National Insurance Company vs Mohinder Kaur

Rakesh Kumar Garg, J.—This judgment shall dispose of 7 appeals i.e. FAO Nos. 4546 to 4552 of 2014 as all these appeals have arisen out of 7 claim applications which were filed on behalf of the claimants, who were injured in one and the same motor vehicular accident which took place on 12.1.2011 due to rash and negligent driving of vehicle No. HR-38-G-4821 owned by respondent No. 3-Kundan Singh and driven by its driver-Zora Singh/respondent No. 2 and was duly insured by the appellant.

In all these claim applications, the claimants asserted that on 12.1.2011, they were coming from Ludhiana to Bassi Pathana in Maruti Car No. DL-2CB-0093. The car was being driven by Raj Kumar. At about 7 p.m., when they reached at Bus Stand Samrala, their car struck with a truck/trolla No. HR-38-G-4821 from behind which was lying parked by respondent No. 2 on the road towards left side negligently and without any indicator. There was too much fog on that day. Due to the accident, the claimants/occupants of the car sustained multiple grievous injuries. Raj Kumar, Driver also sustained injuries. They were got admitted at Civil Hospital, Samrala. Thereafter, the claimants were also referred and admitted in CMC Ludhiana for treatment. It was submitted that the accident took place due to the fault of respondent No. 2 who parked the trolla on the road negligently. FIR No. 11 dated 14.1.2011 under Sections 283/337/338/427/304A IPC was registered at Police Station, Samrala and thus, claimants were entitled to compensation as claimed.

Upon notice, respondents No. 2 and 3 appeared and filed reply by raising various legal objections with regard to maintainability of the claim petitions, locus standi and cause of action. On merits, it was submitted that no accident ever took place with the offending truck and the same was falsely implicated. It was further submitted that respondent No. 2 was the driver of the truck and was having valid and legal driving licence. Respondent No. 3 was the owner of the said truck and the truck was insured with the appellant-Insurance Company. Other averments made in the claim petition were denied and dismissal of the claim petition was prayed for.

The appellant-Insurance Company in its written statement submitted that driver of the truck trolla as well as driver of the car were not having effective driving licence. Offending truck trolla was not having valid registration certificate, fitness certificate and route permit. It was further stated that no such accident took place as alleged. However, it was admitted that the truck was insured with the appellant. It was stated that FIR was registered against respondent No. 2 In the end, it was submitted that in case Court comes to the conclusion that accident has taken place then the deceased Raj Kumar driver of the car had also contributed in the accident as he had struck the overloaded car with stationary parked truck from behind on left side of the road therefore, insurer of the car was also liable to pay being a case of composite negligence.

From the pleading of the parties, the following issues were framed:

Whether the claimant received injuries as a result of accident caused due to rash and negligent driving of Truck Trolla No. HR-38-G-4821 by respondent No. 1 on 12.1.2011? OPP

Whether the driver of the offending Truck Trolla was having valid driving licence at the time of accident? OPR1

Whether the claimant is entitled to compensation, if so how much and from whom? OPP

Relief.

No other issue was claimed by any of the parties.

After considering the evidence on record, the Tribunal vide impugned award held that the accident took place due to rash and negligent act of respondent No. 2 in parking the offending vehicle on the road without any signal or indicator, thereby causing the accident in which the claimants sustained injuries and thus, the claimants were entitled to compensation from the respondents who were liable to pay the compensation jointly and severally. The relevant observations of the Tribunal on this issue in the case of "Satnam Singh" read thus:

The claimant has also examined CW2 Sukhdev Singh eye witness to the occurrence, who was also one of the occupant of the ill-fated car in which the claimant was travelling. In his affidavit Ex. CW2/A he has reiterated and supported the version put forth by the claimant on oath regarding the manner, in which the accident took place. He has categorically deposed that the accident took place due to the negligence of respondent No. 1 in parking the offending Truck on the road without any signal or indicator. Even CW2 also sustained injuries in the accident and on his statement, the FIR Ex. C1 was registered by the police against respondent No. 1. Both these witnesses were subjected to lengthy cross-examination by the learned counsels for the respondents but no material discrepancy cropped up in their version so as to create any doubt regarding their veracity.

