National Insurance Company ... vs Neelam And Others
2023 Latest Caselaw 356 P&H

                           FAO-29-2023 (O&M)                                                -1-



                                 IN THE HIGH COURT OF PUNJAB AND HARYANA AT
                                                CHANDIGARH
                                                      -.-


                                                                       FAO-29-2023 (O&M)
                                                                       Reserved on : 06.01.2023
                                                                       Date of Decision : 10.01.2023


                           National Insurance Co. Ltd.                                      ....Appellant

                                                            VERSUS

                           Neelam and Others                                             ....Respondents




                           CORAM : HON'BLE MRS. JUSTICE ALKA SARIN


                           Present :   Mr. Vishwajit Bedi, Advocate for the appellant.


                           ALKA SARIN, J.

The present appeal has been preferred by the Insurance

Company against the award dated 10.10.2022 whereby the claim of the

respondent-claimants was accepted and they were held entitled to

compensation to the tune of Rs.11,77,000/- along with 9% interest.

The brief facts of this appeal are that on 10.08.2018 at about

1.00 PM the deceased Raj Kumar along with his daughter Varsha and

daughter-in-law Sapna was going from the side of Lovely Professional

University towards his Village Cheheru on motorcycle bearing registration

No.PB-09-T-0992. When they reached in front of the railway over bridge on

the slip road/service lane, one Toyota Fortuner bearing registration No.CH- TRIPTI SAINI 2023.01.10 13:45 01-AE-6667 (hereinafter referred to as the 'offending vehicle') came from I attest to the accuracy and integrity of this document Chandigarh FAO-29-2023 (O&M) -2-

the side of Jalandhar, which was being driven by Kulpreet Singh (respondent

No.4 herein) in a rash and negligent manner. The car struck against the

motor-cycle. The deceased Raj Kumar sustained multiple serious injuries as

also the other riders. While Varsha and Sapna were discharged, the deceased

Raj Kumar was referred to Ohri Hospital, Jalandhar due to the serious nature

of his injuries. Eventually the deceased Raj Kumar succumbed to his injuries

on 22.08.2018 in Johal Hospital, Jalandhar, where he was subsequently

shifted. The claim petition was filed averring that the deceased Raj Kumar

was 50 years of age at the time of his death and was working as

Foreman/Supervisor with Shri Krishna Builders, Phagwara and was getting a

salary of Rs.30,000/- per month. The driver of the offending vehicle

Kulpreet Singh, respondent No.4 herein, failed to appear before the Tribunal

and was proceeded against ex-parte on 16.01.2019. The owner of the

offending vehicle i.e. respondent No.5 herein filed his written statement

stating therein that the vehicle was insured with the National Insurance

Company and it was the insurance company which is liable to pay the

compensation, if any. It was also averred that Kulpreet Singh, respondent

No.4 herein, was appointed as a driver on being satisfied of his driving skills

and after seeing his driving licence by the owner of the offending vehicle i.e.

respondent No.5. Further, the factum of the accident was denied and it was

stated that a false FIR has been lodged. The appellant - Insurance Company -

also filed its written statement raising the plea that the driver of the

offending vehicle was not holding a valid driving licence. Further, three

people were riding on the motor-cycle which amounted to a violation of the

provisions of Motor Vehicle Act, 1988. The appellant further denied the TRIPTI SAINI 2023.01.10 13:45 I attest to the accuracy and integrity of this document Chandigarh FAO-29-2023 (O&M) -3-

pleas as raised in the claim petition. The Tribunal vide award dated

10.10.2022 granted compensation of Rs.11,77,000/- along with interest.

Aggrieved by the said award, the present appeal has been preferred by the

Insurance Company.

Learned counsel for the appellant would contend that there is a

delay of 12 days in registering the FIR and hence that itself proves that the

case in hand is a false case which was filed only in order to get the

compensation. It is further the contention that the driver of the offending

vehicle was driving without a valid driving license. It is further the

contention that the deceased was driving with two persons on the pillion

seat. Learned counsel for the appellant would further contend that the

Insurance Company had examined RW1 Jaswinder Singh, Clerk RTA

Office, Jalandhar to prove on the record the documents Ex.R/1 to Ex.R/4

and who had stated that as per the record the driving license Mark 'A' of

Kulpreet Singh, respondent No.4 herein, was not issued by his office. It is

further the contention that the Insurance Company was not liable to pay the

compensation.

Heard.

The contention of the learned counsel for the appellant that

there is a delay in lodging the FIR would be of no help inasmuch as it has

been held by the Supreme Court in the case of Sunita & Ors. Vs.

