The New India Assurance Company Ltd v. Sneh Pal & Ors.

Present : Mr. R.C.Kapoor, Advocate for the appellant. Mr. Sanjay Verma, Advocate. Mr. Sanjiv Peter, Advocate. K.C.PURI. J. By this common order, I intend to dispose of FAO No.715 of 2009 The New India Assurance Company Ltd. versus Sneh Pal and others and FAO No.4839 of 2009 Sneh Pal versus Sushil Kumar and FAO No. 715 of 2009 2 others, as these appeals arise from the same award. For convenience facts are being taken from FAO No.715 of 2009. Sneh Pal preferred claim petition on account of injuries sustained by him in a motor vehicular accident on 5.9.2006. The facts recapitulated from the record is that on the 5.9.2006 at about 8.00 a.m., the claimant was going to his shop on scooter bearing registration No.HR-03B-0308 and was driving his scooter at normal speed. He was hit from behind by motor cycle bearing registration No.HR-03F- 0426 driven by respondent No.2 at a very high speed and in a rash and negligent manner. The petitioner fell down and sustained grievous injuries. Respondent No.2 has also fell down along with his companion but they ran away leaving their motor cycle at the spot. The driver of motor cycle is facing trial in FIR No.348 dated 9.9.2006 under Sections 279, 337 and 338 of the Indian Penal (Code in short – IPC) . The accident has taken place due to rash and negligent driving of offending motor cycle by respondent Sumit Kumar son of Ram Kishan, which was witnessed by Kalu Ram son of Om Parkash, a Rehri/hawker. Respondent No.1 filed written statement. The question of maintainability of the petition and alleged that the petitioner has not come to the Court with clean hands and has concealed the material facts. It is alleged that respondent No.2 was holding a valid driving licence. The compensation claimed is excessive. Respondent No.2 filed separate written statement to oppose the petition on the same grounds as that by respondent No.1. On merits, respondent No.2 alleged that the matter was compromised and respondents FAO No. 715 of 2009 3 had paid Rs.50,000/- to the petitioner as full and final settlement of the claim. Respondent No.3 New India Assurance Company, filed separate written statement. The question of maintainability of the petition and has stated that driver of the offending vehicle was not holding a valid and effective driving licence at the time of accident and that no intimation regarding accident has conveyed to it. Respondent No.3 took all the pleas available to him under Sections 147, 149, 150, 159 and 170 of the Act. Learned Tribunal framed the following issues :-

1. Whether the petitioner had suffered injuries during a vehicular accident that took place on account of rash and negligent driving of the vehicle bearing registration No.HR03F-0426 by Sumit ?OPP.

2. If issue No.1 is proved whether the petitioner is entitled to compensation,if so to what amount and from whom ?OPP

3. Whether respondent No.2 was not holding a valid and effective driving licence on the date of accident ? If so to what effect ?OPR3

4. Relief. The learned Tribunal has taken up issue Nos.1 and 2 and reached to the conclusion that accident has taken place due to rash and negligent driving of motor cycle by respondent No.2. The claimant was held to claim an amount of Rs.1,61,400/- Regarding issue No.3, it was held that respondent No.2 was holding a valid driving licence. Consequently, all the respondents were held jointly and severally liable to pay the said amount. Feeling dis-satisfied with the above said Award, the Insurance Company has preferred FAO No.715 of 2000 for dismissal of the claim FAO No. 715 of 2009 4 petition, whereas Sneh Pal filed FAO No.4839 of 2000 for enhancement of the compensation. In the said CM No.23708 CII of 2009 in FAO No.4839 of 2009 was filed for condoning of delay of 114 days in re-filing the appeal. The said application is accompanied by affidavit, and the same stands allowed. Another application in the FAO, CM No.2737 CII of 2009 in FAO No.715 of 2009 has been filed for filing for seeking exemption to file uncertified copy. Since this is a cross appeal, so the said application also stands allowed. Learned counsel for the Insurance Company has submitted that trial Court has wrongly held issue No.1 in favour of the claimant. In fact, Sumit son of Sushil Kumar was driving the vehicle and Sumit son of Ram Kishan has been wrongly arrayed as respondent. No accident has taken place with motor cycle No. HR 03F-0426. So, Insurance Company is not liable. To buttress his arguments, he has relied upon the testimony of Kalu Ram, hawker. On the strength of the same, it is argued that this witness has stated that he was not present at the time of occurrence. So, the Insurance Company has been wrongly held liable. The claimant has failed to prove that he received injuries on account of rash and negligent driving of driver Sumit son of Ram Kumar. Learned counsel for the appellant-Insurance Company has also relied upon the testimony of Surveyor Devinder Sharma (RW-4). I have carefully considered the said submission but do not find any force in that submission. No doubt, Kalu Ram is the author of the FIR, but he has denied FAO No. 715 of 2009 5 the fact that he was present at the spot. However, the fact remains that testimony of Sneh Pal claimant cannot be discarded lightly. He is injured witness and his presence at the spot cannot be doubted. The submission made by counsel for the Insurance Company that Sumit son of Rakesh Kumar has been probably arrayed as respondent but that submission is without any force. The fact remains that Sumit son of Rakesh Kumar is facing trial under Sections 279, 337 and 338 vide FIR No.348 dated

9.9.2006. Sneh Pal would be the last person to lodge FIR against driver of offending motor cycle, ignoring the actual culprit. All the respondents have denied the accident. However, the accident stands proved from the testimony of Sneh Pal. No much importance can be given to the testimony of RW-4 Devinder Sharma, Investigator as admittedly he was not present at the time of occurrence and he has not brought the investigation report before the Tribunal. His statement is on hearsay evidence when he has stated that people were talking about the accident of Sneh Pal by some two boys on motor cycle. The learned trial Court has rightly discarded his testimony. No other point has been urged before this Court by the learned counsel for the Insurance Company. Consequently, the appeal preferred by the Insurance Company is without any merit and the same stands dismissed. Now reverting to the appeal preferred by Sneh Pal for enhancement. The Tribunal has awarded compensation to him as under :- For suffering pain and agony : Rs.20,000/- For treatment expenses medicines, FAO No. 715 of 2009 6 clinical charges, etc. : Rs.1,21,400/- For transport, attendant and special : Rs. 5,000/- diet etc. For loss of income : Rs. 5,000/- For loss of enjoyment of life : Rs. 10,000/- ___________________________________________ Total : Rs.1,61,400/- The counsel for appellant could not point out how the amount awarded by the Tribunal is wrong and on lower side. The learned Tribunal has rightly held that the claimants have claimed twice the amount in respect of some of the bills and after deducting the double bills, the amount was calculated as Rs.1,21,400/- by the Tribunal. The claimant has been granted amount on all heads and as such no scope for enhancement is also made out. Consequently, the appeal preferred by the claimant for enhancement is also without any substance and the same stands dismissed. In view of the peculiar facts and circumstances of the case, the parties are left to bear their own costs. A copy of this judgment be sent to the trial Court for strict compliance. February 09, 2010 ( K.C.PURI ) JUDGE