New India Assurance Company Ltd vs Manpreet Bagga And Others
2022 Latest Caselaw 10493 P&H

FAO No. 3544 of 2022 (O & M)                                                 -1-

            IN THE HIGH COURT OF PUNJAB AND HARYANA
                         AT CHANDIGARH
120
                                        *****
                                                   FAO No. 3544 of 2022 (O & M)
                                                      Date of decision : 6.9.2022

New India Assurance Company Limited                                  ......Petitioner
                                         Vs.
Manpreet Bagga and others                                          ......Respondents

CORAM: HON'BLE MR. JUSTICE TRIBHUVAN DAHIYA

Present:      Mr. Ashwani Talwar, Advocate, for the appellant

              Mr. Rudra Sharma, Advocate, for respondents No. 1 and 2/
              caveators

              Mr. Naresh Kaushik, Advocate, for respondent No. 5/caveator

              ---

TRIBHUVAN DAHIYA, J. (Oral)

1. This appeal has been filed by the appellant/Insurance Company

disputing its liability to satisfy the award passed by the Motor Accidents

Claims Tribunal, SAS Nagar (Mohali) (in short 'the Tribunal') dated 5.4.2022,

on the ground that the offending vehicle/car in question has been implanted in

the case, which essentially is a hit and run case.

2. The instant claim petition was filed by the wife and minor son of

the deceased. As per facts of the case, as recorded in the award passed by the

Tribunal, Tej Singh Sidhu (father of the deceased) recorded his statement with

the police that he received telephonic message from the police to the effect that

on 12.11.2019 at about 7:00 p.m. his son Rajiv Kumar (deceased) was going on

his Activa scooter bearing registration No. CH04-J-6196 to join evening duty

in PGIMER, Chandigarh, where he was working as Nursing Officer. He met

with an accident when he reached near main market, Sunny Enclave, near

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Nijjar Chowk, Kharar, with a car bearing registration No. PB65- AV-7878. As a

result, Rajiv Kumar suffered head injuries and was admitted to Civil Hospital,

Phase VI, Mohali, for treatment. He along with his neighbors reached Civil

Hospital, from where he came to know that his son Rajiv Kumar had been

referred to PGI, Chandigarh, being in critical condition. He thereafter, reached

the Trauma ward in PGI, Chandigarh, and found that his son had suffered head

injuries. A young man Amandeep Singh/respondent No.3/ driver of the

offending vehicle, met him there and disclosed that about 7.10 p.m., he had

stopped his car near Nijjar Chowk and without noticing anything opened the

window of driver side of the car. As a result Rajiv Kumar, riding on an Activa

scooter, struck against the opened window and fell down on the road. He took

Rajiv Kumar in his car to Chopra Hospital, Sunny Enclave, from where, he was

referred to Civil Hospital, Phase VI, Mohali, and then to PGI, Chandigarh.

During treatment at the PGI, Rajiv Kumar succumbed to the injuries on

27.11.2019. He was 44 years of age at the time of death. On the basis of

statement of the complainant Tej Singh Sidhu, an FIR No. 273 dated

27.11.2019 was registered against the respondent No.3-driver and respondent

No.4-owner of the car.

3. Upon notice, respondents No.3-driver and respondent No.4-owner

of the offending vehicle, appeared and filed their written statements denying

the factum of accident, and also involvement of the vehicle in it. It was also

averred that a false FIR has been registered against respondent No.3-driver.

The Insurance company also filed a separate written statement denying the

factum of accident with the offending vehicle, as alleged.

4. The Tribunal has awarded compensation of Rs.1,31,84,784/- along

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with interest @ 7.5% per annum to the claimants. The liability was fastened on

the driver, owner and Insurance company jointly and severally.

