Punjab-Haryana High Court
Naresh Kumar vs Harish Kumar And Ors on 27 September, 2024
Author: Sudeepti Sharma
Bench: Sudeepti Sharma
FAO- 1518-2006
2006 (O&M) -1-
205
IN THE HIGH COURT OF PUNJAB & HARYANA
AT CHANDIGARH
FAO- 1518-2006
2006 (O&M)
Date of Decision: September 27, 2024
Naresh Kumar ......Appellant(s)
Vs.
Harish Kumar and Others ......Respondent(s)
CORAM: HON'BLE MRS. JUSTICE SUDEEPTI SHARMA
Present: Mr. Ashit Malik, Advocate for the appellant.
Mr. Neeraj Khanna, Advocate for respondent No.3 - Insurance Co.
Mr. G.C.Shahpuri, Advocate for respondent No.4.
----
SUDEEPTI SHARMA J. (ORAL)
1. The present appeal has been preferred against the award dated
09.12.2005 passed in the claim petition filed under Motor Vehicles Act, 198
1988
8 by
the learned Motor Accident Claims Tribunal, Kurukshetra (for short, ‘the Tribunal’)
for granting compensation to the claimant/appellant
claimant/appellant on account of injuries received
by him in the accident.
FACTS NOT IN DISPUTE
2. The brief facts of the case are that on 23.06.2005 deceased Tek Ram
along with his son Naresh Kumar was going from Madhuban to Chandigarh in
government Jeep bearing registration No.HR-05K/4532
No.HR 05K/4532 which was being driven by
Bhoop Singh. When at about 9:15 AM, the jeep reached near village Khanpur
Kolian on G.T.Road, a truck bearing registration No.HR
TRIPTI SAINI No.HR-38K/7072
38K/7072 driven by
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Harish Kumar respondent No.1 rashly and negligently came from Pipli side, hit the
Jeep from behind. Due to the impact, the Jeep after crossing tthe
he divider of
G.T.Road struck against an Indica Car bearing registration No.PB
No.PB-11S/4327,
11S/4327, which
was coming from the opposite direction and thereafter, Jeep fell into ditches. All
the occupants of Jeep received multiple injuries. They were taken to LNJP,
Hospital,
ospital, Kurukshetra where Tek Ram succumbed to his injuries. Bhupinder Singh
who was travelling in Indica Car bearing registration No.PB
No.PB-11S/4327,
11S/4327, with which
Jeep bearing registration No.HR-05K/4532
No.HR 05K/4532 struck after the accident with truck
No.HR-38K/7072,
38K/7072, driven
dr by respondent No.1-Harish
Harish Kumar
Kumar,, who also died in the
accident. Naresh also sustained injuries in the said accident. The offending truck
was owned by respondent No.2 and insured with respondent No.3.
3. Upon notice of the claim petition, responden
respondents
ts appeared and denied
the factum of compensation.
4. From the pleadings of the parties, the Tribunal framed the following
issues:-
1. Whether the accident in question resulting into death of
Tek Ram and Bhupinder Singh and injuries to Naresh was
caused due to rash and negligent driving of truck No.HR-
No.HR
38K/7072 by its driver respondent No.1 as alleged” OPP
2. If issue No.1 is proved
proved, to what amount of compensation,
the petitioners are entitled to and from whom?OPP
3. Whether respondent No.1 was not holding a valid and
effective driving licence on tthe
he alleged date of accident? OPR
4. Relief.
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5. After taking into consideration the pleadings and the evidence on
record, the learned Tribunal dismissed the claim petition of the claimant/appellant.
Hence the claimant/appellant
claimant/appellant filed the present appeal for grant of compensation..
SUBMISSIONS OF THE COUNSELS
6. Learned counsel for the appellant contends that as a matter of fact
Harish Kumar is a truck driver and being truck driver accidents do occur on the
highway, therefore, it cannot be presumed that since the person is involved in
numerous cases, the present case is a false one. He further contends that the
accident took place on 9:15 on 23.06.2005
23.06.2005 and registration number of the
offending vehicle was duly mentioned in the FIR by RW
RW-14
14 Bhoop Singh on
23.06.2005,, itself which was recorded at 12:45 PM, therefore, there was no
occasion for manipulation. He further contends that no witness from the side of
the respondents has appeared to prove the false involvement of the vehicle. Even
the driver, respondent No.1 Harish Kumar did not appear in the witness box before
the
he learned Tribunal, to deny his involvement in the accident.
Further that surveyor RW-12
RW 12 S.K.Makkar in his cross
cross-examination
examination
had admitted that rear side of the jeep was broken as shown in photograph Ex.P/87
and Ex.P/89 and also admitted that Jeep was totally damaged from the left side.
Therefore, he submits that the
the claim petition has been wrongly dismissed and prays
for allowing of the present appeal.
7. Per contra, learned counsel for the respondent
respondent-Insurance
Insurance Company,
however, vehemently argues on the lines of the award and contends that claim of
the appellants has rightly been rejected. He, therefore, prays that the present appeal
be dismissed.
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8. I have heard learned counsel for the parties and perused the whole
record of this case.
9. Relevant portion of the award dated 09.12.2005 is reproduced as
under:-
“8. At the outset, it has been argued by the learned counsel for the
claimants that on 23.06.2003 Tek Ram deceased, his son Naresh
Kumar had started from Madhuban to Chandigarh in Government
jeep No.HR-05K/4532
No.HR 05K/4532 which was being driven by Bhoop Singhrespondent No.4. At about 9:15 AM when the said jeep reached near
respondentKhanour Kolian on G.T.Road., in the meantime truck bearing No.HR-
No.HR
38K/7072 being driven by respondent No.1 Harish Kumar in rash and
negligent manner and at high speed without observing the traffic rules
came from Pipli side and hit the jeep from behind. The impact of the
hit was so high that the jeep crossed the divider of G.T.Road and
struck against an Indica Car No.PB
No.PB-115/4327
115/4327 which was coming fromthe opposite side. The jeep fell into ditches, as a result of which all
the occupants of the jeep received multiple grievous injuries. They
were shifted to L.N.J.P Hospital, Kurukshetra where Tek Ram
succumbed to the injuries sustained in the accident. Respondent No.1
ran away from the spot after causing
causing the accident. Respondent No.1was challaned by the police. The accident had taken place due to sole
rash and negligent driving of respondent No.1 while driving truck No.
HR
HR-38K/7072.
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9. To rebut the arguments of learned counsel for the claimants, it
ihas been argued by learned counsel for the respondents and
Government Pleader for the State that in fact no accident had taken
place with truck No.HR-38K/7072.
No.HR 38K/7072. On 23.06.2003, the said truck was
parked in L.N.N.P III RMS casualty and it had lifted the ma
material
terial at4:30 AM and had left the premises of the hospital at 7 A.M. It is not
possible for the truck to reach Kurukshetra by 9.15 AM. The learned
counsel for the insurance company has placed on record copy of
inward material register as Ex.R107 showing that construction work
of Era Constructions India Ltd. New Delhi was going on that day i.e.
23.06.2003. He has also placed on record the material receipt slip
dated 23.06.2003 as Ex.R108 in which the truck number has been
shown as HR-38K/7072.
HR 38K/7072. He has al
also
so placed on record copy ofagreement between Era Constructions and for and on behalf of
President of India as Ex.R111. It has been argued that moreover
Harish Kumar driver of offending truck is habitual in offering his own
vehicles in M.A.C.T cases. Some
Some times in the capacity of driver of theoffending vehicle. The learned counsel for the insurance company
has placed on record a number of petitions and the copies of award
passed therein in which Harish Kumar respondent No.1 has been
shown as either owner
owner or driver of the offending vehicle. It has beenargued by learned counsel for respondents and the Government
Pleader that if at all the accident had taken place, it was between
Indica car No.PB-115/4327
No.PB 115/4327 and Jeep No.HR
No.HR-05K/4532.
05K/4532. There was
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no fault of the
the truck, rather the number of truck has been planted
subsequently. Before M.A.C.T Karnal, the case with regard to
damages of the jeep was pending. It is not apparent from the record as
to how the number of the truck came to the knowledge of Bhoop Singh
driver
iver of the jeep bearing No.HR-05K/4532.
No.HR 05K/4532. The learned counsel for
the respondents have prayed for dismissal of the claim petitions as
these have been filed with the purpose to take undue claim from the
insurance company.
