High Court of Punjab and HaryanaFAO/1091/2008allowed

Surinder Kumar v. Dharambir And ANR.

2025-03-26Mrs. Justice Sudeepti Sharma9 pages

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"17. Now coming to first plank of contention as to whether the accident in question took place due to rash and negligent driving of truck No.HR26A/1663 driven by Surender Kumar or truck No.HR46/3217 driven by Dharambir, in this context PW10 Ramesh, who was the eye witness to the accident, stated that on 21.1.2002, he was standing near bus stand Hisar. A truck came on the road which was being driven by Surender son of Shishpal. The number of the truck was HR46/3217. The truck was loaded with sugarcane. He boarded that truck. When they reached near Chikanwas, a dumper No.HR26A/1663 came from the opposite side at about 7.00/7.15 P.M. being driven in a rash, negligent and Zigzag manner and struck against their truck in which he was sitting. Surender driver of the truck died at the spot. He categorically stated that the accident took place due to rash and negligent driving of the dumper. He admitted that no complaint was made against the driver of truck No.HR26A/1663. He was

subjected to lengthy cross examination, but nothing adverse could be impeached. In cross examination, he again reiterated that the accident took place due to rash and negligent driving of truck No.HR26A/1663 and not because of HR46/3217. RW1 EНС Harbhajan Singh has proved copy of FIR Ex.R1 (Ex. P28) which was recorded by Hawa Singh ASI against both the drivers of the truck. He has also proved copy of report u/s 173 Cr.P.C. MarkX/5, a perusal of which shows that police had submitted cancellation report of the case as both the drivers of the vehicles involved in the accident had died. RW1 also proved the recovery memo Mark X2 vide which both the trucks were taken into possession by the police. The truck No.HR26A/1663 was taken on superdari by respondent. No.1 Surender by furnishing superdaginama Mark2.

The positive evidence led in the court has not been rebutted by any evidence. The author of the FIR i.e. Ram Puram, eye witness, has not been examined to prove the contributory negligence. Thus, the plea of the negligence which could have been established by Ram Puram, who was the author of the FIR, wherein both the drivers of the truck have been blamed has not been examined. The fact remains that the positive evidence led in the court exclusively goes to show that the accident took place due to rash and negligent driving of truck No.HR26A/1663. The criminal case also could not proceed on account of death of both the drivers. There is no cogent evidence to show that there was any negligence on the part of the driver of truck No.HR46/3217. Issue No.1 is accordingly decided in favour of the petitioners and against respondent No.

1 and 2 i.e. Surender Kumar owner and Oriental Insurance company, Insurer of the truck No.HR26A/1663."

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24. Now coming to the contention as to who is liable to pay the compensation, in this context, it is not disputed that the offending dumper/truck No. HR26A/1663 was owned by Respondent No.1 Surender Kumar and it was duly insured with Respondent No.2 Oriental Insurance Company, as is evident form the insurance

policy Ex.R3. The counsel for the Insurance Company contended that despite specific direction of the court petitioners Sunder Devi etc. failed to produce the licence of Surender, driver of offending truck No.HR26A/1663. He drew my attention towards the cross examination of PW7 Sunder Devi who on 12.5.2005 stated in her cross examination that the copy of the driving licence of her son at his home and she can produce the same on the next day. Accordingly, she was directed to produce the same on the next date of hearing. She was recalled on 24.1.2005, wherein she stated that she has not brought the driving licence of her son Surender. Thus, it is clear that there is nothing to show that deceased Surender, driver of offending truck No.

HR26A/1663, was holding a valid driving licence on the date of accident, but the question is whether the Insurance Company can be absolved of its liability to pay the compensation. Learned counsel for the respondent No.1 while relying upon United India Insurance Company Ltd. Vs. Lehru and others 2003 (1) ACC 611 (SC), New India Assurance Co. Shimla Vs. Kamla and others, LTC etc. 2001 (1) ACC 346 (SC) and Lal Chand Vs. Oriental Insurance Co. Ltd. III (2006) ACC 731 (SC), rightly contended that in such a situation the Insurance company cannot escape its liability but they may recover compensation from the insured. No evidence has come on record to show that the owner was negligent while keeping the driver. Insurer has to prove that the owner was guilty of negligence and failed to exercise reasonable care while keeping such a driver.

It stands already established that Surender Kumar, respondent No.1 was the registered owner of truck No.HR26A/1663. No evidence has been led by the Insurance Company to prove that the petitioners have no cause of action and locus standi to file the petition or that the claim petitions are the result of collusion between the petitioners and other respondents."

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