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2005 DIGILAW 291 (JK)

United India Insurance Co. Ltd. v. Balbir Singh

2005-10-28

NIRMAL SINGH

body2005
1. This judgment will dispose of two appeals bearing nos.90 of 2002 and 91 of 2002, arising out of the common award dated 28.02.2002 passed by the Motor Accidents Claims Tribunal, Jammu, (for short hereinafter referred to as the Tribunal) by which the claim petitions filed by the claimants have been accepted. 2. Relevant facts for the disposal of these appeals are that on 18.5.1997, Balbir Singh-claimant alongwith deceased-Sardar Singh were traveling in a Matador bearing registration No.1419-JK02D. When it reached near Sarore Bridge, a Bus bearing registration No.2003-JKU which was being rashly and negligently driven by its driver came from the opposite side and hit the matador in which they were traveling, as a result of which, Balbir Singh sustained grievous injuries and also in the said accident, Sardar Singh died. Thereafter, the legal heirs of deceased-Sardar Singh filed a claim petition on account of his death, whereas, Balbir Singh, injured in the accident also preferred the claim petition. Both the claim petitions were opposed by the respondents and respondent National Insurance Company in claim petition No.219 filed by legal heirs of deceased-Sardar Singh, raised objection that claim petition is bad for non-joinder of necessary parties because driver/owner and insurer of Matador No.JK02D-1419 which was also involved in the accident have not been impleaded as parties in it. However, it was admitted that Bus No.JKU-2003 was insured with the National Insurance Company at the time of accident. It was pleaded that the driver of the offending vehicle was not holding a valid driving license at the time of accident. The appellant-Company raised objections that the driver of the offending vehicles (Mini Bus No.JK02D-1419) was not holding a valid driving license and the offending vehicle was being driven against the terms and conditions of the Insurance Policy. However, it was admitted that the vehicles were insured with the respective Insurance Companies. 3. Both Balbir Singh, injured as well as legal heirs of deceased-Sardar Singh filed their separate claim petitions. The learned Tribunal during the pendency of the claim petitions clubbed both the claim petitions as these petitions have arisen out of the same accident in order to avoid conflicting judgments. The learned Tribunal, by its common order has awarded Rs. 3,25,000/- as compensation in favour of the legal heirs of deceased-Sardar Singh, whereas a sum of Rs. The learned Tribunal during the pendency of the claim petitions clubbed both the claim petitions as these petitions have arisen out of the same accident in order to avoid conflicting judgments. The learned Tribunal, by its common order has awarded Rs. 3,25,000/- as compensation in favour of the legal heirs of deceased-Sardar Singh, whereas a sum of Rs. 90,000/- was awarded as compensation in favour of Balbir Singh, on account of suffering injuries. 4. The appellant-Company being the insurer of Matador No.JK02D-1419, has preferred these appeals. Mr. Vishnu Gupta, learned counsel appearing for the appellant-Company submitted that the learned Tribunal, has not appreciated the evidence on record in right perspective. He submitted that the finding of the learned Tribunal that the accident was caused due to contributing negligence of both the drivers of the offending vehicles is perverse and contrary to the evidence on record on both the files. He submitted that the claimants have examined witnesses namely Ashok Kumar, Ashok Kumar and Balbir Singh (Claimant injured in the other claim petition). They have categorically stated that the accident was caused due to rash and negligent driving of Bus driver namely Jagdeep Singh, respondent-4 alone. He further submitted that the learned Tribunal has erroneously relied upon the copy of the FIR. He submitted that the copy of the FIR is not a public document and admissible in evidence without formal proof. He submitted that the learned Tribunal has based its finding on the face of FIR that the drivers of both the offending vehicles were negligent in driving their vehicles. 5. I have given my thoughtful consideration to the submission made by the learned counsel for the Insurance Company, but find the same without any substance. 