registration certificate of the offending truck as Ex.R1, insurance policy as
Ex.R2, route permit of the truck as Ex.R3, versification of the driving
licence of Gurdev Singh as Ex.R4, driving licence Ex.R5 and fitness
certificate of truck as Ex.R7 for the year 2014-15 and 2015-16.
Counsel for respondent No.3 tendered into evidence certified
copy of the insurance policy as Ex.R8, original verification report of
permit regarding the offending vehicle as Ex.R9, original verification
report of the driving licence of respondent No.1 as Ex.R10 and fitness
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certificate of the offending truck as Ex.R11.
10. After hearing arguments, the Tribunal decided issue No.1
against the respondents and in favour of the claimants; issue No.2 was
decided holding that respondent No.1 had been able to prove that he was
having a valid and effective driving licence at the time of accident; issue
No.3 was decided holding that only claimant No.1 Bhinder Kaur is
entitled to compensation, whereas claimants No.2 to 4, who are married
children of the deceased are not entitled. Therefore vide award dated
31.10.2017 compensation of Rs.9,40,266/- was awarded to claimant No.1,
payable by all the respondents jointly and severally, however respondent
No.3 was directed to make payment of compensation amount within two
months from the date of pronouncement of award, failing which claimant
No.1 would be entitled to recover the awarded amount @ 6% per annum
from the date of filing of the petition till realisation.
11. The claimants and insurance company felt aggrieved by the
award and they have filed separate appeals before this Court, which are
being taken up together for decision having arisen out of the same award.
12. Notice of the appeals was issued to the respondents, who put
in appearance through counsel.
13. I have heard learned counsel for the parties besides going
through the record.
14. The first and foremost argument advanced by learned counsel
for the appellant - insurance company was that truck bearing registration
No.PB-10P-9852 was not involved in the accident and it was planted later
on in the case by the claimants in connivance with the police to get
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compensation. He further submitted that FIR No.23 dated 14.3.2016,
which was lodged on the next day of the accident does not contain the
registration number and other particulars of the vehicle as well as name of
the driver and Manjit Singh cited as eye witness of the accident was not
there at the spot at the relevant time and while appearing as CW3 Manjit
Singh in his cross-examination stated that he had informed about the
alleged accident as well as offending vehicle to the family members of the
deceased on 14.3.2016 i.e. on the next day of the accident and son of the
deceased had gone along with him to the police station; the FIR was
lodged on the statement of Daljeet Singh, who was not examined the
claimants.
15. Whereas, learned counsel for the claimants has controverted
such assertions of learned counsel for the appellant insurance company
stating that the accident had in fact been caused by rash and negligent
driving of the offending truck by Gurdev Singh respondent No.1 and
claimants had led sufficient oral as well as documentary evidence to
establish that.
16. After hearing the rival contentions, I find that the
submissions made by counsel for the appellant insurance company lack
merit for various reasons.
17. Firstly, FIR lodged regarding the accident not containing the
registration number of the truck and its other particulars as well as details
of the driver can certainly be not taken to be a suspicious circumstance
since the purpose of registration of the FIR is to set the criminal
machinery into motion and any person can lodge the FIR, who may or
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may not have seen the accident/incident, merely by lodging information
that some human being has suffered injuries or lost his life in a road side
accident caused due to rash and negligent driving of a particular vehicle
prima facie disclose offence under Section 279, 338, 304-A IPC, for
which police is bound to register the FIR. It may be mentioned here that
FIR is not an encyclopedia of the incident and it need not contain the
details of the incident/accident including the manner it took place; the
vehicle which caused the accident; the person, who was driving such
vehicle etc. It is a matter of investigation. The police after lodging the FIR
carries out investigation in the case so as to find out as to how the crime
was committed and the person(s) responsible for committing the crime
etc. Though prompt lodging of the FIR is desirable but some delay in
doing so does not mean that the version given in the FIR is to be
disbelieved outrightly, if convincing explanation for the delay is given.
18. In this case, the family members of the deceased must have
been shaken and traumatized on hearing news about death of the deceased
in the road side accident. It does require some time to regain normalcy
and to think about lodging information with the police. It cannot be
expected that immediately on learning about death of deceased in the
accident his family members or other persons including the eye-witness
would have rushed to the police first of all to lodge report there. The law
on the subject is very clear that rules of procedure and provisions of
evidence are not strictly application to the proceedings before the
Tribunal.
19. Section 166 of the Motor Vehicles Act is a piece of welfare
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legislation. It was enacted by the Parliament to provide relief to the
persons, who suffered injuries in the motor vehicular accident as well as
to the legal representatives of the victims, who unfortunately lost their
lives in such mishaps. Strict rules of evidence and procedure are not
applicable there.
20. The Tribunal determining such compensation payable is not
expected to adopt very rigid and restricted procedure. Flexibility in the
matter is required. Some delay in lodging of the FIR may be a relevant
factor in a criminal case but not in proceedings under Section 166 of the
Motor Vehicles Act. Since Daljeet Singh, who had lodged the FIR had not
himself seen the accident, his non-examination as a witness does not make
any difference and cannot be taken adversely qua the case of the
claimants. The claimants had examined Manjeet Singh eye-witness from
whom Daljeet Singh had derived information on the basis of which he had
got registered FIR. Manjeet Singh supported the case of the claimants on
material aspects categorically stating that the accident had been caused by
respondent No.1 Gurdev Singh by his rash and negligent driving of the
offending truck. He was cross-examined at length on behalf of the
respondents but he stuck to his guns and could not be shattered on any
material point. No motive was suggested or proved prompted by which
this witness might have come forward to depose falsely in favour of the
claimants and against the respondents.
