The New India Assurance Company Limited vs Smt. Suman & Ors.

Hon'ble Pankaj Purohit, J. (Oral)+

This appeal, preferred under Section 173 of the Motor Vehicles Act, 1988 is directed against the judgment and award dated 09.07.2012 passed by the Motor Accident Claims Tribunal/Additional District Judge, Haldwani, District Nainital in MACP No.82 of 2009, Smt. Suman and others v. Pushpraj and another.

Cross-objection No.13571 of 2012 along with a Delay Condonation Application (CLMA No.13570 of 2012) has also been filed by the respondents-claimants for enhancement of the award. As per office report, there was a delay of 43 days. Having heard learned Counsel for the parties, this Court on being satisfied on the grounds pleaded in the delay condonation application, condone the delay in filing the cross-objection. Both the appeal and cross-objection are being decided by this judgment.

The brief facts of the case are that on 05.02.2007, at about 10:00 p.m., Puran Chand was returning from Kichha on his motorcycle bearing registration No. U.A.06-D/4666. When he reached near Shantipuri Gola Gate, Nagla, P.S. Pantnagar, District Udham Singh Nagar, a truck bearing registration No. U.A.04-C/0548, allegedly being driven rashly and negligently, came from the opposite direction and collided with his motorcycle. Due to the impact, Puran Chand sustained grievous injuries and died at the spot. An FIR was initially lodged against an unknown vehicle. During investigation, the involvement of the aforesaid truck was alleged on the basis of the statements of the eyewitnesses. The deceased was aged about 32 years and was engaged in the work of sanitary pipe and paper mill lalakuan contract work, earning approximately Rs.6,000/- per month. The learned Tribunal, upon appreciation of the evidence, held the involvement of the insured truck and negligence of its driver proved and awarded Rs.4,14,500/- with interest to the claimants. Aggrieved by the said judgment and award, the Insurance Company has preferred the present appeal

It was pleaded by the respondent-claimants that the accident occurred due to the rash and negligent driving of Truck No. U.A.04-C/0548, resulting in the death of Puran Chand. It was further pleaded that the deceased was aged about 32 years who was also the sole bread winner for the family, was engaged in sanitary pipe and paper mill contract work, and was earning about Rs.6,000/- per month, and therefore the claimants were entitled to compensation.

The claimants-respondent nos.1 to 6, by way of cross-objection, have sought enhancement of the compensation awarded by the Tribunal. It has been contended that the Tribunal erred in assessing the deceased’s monthly income @Rs.3,000/- p.m. instead of Rs.6000-7000/-, and in not granting the appropriate enhancement under the applicable principles of compensation. It has, accordingly, been prayed that the compensation be enhanced.

The owner denied the allegations and pleaded that the vehicle did not ply on the route where the accident was alleged to have occurred, as it was operated only in the hill areas. It was further pleaded that, if any compensation was found payable, the same was liable to be borne by the Insurance Company.

The Insurance Company contested the claim, inter alia, pleading that the driver of the alleged offending vehicle did not possess a valid and effective driving licence and that the Insurance Company was not informed of the accident as required under the terms of the policy and the Motor Vehicles Act. It was further pleaded that the accident occurred due to the rash and negligent driving of the motorcycle by the deceased himself, and therefore the Insurance Company was not liable to pay the compensation.

Based on the pleadings of the parties, the Tribunal framed the following issues:

While deciding Issue no.1 the Tribunal, upon appreciation of the oral and documentary evidence, held that the accident occurred on 05.02.2007 due to the rash and negligent driving of Truck No. U.A.04-C/0548, which collided with the motorcycle of Puran Chand, resulting in his death. The Tribunal relied, inter alia, upon the FIR, the testimony of PW-2 and the other evidence on record, and held the involvement of the insured truck and negligence of its driver to be proved.

While deciding Issue no.2 the Tribunal held that the driver of the offending truck possessed a valid and effective driving licence at the time of the accident and that the requisite documents of the vehicle were valid. Accordingly, the issue was decided in favour of the owner/insured and against the Insurance Company.

