Murti Devi vs Suresh Kumar

R.L. Anand, J.—This appeal has been directed against the award dated 6.11.1992, passed by the M.A.C.T., Kurukshetra, who dismissed the petition u/s 166 r/w Section 140 of the Motor Vehicles Act, 1988, filed by Murti Devi (widow), Upinder Singh alias Lovely and Arshinder Singh alias Arshi (minor sons) of late Kaka Singh, against Suresh Kumar (driver), Haranjan (Naranjan?) Bansal (owner) and National Insurance Co. Ltd.

The brief facts of the case are that a claim petition was petition (filed?) under Sections 160/140 of the Act by the claimants, now appellants, and they sought compensation to the tune of Rs. 7 lacs on account of death of Kaka Singh, who was working as Asstt. District Attorney at Kurukshetra at the relevant time on 24.8.1990, when the accident took place. Respondent No. 1 Suresh Kumar was driving the offending vehicle which is owned by respondent No. 2. Respondents 1 and 2 filed separate written statements. They admitted the factum of accident but denied the factum of negligence on the part of respondent No. 1. The Insurance Co. filed an application u/s 170 of the Act and alleged that since there is a collusion between the claimants and owner and driver of the vehicle, therefore, it may be permitted to take the defence available to the driver and owner of the offending vehicle. The permission was granted by the Tribunal. The Insurance Co. denied the case of the claimants as a result of which the Tribunal framed the following issues :-

"1. Whether the accident took place because of the rash and negligent driving of Car No. HR-25/0118 by the respondent driver ? OPP

2.In case issue No. 1 is proved, whether the claimants are legal representatives/heirs of Kaka Singh deceased ? OPP

In case issues No. 1 and 2 are proved, how much amount the claimants are entitled to and from whom ? OPP

Whether there is collusion between the respondents No. 1 and 2 and the petitioners, if so to what effect ? OPR-3

Relief."

The parties led evidence in support of their case and on the conclusion of the proceedings, issue No. 1 was decided against the claimants and in favour of the Insurance Company. Issues No. 2 and 3 were decided in favour of the claimants. Issue No. 4 was decided against the claimants and as a result of findings given by the Tribunal under issues No. 1 and 4, the claim petition was dismissed. Otherwise, the Tribunal assessed the compensation at Rs. 3,84,000/-.

Aggrieved by the award of the Tribunal, the present appeal by the claimants.

5.1 have heard the counsel for the parties and with their assistance have gone through the record of this case.

Issue No. 1

The onus of this issue was upon the claimants to establish that the accident took place on account of rash and negligent driving of the car bearing registration No. HR 25-0118, driven by respondent No. 1 Suresh Kumar. In order to prove this issue, the claimants have examined Ramesh Kumar as PW-1, who is a property dealer. According to this witness in the month of August, 1990, he has going on a bicycle while another person was going ahead of him. It was near Mohan Nagar near Hanuman Temple, that a car came from behind at a fast speed and hit the said person going ahead of him as a result of which, the said person was thrown ahead. The car stopped for a minute or two but as the public collected there, the car driver ran away with the car. The number of the car was HR 25-0118.

Thus, from the statement of PW-1 Ramesh Kumar, the negligence on the part of the driver of the car is not proved. He has not stated an iota of a sentence that the accident took place on account of negligence of the driver of the vehicle. Now, the point for determination is whether the statement of Ramesh Kumar is a reliable one or not. The conduct of this witness indicates that he was not present at the spot at the time of the accident. This man did not take the injured to the hospital. He did not lodge any F.I.R. He did not inform any of the relations of the deceased about this accident. So much so, he did not even go to the office of the District Attorney either on the date of the accident or on the next day to inform that the accident took place in his presence or with the vehicle which was being driven by respondent No. 1 in a rash and negligent manner. He did not appear before the police. His statement was never recorded by the police. No F.I.R. in this case was registered because it appears that the accident took place at such point of time when there was nobody to witness this occurrence. This witness is an educated person. He had been working as a Clerk with Shri C.N. Sharma, Advocate, who only deals in criminal cases. He worked with Mr. Sharma as Clerk for 10 years and during that period Mr. Sharma handled several cases under Sections 279/304A, Indian Penal Code. This witness also knowns that for initiation of the criminal case against the driver of the offending vehicle, either an F.I.R. or D.D.R. is required to be recorded with the police. In spite of the fact that the police station was at a distance of about 150 yards from the alleged place of occurrence, the witness had no courtesy to go to the place for lodging the F.I.R. So much so, he did not accompany the injured to the hospital. In this view of the matter, I am not inclined to accept the presence of PW-1 Ramesh Kumar at the place of accident. Otherwise also, he was a chance witness. As per his own statement, on the date of the accident he was going from the place of a property dealer to the place of Deed Writer Madan Lal. It has also been admitted by this witness that he never told the police about his presence at the time of the accident and the police never contacted him in connection with this case. In spite of the fact that this witness came to know about the death of Kaka Singh, he did not make any effort to contact anyone. In these circumstances, I disbelieve the statement of PW-1 Ramesh Kumar and hold that he was not present at the lime of the accident. There is no other witness or circumstance from which it may be established that the accident had taken place on account of rash and negligent act of driving of Suresh Kumar. Resultantly issue No. 1 is decided against the claimants and in favour of the respondents.

