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2016 DIGILAW 203 (JK)

Oriental Insurance Co. Ltd. v. Chanchal Sharma

2016-04-18

BANSI LAL BHAT

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JUDGMENT : Bansi Lal Bhat, J. One Rashpal Sharma, while walking near Forest Check Post Bagh-e-Bahu on Kunjwani Bye-Pass Road was knocked down by a tractor bearing Registration No. JK02G-7191, allegedly being driven rashly and negligently by driver Ram Chand. It happened on 18.02.1997 at about 9:00 A.M. Rashpal Sharma sustained fatal injuries leading to his death. His widow and two sons filed a claim petition under Section 166 M.V. Act before MACT, Jammu claiming compensation to the tune of Rs. 12.00 lacs. While the owners of the offending vehicle did not contest the claim petition and were set ex parte, the insurer, while denying the involvement of offending vehicle in the alleged occurrence, pleaded that the driver of offending vehicle was not holding a valid and effective driving licence at the time of accident thereby violating terms and conditions of insurance policy. However, the factum of policy of insurance of offending vehicle being in force at the relevant time has not been denied. 2. Parties joined the following issues: "1. Whether an accident took place on 18.02.1997 near Forest Check Post Bagh-e-Bahu, Jammu due to rash and negligent driving of offending vehicle No. JK02G-7191 (Tractor) by its driver in which deceased Rashpal Sharma has died?" OPP 2. If issue No. 1 is proved in affirmative whether petitioners are entitled to compensation; if so to what amount and from whom? OPP 3. Whether the driver of offending vehicle was not holding a valid and effective driving license at the time of accident and the vehicle was being plied against the provision of M.V. Act and in violation of terms and conditions of insurance policy? OPR-3 4. Relief." 3. On consideration of evidence adduced during inquiry, the learned Tribunal dismissed the claim petition on the ground that the claimants failed to prove the involvement of offending vehicle in the occurrence. The award was assailed in appeal before this Court. While disposing off CIMA No. 24/2003, this Court observed as under: "With the agreement of the appearing counsel, appeal is disposed of as under; (a) That the finding and order of learned MACT regarding 2nd part of issue no. 2 pertaining to involvement of tractor shall stand over set with direction that this part be reproduced in a separate issue with onus to prove/disprove the same on respective parties. 2 pertaining to involvement of tractor shall stand over set with direction that this part be reproduced in a separate issue with onus to prove/disprove the same on respective parties. (b) After framing of issue as aforesaid both parties would be at liberty to adduce evidence/further evidence in respect thereof where after learned tribunal would record findings afresh after hearing counsel on that in accordance with law. Meanwhile, parties, particularly appellant would make all efforts to identify the driver of Tractor and have him arrayed as a respondent. Subordinate file be returned to concerned MACT where parties may appear on 23.04.2008." 4. Ram Chand driver was arrayed as party respondent. He was summoned and he appeared before the Tribunal. He contested the claim petition by denying the occurrence. Issue No. 1 was re-framed and Issue No. 1-A was framed as under:- "(1). Whether deceased Rashpal Sharma died in a Motor Vehicular accident that took place on 18.02.1997 near Forest Check Post, Bagh-e-Bahu Jammu?" OPP (1-A). If issue No. 1 is proved, whether the accident was caused due to rash and negligent driving of Tractor No. JK02G-7191, by its driver respondent No. 6?" OPP 5. Fresh evidence was led in the matter, on consideration whereof all issues were decided in favour claimants. Onus of proof of Issue No. 3 that the driver of offending vehicle was not holding a valid and effective driving licence at the time of accident rested upon the insurer who failed to discharge the same. On consideration of evidence the learned Tribunal awarded an amount of Rs. 3,10,000/- as compensation to the claimants. 6. The insurer has questioned the award on the ground that the learned Tribunal failed to appreciate that the statements of witnesses examined by the claimants were false and untrustworthy and unnatural and non-consideration of FIR and final Police Investigation Report by the Tribunal has resulted in recording of wrong finding. It is contended that in the instant case there is specific evidence on the point that the Tractor in question was neither involved in any accident near Bagh-e-Bahu on 19.02.1997 nor the driver had caused any accident on that day while driving said Tractor. It is contended that the final report submitted by the Police was clear that after investigation, Police could not trace out the offending vehicle. It is contended that the final report submitted by the Police was clear that after investigation, Police could not trace out the offending vehicle. Per contra, it is argued on behalf of the claimants that the evidence adduced by the claimants is overwhelming and the rebuttal evidence does not in any manner affect the credibility of claimants witnesses. 