10. The arguments advanced by lear
learned
ned counsel for the petitioners
and respondents have been carefully heard alongwith meticulous
examination of the record of the case, oral as well as documentary
evidence.
11. Now discussing the arguments of learned counsel for the
claimants and respondents
respondents along with Government Pleader one by
one.
12. It has been argued by learned counsel for the petitioners Maya
Devi and Naresh Kumar that Harish Kumar respondent No.1 driver of
truck No.HR-38K/7072
No.HR 38K/7072 has not been produced by learned counsel for
respondents and an adverse inference has to be drawn against the
respondents. If respondent No.1 had been produced, the learned
counsel for the petitioners would had opportunity to cross
cross-examine
examine
him. When the counsel for petitioners could not cross
cross-examine
examine
respondent No.1 Harish Kumar driver of offending truck, iitt cannot be
presumed that he has been falsely implicated in the said case.
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Moreover, the accident relates to 9:15 A.M and the FIR was lodged on
the same day i.e. 23.06.2003 at 1:15 PM. When the FIR was lodged
on the same day, it cannot be concluded that the number of truck and
the driver of the truck had been planted. Had there been delay in
lodging the FIR, it
it could be presumed that there was time for
concoction of the story and inserting the vehicle. The learned counsel
for respondents has tried to take the plea that on the fateful day i.e.
23.6.2003 the offending truck no. HR
HR-38K/7072 was lying parked at
L.N.J.P. Hospital-III,
Hospital Delhi and was carrying material for Era
Constructions. Learned counsel for respondents have not bothered to
examine the witness in the present petitions rather the intention of
learned counsel for respondents was to delay the proceedings of the
court in not examining the witness. A number of times bailable
warrants were ordered to be issued against B.B Yadav
Yadav, an official of
Era Constructions,
Con New Delhi. In spite of that the learned counsel for
respondents did not examine him. Instead of examining him, learned
counsel for respondents has placed on record copy of statement made
by him in claim petition relating to damage of jeep no. H
HR-05K/4532
05K/4532
pending
ending before the Tribunal at Karnal. It cannot be accepted. Learned
counsel for the petitioners has placed reliance on 1986(1) ACJ 331
titled as Bhagwani Devi Vs. Krishan Kumar Saini and others, 1994
(3) P.L.R. 170 titled as Smt. Sheela Devi aand
nd others Vs. Jayanti
Parshad and others and 1999(2) C.C.Cases 91 titled as Vidhyadhar
Vs. Mankikrao & Anr.
Anr
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13. It has next been argued by learned counsel for petitioners that
the copies of statements made by witnesses and the documents from
the other file
fil had merely been exhibited by learned counsel for
respondents. No efforts have been made to prove those documents.
Mere marking of documents as an exhibit does not dispense with its
proof and in support of this argument he has placed rreliance on AIR
1971 Supreme Court 1865 titled as Sait Tarajee Khimcha
Khimchand
nd and others
Vs. Yelamarti Satyam
Saty and others.
14. It has next been contended by learned ccounsel
ounsel for
petitioners
etitioners that Harish Kumar driver of offending truck has been
facing criminal
criminal trial under sections 279, 337, 338, 304-A
A IPC which
prima facie proves that the accident had taken place due to rash and
prima-facie
negligent driving of driver. He has placed reliance on 1993(2) P.L.R.
109 titled as Girdhari Lal Vs. Radhey Shyam and others
others.
15. Learned counsel for peti
petitioners
tioners has drawn attention of
the court towards cross-examination
cross examination of RW
RW-12 S.K. Makkar, Surveyor
who had admitted in his cross-examination
cross examination that the left rear side of
the jeep was broken in photograph Ex. R
R/87.
87. He has further admitted
it to be correct that in Ex. R/89
89 photograph there was a dent on left
side water penal. He has also admitted that the jeep in question which
he had inspected was badly damaged from the left side. The learned
counsel for petitioners have drawn attention of the Court towards
photographs in which the left rear side of tthe jeep
photographs eep has been shown to
have been damaged. It has been argued by learned counsel for
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petitioners that the petitioners have successfully proved
roved the version of
claimants that truck no. HR-38K/7072
HR 38K/7072 had hit the jeep no. HR-
HR
05K/4532 from back side.
16. First of all taking the point of recording of FIR on the
statement of Bhoop Singh driver. The accident has been alleged to be
of 23.6.2003 at 9.15 A.M. The copy of report under section 173
Cr.P.C. has been placed on record
record as Ex. P
P/19.
19. It was registered at
1.15 P.M. on 23.6.2003. In the opening lines of the rreport
eport under
section 173 Cr.P.C. it
it has been recorded that a telephonic message
was received that an accident had taken place and the injured have
been admitted in L.
L. N. J. P. Hospital. Kurukshetra. After writing the
details it has been reported that the statement of all the injured
including Bhoop Singh were recorded on the basis of which FIR was
registered. Bhoon Singh has been examined as RW14 and he has
stated that
that he was admitted in the hospital of Dr. Vijay
ay Gupta at
Karnal and the police had recorded his statement at that hospital. On
one hand it has been stated in the report under section 173 C
Cr.P.C.
.P.C.
that the statement of Bhoop Singh was recorded in L.N. J. P. H
Hospital.
ospital.
Kurukshetra and on the other hand, Bhoo
Bhoop Singh RW14 has stated
that he regained consciousness in the hospital of Dr. Vijay Gupta at
Karnal on 24.6.2003 and his statement was recorded on the same day.
Meaning
eaning thereby Bhoop Singh remained unconsciou
unconsciouss in L. N. J. P.
Hospital. Kurukshetra and could not make any statement. If his
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statement was recorded on 24.6.2003 how FIR was registered on
23.6.2003 at 1.15 P.M.
17. Now taking the number of truck allegedly involved in the
accident and because of rash and negli
negligent
gent driving of driver of truck
allegedly the accident had taken place. First of all copy of report
under section 173 Cr.P.C. placed on record as Ex.P19 is material in
which
hich the statement made by Bhoop Singh has been reproduced. It has
been specifically
specifically stated by Bhoop Singh respondent no.4. that later on
he came to know the number of truck as HR
HR-38K/7072.
38K/7072. Bhoop Singh
when stepped into the witness box has admitted in his cross-
cross
examination that he had not seen the truck prior to the accident. In
the later part of his cross-examination
cross examination it has been stated by him that
he had noticed the registration number ooff the truck after the accident,
when
hen he fell down on the road and thereafter he got up. He has
further stated that he had noticed the truck immed
immediately
iately after the
accident. He has stated that he fell down on the divider between the
G.T Road: whereas the Jeep fell into the ditches on other side of the
G.T. Road.
oad. The learned counsel for the insurance company has placed
on record copy of statement of Bhoo
Bhoop Singh examined
d in claim case
for damages of jeep
j No. HR-05K/4532
05K/4532 pending at Karnal as Ex. R106
in which he has stated that he had seen the truck prior to the alleged
accident in the rear view mirror of the jeep.
eep. The truck was at a
distance of 20-25
20 feet
et when he noticed the truck for the first time.
Though the evidence in the other case is not material, yet it is
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pertinent to mention here that with regard to the same accident claim
for damages of the jeep has been filed before Tribunal at Karnal and
the same witnesses have been examined there. One witness cannot
blow hot and cold in the same breath as with regard to the same
accident evidence is being recorded. This is contradictory statement
made by Bhoop
Bhoo Singh respondent no.4 driver of the jjeep. At one place
he has stated that he noticed the number of truck after he fell down
after the accident and it is not practically possible that a person who
has fallen down after receiving such heavy impact due to other vehicle
and the offending vehicle
vehicle has run awa
away from the spot the injured can
notice the number of offending vehicle.
18. The learned counsel for the insurance company has argued
that Harish Kumar respondent no.1 is in the habit of offering himself
either as driver or as owner of the offending vehic
vehicle
le in all the accident
cases whichever and wherever it take place. The learned counsel for
the insurance company has examined Balram D.R.K.. Sessions R
Record
ecord
Room Sonepat
Sonepat as RWI who has brought the summoned file relating to
claim petition titled Murti Devi Vs. Rai Kumar decided on 29.11.2003.
The
he case file of MACT case titled as Randhir Singh Vs. Raj Kumar
and case
case file titled as Urmila Vs. Raj Kumar. All these three claim
petitions were consolidated having arisen out of the same accident.