6. Legal heirs of deceased Sardar Singh filed a claim petition in which the appellant-Company was impleaded as party respondent. In para-22 of that petition, they have specifically pleaded as under: - "that on 18.5.1997 Sh. Sardar Singh while going to attend to his night guard duty, boarded in Mini Bus No.JK02D-1419 for Jammu Paper Pvt. Ltd., Bari Brahamana, when the Mini Bus reached near Sarore Pul it met with an accident with a Bus No.JKU 2003 coming from the opposite side due to rash, negligent, careless and rack less driving of both the drivers. Sardar Singh while going to attend to his night guard duty, boarded in Mini Bus No.JK02D-1419 for Jammu Paper Pvt. Ltd., Bari Brahamana, when the Mini Bus reached near Sarore Pul it met with an accident with a Bus No.JKU 2003 coming from the opposite side due to rash, negligent, careless and rack less driving of both the drivers. As a result of said accident many passengers including the deceased Sardar Singh suffered injuries and the deceased Sardar Singh because of serious multiple injuries was shifted to Govt. Medical College and because of the said injuries the deceased died on 19.5.1997. That Sardar Singh lost his valuable life at a very young age due to rash and negligent driving of respondents-3 and 6 (Copy of D/Ls are attached as annexures P6 & P7 respectively)." 7. The averments made in the petitions are correct because the accident had occurred due to the rash and negligent driving of matador as the driver and the owner of the matador have not appeared before the Tribunal to rebut that the accident has occurred due to rash and negligent driving of matador rather it has occurred due to rash and negligent driving of driving of Bus No.JKU-2003 which was coming from the opposite side at the time of accident. In the claim petition filed by the legal heirs of deceased- Sardar Singh, one witness Ashok Kumar was examined. Both the petitions were clubbed. The appellant-Company has not raised any objection for clubbing both the petitions together. When the petitions are clubbed together without any objections then evidence recorded separately is to be read when the parties are the same. Even after clubbing the petitions, Insurance Company has not examined the driver of the matador to prove that he was not rash and negligent in driving the vehicle rather accident had occurred due to negligent driving of the driver of Bus No.2003-JKU. 8. Learned counsel for the appellant contended that in the claim petition filed by Balbir Singh, the appellant was not impleaded as party respondent and the appellant was not aware of the same. He submitted that the Tribunal after hearing the arguments in the claim petition filed by Balbir Singh was clubbed with another claim petition titled Shiv Kumar and other versus United India Assurance Company Ltd. and ors. He submitted that the Tribunal after hearing the arguments in the claim petition filed by Balbir Singh was clubbed with another claim petition titled Shiv Kumar and other versus United India Assurance Company Ltd. and ors. He submitted that the appellant-Company was not a party respondent before the Tribunal, therefore, it cannot be saddled with the liability and the same would be unjust. 9. I have considered this submission of the learned counsel for the appellant-Company also. This contention raised by the learned counsel for the appellant is without foundation as it has been noticed above, that both the claim petitions were clubbed without any objection from the appellant-Company. In the claim petition filed by Shiv Kumar and ors, it has been held that the accident had taken place due to the contributory negligence. In the petition filed by Shiv Kumar and others, the appellant-Company was party respondent. In the said petition, it was specifically pleaded that the accident had taken place due to the negligence of both the drivers of the offending vehicles, so the contention raised by the learned counsel for the appellant-Company that it was not aware with regard to the pendency, is not sustainable. 10. At the hearing, it was admitted by the counsel for the appellant-Company that case has been registered against the driver of the Mini Bus as well as against the driver of the Bus. 11. It was a head on collusion between both the vehicles. It is alleged that the speed of the Matador was between 40/50 Kms per hour. If the Matador was on a slow speed then on seeing the Bus coming from the opposite direction at high speed, the driver of Matador could have taken his vehicle on the extreme left of his side. There is no evidence that the driver of Matador has taken it to the extreme left and the driver of the Bus No.JKU-2003 brought the vehicle on the wrong side and then it hit. When there is a head on collusion in the middle of the road then it shows that both the drivers of the offending vehicles were negligent in driving their vehicles. Therefore, the finding recorded by the learned Tribunal that the accident had occurred as a result of rash and negligent driving of the drivers of both the offending vehicles dont requires any interference. 12. Therefore, the finding recorded by the learned Tribunal that the accident had occurred as a result of rash and negligent driving of the drivers of both the offending vehicles dont requires any interference. 12. For the reasons mentioned above, there is no merit in these appeal and the same are dismissed.