The Oriental Insurance Company Limited v. Smt. Poonam Rani

Present: Mr. S.P. Singh, Advocate for Mr. Amit Rawal, Advocate for the appellant. None for the respondents. CORAM:HON'BLE MR. JUSTICE K. KANNAN

1. Whether Reporters of local papers may be allowed to see the judgment ? Yes

2. To be referred to the Reporters or not ? Yes 3. Whether the judgment should be reported in the Digest?Yes K. KANNAN J.(ORAL) -.-

1. The insurance company is on appeal challenging the quantum and negligence for a death resulting from an alleged accident involving the insured's car. The contention of the claimants was that the deceased was travelling in a scooter with his son as a pillion rider when the insured's truck coming from behind hit the scooter throwing him off the vehicle and sustained injuries. He was admitted by PW-4 in the hospital, where he succumbed to injuries. A FIR had also been lodged giving the details of the 1st respondent's vehicle and narrating the incident of how by the negligent driving of the 1st respondent, the accident had taken place. FAO No.1487 of 2007 -2-

2. The written statements had been filed by respondent Nos.1 and 2, who are the driver and owner respectively denying that the accident had ever taken place and that their vehicle had been involved in the accident. The insurance company denied the particulars generally but filed an application under Section 170 of the Motor Vehicles Act alleging that there was a ground to suspect the bona fides of the claim and that the accident was a case of hit and run by unknown vehicle and the vehicle had been wrongly planted as having been involved in the accident.

3. At the trial, the evidence of the claimant was supported by the eye-witness PW-4, Krishan Lal, who had given the complaint to the police on the basis of which the FIR had been registered and he had also admitted the deceased at the hospital. In the cross- examination, it was elicited that he was illiterate and he did not know any of the English alphabets except alphabet H and R, which incidentally were among the only alphabets contained in the registration number of the truck. Learned counsel appearing for the insurer would contend that an illiterate person could not give the details of the vehicle number involved in the accident. It is also contended that the accident is said to have been taken place on a busy road and a truck driver could not have immediately escaped from the site after hitting the scooter. It is also contended that the motor mechanic, who had carried out an inspection of the truck during police investigation, had only found that the right side of headlight bore scratch marks but there had been no dent in the vehicle at any place. Learned counsel would contend that if the FAO No.1487 of 2007 -3- accident had taken place in the manner alleged of the truck hitting the scooter from behind, it would have carried a dent or even a scratch mark would have been only on the left or the middle portion of the truck and it could not have been on the right side of the truck.

4. In the written statement of respondents No.1 and 2, it has been contended that the case had been wrongly filed and implicated the 2nd respondent's vehicle in connivance with the police. The fact that FIR had been registered within two hours from the accident and the informant in the FIR was also examined before the Tribunal, in my view, would be sufficient to uphold the finding of the Tribunal that the accident had taken place involving the insured's vehicle. The fallibilities, which the learned counsel points out to the evidence of the PW4, who was an illiterate and the report of the motor mechanic as not establishing any visible marks of impact with the scooter, do not impress me, for I would uphold the finding of the trial Judge, which had a basis in the FIR and the person that claimed that he was an eye witness gave cogent evidence. I am unable to fathom how the police was in any way interested in implicating the 2nd respondent's vehicle and registering a case against the driver of the vehicle. If there is ever to be a doubt, I would rather hold it in favour of the claimant for it is not a case of no evidence but on the other hand, it was a case of appreciation of evidence, which is relevant and there is no reason to suspect the evidence of PW-4 or reject the finding of the Tribunal.

5. If the issue of negligence is to be upheld finding owner FAO No.1487 of 2007 -4- and the insurance company to be liable, the next question in a case where permission has been granted under Section 170 of the Motor Vehicles Act is whether the compensation arrived at by the Tribunal was justified or not. The deceased was said to be 32 years of age but the Tribunal found with reference to the record of date of birth that he had been born on 16.02.1967 and at the time of the accident, he was 36 years of age. He was working as a constable in the Punjab Police. The Tribunal determined a compensation of Rs.11,00,000/- and apportioned amongst the claimants awarding Rs.5,00,000/- to the widow, Rs.2.5 lacs each to the children and Rs.1 lac to the mother. The counsel for the insurance company states that they have not challenged the quantum and I would, therefore, retain the award passed by the Tribunal.

6. The appeal by the insurance company is dismissed confirming the award passed by the Tribunal. August 25, 2010 Pankaj* (K. KANNAN) JUDGE