The learned counsel
counsel for the insurance company
company-respondent
respondent no.3 has
examined Pawan Kumar Addl. Ahlmad to the Court of learned
Judicial Magistrate 2nd Class,
Class Karnal as RW2 who has brought the
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summoned file of criminal case titled as State Vs. Jati Singh. FIR
No.206 of 2000, under sections 279
279, 337, 338, 340 IPC. In the said
case the FIR was lodged against an unknown truck driver. The
certified copy of the FIR is Ex. R10. Copy of report under section 173
Cr.P.C. is
is Ex. R11. As per recovery memo Harish Kumar son of
Shankar Dass
Dass had taken superdari of offending truck and registration
certificate of the truck shows him the owner of the truck. Copy of
superdaginama has also been placed on record as Ex.R12. The
learned counsel for respondent no.3 has exam
examined
ined Pawan Kumar.
Record Keeper,
Ke Judicial Record Room
Room, Karnal as RW,.. who has
brought the summoned file of criminal case titled State vs. Krishan
Kumar bearing FIR No. 786 of 1998,
1998, under sections 279. 336. 338
decided on 23.10.2000. The FIR was registered against an unknown
truck driver
driver and Harish Kumar was later on shown as driver of the
truck. In that case also, application Ex.R16 was move
moved
d for taking the
truck on superdari
superdari by Harish Kumar and certified copy of
superdaginam is Ex.R17. Copy of judgment has been placed on
superdaginama
record as Ex. R18. He has also brought the criminal file titled as State
Vs. Kulwant Singh FIR No.336,
No.336, under sections 279, 304-A
A IPC. In
that case also application for release of truck on superdari was moved
by Harish Kumar son of Shankar Dass. He has also brought the
criminal case file of case State Vs. Raj Kumar,, FIR No.31 of 1999,
under sections 279, 337, 304-A
A IPC. The vehicle involved in that
accident was taken into police possession from Harish Kumar son of
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Shankar Dass and application for release of said vehi
vehicle
cle (Tata Sumo)
was moved by Harish Kumar son of Shankar Dass. Sanjay Kumar
Addl. Ahlmad of the court of learned Addl. Chief Judicial Magistrate,.
Magistrate,
Karnal has also been examined by learned counsel for respondent
no.3 as RW4 who has brought the criminal case file of State Vs.
Harish Kumar FIR No.230 dated 6.5.1999
6.5.1999, under sections 279, 337,
337
338 304-A
338, A IPC. The FIR was lodged against an unknown driver. In
that case also application
application for taking the truck on super
superdari
dari was moved
by Harish Kumar. The certified copie
copies of the application
ion and that of
suberdaginama have
have been placed on record as Ex. R32 and Ex.R33
respectively. As per registration certificate, Harish kumar son of
Shankar Dass was registered owner of the said vehicle. Ram Niwas.
Record Keeper,
Keeper Sessions Court, Karnal has been examined as RW5.
He has brought the M.A.C.T case file titled as Charan
Charanjit
it Singh Vs. Jati
decided on 15.3.2001. Copy of Judgment placed on record as Ex.R34
and Ex. R35, file of case State Vs. Paramj
Paramjit
it decided on 15.3.2001,
15.3.2001
cop placed on record as Ex. R36 and Ex. R37. Charaniit Singh Vs.
copies
H. K. Pruthi decided on 4.1.2001, copies placed on record as Ex. R38
and Ex. R39. MACT file titled as Radhir Singh Vs. Har
Harish
ish Kumar
decided on 2.11.2001, certified copy of claim petition and written
statement
tement are Ex. R40 and Ex. R41. He has also brought the MACT
case file titled as Ram Kumar Vs. Har
Harish
ish Kumar decided on
2.11.2001, certified copies of claim petition, power of attorney of
respondent no. 1, written statement and judgment are Ex.R42 to
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Ex.R45. He has brought the MACT case file titled as Roshni Vs.
Ex.R45.
Kulwant Singh decided on 2.2.2002, certified
Kulwant tified copies of claim petition,
written statement and judgment are Ex. R46 to Ex.R48 respectively.
The case file of MACT case titled as Surender Kumar Vs. Ra
Raj Kumar
umar
decided on 29.4.2003
29.4.2003 has also been brought the certified copies
pies of
claim petition, written statement and judgment are Ex. R49 to Ex. R51
respectively. He has brought the MACT case file of case titled Rachna
Vs. Harish
Harish Kumar decided on 12.11.2001, the certified copies of claim
petition, power of attorney and written statement are Ex. R52 to Ex.
R55. The learned counsel for responde
respondent
nt no.3 has examined Kanshi
Ram, Record Keeper,
Keep Record Room
Room, Kurukshetra as RW6. He has
brought the MACT file titled as Aj
A
Ajit Singh Vs. M/s Vikas Road Ltd.
decided on 5.10.2004. The certified copies of claim petition, power of
attorney, zimini orders dated 3.6.2003, 11.4.2003 and judgment dated
attorney,
5.10.2004 are Ex.R56 to Ex. R60 respectively. Balbir Singh, Criminal
Ahlmad of the Court
Court of learned S. D. J. M. Gohana has been
examined as RW7 who has brought the criminal case file titled State
vs. Jaspal Singh, under sections 279, 304-A
A IPC. The power of
attorney of one Virender Singh is in favour of Harish Kumar son of
Shankar Dass. Rajinder Kumar Ahlmad of the court of learned
J.M.1.C. Panipat has been examined as RW8 who has brought the file
of criminal case titled as State Vs. Ashok Kumar
Kumar, under sections 279,
279
337 304-A
337, A IPC. In that case application for releasing the Maruti car
on superdari
s ari was moved by Harish Kumar. Sandeep Singla, Ahlmad
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of the court of learned Addl. District Judge. Karnal has been
examined as RW9. He has brought the MACT case file titled as
Commandant 4th Battalion Vs. Harish Kumar filed on 1.12.2003. The
copies of claim petition, written statement and estimate are Ex. R68 to
Ex. R71. It is pertinent to mention here the said claim petition relates
to the damage of Jeep no. HR-05K/4532,
05K/4532, in which allegedly deceased
Tek Ram was travelling on whose behalf of present claim petition has
been filed. Suresh Kumar Clerk, Labour Office, Karnal RW10 has
brought the file titled Deepak Vs. Virender Singh which was dismissed
in default on 17.9.2003. Copies of claim petition and order dated
17.9.2003 are Ex. R72 and Ex. R73 resp
respectively. Rajinder Saini.
Criminal Ahlmad of the court of J.M.I.C. Sonepat RW11 has brought
the file of criminal
criminal case titled State Vs. Raj Kumar under sections 279,
279
337,
37, 338 and 304-A
304 A IPC. In that cas
casee also application for releasing
the truck on superdari was moved by Harish Kumar son of Shankar
Dass, the copies
copies of application, police report, order of releasing
eleasing the
truck on superdari are Ex. R78 to Ex.R80. Superdaginama is Ex. R81
and surety
sur bond is Ex.R82.
19. In reply to the arguments of learned counsel for respondents. It
has been argued by learned counsel for the petitioners that though the
learned counsel for respondents has placed on record a number of
documents and has examined a number of witnesses to prove the
involvement of Harish Kumar respondent
respondent no.1 in number of cases, yet
y
even by placing on record a number of documents, the learned
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counsel for respondent no.3 insurance company has failed to prove
the involvement of offending
offending truck no. HR
HR-38K/7072
38K/7072 in any of the
cases mentioned by him. It has fur
further
ther been argued by learned
counsel for the petitioners that in all the cases produced by learned
learn
counsel for respondent no.3, Harish Kumar has not been shown as
owner of the offending
offendin vehicles. Since he is carrying on the business
of transporter, the owners
owners of vehicles of other districts which are
involved in the accidents might have told the present respondent no.1
to obtain the vehicle on superdari
dari on their behalf. Only in those
circumstances on the basis of power of attorney the vehicles were got
released by respondent no.1 Harish Kumar. In some of the cases he
released
was driver of the vehicle. If the accident had taken place the FIR was
required to be registered. It cannot be said to be any manipulation on
the part of petitioners to falsely implicate responden
respondentt no.1 or his truck
no. HR-38K/7072.
