AI Structured Summary
Not yet generated for this judgment
Judgment
Kailash Gambhir, J.—By way of the present appeal, the appellant insurance company seeks to challenge the impugned award dated 27.07.2007 whereby the Tribunal held the appellant insurance company liable to pay the award amount of Rs. 2,15,592/- (rounded up to Rs. 2,15,600/-) along with interest @ 7% p.a. from the date of filing of petition till its realization.
Brief summary of facts of the present case are that on 18.12.1997 at about 8:45 pm, Shri Sudhir Chandola was going on his scooter bearing registration No. DL-2SC-2113 from his office to his residence, when he reached near Sarojini Nagar Depot, on Africa Avenue Road, a bus bearing registration No. DL1PA-1219 which was going ahead on left side of road suddenly took U-turn, Shri Sudhir Chandola applied brakes but despite that his scooter collided with the bus. As a result of which he fell down and sustained grievous injuries. He was taken to Safdarjung Hospital for his treatment.
Mr. P.K. Seth, counsel appearing for the appellant mainly contended that the Tribunal fell in grave error in holding the appellant insurance company liable to pay compensation amount even in the absence of proving on record rash and negligent driving on the part of the driver of the bus bearing registration No. DL-IP-A-1219.
The contention of learned Counsel for the appellant is that no FIR was registered against the driver and owner of the offending vehicle. Also no MLC was prepared by the Safdarjung Hospital where the respondent claimant was removed for his treatment and therefore, without proving the factum of negligence, no award could have been passed by the Tribunal u/s 166 of the Motor Vehicles Act.
In support of his arguments, counsel for the appellant invited my attention to the DD entry No. 24-A dated 19.12.1997, wherein, the injured claimant himself admitted that he could not see blue line bus bearing registration No. DL-IP-A-1219 due to the darkness and therefore, he himself struck his scooter in the rear right wheel of the bus. The respondent claimant also stated that the accident occurred due to the darkness and for that nobody was responsible. Even in the OPD card of Safdarjung Hospital, the respondent claimant did not disclose to the attendant Doctor about the involvement of the said bus in causing the accident. Counsel for the appellant also contended that the respondent injured was not even aware of the fact as to how the accident in question occurred. The respondent injured was also under the influence of liquor as would be evident from the said OPD card. Counsel further contended that even no complaint was lodged by the respondent claimant to any higher Police Authorities complaining inaction of police in not registering FIR with regard to the accident in question. Even in the claim petition filed by the respondent claimant, new version of story was put up by the claimant contrary to the one stated by him to the police at the time of recording said DDR in question.
Inviting the attention of this Court to sub paras 1 and 2 of Para 23, counsel for the appellant contended that in the said paras, the respondent claimant took a stand that the said bus in question which was going ahead on the left side of the road, suddenly took ''U'' turn due to which he had to immediately apply brakes, but still it collided with the bus. In the DD Report, the incident has been narrated in a different manner and no such theory of the offending bus taking a ''U'' turn was stated. Counsel for the appellant, thus, contended that in the absence of any evidence produced and proved on record by the claimant respondent to prove rash and negligent driving on the part of the driver of the offending vehicle, the Tribunal has wrongly and illegally allowed the application of the claimant respondent u/s 166 of the Motor Vehicles Act.
Counsel for the appellant also raised certain pleas so as to challenge the impugned award on the quantum of compensation, but on perusal of the grounds raised by the appellant in the present appeal it is found that the impugned award has not been challenged by the appellant so far as the quantum of compensation is concerned. Therefore, the arguments raised by the counsel for the appellant with regard to the challenge made on the quantum of compensation have to be ignored.
