Punjab-Haryana High Court
Surinder Kumar vs Dharambir And Anr on 26 March, 2025
Author: Sudeepti Sharma
Bench: Sudeepti Sharma
Neutral Citation No:=2025:PHHC:042224
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FAO-1091-2008 (O&M)
IN THE HIGH COURT OF PUNJAB & HARYANA
AT CHANDIGARH
FAO-1091-2008 (O&M)
Reserved on 04.03.2025
Pronounced on: March 26, 2025
Surinder Kumar ......Appellant(s)
Vs.
Dharambir and others ......Respondent(s)
CORAM: HON'BLE MRS. JUSTICE SUDEEPTI SHARMA
Present: Mr. Amit Jain, Advocate and
Mr. Himanshu Joshi, Advocate
for the appellant.
Mr. Akhil Saini, Advocate, for
Mr. Pradeep Goyal, Advocate
for respondent-Insurance Company
----
SUDEEPTI SHARMA J. (ORAL)
1. The instant appeal has been preferred by the owner (Surinder
Kumar son of Jagmal Singh) of the offending vehicle offending vehicle i.e.
offending vehicle i.e. dumper No. HR-26A-1663 for setting aside the award
dated 15.02.2007 qua the appellant passed by the learned Motor Accident
Claims Tribunal, Hisar (for short, 'the Tribunal'), whereby, the appellant was
made liable to pay the compensation to the claimants and further recovery
rights were given to the Insurance Company to recover the same from him.
FACTS NOT IN DISPUTE
2. The brief facts of the case as mentioned in the claim petition is that
on 21.1.2002, Surender Kumar, (since deceased), started his journey from Hisar
while driving truck No.HR-46-3217. It is averred that at about 7.30 pm,. when
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the truck reached near village Chikanwas on Hisar Sirsa road, a dumper truck
bearing registration No. HR-26A-1663 being driven in a rash and negligent
manner came from the opposite side and while coming on wrong side of the
road, struck against the said truck. As a result of which, both the drivers of the
vehicle had died and cleaner of dumper No.HR-26A-1663 i.e. Sandeep
sustained multiple injuries on his body. The accident is alleged to have
occurred due to rash and negligent driving of dumper truck No.HR-26A-1663.
In this regard FIR No.17 dated 22.1.2002, u/s 279/304-A IPC was also
registered at Police Station Agroha.
SUBMISSIONS OF THE LEARNED COUNSELS FOR THE PARTIES
3. The learned counsel for the appellant contends that the Ld.
Tribunal has erred in law as well on facts while fastening the entire liability on
the appellant/owner of offending vehicle i.e. dumper No. HR-26A-1663. He
further contends that Ld. Tribunal has overlooked the fact that the driver of the
offending vehicle i.e. dumper No. HR-26A-1663 was Balwant whereas the
alleged Surender who was held as the driver of offending vehicle i.e. dumper
No. HR-26A-1663 by the Ld. Tribunal, was actually the driver of truck No.HR-
46-3217. Therefore, the Ld. Tribunal has erred in fastening the liability upon
the appellant-Surrinder Kumar (owner of offending vehicle i.e. dumper No.
HR-26A-1663) and entitling the Insurance Company to recover the same from
him.
4. Per contra, learned counsel for the respondent Insurance
Company, vehemently argues that the Ld. Tribunal has rightly made the
appellant liable and granted recovery rights to the Insurance Company to
recover the amount from the owner of the offending vehicle i.e. dumper
No.HR-26A-1663.
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Therefore, he prays for dismissal of the present appeal.
5. I have heard learned counsel for the parties and perused the whole
record of this case.