Issue No. 2

Murti Devi appeared as PW-3 and she stated that she was married to Kaka Singh, deceased, in the year 1979. Earlier, he was an Advocate at Muktsar. He got his service with the Haryana Govt. in the year 1989. He was transferred to Kurukshetra as Asst. District Attorney about 15 days prior to his death which took place on 27,8.1990 at the P.G.I., Chandigarh. Upinder alias Lovely and Arshinder Singh alias Arshi were bom to her from the loins of Kaka Singh, who was employed as Asstt. District Attorney. He used to give her Rs. 2,500/- for running the house-hold expenses. She is Graduate but unemployed. As she was mentally disturbed, so she could not file the petition within six months of the date of accident, i.e. 24.8.1990. There is no rebuttal to the statement of Murti Devi. Thus, 1 hold that the claimants are the legal representative of Kaka Singh and they had the locus standi to file the claim petition. Issue No. 2 was, consequently, rightly decided by the Tribunal in favour of the claimants.

Issue No. 3

I have already decided under issue No. 1 that the claimants have not been able to prove that the accident took place due to rash and negligent driving of respondent No. 1 by disbelieving the statement of Ramesh Kumar. In these circumstance, the claimants are not entitled to the compensation as determined by the Tribunal. However, they are entitled to the compensation u/s 140 on account of no fault liability.

Counsel for the Insurance Company submits that the Company is not liable to pay the compensation u/s 140 because the accident in this case is not proved.

I am not inclined to accept the contention of the counsel for the Insurance Company in view of the statement of Suresh Kumar, RW-1, who was the driver of the vehicle at the relevant time. He stated that on 24.8.1990, he was driving Maruti car No. HR-25/0018 from Chandigarh to Dabwali. He was employed with Shri Naranjan Bansal, Advocate. When he was passing from below the bridge, it was about 7.30 PM. A person came in front of his car all of a sudden from the right hand side. He tried his best to save him, but the head of that person struck against the hind widow of his car on the right hand side. The person fell down on that very place. He stopped the car at a short distance. People collected there and then they told him that he was not at fault and that he should go away. Then, he left the place. The accident took place not because of his fault but because of the fault of the deceased because it was he who struck against his vehicle, which had almost crossed him.

The attack of the counsel for the Insurance Co. is that Suresh Kumar has colluded with the claimants so that the claimants may be able to get the compensation.

The argument is difficult to be swallowed. Suresh Kumar is not related with the claimants. Also there is nothing to suggest that Suresh Kumar or the owner of the car were hands in gloves with the claimants. In this view of the matter, I decide that the Insurance Company, the owner and the driver of the offending vehicle, are liable to pay the compensation on account of no fault liability to the tune of Rs. 50,000/- besides interest @ 12% from the date of filing of the claim petition. Issue No. 3, is thus, partly decided in favour of the claimants and against the respondents.

Issue No. 4

While discussing issue No. 3, I have already held that there was no collusion between the respondents 1 and 2 and the appellants and this issue is decided against the respondents and in favour of the respondents.

Issue No. 5

In view of my findings under Issue No. 3, the claim petition succeeds in part and a sum of Rs. 50,000/- under No Fault Liability is awarded to the claimants, besides interest at the rate of 12 @ from the date of filing the claim petition till payment.

Resultantly, I allow the appeal partly, the impugned order dated 6.11.1992 is set aside and the claimants are awarded a sum of Rs. 50,000/- as (sic) besides interest @ 12% from the date of filing the claim petition till payment, besides costs which are assessed at Rs. 1,000/-. The amount of compensation shall be paid to the claimants within one month from the date of receipt of a copy of this judgment.

Appeal portly allowed.