Bajaj Allianz General Insurance Company Ltd v. Smt.Chander Mukhi & Ors.

of Shri Ram Kumar. The deceased was said to be going on his motor cycle in the area of village Dhareru, when the offending car referred to above, came from the side of village Kant in a rash and negligent manner, and dashed into the motor cycle, as a result of which Ombir fell down, and succumbed to his injuries while being taken to the hospital. The FIR No. 344 dated 13.9.2088 was registered under Sections 279/304-A IPC in the police station Sadar Bhiwani by Rajbir, who was following the deceased on another motor cycle at the time when the accident took place. The deceased was 45 years of age, and was earning Rs. 13,000/- (Rupees thirteen thousand only) per month being a Supervisor in Vodaphone Mobile Company and also a pensioner from Board of Security Force. The claim was contested by respondent Nos.1 & 2 i.e. owner and driver of the alleged offending vehicle, who denied the accident in question. It was claimed, that it was a case of hit and run, and the FIR was result of collusion between petitioners and the police, and was an attempt to extract money from the answering respondents. It was admitted, that respondent No.1 i.e. driver was holding a valid and effective driving licence and the car in question, was insured with the appellant / respondent No.3, at the time of accident. The Insurance Company contested the claim by taking FAO No. 2939 of 2010 -3- identical pleas, as taken by respondents N o.1 & 2 i.e. driver and owner of the vehicle. It was further asserted, that at the time of accident the car in question was being used for hire and reward, therefore, there was violation of the terms of insurance policy. It was also pleaded, that the driver of the offending vehicle did not have a valid and effective driving licence. On the pleadings of the parties, the learned Tribunal framed the following issues :-

1. Whether the accident in question took place on 12.09.2008, at about 9.3- p.m. due to rash and negligent driving of the offending vehicle i.e. car bearing registration No. DL-4C-M-1341 on the part of the respondent No.1-Rajender Sharma son of Shri. Dharam Chand, caused death of Ombir Singh son of Sh. Bihari Lal resident of VPO Dhareru, Tehsil and District Bhiwani?OPP

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

3. Whether the respondent No.1 was not holding a valid and effective driving licence at the time of accident?OPR

4. Whether the insured has violated the terms and conditions of the insurance policy?OPR

5. Relief.” To prove issue No.1, the claimants examined Jitender, FAO No. 2939 of 2010 -4- who was said to be an eye witness to the accident, who supported the averments made in the claim petition by filing affidavit in the examination-in-chief. He was subjected to the cross-examination, which he withstood. The claimant Chander Mukhi, appeared as PW-2, and proved on record FIR No. 344 dated 13.9.2008 under Sections 279/304-A IPC, registered against the driver of the offending vehicle. The learned Tribunal accepted the evidence of the claimants, in coming to the conclusion, that the accident in question took place on 12.09.2008, at about 9.30 p.m. due to rash and negligent driving of the offending vehicle i.e. car bearing registration No. DL-4C-M-1341, which was being driven by respondent No.1- Rajender Sharma son of Shri. Dharam Chand,, which resulted in death of Ombir Singh son of Sh. Bihari Lal resident of VPO Dhareru, Tehsil and District Bhiwani. On issue No.2, the claimants were held entitled to receive compensation, in accordance with law. The income of the deceased was taken to be Rs. 5,100/- (Rupees five thousand and one hundred only), and keeping in view the age of the deceased, the learned Tribunal applied multiplier of '11'. In view of the findings recorded above, the learned Tribunal held the claimants / respondent entitled to compensation to the tune of Rs. 4,58,800/- (Rupees four lac fifty eighty thousand and eight hundred only). Issue Nos. 3 & 4 were also decided against the Insurance FAO No. 2939 of 2010 -5- Company / appellant. Consequently, liability was fixed on the respondents i.e. owner, driver and the Insurance company jointly and severally. As the application under Section 170 of the Act was allowed, the learned counsel for the appellant challenged the finding of the learned Tribunal on issue No.1, by contending, that the learned Tribunal failed to notice, that in the FIR registered on 13.9.2008, no name of the driver or the vehicle was mentioned, therefore, it was a case of hit and run. The contention of the learned counsel for the appellant is based on the ground, that in the statement the claimants i.e. widow had admitted, that eye witness had told her about the accident immediately, therefore, it was not believable, that the claimant was not knowing the name of the driver, specially when the eye witness admitted in his cross-examination, that he knew the driver of the offending vehicle, as well as the claimants. The contention, therefore, was, that the only conclusion, which could be drawn is, that it was a case of hit and run, wherein respondent No.1 was falsely implicated to claim compensation. The learned counsel for the appellant has also challenged the compensation by contending, that the assessment of the income of Rs. 5,100/- (Rupees five thousand and one hundred only) per month is on the higher side, though multiplier of '11' was not disputed. 0n consideration, I find no force in the contentions raised FAO No. 2939 of 2010 -6- by the learned counsel for the appellant. The learned Tribunal rightly held, that in civil proceedings the guilt not required to be proved to the hilt and findings are recorded on preponderance of evidence. The FIR was not lodged by the eye witness or the widow, who knew about the driver and offending vehicle, but by a third person on the next day. There is no evidence, not the contention, that author of FIR was also knowing the driver. The eye witness has appeared in the witness box and his version has been believed, keeping in view the fact, that respondent No.1, driver of the offending vehicle was being prosecuted, prima facie showing his involvement in the accident. Though, the registration of the FIR itself cannot be a ground to hold the driver guilty, but at the same time, when registration of the FIR is supported by other evidence, the Civil Court on the basis of preponderance of evidence, can always record a finding. The finding of the learned Tribunal, therefore, cannot be said to be perverse or not capable of being arrived at on appreciation of evidence led. The contention of the learned counsel for the appellant, that the finding on issue No.1, of the learned Tribunal suffers from illegality, cannot be sustained. The second contention of the learned counsel for the appellant also cannot be sustained, as the deceased was a retiree, getting pension and in addition, was also doing job. It was for want of evidence, that the learned Tribunal assessed his income only at Rs. FAO No. 2939 of 2010 -7- 5,100/- (Rupees five thousand and one hundred only) per month, instead of one claimed. This finding regarding income is also based on the evidence on record, and can not be said to be on higher side, as contended. For the reasons stated, finding no merit, this appeal is dismissed, but with no order as to costs.

27.5.2010 'sp' ( VINOD K. SHARMA ) JUDGE