6. A perusal of the award shows that the Ld. Tribunal has rightly
fixed the liability of the offending vehicle i.e. dumper No. HR-26A-1663 by
declaring that it was being driven in a rash and negligent manner which caused
the accident on 21.01.2002, but the Ld. Tribunal has erred in fact while
determining the liability to pay the compensation. A bare reading of the award
shows that the Ld. Tribunal got confused in the names of Surrinder (son of
Jagmal Singh) who was owner of the offending vehicle i.e. dumper No. HR-
26A-1663 and Surender (son of Shish Pal and Sunder Devi) who was the driver
of the truck No.HR-46-3217. The relevant portion of the award revealing the
error, is reproduced as under:-
"17. Now coming to first plank of contention as to whether the
accident in question took place due to rash and negligent driving
of truck No.HR-26A/1663 driven by Surender Kumar or truck
No.HR-46/3217 driven by Dharambir, in this context PW10
Ramesh, who was the eye witness to the accident, stated that on
21.1.2002, he was standing near bus stand Hisar. A truck came on
the road which was being driven by Surender son of Shishpal. The
number of the truck was HR-46/3217. The truck was loaded with
sugarcane. He boarded that truck. When they reached near
Chikanwas, a dumper No.HR-26A/1663 came from the opposite
side at about 7.00/7.15 P.M. being driven in a rash, negligent and
Zig-zag manner and struck against their truck in which he was
sitting. Surender driver of the truck died at the spot. He
categorically stated that the accident took place due to rash and
negligent driving of the dumper. He admitted that no complaint
was made against the driver of truck No.HR-26-A/1663. He was
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subjected to lengthy cross examination, but nothing adverse could
be impeached. In cross examination, he again reiterated that the
accident took place due to rash and negligent driving of truck
No.HR-26A/1663 and not because of HR-46/3217. RW1 EНС
Harbhajan Singh has proved copy of FIR Ex.R1 (Ex. P28) which
was recorded by Hawa Singh ASI against both the drivers of the
truck. He has also proved copy of report u/s 173 Cr.P.C. Mark-X/5,
a perusal of which shows that police had submitted cancellation
report of the case as both the drivers of the vehicles involved in the
accident had died. RW1 also proved the recovery memo Mark X2
vide which both the trucks were taken into possession by the
police. The truck No.HR-26A/1663 was taken on superdari by
respondent. No.1 Surender by furnishing superdaginama Mark-2.
The positive evidence led in the court has not been rebutted by any
evidence. The author of the FIR i.e. Ram Puram, eye witness, has
not been examined to prove the contributory negligence. Thus, the
plea of the negligence which could have been established by Ram
Puram, who was the author of the FIR, wherein both the drivers of
the truck have been blamed has not been examined. The fact
remains that the positive evidence led in the court exclusively goes
to show that the accident took place due to rash and negligent
driving of truck No.HR-26-A/1663. The criminal case also could
not proceed on account of death of both the drivers. There is no
cogent evidence to show that there was any negligence on the part
of the driver of truck No.HR-46/3217. Issue No.1 is accordingly
decided in favour of the petitioners and against respondent No.1
and 2 i.e. Surender Kumar owner and Oriental Insurance
company, Insurer of the truck No.HR-26A/1663."
x x x x x
24. Now coming to the contention as to who is liable to pay the
compensation, in this context, it is not disputed that the offending
dumper/truck No. HR-26-A/1663 was owned by Respondent No.1
Surender Kumar and it was duly insured with Respondent No.2
Oriental Insurance Company, as is evident form the insurance
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policy Ex.R3. The counsel for the Insurance Company contended
that despite specific direction of the court petitioners Sunder Devi
etc. failed to produce the licence of Surender, driver of offending
truck No.HR-26A/1663. He drew my attention towards the cross
examination of PW7 Sunder Devi who on 12.5.2005 stated in her
cross examination that the copy of the driving licence of her son at
his home and she can produce the same on the next day.
Accordingly, she was directed to produce the same on the next date
of hearing. She was recalled on 24.1.2005, wherein she stated that
she has not brought the driving licence of her son Surender. Thus,
it is clear that there is nothing to show that deceased Surender,
driver of offending truck No.HR-26-A/1663, was holding a valid
driving licence on the date of accident, but the question is whether
the Insurance Company can be absolved of its liability to pay the
compensation. Learned counsel for the respondent No.1 while
relying upon United India Insurance Company Ltd. Vs. Lehru and
others 2003 (1) ACC 611 (SC), New India Assurance Co. Shimla
Vs. Kamla and others, LTC etc. 2001 (1) ACC 346 (SC) and Lal
Chand Vs. Oriental Insurance Co. Ltd. III (2006) ACC 731 (SC),
rightly contended that in such a situation the Insurance company
cannot escape its liability but they may recover compensation from
the insured. No evidence has come on record to show that the
owner was negligent while keeping the driver. Insurer has to prove
that the owner was guilty of negligence and failed to exercise
reasonable care while keeping such a driver. It stands already
established that Surender Kumar, respondent No.1 was the
registered owner of truck No.HR-26-A/1663. No evidence has been
led by the Insurance Company to prove that the petitioners have
no cause of action and locus standi to file the petition or that the
claim petitions are the result of collusion between the petitioners
and other respondents."
7. A bare perusal of the above referred to paragraphs reveal that the
Ld. Tribunal had gravely erred in fixing the liability to pay the compensation
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due to the confusion of the similar name i.e. Surrinder and Surender. The
accident which caused the lives of the drivers of both the vehicles had occurred
due to the rash and negligent driving of the offending vehicle i.e. dumper No.
