Cross Objection No.53-CII of 2002 v. Smt. Parmila & Ors.

CORAM:- HON'BLE MR. JUSTICE K.KANNAN Present: Mr. Inderjit Sharma, Advocate and Mr. Pardeep Bedi, Advocate for the appellant-Insurance Company. Mr. Arun Jindal, Advocate for claimant-respondent Nos.1 and 2. None for the remaining respondents. ****** K.KANNAN, J. (ORAL)

1. The appellant-Insurance Company is on appeal denying liability on the ground that the accident as alleged had not taken place and the Tribunal was in error in granting compensation implicating the insured's driver and insured vehicle for that alleged involvement.

2. The claim made by the claimants was that the accident had taken place at 8:30 P.M. in a head on collusion when the deceased who was alleged to be driving a Maruti car dashed against the insured Truck coming from the opposite direction. The driver of the car was examined as PW-2, who said that he was proceeding from Cross Objection No.53-CII of 2002 and FAO No.779 of 2002 -2- Ludhiana to Delhi and at that time, a truck coming from the opposite direction dashed against the vehicle. He said that he immediately because unconscious and he was taken to the hospital. His evidence was to the effect that the vehicle coming from the opposite direction alone, caused accident. In the cross-examination, two particular facts were elicited. One, there were no women traveling in the same vehicle and that apart from the deceased, the other passenger was one Dharampal. Secondly, he stated that due to head lights flashing, he could not notice whether the offending vehicle was a truck or a bus. As per the driver's version, the accident had taken place around 8:30 to 8:45 PM. PW-4 was the police Constable, who had registered the complaint, as a person who had purportedly seen the accident when he was on police patrol. The FIR registers the incident to have taken place at 11:20 PM and as per the FIR, the maurti car and the truck were going in the same direction and accident took place when the truck, which as following the car dashed against the car going ahead of it, as a result of which, the car was thrown to the side of the katcha berm and the deceased, who has a passenger had died. In the cross-examination, it was elicited that there were two girls accompanying the deceased and that was also set out in the FIR. The medical records were also filed on the side of the respondents and exhibited as R-3 and R-4. R-3 referred to a woman, aged 20 as having suffered injuries in a motor accident. The time of examination is stated to 10:30 PM. R-4 is with reference to another woman by name Anju, aged 25, who was also said to have suffered injuries in a motor accident and the examination was made at 10:15 PM. The Cross Objection No.53-CII of 2002 and FAO No.779 of 2002 -3- driver of the truck was examined in this case, who spoke about the fact that he was traveling from Amritsar to Delhi and he had arrived at Ambala at 1:00 PM. He had also denied that there was any such accident involving his vehicle but the vehicle had been falsely implicated by the police as though, it had caused the accident.

3. From the nature of evidence tendered, the accident could not have taken place as alleged by the claimant. If a truck had come from the opposite direction as spoken to by the complaint, the recitals in the FIR contradicts the same. Even the police, who gave evidence of the alleged involvement of the truck had to say that the car and the truck were proceeding in the same direction and that the truck had dashed the car from behind. If the claimant's version and the car driver were to be taken, the accident had taken place at 8:30 PM. The FIR states that the accident had taken place at 11:30 PM. The driver of the car would say that there were no woman in the car in which the deceased was traveling but the police, who had registered the complaint and who was supposed to the eye witness stated that there were two women in the same car and they had also suffered injuries and treated at the hospital. If the medical evidence were to be taken as providing for a clue to the actual state of affairs, then all that it shows is that apart from the deceased, there are two other women and they all had suffered injuries in a motor accident and they had been taken to the hospital around 10:15 PM. If the accident had taken place at 10:15 PM, the version of the police that he saw the accident at 11:30 PM on the basis of which he had registered the FIR would not be true. The police himself could not Cross Objection No.53-CII of 2002 and FAO No.779 of 2002 -4- have been a witness and the incident as recorded in the FIR must be false. These incongruities not only show that the accident could not have taken place as referred in the FIR and the police Constable could not have been the eye witness but also that the version of the claimant that the accident took place at 8:30 PM cannot also true for if the accident had taken place by a vehicle coming from the opposite direction, the proof through the driver of the truck was that it was proceeding in the same direction towards Delhi and the vehicle was not coming from the opposite direction. It was evidently a case of some unknown vehicle hitting the car and causing damage to the vehicle and causing fatal injuries to the occupant of the car. The involvement of the truck ill-fits with the incident as narrated by the driver of the car and the police Constable, who had registered the complaint. It is also worthy of note that when the truck was seized and was subjected to chemical examination, it showed no evidence of any dent or impact with another car which is most unusual for a vehicle to be involved in the accident to cause the death of a passenger and serious injuries to other passengers as well.

4. I find that there was no proof of involvement of the insured's vehicle and the award passed against the owner and the insurer of the truck cannot be sustained. The award is set aside and the appeal by the insurer is allowed. October 29, 2010 Gagan (K.KANNAN) JUDGE