(O&M) Lakhwinder Kaur And Others v. Jai Narain And Others
1 / 8
!"!#$!%&' (
#&)&*!%&'
+,-%!%&'
Lakhwinder Singh And Others ... Appellants
Versus
Jai Narain And Others ... Respondents
Attar Singh ... Appellant
Versus
Jai Narain And Others ... Respondents ' .
/ 01 2/ Present: Mr. Kapish Singla, Advocate, Mr. Ashit Malik, Advocate for the Appellant in both FAOs Mr. Devinder Kumar, Advocate for Respondent No. 1 to 2 in both FAOs Ms. Madhu Sharma, Advocate for respondent No.3 ***** 1 2/3
1. These two appeals have been preferred by the claimants against the common award dated 03.03.2005 passed by the learned Motor Accident Claims Tribunal, Karnal, in two connected claim petitions arising out of the same accident. Since both the appeals emanate from a common award and involve
2 / 8 identical questions of fact and law, they are being disposed of together by this common judgment.
0
2. The brief facts of the case are that on 21.04.2003 at about 9:30 PM, Satnam Singh, aged about 35 years, was riding a bicycle on G.T. Road near village Samana Bahu. Attar Singh, aged about 32 years, was seated on the front rod of the said bicycle. According to the appellants, a Maruti Car bearing registration No. HR:07D:8876, allegedly being driven in a rash and negligent manner by respondent No.1 Jai Narain, came from behind and struck the bicycle. Owing to the forceful impact, both occupants fell on the road, as a result of which Satnam Singh sustained grievous injuries and succumbed to the same, while Attar Singh suffered multiple serious injuries. In respect of the said occurrence, FIR No. 67 dated 22.04.2003 under Sections 279, 337 and 304:A IPC was registered at Police Station Butana.
Thereafter, two separate claim petitions under Section 166 of the Motor Vehicles Act, 1988 were instituted before the learned Tribunal, Karnal one by the legal representatives of deceased ₹ Satnam Singh claiming compensation of 10,00,000/: on account of his death, ₹ and the other by injured Attar Singh claiming compensation of 3,00,000/: for the injuries sustained in the aforesaid accident.
3. Upon appreciation of the entire oral as well as documentary evidence on record, the learned Tribunal returned a categorical finding that although the claimants had established their relationship with the deceased Satnam Singh and the factum of his death, they failed to prove that the accident had occurred due to the rash and negligent driving of Maruti Car bearing registration No. HR:07D:8876 by respondent No.1 Jai Narain. Further, the learned Tribunal
3 / 8 disbelieved the testimonies of the alleged eye:witnesses, namely Joginder Singh (PW:2) and Attar Singh (PW:3). It was noticed that the earliest version of the occurrence, as reflected in the FIR (Ex. P:1), did not disclose either the registration number of the offending vehicle or the name of its driver. Further, the learned Tribunal observed that the rukka (Ex.PW2/B) and the report under Section 173 Cr.P.C. (Ex.P1) did not clearly indicate the source from which the identity of the vehicle was subsequently ascertained. Significantly, Joginder Singh (PW:2), during cross:examination, admitted that he had not noted the registration number of the vehicle at the time of the accident.
The learned Tribunal found this omission to be material, particularly when the vehicle was allegedly identified later with specificity. Moreover, the vehicle bearing registration No. HR:07D:8876 was taken into possession after a considerable delay, and no satisfactory explanation was forthcoming as to how it came to be connected with the accident. The learned Tribunal further held that the claimants failed to produce any reliable and independent evidence to establish that the accident in question involved the aforesaid Maruti car or that respondent No.1 was driving the same in a rash and negligent manner. In the absence of cogent evidence linking the vehicle to the occurrence, and in view of the omissions in the earliest version recorded in the FIR (Ex.
PW2/C), the learned Tribunal concluded that the claimants had failed to prove the foundational facts of the case, namely the involvement of the alleged offending vehicle and rash and negligent driving by respondent No.1 Jai Narain. Consequently, both the claim petitions one relating to the death of Satnam Singh and the other pertaining to the injuries sustained by Attar Singh were dismissed.
4 / 8
4. Learned counsel for the appellants contended that the learned Tribunal erred in dismissing the claim petitions by misappreciating the evidence on record. It was argued that the testimonies of Joginder Singh (PW:2) and Attar Singh (PW:3), particularly that of the injured witness, clearly established the manner of the accident and the involvement of Maruti Car bearing registration No. HR:07D:8876. It was submitted that minor omissions in the FIR regarding the registration number of the vehicle cannot be treated as fatal to the claim, especially in proceedings under Section 166 of the Motor Vehicles Act, which are decided on the basis of preponderance of probabilities. Learned counsel further contended that lapses, if any, in the police investigation or delay in seizure of the vehicle cannot be a ground to deny compensation to the claimants. On these grounds, it was prayed that the impugned award be set aside and the appellants be granted just and reasonable compensation.