HR
20. The learned counsel for the petitioner has pointed out that
though the learned counsel for respondents has tried to prove the false
invol
involvement of truck no.HR-38K/7072
38K/7072 yyet
et at the time of cross-
cross
examination of PW5
P Naresh Kumar, an eye witness, learned counsel
for respondents has specifically suggested him that while overtaking
the jeep,
ep, the driver of truck had blown the horn
horn, which clearly shows
that even respondents have admitted the presence of truck behind the
jeep
ep at the time of alleged accident,
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21. By examining official witnesses and by placing on record
the documents of MACT cases and also crim
criminal
inal cases in accident
matters, the learned counsel for respondent no.3
no.3-insurance
insurance company
has proved that the present
present respondent no.1 driver of offending truck
No. HR-38K/7072
38K/7072 was involved in a number of claim cases either in
the capacity of owner or in the capacity of driver of the offending
vehicles. Ex. R48 copy of judgment dated 2.2.2002 in MACT petition
titled as Roshni
Roshni Devi Vs. Kulwant Singh etc. decided by Shri N.C.
Nahta, the
t then learned Motor Accident Claims Tribunal
Tribunal, Karnal in
para no.13 of the said judgment. It has been specifically observed that
“it has been proved on the record beyond doubt that the petitio
petitioners
ners
have filed this petition in connivance with respondents no.1 and 2 and
in fact it is handy work of one Harish Kumar son of Shankar Dass
who had always been ready to play any role in the hit and run cases.
In this case also the respondents no. 1 and 2 seemed to have been
made a tool by said Harish Kumar to become a driver and owner of
the offending vehicle. Harish Kumar who is found Omni present in all
the cases of hit and run. Thus this claim petition is nothing but a
bundle of lies and the entire evidence
evidence seems to have been fabricated.
The petitioners have simply tried to claim false compensation with the
help and connivance of respondents no.1 and 22, who were readily
available to the petitioners at the instance of Harish Kumar being his
tools”.
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22. EX. P50 copy of award dated 29.4.2003 passed by the Court of
Sh. Dhani Ram, the then learned Motor Accident Claims Tribunal.
Karmal. in case titled Surender Kaur Vs. Raj Kumar also show that
Karmal.
observations have been made by the learned Tribunal that it was a
case of hit and run and the deceased was hit by some unknown vehicle
driven by some unknown person. The claim petition was observed to
be result of fabrication and
and connivance between claimants,
respondents no.1 and 2 and Harish Kumar who had taken the Tata
Tat
Sumo on superdari as attorney.
23. In these circumstances, the onus lies heavily upon the
claimants to prove that on 23.6.2003 the accident had taken place due
to rash and negligent
gligent driving of Harish Kumar, respondent no. 1.
driver of truck no. HR-38K/7072.
HR
24. The learned counsel for the respondent no. 33-insurance
insurance
company had conducted survey and had also assessed the loss/
damage to jeep No. HR-05K/4532
K/4532 through Shri S.K. Makkar, Surveyor
who has been examined as RW12. His survey report has been placed
on record as Ex.R3 and the technical opinion has been expressed that
there was no impact/damage on the rear back side of the vehicle. It is
pertinent to mention here that as per sto
story of claimants, the offending
truck no.HR-38K/7072
no.HR 38K/7072 had hit the jeep from the left back side as a
result of which it turned turtle and hit Indica car and finally ffell
ll into
ditches. The surveyor S.K.Makkar RW12 had also taken 9
photographs of jeep no. HR-05K/4532
HR K/4532 as Ex. R84 to Ex.R92 and
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FAO- 1518-2006
2006 (O&M) -19-
negatives thereof as Ex. R93 to Ex. R101. In photographs Ex. R91 and
Ex. R92 rear
rea portion of the jeep bearing no.HR
no.HR-05K/4532
05K/4532 has been
shown and no damage on the rear portion has been shown. S.K.
Makkar
akkar, Surveyor RW12 has specifically
cifically stated in his examination–in-
chief that on vehicle inspection, it was observed that the vehicle in
question has been damaged from the front and left side and there was
no impact or damage to rear/back side of the jeep. He has further
stated that in the photographs there is no damage on the back side of
the jeep.
25. As per story of claimants
claimants, the accident had taken place as
jeep no. HR-05K/4532
HR 05K/4532 was going from Madhuban to Chandigarh and
truck no. HR-38K/7072
HR 38K/7072 was coming at very high speed and in rash
ra
and negligent manner from the back side and hit the jeep from back as
a result of which the jeep crossed the divider on the opposite side and
hit an Indica car bearing no. PB 115/4327 and finally fell into ditches,
as a result of this accident Tek Ram w
who was travelling in jeep no.
HR
HR-05K/4532 had died and the remaining occupants of the jeep had
received injuries… Bhupinder Singh who was travelling in Indica car
no. PB-115/4327
PB 115/4327 had also died due to accident and the remaining
occupants of Indica car had received multiple and ggrievous
rievous injuries.
Petitions titled as Mava Devi Vs. Har
Petitions Harislı
islı Kumar and Naresh Vs.
Harish Kumar have been filed on the plea that the accident had been
caused due to rash and negligent driving of respondent no. 1 driver of
truc no. HR-38K/7072. The third petition titled as Gurdev Singh vs.
truck
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2006 (O&M) -20-
Harish Kumar etc.. though has been filed on the same ground, yyet
et in
para no.25 of the said petition,.
petition,. it has been stated that the accident
has been caused due to sole rash and negligent drivi
driving
ng of respondent
no.1 driver of truck no. HR-38K/7072
38K/7072 and respondent no.4 driver of
jeep
eep no. HR-05K/4532.
HR K/4532. During the course of arg
arguments, it has not
been argued by learned counsel for petitioner Gurdev Singh that
accident had taken place due to rash and ne
negligent
gligent driving of
respondent no. I Harish Kumar driver of truck no. HR
HR-38K/7072.
38K/7072.
Rather it has been argued that the accident had been caused due to
rash and negligent driving of respondent no.4 driver of jjeep
eep no. HR-
HR
05K/4532. It is pertinent to mention he
here
re that learned counsel for
petitioner in petition titled as Gurdev Singh Vs. Harish Kumar etc..
Rajiv Kaushal has been examined as PW7 in additional evidence.. He
has placed on record his affidavit Ex. P26. He was driver of Indica
Indic
car no. PB-115/4327
PB on 23.6.2003.
.6.2003. In the affidavit it has specifically
been deposed by him that at 9.15 Λ.Μ. when they reached near village
Masana on G.T. Road. jeep bearing no. HR
HR-05K/4532
05K/4532 driven by
Bhoop Singh rashly and negligently and at high speed came from
wrong side after crossing
crossing the divider of G.T.road and straight
straight-way
way hit
the car which was being driven by him as a result of which all the
occupants of the car received injuries and Constable Bhupinder Singh
succumbed to his injuries.. He was cross
cross-examined
examined at length. In cross-
cros
examination it has been stated by him that he had noticed the jeep
from a distance of 100 meters. There was no truck going from Delhi to
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FAO- 1518-2006
2006 (O&M) -21-
Ambala side. The accident had taken place due to rash and negligent
driving of driver of the jeep.
eep. No truck was invol
involved
ved in the said
accident and no truck was present aat that time. So the impact from
back side on the jeep in question does not arise. The truck bearing no.
HR 38K/7072 has been falsely involved in the present accident and it
HR-38K/7072
was not present on G.T.road at that time. He has further stated that
Harish Kumar
Kumar respondent no.1 has been falsely involved in the
present accident. Since Rajiv Kaushal driver of Indica car no. PB-
PB
11S/4327 had received injuries and he was referred to PGI.
Chandigarlı his
his statement was recorded at PGI Chandigarh on
25.6.2003. It has been specifically
specifically stated by Rajiv Kaushal PW7 that
he had mentioned in his statement that the accident had taken place
due to rash and negligent driving of the driver of jeep bearing no.
HR
HR-05K/4532 i.e. Bhoop Singh respondent no.4.
26. As per allegation in the petitions due to heavy impact of
the hit caused by truck the jeep no. HR
HR-05K/4532
05K/4532 crossed the divider
and hit Indica car no. PB-11S-4327,
4327, Bhoop Singh PW14 is the eye
witness of the said accident. In cross
cross- examination he was specifically
asked as to whether there was any damage to the divider when the
jeep had crossed the divider. He has replied that he cannott say
whether the divider has suffered any damage or not
not, when the jeep
crossed the divider. He had volunteered that the divider must be
damaged. His statement was also recorded in M.A.C.T. case with
regard to damage to the jeep pending at Karnal before th
thee Tribunal.
