The New India Assurance Co. Ltd. vs Bimla and Others

S.S. Sudhalkar, J.—This appeal arises from the judgment of the learned Motor Accident Claims Tribunal, Gurgaon (hereinafter referred to as ''the Tribunal'') in MACT case No.268 of 1994. The claim petition was filed by respondents No.l to 5 claiming compensation on account of death of Ranjit Singh deceased who was the husband of respondent No.l and father of respondents No.2 to 5. The accident took place on 21.1.1994. Deceased was going on foot and it is allegation of the claimant-respondents that the vehicle owned by the respondent No.7 driven by respondent No.6 and insured by the appellant, was involved in the accident. The contention of the respondent No.7 and the appellant is that the vehicle was not involved in the accident at all.

Before the Tribunal, the claimants-respondents examined Bimla widow of Ranjit as PW1 and Daya Ram son of Ganpat as PW2. Respondents examined Sh. Randhir Singh, VRK No.91 of S.P. Office, Gurgaon.

The Tribunal allowed the claim petition and awarded Rs.3,51,000/- to be payable by the appellant and respondents No.6 and 7.

I have heard the learned counsel for the appellant and respondents No.1 to 5.

Counsel for the appellant has attacked the evidence led by the respondents 1 to 5 and argued that there is no evidence to connect the vehicle of the respondents with the accident.

PW1 Bimla is not an eye witness of the accident and PW2 Daya Ram was examined by the claimants-respondents No.1 to 5 as the eye witness. The deceased Ranjit was working in the Electricity Board. This witness Daya Ram is working with the same institution. He stated that he had witnessed the accident and the vehicle involved in the accident was Matador bearing No. HR-26-3189 and was driven by Diwan Chand respondent No.6. He has been cross-examined at length.

RW1 Shri Randhir Singh has stated in his deposition that he had brought the summoned record in connection with FIR No. 14 dated 22.1.1994 (regarding the accident) and has stated that the case was filed as untraced and the complainant had not moved any application in the case. PW2 Daya Ram has stated in his deposition that he had gone to the police station and his statement was recorded. However, it has come out from the evidence of Randhir Singh RW-1 that the statement was not recorded at all. The question now arises is whether the statement of the witness of the claimant-respondents should be accepted or not. Witness Daya Ram PW2 is the only witness which links the alleged motor vehicle with the accident. In this regard learned counsel for the appellant has argued that PW2 Daya Ram has not gone to police to make a report nor PW-1 has stated his name in the deposition as the person having told there that he had seen the accident. The arguments of the learned counsel for the appellant could have been accepted. However, the learned counsel for the respondents has drawn my attention to the written statement filed by the respondent No.6 i.e. driver in case below. The said respondent has, in the written statement, admitted some of the contentions. In the claim petition, in column 14, the registration number of the vehicle involved in the accident and as per the written statement is not challenged. Columns 15 and 16 are regarding the names of drivers and owners of the vehicle in which the claimant-petitioners have mentioned that respondent No.3 before the Tribunal was driver and respondent No.l before the Tribunal was the owner (respondents Ho.6 and 7 in this appeal respectively). This contention is also not changed. Therefore, from the admission of the driver itself, the involvement of the vehicle in the accident can be accepted and it is also corroborated by PW-2. Learned counsel for the appellant argued that there is a collusion between the respondents No.6 and 7 with the claimant-respondents and, therefore, the written statement of respondent No.6 should not be given any weight. He has drawn my attention to Section 170 of the Motor Vehicles Act, which is given as under:-

"170. Impleading insurer in certain cases- Where in the course of any inquiry, the Claims Tribunal is satisfied that-

(a) there is collusion between the person making the claim and the person against whom the claim is made, or

(b) the person against whom the claim is made has failed to contest the claim, it may, for reasons to be recorded in writing, direct that the insurer who may be liable in respect of such claim, shall thereupon have, without prejudice to the provisions contained in Sub-section (2) of Section 149, the right to contest the claim on all or any of the grounds that are available to the person against whom the claim has been made."

Sub-section 2 of Section 149 of the, Act prescribes only limited defences to the Insurance Company.

The question arises for my consideration now is whether there was any collusion between the respondents as alleged. For purpose of collusion that should have been an issue and for framing of issue there should have been a pleading. Learned counsel for the appellant argued that collusion was specifically pleaded in the written statement and drawn my attention to paragraph 2 of the additional plea taken in the written statement, which is as under:-

"That in case, the respondent Nos.1 and 3 fail to contest the case on merits or collude with the petitioners, then the answering respondent, in such eventuality shall be at liberty to take defence on merits and under the provisions of the Motor Vehicles Act, 1988."

From the above plea it cannot be said that it is a specific plea of collusion between the respondents. Consequently, the Tribunal cannot be blamed for not framing of a issue to that effect. When this is the position, the appellant cannot take advantage of Section 170 of the Motor Vehicles Act.

No further ground has been argued. 11. In view of the above position, this appeal is without merit and is dismissed.