NEW INDIA AS IA ASSURANCE CO LTD v. UNDU AND OTHERS SURILA KUND
Case Details
FAO No.6206 of of 2010 (O&M) 1 IN THE HIGH COURT OF PUNJA IN TH AT CHANDIGAR UNJAB AND HARYANA IGARH FAO No. No.6206 of 2010 (O&M) Date of Re Date of De of Reserve: 30.04.2025 of Decision: 06.05.2025 NEW INDIA AS IA ASSURANCE CO LTD. Vs UNDU AND OTHERS SURILA KUND ......Appellant(s) ....Respondent(s) CORAM: HON' ON'BLE MR. JUSTICE HARKESH ESH MANUJA Mr. R.C. Gupta, Advocate Present: Mr. for the appellant. for th Mr. Vipul Sharma, Advocate Mr. V for respondent Nos.1 to 3. for re HARKESH MAN MANUJA, J. **** [1]. By way of present appeal, challenge By w allenge has been laid to an award date rd dated 21.07.2010 passe passed by the learned Motor Accide Accident Claims Tribunal, Chandigar ndigarh (hereinafter to b to be referred as “learned Tribu Tribunal”), whereby an amount o ount of Rs.13,29,500/- w was awarded as compensation to ion to respondent Nos.1 to 3/claiman laimants along with interes interest @ 7.5% per annum. [2]. Briefly stating, respondent Nos.1 to Brief .1 to 3 being dependents of decease eceased filed claim petitio petition before the learned Tribunal p unal praying for grant of compensatio ensation to the tune of Rs.5 Rs.50,00,000/- (Rupees Fifty Lakhs @ 12% Lakhs only) along with interest @ 12% per annum on ac on account of death of Jagdish Kum Kumar in a motor vehicular accide accident which took place place on 05.09.2007, while allegin alleging rash and negligent driving o iving of respondent No.4/d o.4/driver. [3]. Learned Tribunal after appraisal of e Lear
Legal Reasoning
al of evidence led by the parties and th and the record found tha nd that the accident occurred due to due to rash and negligent driving o iving of MOHMED ATIK 2025.05.15 15:46 I attest to the accuracy and authenticity of this order/judgment FAO No.6206 of of 2010 (O&M) 2 respondent No.4 o.4/driver and held appellant/In /Insurance Company as well a well as respondent Nos. Nos.4 and 5 jointly and sever severally liable, thereby awardin warding compensation in t on in the following manner: - Claim S.No Heads of Claim S.N n Rs) Amount (in Rs) 1. 2. 3. 4. Loss of dependency Rs.13,20,000/- Loss of consortium Funeral expenses Loss of Estate Rs.5,000/- Rs.2,000/- Rs.2,500/- Total Rs.13,29,500/- [4]. Being aggrieved against the award Bein award dated 21.07.2010, the prese present appeal has been p been preferred by the appellant/Insura nsurance Company for its setting asid ng aside on the issue of ue of negligence of the offending v ding vehicle or in the alternative fo tive for reduction of comp f compensation as awarded by the lear e learned Tribunal. [5].