Rajasthan State Road Transport Corporation & Anr. [(2020) 13 SCC

486] as under :

"It is thus well settled that in motor accident claim

cases, once the foundational fact, namely, the actual TRIPTI SAINI 2023.01.10 13:45 I attest to the accuracy and integrity of this document Chandigarh FAO-29-2023 (O&M) -4-

occurrence of the accident, has been established, then

the Tribunal's role would be to calculate the quantum of

just compensation if the accident had taken place by

reason of negligence of the driver of a motor vehicle

and, while doing so, the Tribunal would not be strictly

bound by the pleadings of the parties. Notably, while

deciding cases arising out of motor vehicle accidents,

the standard of proof to be borne in mind must be of

preponderance of probability and not the strict standard

of proof beyond all reasonable doubt which is followed

in criminal cases."

In the case of N.K.V. Bros (P) Ltd. Vs. M. Karumai Ammal

[(1980) 3 SCC 457] the case set up was that since the criminal case in

relation to the accident had ended in acquittal, hence, the claim under the

Motor Vehicles Act, 1988 should also be rejected. The Supreme Court

negated the said argument and held as under :

"3. Road accidents are one of the top killers in our

country, specially when truck and bus drivers operate

nocturnally. This proverbial recklessness often

persuades the courts, as has been observed by us earlier

in other cases, to draw an initial presumption in several

cases based on the doctrine of res ipsa loquitur.

Accidents Tribunals must take special care to see that

innocent victims do not suffer and drivers and owners

do not escape liability merely because of some doubt TRIPTI SAINI 2023.01.10 13:45 I attest to the accuracy and integrity of this document Chandigarh FAO-29-2023 (O&M) -5-

here or some obscurity there. Save in plain cases,

culpability must be inferred from the circumstances

where it is fairly reasonable. The court should not

succumb to niceties, technicalities and mystic maybes.

We are emphasising this aspect because we are often

distressed by transport operators getting away with it

thanks to judicial laxity, despite the fact that they do not

exercise sufficient disciplinary control over the drivers

in the matter of careful driving. The heavy economic

impact of culpable driving of public transport must

bring owner and driver to their responsibility to their

neighbour. Indeed, the State must seriously consider no-

fault liability by legislation. A second aspect which

pains us is the inadequacy of the compensation or undue

parsimony practised by tribunals. We must remember

that judicial tribunals are State organs and Article 41 of

the Constitution lays the jurisprudential foundation for

State relief against accidental disablement of citizens.

There is no justification for niggardliness in

compensation. A third factor which is harrowing is the

enormous delay in disposal of accident cases resulting

in compensation, even if awarded, being postponed by

several years. The States must appoint sufficient number

of tribunals and the High Courts should insist upon

quick disposals so that the trauma and tragedy already TRIPTI SAINI 2023.01.10 13:45 I attest to the accuracy and integrity of this document Chandigarh FAO-29-2023 (O&M) -6-

sustained may not be magnified by the injustice of

delayed justice. Many States are unjustly indifferent in

this regard."

In Krishan Vs. Tarawati [2011 (3) PLR 29] it was held :

"It is also stated that in the criminal case the witnesses

contradicted themselves in their versions to what they

stated before the Tribunal. This cannot make the

position better, for, a criminal Court's judgement

acquitting a driver would have no relevance in a case

before the Tribunal. The standards of proof of a

criminal case are different from tortious claims for

accident victims that are required to be established

before the Tribunal and the Tribunal will consider the

issue of negligence by the evidence adduced before it,

uninfluenced by the fact of pendency of the criminal

case or acquittal given by the criminal Court. It will be

relevant no more than the fact that a criminal case had

been registered and that it had concluded before the

criminal Court."

In Harjinder Kaur & Ors. Vs. Pushpinder Kumar & Ors.

[2017 (4) ACC 395] this Court held that "It is settled law that the Tribunal

decides the claim cases on the basis of preponderance of probabilities and

strict Rules of evidence are not applicable. It is further settled beyond any

doubt that the outcome of a criminal trial is not binding on the Tribunal".

TRIPTI SAINI 2023.01.10 13:45 I attest to the accuracy and integrity of this document Chandigarh FAO-29-2023 (O&M) -7-

In view of the law laid down by the Supreme Court, the

argument raised by the learned counsel that merely because there is a delay

in lodging the FIR the claim petition ought to have been rejected, cannot be

accepted. The cases under the Motor Vehicle Act, 1988 are to be decided on

the touch stone of probabilities. In the present case the factum of the

accident has duly been proved. Once the factum of accident has duly been

proved, merely because there was a delay in lodging the FIR the claim

petition cannot be rejected.