On the other hand, none of the respondents stepped into the witness box to prove their version regarding innocence in the alleged accident. Even, respondent no. 1, who was the best available witness to deny any sort of negligence or rashness on his part, has not dared to step into the witness box to prove so, for which adverse inference is drawn against him.

As regards the contention of learned counsel for the respondents that the accident took place due to the negligence on the part of the driver of car in which the claimant was travelling, it is worth mentioning that no evidence in this regard has been adduced by the respondents. Even the respondent No. 1 has not dared to step into witness box to depose so as per his pleadings or to attribute negligence upon the car driver. At the same time from the evidence adduced by the claimant on the judicial file, it is amply proved that the respondent No. 1 had in fact parked the offending vehicle on the road without any signal or indicator light, which could have been visible to the other person and nothing has been brought on record that there was any negligence on the part of the driver of the car in which the claimant was travelling. As such, I find no merit in the contention of the learned counsels for the respondents qua any contributory negligence on the part of the said car driver. Even otherwise it is admitted during the course of arguments that respondent No. 1 had been facing the trial in the court of Judicial Magistrate 1st Class, at Samrala for having caused the said accident. Besides from the testimony of CW1 Mohinder Kaur as well as of CW2 Sukhdev Singh eye witness to the accident, coupled with registration of FIR Ex. CI, against respondent No. 1, the driver of the offending vehicle, in which he is facing trail before Criminal Court, goes to prove the version of the claimants that the accident took place due to rash and negligent act of respondent no. 1 in parting the offending vehicle on the road without any signal or indicator. The driver of offending Truck happened to be respondent No. 1 and it is owned by respondent no. 2 and insured with respondent no. 3, vide policy Ex. R8, thereby causing the accident in which the claimant sustained injuries. Resultantly, the claimant is held entitled to compensation, to which the respondents are held jointly and severally liable.

Similar awards were passed in all these appeals.

Not satisfied from the aforesaid awards of the Tribunal, the appellant-Insurance Company has filed these appeals challenging the said awards of the Tribunal.

10 . Learned counsel for the appellant has vehemently argued that the present case is of a composite negligence of the owner and insurer of the car as well as of the truck and thus, the appellant has a right to recover the amount from the owner/insurer of the other vehicle by way of filing the instant suit and therefore, in the instant case the compensation payable to the claimants has to be apportioned between the appellant-Insurance Company and the insurer of the other vehicle i.e. car, whereas, the Tribunal has erred while not granting liberty to the appellant to recover the amount from the owner/insurer of the other vehicle and also not fixing its liability. Thus, the impugned awards are liable to be modified/set aside to that extent.

The argument raised on behalf of the appellant is liable to be rejected outrightly. The Tribunal on appreciation of evidence on record has recorded a specific finding that the accident in question has taken place due to rash and negligent act of respondent No. 2 by parking the offending vehicle on the road without any signal or indicator. There is ample evidence in the shape of testimonies of claimants to support the aforesaid findings whereas no evidence has been led by the appellant to prove its innocence in the alleged accident or to deny the negligence and rashness on the part of the driver of the offending vehicle. The driver of the offending vehicle, who was the best available witness to deny any sort of negligence or rashness on his part and further prove the composite negligence on the part of the driver of the car, has not dared to step into the witness box. Not only this, none of the respondents has stepped into the witness box to prove their version with regard to their innocence or composite negligence of the driver of the other vehicle in the alleged accident.

Moreover, counsel for the appellant could not dispute the fact that even if it is held that there was composite negligence of the driver of the car in which the appellant/claimants were occupants, the claimants were at liberty to claim compensation from the owner/insurers of any of the vehicles.

In view of the aforesaid facts and circumstances of the case, the findings of the Tribunal with regard to rash and negligence on the part of respondent No. 2 cannot be found fault with.

No other argument has been raised in these appeals.

Resultantly, all the appeals are dismissed.