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The Copy of his statement has been placed on record by learned
counsel for respondent no.3 as Ex. 106. In the said statement he has
stated that there was no damage to the divider. The witness who was
eye witness of the said accident is making sstatements
tatements differently at
different times.
tim
27. The learned counsel for the petitioners have tried to show that
in the cross-examination
cross examination of Naresh Kumar PW
PW, learned
earned counsel for
the respondents have specifically asked about blowing of horn which
itself proves that the counsel for respondents have also admitted the
presence of truck. This argument of learned counsel for petitioners
has no force, as the petitioners themselves are not standing on the
same footings. Petitioners Smt. Mava Devi and Naresh Kuma
Kumarr have
deposed about the presence of truck no. HR 38K/7072 on G.T.road at
the time of accident,
accident, whereas Gurdev Singh ppetitioner has denied
ied the
presence of truck on G.T.road.
G.T.road. PW7 Rajeev Kaushal driver of Indica
car has specifically deposed that the truck aand
nd respondent no.1 driver
of the truck have been falsely implicated.
28. Learned counsel
el for ppetitioners
etitioners have argued about
withholding of best evidence by not examining Harish Kumar
respondent no.1 as RW,
RW yet
et this argument of learned counsel for
petitioners also has no force as apparently Harish Kumar respondent
petitioners
No.1 alleged driver of truck
ruck no. HR
HR-38K/7072 has not stepped into the
witness box only to avoid cross-
cross examination and further to avoid
confrontation with all the documents placed on record by lea
learned
rned
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FAO- 1518-2006
2006 (O&M) -23-
counsel for respondent no. 3-insurance
3 insurance company in which false
implication of the vehicles either owned by Harish Kumar or driven
by Harish Kumar respondent no.1 has been shown. It has already
been observed that the truck no. HR
HR-38K/7072 was falsely involved
volved at
the instance of petitioners and in connivance with respondent no.1
Harish Kumar.
Kumar. Rather examination of Harish K
Kumar
umar respondent no.1
as RW would damage the case of petitioners
petitioners, with this fear he was not
examined as witness of the respondents.
29. Though, the consideration of documents placed on record
by learned counsel for respondent no.3 has been opposed by learned
counsel for petitioners on the ground of admissibility and in the
absence of examination of the witnesses, yyet
et these are the certified
certif
copies and have been brought by concerned officials from the Courts.
They cannot be rejected altogether on the ground that the witnesses
have not been examined to prove these documents. Hence, this
argument of learned counsel for the petitioners is als
also rejected.
30. With regard to admission of the documents showing the
presence of truck no.HR-38K-7072
no.HR 7072 at L.N.J.P. Hospital
Hospital-111, Delhi, the
learned counsel for petitioners have obj
objected
ected to these documents on
the ground of non-examination
non examination of the witnesses. These are only copies
of statements made by B. B. Yadav Senior Assistant (Personnel) and
Gian Chand. Perusal of the file shows that previously notices were
sent to official concerned
concerned from Era Constructions, New Delhi and
service was affected. Bailable
ailable warrants were also ordered to be
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FAO- 1518-2006
2006 (O&M) -24-
issued number of times. On 14.6.2005 B.B. Yadav was present but he
could not be examined as he had not brought the complete record and
he was directed to bring the complete reco
record.
rd. On the next date of
hearing, B. B. Yadav was not feeling well and in his place Anand
Sahu,. Personnel Officer, Era Constru
Constructions, was present and had
under taken to produce B. B. Yadav on the next date of hearing.
Inspite of that on the next date
date, he was not present. In these
circumstances evidence of all the respondents was ordered to be
closed by orders of the Court. In this eventuality the statements which
were made by B. B. Yadav Senior Assistant (Personnel) in claim case
regarding damage of the jeep pending at Karnal were placed on
record by learned counsel for respondent no.3. They cannot be
record
rejected altogether.
31. By placing on record copy of statement of Gian Chand son of
Karam Chand which was recorded in claim case at Karnal rela
relating
ting to
damages of Jeep no. HR-05K/4532,
HR 05K/4532, copy of which
ch has been placed on
record as Ex. R114, learned counsel for respondent no.3 has tried to
t
show that truck no. HR-38K/7072
HR K/7072 had gone in G.B. Pant Hospital for
unloading building material on 22.6.2003. On 23.6.2003 at around
7.00/7.30 A.M. material was unloaded
unloaded and aft
after
er coming out from the
hospital, it had gone for refilling of fuel. On 23.6.2003 at around 12
noon/ 1.00 P.M. the vehicle
vehicle had again started for Firakp
Firakpur
ur from
Delhi. On that day i.e. on 23.6.2003, his truck had not met with any
Delhi.
accident. It is pertinent
pertinent to mention here that said Gian Chand has
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FAO- 1518-2006
2006 (O&M) -25-
been shown to be real owner of truck no. HR
HR-38K/7072
38K/7072 and in the
capacity of owner of truck, he had deposed in the court. Though.
learned counsel for the petitioners
etitioners have placed reliance upon 1989(1)
P.L.R. 159 titled as United India Insurance Co. Ltd. through its
Regional Manager. Chandigarh and another, yet the ratio of the said
authority is not applicable to
to the facts of the present case, as in that
case the plea was taken in the written statement that the offending
truck was out of Punjab on the day of occurrence but no such
evidence was produced. In the present case by placing on record
certified copy of statement of original owner of the truck recorded in
other case. It cannot be said that the evidence iiss deficient. Moreover.
Ex. P107 copy of inward material register of Era Constructions.
Ex.R108
.R108 material receipt slip, EX. R109 copy of stock register and
Ex.R110 copy of statement of B.B.
B. . Yadav. Senior Assistant (Personnel)
Era Constructions,
Constructions placed on record in the claim case for damages of
jeep, also support the plea of respondent no.3.
jeep,
32. With regard to pendency of criminal case against
respondent no.1. there are number of authorities
authorities, in which the ratio is
that even if there is criminal case pending before a criminal court. It
does not ipso-facto
facto prove negligence of driver of offending vvehicle.
ehicle.
The proceedings
p in claim petitionn before the Tribunall are entirely
different. Hence, this argument of learned counsel for petitioners is
also having
hav no legs to stand.
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33. This fact should also not be lost sight of that Rohtas
gunman of Tek Ram
Ram deceased was also travelling in the same jeep
when the alleged accident took place. He has not been examined as
witness of the petitioners, inspite of fac
fact that he was eye witness
ness and
also injured. This also raises suspicion.
34. The learned counsel for respondents has pointed out that
in all the claim cases which were instituted by the claimants in
collusion with the driver and owner of ttruck. Shri Amit Bansal
Advocate had filed petitions on behalf of claimants. He has drawn
attention of the Court towards copy of application moved by Gian
Chand in criminal case titled as State Vs. Harish Kumar. FIR no. 190
of 2003 under sections 279, 337,, 338,304-A 1PC on behalf of Shri
Amit Bansal Advocate. Copy of said application and power of
attorney of the counsel have been placed on record as Ex.R115 and
Ex. R116. Vide order dated 17.7.2003. Shri Amit Bansal Advocate
obtained bail orders of accused Haris
Harish Kumar, the certified copy has
been placed on record as Ex.R117 and copy of order dated 18.7.2003
vide which vehicle
vehicle was taken on super
superdarii through Sh. Amit Bansal
Advocate as Ex. R118. Vide order dated 3.12.2003 charge was framed
and presence of Shri Amit
A t Bansal Advocate was marked, cop
copyy placed
on record as Ex.R119 and copy of order dated 29.12.2003 as Ex.
R120. Learned counsel for respondent no.3 has also drawn attention
of the court towards claim petition titled Suresh Bala Vs. Dilshad
Ahmed placed on record
record as Ex. R127 which was filed through Sh.A.
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FAO- 1518-2006
2006 (O&M) -27-
D. Sood Advocate, who is also counsel in the present case. The
learned counsel for respondents
res ts has drawn attention of the Court
towards copy of power of attorney as Ex.R128 in which the name of
Shri A. D. Sood
Shri. od Advocate and Sh. Amit Bansal Advocate have been
jointly written. The learned counsel for respondent no.3 has also
placed on record copies of photographs of Chamber of Shri A. D.
Sood, Advocale as Ex..R121 to Ex.R123 and negatives Ex. R124 to Ex.
R126 which
wh also show the joint names of Sh.A.D. Sood Advocate and
Sh. Amit Bansal Advocate. It has been argued by learned counsel for
respondents that the present petition was filed through Sh. A.D Sood
Advocate and in the criminal case accused Harish Kumar was
represented
epresented by Sh. Amit Bansal Advocate who was practising with
Shri A. D. Sood Advocate which clearly shows collusion between the
petitioners and respondent no.1.