The next argument of the learned counsel for the appellant that

the driver of the offending vehicle was not holding a valid driving license

also deserves to be rejected in view of the fact that the owner of the

offending vehicle, respondent No.5 herein, had stepped into the witness box

as RW-2 and had stated that he had employed Kulpreet Singh, respondent

No.4 herein, as a driver and that he had seen his driving license and had also

taken his driving test and was only after he was satisfied and after believing

that the driving license to be genuine that he employed him (respondent

No.4 herein) as a driver. In the case of Rishi Pal Singh Vs. New India

Assurance Co. Ltd. & Others [2022 ACJ 1868] the Supreme Court has

held as under :

"9. Similar question again came up for consideration

before a three-Judge Bench in a judgment reported

as Pappu and Ors. v. Vinod Kumar Lamba and Anr.,

(2018) 3 SCC 208 wherein it was held that the onus

would shift on the Insurance Company after the owner

of the offending vehicle pleads and proves the basic TRIPTI SAINI 2023.01.10 13:45 I attest to the accuracy and integrity of this document Chandigarh FAO-29-2023 (O&M) -8-

facts within his knowledge that the driver of the

offending vehicle was authorized by him to drive the

vehicle and was having a valid driving license at the

relevant time. The valid driving license is the license

which is produced before the owner. This Court held as

under :

"12. This Court in National Insurance Co. Ltd.

[National Insurance Co. Ltd. v. Swaran Singh,

(2004) 3 SCC 297 : 2004 SCC (Cri) 733] has

noticed the defences available to the insurance

company under Section 149(2)(a)(ii) of the Motor

Vehicles Act, 1988. The insurance company is

entitled to take a defence that the offending vehicle

was driven by an unauthorised person or the

person driving the vehicle did not have a valid

driving licence. The onus would shift on the

insurance company only after the owner of the

offending vehicle pleads and proves the basic facts

within his knowledge that the driver of the

offending vehicle was authorised by him to drive

the vehicle and was having a valid driving licence

at the relevant time.

xxx xxx xxx

17. This issue has been answered in National

Insurance Co. Ltd. [National Insurance Co. Ltd. v.

TRIPTI SAINI 2023.01.10 13:45 I attest to the accuracy and integrity of this document Chandigarh FAO-29-2023 (O&M) -9-

Swaran Singh, (2004) 3 SCC 297 : 2004 SCC (Cri)

733] In that case, it was contended by the

insurance company that once the defence taken by

the insurer is accepted by the Tribunal, it is bound

to discharge the insurer and fix the liability only on

the owner and/or the driver of the vehicle.

However, this Court held that even if the insurer

succeeds in establishing its defence, the Tribunal

or the court can direct the insurance company to

pay the award amount to the claimant(s) and, in

turn, recover the same from the owner of the

vehicle. The three-Judge Bench, after analysing the

earlier decisions on the point, held that there was

no reason to deviate from the said wellsettled

principle. In para 107, the Court then observed

thus: (SCC p. 340)

"107. We may, however, hasten to add that the

Tribunal and the court must, however, exercise

their jurisdiction to issue such a direction upon

consideration of the facts and circumstances of

each case and in the event such a direction has

been issued, despite arriving at a finding of fact to

the effect that the insurer has been able to establish

that the insured has committed a breach of contract

of insurance as envisaged under sub-clause (ii) of TRIPTI SAINI 2023.01.10 13:45 I attest to the accuracy and integrity of this document Chandigarh FAO-29-2023 (O&M) -10-

clause (a) of sub-section (2) of Section 149 of the

Act, the insurance company shall be entitled to

realise the awarded amount from the owner or

driver of the vehicle, as the case may be, in

execution of the same award having regard to the

provisions of Sections 165 and 168 of the Act.

However, in the event, having regard to the limited

scope of inquiry in the proceedings before the

Tribunal it had not been able to do so, the

insurance company may initiate a separate action

therefor against the owner or the driver of the

vehicle or both, as the case may be. Those

exceptional cases may arise when the evidence

becomes available to or comes to the notice of the

insurer at a subsequent stage or for one reason or

the other, the insurer was not given an opportunity

to defend at all. Such a course of action may also

be resorted to when a fraud or collusion between

the victim and the owner of the vehicle is detected

or comes to the knowledge of the insurer at a later

stage."