While deciding Issue no.3 the Tribunal assessed the deceased's age as 32 years and his monthly income at Rs.3,000/-, deducted one-fourth towards personal expenses and applied a multiplier of 15, determining the loss of dependency at Rs.4,05,000/-. Adding Rs.2,000/- towards funeral expenses, Rs.5,000/-towards loss of consortium and Rs.2,500/- towards loss of estate, the Tribunal awarded Rs.4,14,500/- with interest, fastening the liability upon the Insurance Company.

Having heard learned counsel for the parties and perused the record, this Court finds that the involvement of the insured vehicle in the accident has not been established by cogent and reliable evidence. The case of the respondents substantially rests upon the testimony of PW-2, Mohd. Salim. However, this witness himself stated that, owing to darkness, he could not see the registration number of the vehicle and that, despite his attempt to stop the truck, it fled from the spot.Significantly, the first information report was lodged against an unknown vehicle. In such circumstances, the subsequent attribution of the accident to the insured truck bearing registration No.UA-04-C-0548 requires convincing corroboration, which is lacking on the record.

The reliance placed by the respondents upon The Oriental Insurance Co. Ltd. v. Leeladhar Joshi & Others, 2014 SCC OnLine Utt 1356, is misplaced. In the said case, the testimony of the eyewitness identifying the offending vehicle remained uncontroverted, as the owner and driver of the vehicle did not cross-examine the said witness. The evidentiary position in the present case is materially different, where the alleged eyewitness himself admits his inability to see the registration number because of darkness. Likewise, Smt. Shanti Joshi & Others v. Salig Ram Saini & Another, Appeal from Order No.463 of 2011, does not advance the case of the respondents. In that case, the High Court found the Tribunal's finding regarding non-involvement of the vehicle to be perverse as it had proceeded on the basis of an application allegedly submitted by the owner for dismantling the vehicle, which had neither been produced in evidence nor exhibited, and consequently could not have been relied upon for determining involvement of the vehicle.The said decision, therefore, turned on its own evidentiary facts and cannot be construed as dispensing with the requirement of reliable evidence establishing involvement of the particular offending vehicle.

In the present case, the difficulty is not merely that the FIR was initially against an unknown vehicle, rather, the very witness relied upon for subsequently connecting the insured vehicle with the accident admits that he could not see its registration number. There is no satisfactory independent evidence on record explaining how the particular insured vehicle came to be identified thereafter. The learned Tribunal, therefore, erred in treating the involvement of the insured vehicle as proved. Once such foundational fact is not established, the consequential finding of negligence and fastening of liability upon the appellant-Insurance Company cannot be sustained.

So far as the cross-objection preferred by respondent-claimant nos.1 to 6 seeking enhancement of compensation is concerned, this Court finds that the same cannot be accepted. The cross-objection proceeds on the premise that the liability arising from the accident is fastened upon the appellant-insurance company. However, in view of the finding recorded hereinabove that the involvement of the insured vehicle in the accident has not been established by cogent and reliable evidence, the liability of the appellant-insurance company itself cannot be sustained. Consequently, there can be no occasion for enhancement of the compensation against the appellant-insurance company. The cross-objection is, therefore, liable to be dismissed.

Accordingly, the appeal is allowed and cross-objection is dismissed. The judgment and award passed by the learned Motor Vehicle Accident Claims Tribunal/Additional District Judge, Haldwani, is hereby set aside. The claim petition, insofar as it fastens liability upon the appellant-Insurance Company in respect of the alleged accident involving vehicle No.UA-04-C-0548, is dismissed.

The appellant-insurance company is at liberty to recover the amount of award (i.e. 50% of the amount deposited by the appellant-insurance company before learned Tribunal) released in favour of the respondent-claimants as per the order passed by this Court vide order dated 10.07.2014.

The statutory amount deposited before this Court be remitted by the Registry to the concerned Claims Tribunal to be released in favour of the appellant-insurance company.

Pending application, if any, stands disposed of.