5. On the other hand, learned counsel appearing for the respondents supported the impugned award and submitted that no interference by this Court is warranted. It was contended that the learned Tribunal has meticulously appreciated both oral and documentary evidence and has recorded well: reasoned findings of fact, which do not suffer from perversity or misapplication of law. Learned counsel argued that the claimants failed to discharge the foundational burden of proving the involvement of the alleged offending vehicle as well as rash and negligent driving on the part of respondent No.1. On these grounds, learned counsel prayed for dismissal of the appeal.
5 / 8
6. I have heard the learned counsel for the parties at length and have carefully perused the record of both the appeals.
7. At the outset, this Court finds no perversity or legal infirmity in the approach adopted by the learned Tribunal in insisting upon proof of rash and negligent driving on the touchstone of preponderance of probabilities. It is well settled that in a petition under Section 166 of the Motor Vehicles Act, 1988, the initial burden lies upon the claimants to establish the factum of the accident and that the same occurred due to rash and negligent driving of the offending vehicle. Mere proof of death or injuries, however unfortunate, cannot by itself fasten liability in the absence of proof of negligence.
8. The principal reliance of the appellants is upon the testimony of Joginder Singh (PW:2) tendered through affidavit (Ex.PW2/A) and the statement of injured Attar Singh (PW:3) through his affidavit (Ex.PW3/A). It is trite that the evidence of a related or interested witness is not to be discarded merely on that ground. However, in the present case, PW:2, who projected himself as an eye:witness, categorically admitted in his cross:examination that he did not see the registration number of the Maruti car which allegedly struck the bicycle of the deceased. Such an admission assumes significance when the entire case of the claimants hinges upon the identification of a specific vehicle.
Though the testimony of an interested witness is legally admissible, it must inspire confidence and ordinarily calls for corroboration from independent or contemporaneous material. Upon careful scrutiny of the record, this Court finds that the learned Tribunal was justified in entertaining doubt regarding the claimants' version. In the FIR (Ex.PW2/C), the registration number of the alleged offending vehicle was conspicuously absent. Likewise, in the report under Section 173 Cr.P.C. (Ex.
6 / 8 statement or on what basis the police ascertained the registration number of the vehicle alleged to have caused the accident. The implication of Maruti car bearing registration No. HR:07D:8876 thus surfaced at a subsequent stage without any satisfactory explanation. Further, the investigation reveals that the said vehicle was taken into possession only on 05.06.2003, i.e., after a lapse of approximately one and a half months from the date of the accident, and was released on the same day. There is no convincing explanation regarding the delay either in tracing the vehicle or in arresting the driver. Significantly, no independent witness from the locality or from the busy G.T. Road was examined to corroborate the manner of occurrence as projected by the claimants. These cumulative circumstances materially weaken the probative value of the evidence relied upon by the appellants and justify the conclusion drawn by the learned Tribunal.
9. A significant circumstance, duly noticed by the learned Tribunal, is the dual representation by the same counsel who appeared on behalf of the claimants as well as respondent Nos.1 and 2 in the connected criminal proceedings arising out of the same accident. This circumstance cannot be brushed aside as a mere procedural irregularity. Though proceedings before the Motor Accident Claims Tribunal are summary in nature, they nonetheless retain adversarial character as far as competing parties are concerned. When the same counsel represents parties whose interests are ostensibly in conflict, it gives rise to a legitimate inference of collusion or, at the very least, lack of bona fides in prosecuting or defending the claim. In the facts of the present case, this Court finds no fault with the approach of the learned Tribunal in drawing an adverse inference that the claim may have been structured in a manner so as to fasten
7 / 8 liability upon the insurer while insulating the driver and the owner of the vehicle.
10. Moreover, the pendency of criminal proceedings against the driver ipso facto does not establish negligence. Criminal prosecution and civil liability operate in distinct and independent spheres, governed by different standards of proof. The learned Tribunal was under an obligation to independently assess the evidence adduced before it. In the present case, the suspicious circumstances surrounding the conduct of the parties, the delay in investigation and recovery of the vehicle, the absence of any explanation about involvement of vehicle in question, and the issue of dual representation cumulatively erode the credibility of the appellants' version.
11. In
!
"#$%#& '
((#!
the Hon'ble Supreme Court held that the claimant must establish by cogent evidence the factum of the accident, negligence, and the involvement of the vehicle. Similarly, ) * +)
, !
"#$$-& ( '#., reiterates that where foundational facts are disputed, strict proof thereof is essential even in motor accident claims. The findings recorded by the learned Tribunal are thus based on a sound appreciation of evidence and settled legal principles and do not warrant interference.
12. In view of the aforesaid deficiencies, this Court concurs with the learned Tribunal that the claimants failed to establish, even on a balance of probabilities, that the accident occurred due to rash and negligent driving of respondent No.1. The foundational facts thus remain unproved. The findings recorded by the learned Tribunal are based upon a sound appreciation of the evidence on record and do not suffer from perversity, illegality, or misapplication of settled legal principles.
8 / 8
13. Accordingly, both the appeal is found to be devoid of merit and is, accordingly, %4"54""!%.
14. Since the main case has been decided, pending miscellaneous application(s), if any, stands also disposed of.
15. A photocopy of this order be placed on the file of the connected case. 1 2/
/)0