HR-26A-1663. But the Ld. Tribunal had erred in declaring the driver Surender
as the driver of offending vehicle i.e. dumper No. HR-26A-1663, who in reality
was the driver of truck No.HR-46-3217. This confusion can be resolved after
simply perusing the evidence of the Sunder Devi (mother of Surender), who
was examined as PW-7, who has clearly stated that her son Surender was
employed as a driver with one Dharambir, who was the owner of the truck
No.HR-46-3217.
8. Further Dharambir (owner of truck No.HR-46-3217) was
examined as PW-11 who clearly stated that the deceased Surender was the
driver of his truck No.HR-46-3217 and he used to pay him Rs.3000/- per
month.
9. The eye witness to the accident Ramesh, who was examined as
PW-10 stated that on 21.01.2002, he was standing near Bus Stand, Hisar and a
truck came on the road which was being driven by Surender son of Shishpal,
and the number of the truck was HR-46-3217. The above referred to
testimonies clearly proved that Surender (son of Shishpal and Sunder Devi)
was driving none other vehicle than the truck No. HR-46-3217.
10. The offending vehicle i.e. dumper No.HR-26A-1663 was infact
driven by one Balwant which is evident on record from the testimonies of his
son-Sandeep @ Sanjay, who appeared in the witness box as PW-6 and stated
that on 21.01.2002, he was travelling in dumper No.HR-26-A-1663, which was
driven by his father Balwant.
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11. Birmati-widow of the deceased-Balwant, was also examined as
PW6, who categorically deposed that her husband was employed as a driver
with Surrinder, who was the owner of the dumper No.HR-26-A-1633.
12. On the basis of the above testimonies, it was clearly established
that the driver of the offending vehicle i.e. dumper No. HR-26-A-1663 was
Balwant and not Surender (son of Shishpal and Sunder Devi). Thus, the
Tribunal had gravely erred in fact while declaring Surender (son of Shishpal
and Sunder Devi) rather than Balwant, as driver of the offending vehicle i.e.
dumper No. HR-26-A-1663.
13. Therefore, the Ld. Tribunal has gravely erred in both law as well
as in fact in granting recovery rights to the Insurance Company to recover the
amount of compensation from the owner of the dumper i.e. Surrinder son of
Jagmal Singh on the part of failure of Sunder Devi (mother of the deceased-
Surender driver of truck No.HR-46-3217) to produce the driving licence of the
driver Surender (driver of truck No.HR-46-3217), as the driving licence of the
Surender (son of Shishpal and Sunder Devi) was not at all required as he was
not the driver of the offending vehicle i.e. dumper No.HR-26-A-1663.
14. Further perusal of the award reveals that the ld. Tribunal has erred
in framing the issues. The relevant issue No.1 is reproduced as under:-
'1.whether the accident in question took place due to rash
and negligent driving of either truck No.HR-26-A-1663 driven by
Surender Kumar or truck No. HR-46-3217 driven by Dharambir.'
The above framed issue clearly shows the error of the Ld. Tribunal
while framing the issues as the Tribunal was under a misconception of fact that
the offending vehicle i.e. dumper was a truck No.HR-26-A-1663 being driven
by Surender instead of Balwant.
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15. In view of the above, the confusion created by the Ld. tribunal is
sorted out/clarified by this court after perusing the record. Therefore, the
perusal of the record shows that owner of dumper/truck No.HR-26-A-1663 is
Surrinder and the driver of the same was Balwant (deceased); and the owner of
truck No.HR-46-4217 is Dharambir and the driver of the same was Surender
(deceased).
16. In view of the above, since it is clear from the facts of the record
that the offending vehicle i.e. dumper/truck No.HR-26-A-1663 was being
driven by Balwant whose owner was Surrinder and the turck No.HR-46-4217
was being driven by Surender whose owner is Dharambir.
17. In view of the above, the only issue which needs to be decided is
that "whether Balwant, driver of offending vehicle i.e. dumper No.HR-26-A-
1663, was holding a valid driving licence or not."
18. Since the issue regarding the recovery rights available to the
Insurance Company can only be settled after perusing the driving licence
(record) of the deceased-Balwant, therefore, the matter is remanded back to the
Ld. Tribunal to decide the claim petition on the above referred to issue on day
to day basis within a period of one month from the date of receipt of copy of
this judgment
19. All the parties are directed to appear before the Ld. Tribunal on
22.04.2025.
20. The Insurance Company is hereby directed to disburse the current
scheduled fee to Mr. Pradeep Goyal, Advocate within a period of 20 days from
the date of receipt of the copy of this order, in view of the order dated
18.07.2024 passed in FAO No.1682 of 2007, by this Court.
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21. All the pending applications also stand disposed of.
(SUDEEPTI SHARMA)
JUDGE
March 26, 2025
sonia arora
Whether speaking/reasoned: Speaking
Whether reportable Yes / No
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