Mr. L.K. Tyagi, counsel appearing for the respondent on the other hand vehemently refuted the submissions made by the counsel for the appellant. Mr. Tyagi submitted that the respondent claimant had duly proved in his evidence that the accident had resulted only on account of rash and negligent driving on the part of the driver of the offending vehicle. The respondent claimant was also cross examined by the appellant insurance company. During cross examination, he was duly confronted with the relevant portion of the DD entry and in reply the respondent claimant clearly stated that he never gave any such statement as recorded in the aforesaid DD entry. Counsel for the respondent further contended that it was for the appellant to have summoned the writer of the DD No. 24-A dated 19.12.1997 from the concerned Police Station so as to prove the same on record, but since the same was not proved, no advantage of the DD entry can be claimed by the appellant insurance company. Even otherwise, DD entry recorded by the Police is not a sufficient evidence, contended counsel for the respondent.
Counsel for the respondent further submitted that merely non-registration of FIR against the accused persons would not lead to the conclusion that no accident had occurred at the site. Counsel for the respondent further contended that even the appellant insurance company did not summon the driver of the bus in whose absence adverse inference has to be drawn against the appellant insurance company.
In support of his arguments, counsel for the respondent placed reliance on the judgment of Madhya Pradesh High Court in Yashwant Singh Baghal and Anr. v. Shiv Prasad Vishwakarma and Ors. reported in 1 2007 ACC 482.
I have heard learned Counsel for the parties and perused the record.
At the first blush, the argument of the learned Counsel for the appellant claiming exoneration of the appellant due to non-registration of an FIR and non preparation of MLC by the hospital appeared to be of some force but on deeper examination of the facts, I find the same devoid of any merit. The Tribunal while discussing the said aspect placed reliance on the judgments of Himachal Pradesh High Court in Brestu Ram Vs. Anant Ram and Others, , and Patna High Court in Mohd. Moinuddin Vs. Haliman Nisha and Others, , and Punjab & Haryana High Court in Manjit Kaur v. State of Punjab ACJ 859, whereby they reached to the conclusion that non registration of an FIR is not fatal so far proving an accident under Motor Vehicles Act is concerned. No adverse inference can be drawn against the victim of the accident merely, on account of non registration of an FIR, if otherwise rash and negligent driving on the part of the driver is proved with the help of other convincing evidence. There is no doubt that in the present case DD NO. 24A dated 19.12.97 was duly registered with the concerned Police Station and the I.O. from the said Police Station had recorded the statement of the injured. It is also not in dispute that as per the DD entry the injured was found lying admitted in the hospital. It is also not in dispute that the injured was admitted on the same date in Safdarjung Hospital, New Delhi due to the accidental injuries sustained by him. These admitted facts on record are clear pointers to the involvement of the offending blue line bus bearing registration No. DL1PA 1219 in the said accident.
The only question which has been raised by the counsel for the appellant is that once the respondent claimant himself did not implicate the blue line bus as would be evident from the said DD entry and also since no steps were taken by the respondent to register an FIR, how still the respondent could be granted compensation holding the insured and the insurer liable for the same. To my mind, the answer is the same as precisely given by the Tribunal in the impugned award. Except the respondent claimant, the other best evidence could have been the driver of the said blue line bus who could have rebutted the statement of the injured claimant but no steps were taken by the appellant insured to summon the driver of the bus. Even no steps were taken to summon the I.O. who recorded the said Daily Diary and due to the said failure on the part of the appellant, the Tribunal has rightly given weightage and credence to the testimony of the respondent claimant who himself was a victim of the accident and who had denied the portion of the statement attributed to him that due to darkness he could not see the offending bus. It is a settled legal position that every case is decided on appreciation of its own facts and evidence recorded and if the injuries sustained by the claimant and the negligence on the part of the driver of the offending vehicle are proved before the Tribunal, independent of the other supporting material in the shape of an FIR, MLC etc., in such like case taking in view the Motor Vehicles Act being a social welfare legislation, the award of compensation amount cannot be left to the mercy of registration of an FIR, criminal case or such other factors. In the facts of the present case, the claimant has proved his case by leading sufficient evidence before the Tribunal to prove the factum of accident even in the absence of lodging the FIR.
In the backdrop of the above discussion, I do not find any merit in the present appeal.
Dismissed.