7. Wading through the record of Tribunal, it emerges that claimants witness Raj Kumar has stated in unambiguous terms that the deceased while returning from a temple was hit by the offending tractor being driven negligently by its driver and that the deceased succumbed to the injuries on spot. The witness claimed to be an eye-witness. Merely because the witness did not report the matter to Police and he was not examined during investigation would not affect his credibility. Another witness Hridesh Chowdhary too claimed to be an eye-witness. He too has stated that the deceased was walking on the road and he was hit by the offending tractor and succumbed to injuries. He claims to have made an attempt to stop the tractor but was threatened by the tractor driver. The witness claims to have shared the information with the devotees in the temple and with his friend Javed. However, he admitted not having told the Police, about the incident. Testimony of Chanchal Sharma wife of deceased reveals that she was not accompanying the deceased at the time of accident. However, she has stated that the deceased had gone to temple at bye-pass at the relevant time. Another witness Abdul Hameed too is an eye-witness of the occurrence. He was travelling in a car and claims to have heard the labourers exhorting the driver Ram Chand to stop the tractor which had hit the deceased. These witnesses have been cross-examined by the insurer but there is nothing on record to show that they have been planted and their testimonies are intrinsically un-creditworthy. The standard of proof in inquiries in claim petitions under M.V. Act is same as in civil cases. Proof beyond reasonable doubt is not the requirement. Insurer, on the other hand, has examined Baldev Singh-one of the owners of offending tractor and Ram Chand the Driver of offending Tractor. Baldev Singh has admitted the fact that Ram Chand was the driver of offending tractor. Proof beyond reasonable doubt is not the requirement. Insurer, on the other hand, has examined Baldev Singh-one of the owners of offending tractor and Ram Chand the Driver of offending Tractor. Baldev Singh has admitted the fact that Ram Chand was the driver of offending tractor. However, he denied that it was involved in an accident in 1997 but claimed that it had been involved in an accident in year 2000. Driver Ram Chand, on the contrary, has denied the factum of being the driver of offending tractor in year 1997 and he has also denied involvement of the tractor in the alleged accident. In the face of testimony of the owner of offending vehicle-Baldev Singh that Ram Chand was the driver of the tractor at the relevant time, it is manifestly clear that Ram Chand is lying in so far as the fact of his being the driver of the offending tractor is concerned. The evidence adduced by claimants can, thus, be accepted as implicating Ram Chand as the driver of offending vehicle who caused the accident by his rash and negligent driving resulting in fatal injuries to the deceased. 8. In so far as registration of case is concerned, it appears that FIR No. 49/1997, was registered at Police Station Bahu Fort for offence under Section 304-A Ranbir Penal code against an unknown driver of an unknown vehicle which had caused fatal injuries to the deceased by rash and negligent driving. As per FIR, it was a hit and run case and the negligent driver had sped away with the vehicle involved. The investigation in the case appears to have culminated in a closure report being Final Report No. 49, dated 10.09.1997. Perusal thereof brings it to fore that the vehicle involved in the accident could not be traced. This report is relied upon by the insurer. The document including the final report does not appear to have been received in evidence and marked and exhibited during inquiry. The insurer has not examined the investigating officer to prove these documents. Therefore, it cannot be said that the document has been relied upon by the claimants in support of their claim and they cannot be permitted to rely upon it partly and discard it in part. The insurer has not examined the investigating officer to prove these documents. Therefore, it cannot be said that the document has been relied upon by the claimants in support of their claim and they cannot be permitted to rely upon it partly and discard it in part. The nexus between the offending tractor and causing of fatal accident of deceased by its rash and negligent driving in the hands of driver Ram Chand during course of his employment with the insured has been established by uncontroverted evidence adduced by the claimants. The plea raised by insurer is found to be not established, more particularly, as the driver Ram Chand has, contrary to the testimony of owner-Baldev Singh, tried to wriggle himself out by denying the factum of being driver of the offending tractor at the relevant time. Viewed thus, the findings recorded by the Tribunal cannot be termed perverse. The compensation amount awarded by the Tribunal is commensurate with the loss suffered by the dependents of the deceased and cannot be termed excessive. 9. There being no merit in the appeal, the same is dismissed.