35. Under issue no. 1 the claimants were required to prove
that on 23.6.2003 at 9.15 A.M. on G.T.road near Masana the accident
had taken place due to rash and negligent driving of Harish Kumar
respondent
spondent no.1 driver of offending truck no. HR-38K/7072.
38K/7072. To prove
the case learned counsel for claimants has examined Gurde
Gurdev Singh
one of the
th claimants
imants as PW1. He is son of Bhup
Bhupinder
inder Singh deceased
who had been travelling in Indica car which was hit by jeep no. HR-
HR
05K/4532. PWI father of Bhupinder Singh deceased has proved the
income of his son. Randir Singh PW2 has brought the summoned
record proving that Tek Ram deceased was posted as DSP. 4th
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FAO- 1518-2006
2006 (O&M) -28-
Battalion Madhuban. His date of birth and salary certificates have
Battalion,
been proved by him. PW3 is Smt. Maya Devi wife of Tek Ram
deceased who is not an eye witness to the accident. PW4 is Dr. Vijay
Gupta who
w has stated
tated about the admission of inj
injured
ured in his hospital.
PW6 is Sandeep Sharma Constable who has brought the salary
certificate of Bhupinder Singh deceased. On the point of negligence.
learned counsel for claimants have examined Naresh Kumar son of
Tekk Ram deceased as PW5. He was also travelling in jeep no. HR-
HR
05K/4532 at the time of alleged accident. He is the eye witness of the
accident. He has re- iterated the stand taken by petitioners in their
claim petition
petitio that truck no. HR-38K/7072
38K/7072 w
was coming from
rom the back
side and
an it was in high speed. It had hit jeep no. HR-05K/4532
K/4532 from
the left back side. The impact was so high that the jeep crossed the
divider and hit Indica car no. PB-
PB-11S/4327
/4327 which was coming from
opposite side. The learned counsel for th
the respondent No.. 3-
3
insurance company has placed on record the copies of claim petitions,
written statements. applications for taking the vehicles on super
superda
dari,.
superdaginamas and the awards in various clai
superdaginamas claim
m petitions by different
Courts, in which the present respondent no. I Harish Kumar has been
shown
own to be involved either as driver or as owner of the offending
vehicle. In award
award placed on record as Ex.P40, the learned Tribunal
has specifically observed that Harish Kumar is omni present iin
n all the
accident cases either in the capacity of own
owner
er of the offending vehicle
or in the capacity of driver of offending vehicle. In number of
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judgments it has been observed that the claim petitions were filed in
judgments,
collusion with Harislı Kumar or at the instance of Harish Kumar. In
the present case also Harish Kumar had offered his services in the
capacity of driver of the truck. It is pertinent to mention here that in
claim petitions titled as Mava Devi Vs. Harish Kumar and Naresh
Kumar Vs. Harish Kumar the evidence has been led on the point that
the accident had caused due to rash and negligent driving of Harish
Kumar driver of offending
offending truck no. HR
HR-38K/7072. At the time of
filing of petition titled as Gurdev Singh Vs. Harish Kumar, the stand
was taken that the accident had taken place due to ras
rash and negligent
gent
driving of respondent no.1 driver of truck no.HR
no.HR-33K/7072
33K/7072 and
an
respondent no.4 driver of jeep No
No. HR-05K/4532.
05K/4532. At the time of
adducing evidence of the petitioners, petitioner Gurdev Singh did not
adducing
examine
xamine any other
other witness except Gurdev Singh, who was neither eye
witness nor had deposed anything with regard to negligence of driver
of either truck no. HR-38K/7072
HR 38K/7072 or jeep no. HR
HR-05K/4532.
05K/4532. When
respondents had examined 13 witnesses
witnesses, an application was moved
oved
forr additional evidence and by way additional evidence,, learned
counsel for the petitioner
petitioner in claim petition Gurdev Singh Vs. Harish
Kumar has examined Rajiv Kaushal as PW7 who was alleged himself
driver of Indica car no.
n PB 11S/4327.
/4327. Instead of takin
taking
g the stand as
taken in the petition hee has deposed on altogether different lines. In
the petition the involvement of the truck has been shown: whereas
wher
while deposing in the court he has specifically stated that there was
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2006 (O&M) -30-
no truck on G.T.road at that time going from Delhi to Ambala. It has
also been stated by him that the truck has been falsely involved and
Harish Kumar respondent no.1 has also been falsely involved in the
accident. It appears that when the evidence of pet
petitioners
itioners was
recorded learned counsel
el to petitioner Gurdev Singh did not find it
necessary to record the statement of Rajiv Kaushal, the alleged driver
of indica car no. PB-11S/4327.. The evidence of the respondents was
started examining the official witnesses who had brought record
started
relating to involvement of respondent no. 1 in number of claim cases
and also criminal cases relating to accident. After 13 witnesses had
been examined, learned counsel for petitioner Gurdev Sing
Singh realized
that the false involvement of Harish Kumar the alleged driver of
offending truck no. HR-38K/7072
HR 38K/7072 would be proved and also by
showing that the truck no. HR-38K/7072
HR 8K/7072 was lying pparked
arked at L. N. J.
P. Hospital Delhi on 23.6.2003,, the false iinvolvement of the truck
would also be proved,, he took different turn and moved an application
to examine Rajiv Kaushal
aushal alleged driver of Indica car No.. PB-
PB
11SS/4327. In his affidavit Ex. P26 it was no where stated that the
accident had taken place due to rash and negligent driving of
respon
respondent no. 1 driver
river of truck no. HR
HR-05K/7072 nor in cross
oss-
examination he has stated so… Rather he came forward with different
story that no truck was involved
nvolved in the said accident and it had taken
place due to rash and negligent driv
driving of Bhoop Singh, respondent
no. driver of jeep no. HR 38K/4532. The petition was filed on
no.4
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4.8.2003 and the driver of Indica car no. PB
PB-11S/4327
4327 was examined
on 8.11.2005 i.e.
i.e. after 28 months, particularly when the evidence of
respondents was on the verge
verge of completion. As per statement of Raiiv
Kaushal driver of India car no. PB
PB-11S/4327 his statement was
previously recorded in P.G.I.
P.G.I. Chandigarh where he was referred after
receiving injuries in which he has stated that the accident had taken
place due to
t rash and negligentt driving of respondent no.4. Bhoop
Singh driver of jeep no. HR-30K/4532
30K/4532. Since in the petition a
different stand was taken by petitioner Gurdev that the accident had
taken place due to rash and negligent driving of respondent no.1
driver of truck No. HR -05K/7072
05K/7072 and respondent no.4 driver of jeep
no. HR-30K/4532,
HR the previous statement made by Rajiv Kaushal
driver of Indica car no. PB-11S/4327
PB 11S/4327 w
was
as withheld. Now he cannot
prove the assertion that previously also he had taken the stand of rash
and negligent driving of respondent no.4. Moreover, the photographs
placed on record by Surveyor
Surveyor of insurance company do not tally with
the oral version of the
the claimants. As per version of claimants truck no.
HR
HR-05K/7072 had hit the jeep no. HR
HR-38K/4532
38K/4532 from the back side
with such a force that it had crossed the divider, hit the indica car on
other side of the G.T-road and ultimately fell into the ditches. In the
Photographs EX.R91 and Ex. R92
92 no damage has been shown on the
back side of the Jeep.. Rather the damage which has been shown on
the left side of the jeep which is not the story of the claimants. Had the
truck hit the jeep with such a force, it is not believable that from the
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back side jeep would not be damaged. Only lower bumper has been
shown to have been misplaced towards lowe
lower side. Even if the
Surveyor has stated that there is dent on the back side of the jeep, it
i
does not prove the story of petitioners
petitioners that the truck had hit the jeep
from back side with much force. It shows that the truck bearing no..
n
HR
HR-05K/7072
72 was not involved in the accident and only to take claim
from the insurance company of truck no. HR
HR-05K/7072
05K/7072 the truck and
its driver respondent
res No.1 have been falsely implicated.
36. In petitions titled
d as Smt. Mava Devi etc. Vs. Harish
Har
Kumar etc. and Naresh Kumar Vs. Harish Kumar learned counsel for
petitioners has miserably failed to prove involvement of truck no. HR-
HR
05K/7072 and the accident
a having taken place due to rash and
negligent driving of Harish Kumar, respondent no.1 the alleged driver
of truck no. HR-05K/7072.