Legal Reasoning
Learned counsel for the appellant/I Lear Insurance Company submitted th tted that the learned Tribu Tribunal failed to appreciate the mate e material contradiction in the evidenc vidence available on reco n record in the shape of testimony of ny of eyewitness Baggu Khan, who who in his affidavit stat it stated that offending truck came came on the wrong side of the roa he road whereas in the the FIR registered at his instance tance, it was stated that both vehicle vehicles struck against eac nst each other from the opposite side a side and as such present being a case o case of head on collision llision, the absolute negligence of t e of truck was wrongly recorded. H ded. He further argued th ued that learned Tribunal failed to co to consider the fact that loan accou account was in the name o name of deceased and respondent No. o.2, thus, the assessment of incom income of the deceased w ased while considering the said loan loan being paid by him was wrong wrongly MOHMED ATIK 2025.05.15 15:46 I attest to the accuracy and authenticity of this order/judgment FAO No.6206 of of 2010 (O&M) 3 done and as such such the income assessed was require required to be reduced thereby reductio duction of compensation a ation amount. [6]. Per contra, learned counsel for re Per for respondent Nos.1 to 3/claiman laimants argued that the l t the learned Tribunal erred to igno ignore the income tax return of th of the deceased while a hile assessing his income and as suc as such the compensation amount wa unt was liable to be enha e enhanced. He also submitted that t that the involvement of the offendin ffending vehicle as well as ell as the factum of negligence of its of its driver was aptly proved on recor n record from the stateme tatement of eyewitness Baggu Khan Khan and as such, present appeal wa eal was liable to be dism e dismissed. Lastly, he concluded ded the arguments by submitting th ing that compensation und on under conventional heads being on ing on the lower side is also liable to b le to be enhanced. [7]. I have heard learned counsel for th I hav for the parties and perused the pape e paper- book of the case. case. I do not find force in the argume arguments advanced by learned Couns Counsel for the appellant llant. [8]. Perus rusal of record reveals that FAO FAO No.725 of 2011 has already bee dy been preferred by the y the respondent Nos.1 to 3/claimant aimants with regard to enhancement o ment of compensation aw awarded by the Tribunal though th ugh this fact was never brought to th t to the notice of this Cou is Court by either of the parties at th s at the time of hearing. Therefore, th ore, the submissions mad s made on behalf of respondent Nos. t Nos.1 to 3/claimants qua quantum o ntum of compensation can on cannot be considered in the prese present appeal. Only the question o stion of contributory negli y negligence is being decided. [9]. Upon perusal of record, it can be ea Upon be easily traced out that undisputed sputedly the deceased was d was hit by the offending vehicle dr icle driven by respondent No.4 and th and the accident was witn s witnessed by one Baggu Khan, who who was examined by the responde pondent Nos.1 to 3/claima claimants as PW2. From the contents tents of challan (Ex.P-8) it was evide evident MOHMED ATIK 2025.05.15 15:46 I attest to the accuracy and authenticity of this order/judgment FAO No.6206 of of 2010 (O&M) 4 that upon investi investigation respondent no.4 was so as solely arraigned as an accused fo sed for criminal prosecut osecution. Further, testimony of PW2 PW2 supported by his affidavit clear t clearly established the fa the factum of negligent driving of res of respondent no.4 and the veracity o acity of this fact could n ould not be impeached even during during his lengthy cross-examinatio ination. Furthermore, the e, the best witness in such circum circumstances was the driver of th of the offending vehicle ehicle i.e respondent No.4, but he ch t he chose not to appear in the witne witness box. Even the ap the appellant/Insurance Company nev ny never made any efforts to summo ummon respondent No.4 f o.4 for cross-examination and, thus thus adverse inference could be draw e drawn against him coupl coupled with the fact that neither app her appellant nor respondent Nos.4 & .4 & 5 ever made a com a complaint to higher police autho authorities with regard to any faul y faulty investigation or th n or the fact that respondent No.4 wa .4 was being wrongly implicated in th d in the present case. Acc e. Accordingly, no interference is call is called for with the findings recorde ecorded by the learned Tri ed Tribunal on the aspect of negligenc ligence of respondent No.4. [10]. The Tribunal rightly held appellan The pellant/Insurance Company as well a well as respondent Nos. Nos.4 and 5 jointly and severally li ally liable to pay the compensation ation to respondent Nos.1 Nos.1 to 3/claimants as the offending fending vehicle i.e Truck No.HR-38 38-C- 2946 was insured sured with the appellant vide Insuranc surance Policy Ex.R-6. [11]. In view of the discussion made her In vi de hereinabove, no ground in the we the well reasoned award p ard passed by the Tribunal is made ou ade out, thus, the present appeal filed l filed at the instance of In e of Insurance Company is hereby di eby dismissed. Pending miscellaneou llaneous application(s) if a
Decision
(s) if any, shall also stand disposed of. ed of. May 06, 2025 Atik (HARKESH MANUJA) (HA JUDGE Whe Whether speaking/reasoned Whether reportable Whe Yes/N Yes/No Yes/No Yes/N MOHMED ATIK 2025.05.15 15:46 I attest to the accuracy and authenticity of this order/judgment