5. While deciding Issue No.1 "whether Rajiv Kumar son of Tej Singh

Sidhu died in a motor accident, which took place on 12.11.2019, caused by

respondent No.3 while driving offending car bearing registration No. PB 65-

AV-7878, in a rash and negligent manner? OPP", the Tribunal has held that the

factum of accident was proved by Gurinder Singh-eye witness of the

occurrence as CW-4. He deposed that on 12.11.2019, he was present in the

main market, Old Sunny Enclave, near Nijjar Chowk, Kharar, for purchasing

some domestic articles when he saw that respondent No.3 -Amandeep Singh @

Mandeep Singh suddenly applied brakes and opened the driver side window in

the middle on the main road, due to which Activa scooter of deceased Rajiv

Kumar struck into the car. He fell down from the scooter and became

unconscious as he received several injuries. The driver came out of the car and

after seeing condition of the injured, took him to some hospital for treatment.

He further deposed that he can identify the driver of the offending car. Within

minutes PCR vehicle came on the spot and police made inquiries about the

accident. The police obtained mobile number of this witness but nobody called

him thereafter. He further deposed that claimant No. 1-wife of the deceased

contacted him, and he narrated about the whole incident to her. In cross

examination he stated that he has come to depose at the instance of the

claimant-wife, who took his mobile number a year ago. He also specifically

deposed that the FIR in question was got registered by the deceased's father.

He denied that he was not present at the spot or was not witness to the

accident. He did not know the deceased or his family prior to the accident in

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question.

6. While recording findings on Issue No. 1, the Tribunal apart from

the statement of the eye witness, CW-4, has also recorded that after filing the

written statement denying the factum of accident, neither the driver-respondent

No.3 nor the owner-respondent No.4 stepped into the witness box to rebut the

claimants' case. No application was submitted by them to the authorities

regarding false implication of respondent No.3 or his car. Respondent No.3

was arrested in this case and was facing trial in the Court at Kharar. Besides,

CW-2 Dr. Nilanjan Majumdar, Senior Resident from PGI, Chandigarh has also

deposed about the admission of Rajiv Kumar deceased in PGI from 12.11.2019

to 26.11.2019, due to road accident. He further deposed that Rajiv Kumar

suffered head injuries in the accident and proved the admission and discharge

summary as Ex.PW2/1. Further, the copies of FIR and challan against the

driver-respondent No.3 have also been proved on record. On this basis, the

Tribunal concluded that the accident took place due to rash and negligent

driving of car by respondent No.3 and decided the issue in favour of the

claimants.

7. Learned counsel for the Insurance company has argued that it is a

case of false involvement of the offending vehicle in the accident which gets

established; firstly, on account of delay in lodging the FIR; secondly, non-

examination of the complainant, who is father of the deceased on whose

statement FIR in question was lodged; thirdly, eye-witness CW-4 cannot be

relied upon since he has been statedly contacted one year after the accident, and

the police have not cited him as an eye witness in the challan filed in the

criminal trial.

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 FAO No. 3544 of 2022 (O & M)                                                       -5-

8.            The      arguments     raised      by   learned      counsel   for    the

appellants/Insurance company have no merit. The accident in question took

place on 12.11.2019 in a busy market place, near a roundabout. Deceased

Rajiv Kumar suffered serious head injuries, he was taken to a hospital at

Mohali and finally to the PGI, Chandigarh. He remained constantly under

treatment at the PGI, as established by the testimony of CW-2 Dr. Nilanjan

Majumdar, Senior Resident and succumbed to the injuries on 27.11.2019,

whereupon the FIR in question was lodged. It is, therefore, apparent that the

family members, who were in a state of shock, remained occupied in

attending on the deceased in the hospital. This has been specifically deposed

by claimant wife/respondent No.1 also. In case there is some delay in lodging

the FIR in question, it cannot be fatal to the claimants' case, and gets explained

by the preceding circumstances.

9. Besides, non-examination of the deceased's father, on whose

statement the FIR in question was lodged, is also inconsequential, as factum of

the accident, lodging of the FIR, injuries and hospitalisation of deceased have

been duly established on record by way of statements of the eye witness, CW-4,

and the doctor concerned, CW-2. It is also proved on record that challan/report

under Section 173 Cr.P.C. has been filed against respondent No.3-driver, who is

facing the criminal trial. The evidence led is, therefore, sufficient to establish

involvement of the driver as well as the offending vehicle. The findings to that

effect recorded by the Tribunal do not call for any interference.