HR
37. In petition titled as Gurdev Singh Vs. Harish Kumar etc.
the evidence has been led beyond pleadings and the learned counsel
for the petitioner has failed to prove that the accident had taken place
due to rash and negligent driving of Harish Kumar, respondent no.1,
the alleged driver of truck
truck no. HR
HR-05K/7072 and respondent No.4
Bhoop Singh, driver of jeep no. HR
HR-38K/4532.
38. Inn view of foregoing discussions issue no.l is hereby
decided against the petitioners and in favour of respondents except
respondent no.1 Harish Kumar.”
Kumar
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10. A perusal
perusal of the above shows that learned Tribunal totally ignored the
oral as well as documentary evidence on record and dismissed the claim petition on
the ground that in the photograph no damage is shown on the back
back-side
side of the jeep.
Rather the damage is shown on the left side of the jeep which is not the story of the
claimants. If the truck would have hit the jeep with such a force then the jeep
would have damaged. Therefore, the Tribunal held that there is no involvement of
the offending truck. It further held that since the driver (Harish Kumar) of the
offending vehicle is a habitual offender in motor accident cases and many cases
under the MACT are registered against him, therefore, the claim was rejected.
11. A perusal of the record shows that FIR was lodged on the same day
i.e. 23.06.2003 at 1:15 PM. Harish Kumar driver of the offending truck was facing
criminal trial under Sections 279, 337, 338, 340, 304
304-A
A of the Indian Penal Code,
1860, which further proves the factum of accident. RW
RW-12 Sh. S.K.Makkar,
kar,
Surveyor admitted in his cross-examination
cross examination that left side of the Jeep was broken in
photograph Ex.R/87. He further admitted that in Ex.R/89 (photograph), there was a
dent on the left side of water panel. He further admitted that the jeep in question
which he inspected damage was on the left side. Reasoning given by the learned
Tribunal is without application of judicial mind.
12. Pawan Kumar, Additional Ahlmad to the Court of learned Judicial
Magistrate, IInd Class, Kaithal, was examined as RW
RW-2, who
o brought the
summoned file of all criminal cases. As per recovery memo, Harish Kumar had
taken superdari of the offending truck and registration certificate of the truck
shows him to be the owner of the truck. The record of many FIRs was produced
before the learned Tribunal, in which, Harish Kumar was driver of the offending
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vehicle which shows that the driver Harish Kumar was involved in many FIRs,
registered against him under Sections 279, 337, 338, 340, 304
304-A
A of the Indian
Penal Code, 1860. The judicial
judicial record of the cases was produced by the Ahlmad
concerned. The learned Tribunal even after examining the record regarding
superdari of the offending vehicle taken by Harish Kumar driver respondent No.1
held that Harish Kumar cannot be omnipresent in al
alll the cases of hit and run. The
Tribunal totally ignored the judicial record placed before it.
13. In view of the above reasoning given by the learned Tribunal while
dismissing the claim petition of the appellants is not acceptable. The award is
passed by total non-application
non application of judicial mind. Accordingly, the award is liable
to be set aside.
SETTLED LAW ON COMPENSATION
14. Hon’ble Supreme Court has settled the law regarding grant of
compensation with respect to the disability. The Apex Court in the case of Raj
Kumar Vs. Ajay Kumar and Another (2011) 1 Supreme Court Cases 343
343,, has
held as under:-
General principles relating to compensation in injury cases
5. The provision of the Motor Vehicles Act, 1988 (‘Act’ for short)
makes it clear that the award must be just, which means that
compensation should, to the extent possible, fully and adequately
restore the claimant to the position prior to the accident. The object of
awarding damages is to make good the loss suffered as a result of
wrong done as far as money can do so, in a fair, reasonable and
equitable manner. The court or tribunal shall have to assess the
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damages objectively
objectively and exclude from consideration any speculation
or fancy, though some conjecture with reference to the nature of
disability and its consequences, is inevitable. A person is not only to
be compensated for the physical injury, but also for the loss which he
suffered as a result of such injury. This means that he is to be
compensated for his inability to lead a full life, his inability to enjoy
those normal amenities which he would have enjoyed but for the
injuries, and his inability to earn as much as he used to earn or could
have earned. (See C.K. Subramonia Iyer v. T. Kunhikuttan Nair, AIR
1970 Supreme Court 376, R.D. Hattangadi v. Pest Control (India)
Ltd., 1995 (1) SCC 551 and Baker v. Willoughby, 1970 AC 467).
6. The heads under which compensation iiss awarded in personal
injury cases are the following :
Pecuniary damages (Special Damages)
(i) Expenses relating to treatment, hospitalization, medicines,
transportation, nourishing food, and miscellaneous expenditure.
(ii) Loss of earnings (and other gains) which the injured would have
made had he not been injured, comprising :
(a) Loss of earning during the period of treatment;
(b) Loss of future earnings on account of permanent disability.
(iii) Future medical expenses.
expenses. Non
Non-pecuniary
pecuniary damages (General
Damages)
(iv) Damages for pain, suffering and trauma as a consequence of the
injuries.
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(v) Loss of amenities (and/or loss of prospects of marriage).
(vi) Loss of expectation of life (shortening of normal longevity).
In routine personal injury cases, compensation will be awarded only
under heads (i), (ii)(a) and (iv). It is only in serious cases of injury,
where there is specific medical evidence corroborating the evidence
of the claimant, that compensation will be gra
granted
nted under any of the
heads (ii)(b), (iii), (v) and (vi) relating to loss of future earnings on
account of permanent disability, future medical expenses, loss of
amenities (and/or loss of prospects of marriage) and loss of
expectation of life.
xxx xxx xxx xxx
19. We may now summarise the principles discussed above :
(i) All injuries (or permanent disabilities arising from injuries), do not
result in loss of earning capacity.
(ii) The percentage of permanent disability with reference to the
whole body of a person, cannot be assumed to be the percentage of
loss of earning capacity. To put it differently, the percentage of loss of
earning capacity is not the same as the percentage of permanent
disability (except in a few cases, where the Tribunal on the bbasis
asis ofevidence, concludes that percentage of loss of earning capacity is the
same as percentage of permanent disability).
(iii) The doctor who treated an injured
injured-claimant
claimant or who examined himsubsequently to assess the extent of his permanent disability can give
evidence only in regard the extent of permanent disability. The loss of
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earning capacity is something that will have to be assessed by the
Tribunal with reference to the evidence in entirety.
(iv) The same permanent disability may result in diffe
different
rent percentages
of loss of earning capacity in different persons, depending upon the
nature of profession, occupation or job, age, education and other
factors.
20. The assessment of loss of future earnings is explained below
with reference to the following
followi
Illustration ‘A’ : The injured, a workman, was aged 30 years and
earning Rs. 3000/-
3000/ per month at the time of accident. As per Doctor’s
evidence, the permanent disability of the limb as a consequence of the
injury was 60% and the consequential permanent disability to the
person was quantified at 30%. The loss of earning capacity is
however assessed by the Tribunal as 15% on the basis of evidence,
because the claimant is continued in employment, but in a lower
grade. Calculation of compensation will be as follows:
a) Annual income before the accident : Rs. 36,000/
36,000/-.
b) Loss of future earning per annum
(15% of the prior annual income) : Rs. 5400/-.
c) Multiplier applicable with reference to age : 17
d) Loss of future earnings : (5400 x 17) : Rs. 91,800/-
Illustration ‘B’ : The injured was a driver aged 30 years, earning Rs.
3000/ per month. His hand is amputated and his permanent disability
3000/-
is assessed at 60%. He was terminated from his job as he could no
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longer drive. His chances of getting any other employment was bleak
and even if he got any job, the salary was likely to be a pittance. The
Tribunal therefore assessed his loss of future earning capacity as
75%. Calculation of compensation will be as follows :
a) Annual income prior to the accident : Rs. 36,000/- .
b) Loss of future earning per annum
(75% of the prior annual income) : Rs. 27000/-.
c) Multiplier applicable with reference to age : 17
d) Loss of future earnings : (27000 x 17) : Rs. 4,59,000/
4,59,000/-
Illustration ‘C’ : The injured was 25 years and a final year
Engineering student. As a result of the accident, he was in coma for
two months, his right hand was amputated and vision was affected.