10. The owner of the vehicle is expected to verify the

driving skills and not run to the licensing authority to

verify the genuineness of the driving license before

appointing a driver. Therefore, once the owner is TRIPTI SAINI 2023.01.10 13:45 I attest to the accuracy and integrity of this document Chandigarh FAO-29-2023 (O&M) -11-

satisfied that the driver is competent to drive the vehicle,

it is not expected from the owner thereafter to verify the

genuineness of the driving license issued to the driver."

In view of the law laid down by the Supreme Court, the

argument of the learned counsel cannot but be rejected.

The third argument of the learned counsel for the appellant that

there were three riders on the motor-cycle also cannot be accepted in view of

the law laid down by the Supreme Court in the case of Mohammed

Siddique & Anr. Vs. National Insurance Company Ltd. & Ors. [2020 (1)

RCR (Civil) 689] wherein it was held that merely because the rider of the

motor-cycle was riding the motor-cycle along with two others would not

make him guilty of contributory negligence. It was further held that riding

the motor-cycle alongwith two persons would be a violation of law but

violation itself without anything more cannot lead to a finding of

contributory negligence unless it is established that his act of riding

alongwith two others contributed to the accident in any manner. It was held

as under :

"13. But the above reason, in our view, is flawed. The

fact that the deceased was riding on a motor cycle along

with the driver and another, may not, by itself, without

anything more, make him guilty of contributory

negligence. At the most it would make him guilty of

being a party to the violation of the law. section 128 of

the Motor Vehicles Act, 1988, imposes a restriction on

the driver of a two wheeled motor cycle, not to carry TRIPTI SAINI 2023.01.10 13:45 I attest to the accuracy and integrity of this document Chandigarh FAO-29-2023 (O&M) -12-

more than one person on the motor cycle. Section 194C

inserted by the Amendment Act 32 of 2019, prescribes a

penalty for violation of safety measures for motor cycle

drivers and pillion riders. Therefore, the fact that a

person was a pillion rider on a motor cycle along with

the driver and one more person on the pillion, may be a

violation of the law. But such violation by itself, without

anything more, cannot lead to a finding of contributory

negligence, unless it is established that his very act of

riding along with two others, contributed either to the

accident or to the impact of the accident upon the

victim. There must either be a causal connection

between the violation and the accident or a causal

connection between the violation and the impact of the

accident upon the victim. It may so happen at times, that

the accident could have been averted or the injuries

sustained could have been of a lesser degree, if there

had been no violation of the law by the victim. What

could otherwise have resulted in a simple injury, might

have resulted in a grievous injury or even death due to

the violation of the law by the victim. It is in such cases,

where, but for the violation of the law, either the

accident could have been averted or the impact could

have been minimized, that the principle of contributory

negligence could be invoked. It is not the case of the TRIPTI SAINI 2023.01.10 13:45 I attest to the accuracy and integrity of this document Chandigarh FAO-29-2023 (O&M) -13-

insurer that the accident itself occurred as a result of

three persons riding on a motor cycle. It is not even the

case of the insurer that the accident would have been

averted, if three persons were not riding on the motor

cycle. The fact that the motor cycle was hit by the car

from behind, is admitted. Interestingly, the finding

recorded by the Tribunal that the deceased was wearing

a helmet and that the deceased was knocked down after

the car hit the motor cycle from behind, are all not

assailed. Therefore, the finding of the High Court that 2

persons on the pillion of the motor cycle, could have

added to the imbalance, is nothing but presumptuous

and is not based either upon pleading or upon the

evidence on record. Nothing was extracted from PW-3

to the effect that 2 persons on the pillion added to the

imbalance.

14. Therefore, in the absence of any evidence to show

that the wrongful act on the part of the deceased victim

contributed either to the accident or to the nature of the

injuries sustained, the victim could not have been held

guilty of contributory negligence. Hence the reduction

of 10% towards contributory negligence, is clearly

unjustified and the same has to be set aside."

In view of the law laid down in Mohammed Siddique's case

(supra), the argument raised by the learned counsel cannot be accepted.

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In view of the above-discussion, the present appeal, being

wholly devoid of any merit, is dismissed. Pending applications, if any, also

stand disposed off.

Dismissed.

                                                                                    ( ALKA SARIN )
                           10.01.2023                                                   JUDGE
                           tripti

NOTE: Whether speaking/non-speaking: Speaking Whether reportable: YES/NO

TRIPTI SAINI 2023.01.10 13:45 I attest to the accuracy and integrity of this document Chandigarh