21. Although according to learned counsel for the appellant -
insurance company, the claim petition had been filed by the claimants in
collusion with the police as well as driver and owner of the vehicle but
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such assertions are not borne out from the record. The owner and driver of
the vehicle had filed a joint written statement denying that the truck in
question had caused any accident. The witnesses examined by the
claimants had been put to cross-examination on their behalf. Even
otherwise, from the record no inference can be drawn that the owner and
driver of the offending truck were colluding with the claimants. The mere
fact that Gurdev Singh respondent No.1 had not stepped into the witness-
box to depose on oath the version of the respondents No.1 and 2 in the
written statement, rather shows that the evidence adduced by the
claimants on issue No.1 has gone unrebutted but then respondent -
insurance company also did not make any effort to get his statement
recorded by asking him to appear in the witness-box for that purpose.
Learned Tribunal while deciding issue No.1 has considered the evidence
on file and other facts and circumstances. It stands adequately established
that Gurdev Singh was challaned for causing the accident. He was arrested
in this case and was charge-sheeted. The truck in question had been seized
by the police. Therefore, no different view can be taken with regard to
verdict given by the Tribunal in favour of the claimants and against
respondents on issue No.1.
22. With regard to the quantum of compensation, I find the same
to be just and reasonable and certainly not on the higher side. The
Tribunal had taken the age of the deceased to be 52 years considering
such age entered in his postmortem report Ex.C1. Although according to
the claimants, the deceased was engaged in the avocation of dyeing and
colouring of DUPATTAS earning Rs.20,000/- per month besides drawing
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additional income of Rs.10,000/- from the avocation of dairy farming. The
claimants had examined landlord of the shop Sh.Isher Singh as CW4, who
stated that he has rented his shop to the deceased, where he was doing his
business of dyeing and colouring of DUPATTAS but the Tribunal for the
reasons best known to it rejected his testimony and rather went on to treat
the deceased as a skilled labourer and in terms of Punjab Government
lettrer No.23879 dated 4.10.2016 assessed his monthly income to be
Rs.8887/- and 10% amount was added towards future prospects, whereas
1/3rd amount was deducted on account of his personal and living expenses
and thereafter the compensation was calculated after using multiplier of
11 and adding compensation under conventional heads, the total
compensation was worked out to Rs.9,40,266/-. The compensation so
worked out is definitely not on higher side and there is no scope for
reduction.
23. Therefore, the FAO-909-2018 filed on behalf of the
insurance company is bound to fail and is dismissed accordingly.
24. Now coming to FAO-6497-2018 filed on behalf of appellants
Daljeet Singh, Gurjant Singh and Mandeep Kaur alias Manjit Kaur,
children of the deceased, who were denied share in the compensation for
the reasons that Daljeet Singh and Gurjant Singh, who are sons of
deceased had attained the age of majority and his daughter Mandeep Kaur
@ Manjit Kaur had been married off. But the Tribunal clearly fell in error
in doing so. The legal position in that regard has been clarified by the
Apex Court in judgment National Insurance Company Ltd. Versus
Birender and Ors.2020 AIR(SC) 434 wherein it was observed that even
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major married and earning sons of the deceased being legal
representatives have a right to apply for compensation in case of
accidental death.
25. As far as married daughter of the deceased is concerned, in
our traditional society married daughters are given due attention by the
parents. They are provided gifts in cash and kind quite frequently more so
on festive occasions, in that way, they do draw financial benefit from their
parents. With the death of her father, Mandeep Kaur @ Manjit Kaur has
not only been deprived of his love and affection but obviously has
suffered a pecuniary loss also. She too deserves to be granted a share in
the compensation. Therefore, FAO-6497-2018 filed on behalf of
appellants Daljeet Singh, Gurjant Singh and Mandeep Kaur alias
Manjit Kaur deserves to be accepted. The same is allowed. The
impugned award is modified inasmuch appellants Daljeet Singh, Gurjant
Singh and Mandeep Kaur alias Manjit Kaur are also found entitled to get a
share in the compensation awarded on account of death of Malagar Singh
in the road side accident. The Tribunal was not justified in giving the
entire compensation to claimant No.1 Bhinder Kaur. Such direction is
modified and it is directed that the compensation awarded would be
apportioned amongst all the claimants in following manner:
1. Petitioner No.1 - Bhinder Kaur - 55%
2. Petitioner No.2 Daljeet Singh - 15%
3. Petitioner No.3 Gurjant Singh - 15%
4. Petitioner No.4 Mandeep Kaur - 15%
@ Manjit Kaur
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26. It is clarified that in case the Insurance Company has already
made the requisite payment to petitioner No.1 Bhinder Kaur, then she
would be liable to pay the amounts to the extent of shares given to other
appellants and if she does not do so within a month from today, the
appellants Daljeet Singh, Gurjant Singh and Mandeep Kaur alias Manjit
Kaur would be entitled to file an execution application before Motor
Accident Claims Tribunal, Fatehgarh Sahib for recovery of that amount
from petitioner No.1- Bhinder Kaur, otherwise if the amount is still
unpaid, it would be liability of the insurance company to comply with the
order passed in this appeal.
23.12.2022 (H.S.MADAAN)
Brij JUDGE
Whether reasoned/speaking : Yes/No
Whether reportable : Yes/No
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