The permanent disablement was assessed as 70%. As the injured was
incapacitated to pursue his chosen career and as he required the
incapacitated
assistance of a servant throughout his life, the loss of future earning
capacity was also assessed as 70%. The calculation of compensation
will be as follows :
a) Minimum annual income he would
have got if had been employed as an
Engineer : Rs. 60,000/-
b) Loss of future earning per annum
(70% of the expected annual income) : Rs. 42000/-
c) Multiplier applicable (25 years) : 18
d) Loss of future earnings : (42000 x 18) : Rs. 7,56,000/-
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[Note : The figures adopted in illustrations (A) and (B) are
hypothetical. The figures in Illustration (C) however are based on
actuals taken from the decision in Arvind Kumar Mishra (supra)].
15. Hon’ble Supreme Court in the case of National Insurance Company
Ltd. Vs. Pranay Sethi & Ors. [(2017) 16 SCC 680] has clarified the law under
Sections 166, 163-A
163 A and 168 of the Motor Vehicles Act, 1988, on the following
aspects:-
(A) Deduction of personal and living expenses to determine
multi
multiplicand;
(B) Selection of multiplier depending on age of deceased;
(C) Age of deceased on basis for applying multiplier;
(D) Reasonable figures on conventional heads, namely, loss of
estate, loss of consortium and funeral expenses, with escalation;
(E) Future
ure prospects for all categories of persons and for differentages: with permanent job; self-employed
self employed or fixed salary.
The relevant portion of the judgment is reproduced as under:
under:-
” Therefore, we think it seemly to fix reasonable sums. It
seems to us that reasonable figures on conventional heads,
namely, loss of estate, loss of consortium and funeral expenses
should be Rs.15,000, Rs.40,000 and Rs.15,000 respectively.
The principle of revisiting the said heads is an acceptable
principle. But the revisit should not be fact
fact-centric
centric or quantum-
quantum
centric. We think that it would be condign that the amount that
we have quantified should be enhanced on percentage basis in
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2006 (O&M) -40-every three years and the enhancement should be at the rate of
10% in a span of three years. We are disposed to hold so
because that will bring in consistency in respect of those
heads.”
16. Hon’ble Supreme Court in the case of Erudhaya Priya Vs. State
Express Tran. Corpn. Ltd. 2020 ACJ 2159, has held as under:
under:-
” 7. There are three aspects which are required to be examined by us:
(a) the application of multiplier of ’17’ instead of ’18’
’18’;
The aforesaid increase of multiplier is sought on the basis of
age of the appellant as 23 years relying on the judgment in National
Insurance Company Limited v. Pranay Sethi and Others, 2017 ACJ
2700 (SC). In para 46 of the said judgment, the Constitution Bench
effectively affirmed the multiplier method to be used as mentioned in
the table in the case of Sarla Verma (Smt) and Others v. Delhi
Transport Corporation and Another, 2009 ACJ 1298 (SC) . In the age
group of 15-25
15 25 years, the multiplier has to be ’18
’18” along with
factoring in the extent of disability.
The aforesaid position is not really disputed by learned counsel
for the respondent State Corporation and, thus, we come to the
conclusion that the multiplier to be applied in the case of the
appellant has
has to be ’18’ and not ’17’.
(b) Loss of earning capacity of the appellant with permanent
disability of 31.1%
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In respect of the aforesaid, the appellant has claimed
compensation on what is stated to be the settled principle set out in
Jagdish v. Mohan & Others, 2018 ACJ 1011 (SC) and Sandeep
Khanuja v. Atul Dande & Another, 2017 ACJ 979 (SC). We extract
below the principle set out in the Jagdish (supra) in para 8:
“8. In assessing the compensation payable the settled principles
need to be borne in mind. A victim who suffers a permanent or
temporary disability occasioned by an accident is entitled to the
award of compensation.
ompensation. The award of compensation must cover
among others, the following aspects:
(i) Pain, suffering and trauma resulting from the accident;
(ii) Loss of income including future income;
(iii) The inability of the victim to lead a normal life together
with its amenities;
(iv) Medical expenses including those that the victim may be
required to undertake in future; and
(v) Loss of expectation of life.”
[emphasis supplied]
The aforesaid principle has also been emphasized in an earlier
judgment, i.e. the Sandeep Khanuja ccase
ase (supra) opining that the
multiplier method was logically sound and legally well established to
quantify the loss of income as a result of death or permanent
disability suffered in an accident.
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In the factual contours of the present case, if we examine the
disability certificate, it shows the admission/hospitalization on 8
occasions for various number of days over 1½ years from August
2011 to January 2013. The nature of injuries had been set out as
under:
“Nature of injury:
(i) compound fracture shaft lef
left humerus
(ii) fracture both bones left forearm
(iii) compound fracture both bones right forearm
(iv) fracture 3rd, 4th & 5th metacarpals right hand
(v) subtrochanteric fracture right femur
(vi) fracture shaft femur
(vii) fracture both bones left leg
We have also perused the photographs annexed to the
petition showing the current physical state of the appellant,
though it is stated by learned counsel for the respondent State
Corporation that the same was not on record in the trial court.
Be that as it may, this is the position even after treatment and
the nature of injuries itself show their extent. Further, it has
been opined in para 13 of Sandeep Khanuja case (supra) that
while applying the multiplier method, future prospects on
advancement in life and
nd career are also to be taken into
consideration.
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We are, thus, unequivocally of the view that there is merit
in the contention of the appellant and the aforesaid principles
with regard to future prospects must also be applied in the case
of the appellantt taking the permanent disability as 31.1%. The
quantification of the same on the basis of the judgment in
National Insurance Co. Ltd. case (supra), more specifically
para 61(iii), considering the age of the appellant, would be
50% of the actual salary in the present case.
(c) The third and the last aspect is the interest rate claimed as
12%
In respect of the aforesaid, the appellant has watered
down the interest rate during the course of hearing to 9% in
view of the judicial pronouncements including in tthe
he Jagdish’s
case (supra). On this aspect, once again, there was no serious
dispute raised by the learned counsel for the respondent once
the claim was confined to 9% in line with the interest rates
applied by this Court.
CONCLUSION
8. The result of the aforesaid is that relying on the settled
principles, the calculation of compensation by the appellant, as
set out in para 5 of the synopsis, would have to be adopted as
follows:
Heads Awarded
Loss of earning power Rs. 9,81,978/-
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Future prospects (50 per Rs.4,90,989/-
cent addition)
Medical expenses including Rs.18,46,864/-
transport charges,
nourishment, etc.
Loss of matrimonial Rs.5,00,000/-
prospects
Loss of comfort, loss of Rs.1,50,000/-
amenities and mental
agony
Pain and suffering Rs.2,00,000/-
Total Rs.41,69,831/-
The appellant would, thus, be entitled to the compensation of
Rs. 41,69,831/-
41,69,831/ as claimed along with simple interest at the rate of 9%
per annum from the date of application till the ddate of payment.
CONCLUSION
17. In view of the law laid down by the Hon’ble Supreme Court in the
above referred to judgments, the present appeal is allowed. The award dated
09.12.2005 is modified accordingly. The appellant
appellant-claimant is entitled to amount
of compensation as per the calculations made here
here-under:-
Sr. Heads Compensation Awarded
No.
1 Medical Expenses Rs.10,000/-
2 Attendant Charges Rs.5,000/-
3 Special Diet Rs.5,000/-
4. Transportation Rs.5,000/-
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5 Loss of Income during treatment Rs.15,000/- (2500 x 6)
for 6 months
6 Pain & Suffering Rs.5,000/-
Total Compensation Rs.90,000/-
18. So far as the interest part is concerned, as held by Hon’ble Supreme
Court in Dara Singh @ Dhara Banjara Vs. Shyam Singh Varma 2019 ACJ 3176
and R.Valli and Others VS. Tamil Nandu State Transport Corporation (2022) 5
Supreme Court Cases 107, the appellants-claimants
claimants are granted the interest @ 9%
per annum on the enhanced amount from the date of filing of claim petition, till the
date of its realization.
realiz
19. Respondent
espondent No.3 – United India Insurance Company is directed to
deposit the amount of compensation along with interest with the Tribunal within a
period of two months from today. The Tribunal is further directed to disburse the
amount of compensation along
along with interest in the account of the
claimant/appellant
pellant. The claimant/appellant is directed to furnish his bank account
details to the Tribunal.
20. Disposed off accordingly.
21. Pending applications, if any, also stand disposed of.
(SUDEEPTI SHARMA)
JUDGE
September 27,, 2024
tripti
Whether speaking/non-speaking
speaking : Speaking
Whether reportable : Yes
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