10. It has been held by the Supreme Court in Sunita and others v.

Rajasthan State Road Transport Corporation and another, 2019 (2) RCR

(Civil) 209, that the approach in examining the evidence of accident in claim

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cases is not to find fault with non-examination of some best eye witness, but to

analyse the evidence already on record to ascertain whether that is sufficient to

answer the matters in issue on the touchstone of preponderance of probabilities.

Para 31 of the judgment reads as under :

31. Similarly, the issue of non examination of the pillion rider, Rajulal Khateek, would not be fatal to the case of the appellants. The approach in examining the evidence in accident claim cases is not to be find fault with non-examination of some "best" eye witness in the case but to analyse the evidence already on record to ascertain whether that is sufficient to answer the matters in issue on the touchstone of preponderance of probability. This Court in Dulcina Fernandes (supra), faced a similar situation where the evidence of claimant's eye witness was discarded by the Tribunal and the respondent was acquitted in the criminal case concerning the accident. This Court, however, took the view that the material on record was prima facie sufficient to establish that the respondent was negligent. In the present case, therefore, the Tribunal was right in accepted the claim of the appellants even without the deposition of the pillion rider, Rajulal Khateek, since the other evidence on record was good enough to prima facie establish the manner in which the accident had occurred and the identity of the parties involved in the accident."

11. Next contention of learned counsel for the appellant that the eye

witness, CW-4, is not to be relied upon or that it is a procured witness, is also

liable to be rejected. It has been well established on record that the accident in

question took place in busy market place around 7:00 p.m. That is a time when

lot of people would be present near the place of accident in question who could

easily have witnessed it. The testimony of CW-4, who has been cross

examined by the appellant and others, duly established the accident as well as

involvement of the offending vehicle. He has also testified, as recorded by the

Tribunal, that he did not know the deceased or his family before the accident.

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 FAO No. 3544 of 2022 (O & M)                                                 -7-

It could also not be established on record that he was, in any manner, inimical

to respondent No.3-driver. Merely because he has not been cited as a witness

in the challan presented by the police, it cannot dispel the veracity and

credibility of the eye witness. It being a busy market place, there can be many

eye witnesses to the accident in question. In case one has come to testify

before the Tribunal, and the other has given statement to the police, it will not,

in any manner, indicate any false involvement of the offending vehicle.

Besides, neither the driver-respondent No.3 nor the owner-respondent No.4

came to the witness box to rebut the claimants' case. Therefore, the finding

recorded by the Tribunal on Issue No.1 holding respondent No.3 to be rash and

negligent, cannot be found fault with.

12. Learned counsel for the appellant's reliance upon the judgments of

this Court in Reliance General Insurance Company Limited v. Munshi Singh

and others, 2015 (9) RCR (Civil) 190 and Ram Parkash v. Bagga Singh and

others, 2014 (3) RCR (Civil) 65, is misplaced, as the judgments have no

application to the facts and circumstances of the present case. The judgment in

the case of Reliance General Insurance Co. case (supra) relates to a matter in

which FIR was lodged against an unknown vehicle and unknown driver. The

complainant in his statement had himself stated that the details of the vehicle

had been provided to him by two other persons, who were not shown to have

made any such statement to the police. The accident in question had taken

place when it was pitch dark. In those circumstances, it was held that the

involvement of the offending vehicle in the accident could not be established.

The facts of the instant case are entirely different, as referred to above. The

second judgment cited in Ram Parkash case (supra) has also no application to

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the facts of this case. As therein, the driver already stood acquitted in criminal

proceedings initiated against him because witness has made contradictory

statements, and no other reliable evidence was brought on record to prove the

factum of accident.

13. On the above analysis of facts established on record as well as law

on the point, it is held that the respondents/claimants duly established the facts

relating to the accident, involvement of respondent No.3 and the offending

vehicle in it.

14. There is no merit in the present appeal.

15. Dismissed.

16. All the pending miscellaneous applications, if any, stand disposed

of as having been rendered infructuous.

                                                         (TRIBHUVAN DAHIYA)
                                                               JUDGE
6.9.2022
Ashwani

                 Whether Speaking/Reasoned         :     Yes/No
                 Whether Reportable                :     Yes/No




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