Nirmal Devi & ORS. v. Narinder Kumar & ORS.

IN THE HIGH COURT OF PUNJAB & HARYANA

AT CHANDIGARH Date of Decision: ___.05.2019 Nirmala Devi and others ....Appellants

Versus

Narinder Kumar and others ....Respondents CORAM: HON'BLE MR. JUSTICE ARUN KUMAR TYAGI Argued by: Mr. Mukesh Kumar Bhatnagar, Advocate for the appellants.

Mr. Ishan Singh Cooner, Advocate for respondent No.1.

Respondent No.2 did not appear despite service.

Mr. Sandeep Suri, Advocate for respondent No.3.

ARUN KUMAR TYAGI, J.

1.

The claimants-widow, sons and mother of deceased-Om Parkash have filed the present appeal against the award dated 06.10.2010 passed by the learned Motor Accident Claims Tribunal, Fast Track Court, Ropar (for short 'the Tribunal') in MACT Case No.1 of 2009 titled as Nirmal Devi and others Vs. Narinder Kumar and others, whereby claim petition filed by the claimants under Section 166 of the Motor Vehicles Act, 1988 (for short 'the M.V. Act') for award of compensation on account of death of Om Parkash due to injuries suffered in motor vehicle accident, which took place on 13.09.2000, was dismissed.

-22.

The above-said claim petition was filed on the averments that on 13.09.2000 at about 5:00 a.m. deceased-Om Parkash alighted from a bus at Mullana and started walking on left hand side of the road on Katcha berm towards Ambala side. When he reached in the area of village Hema Majra on Jagadhari to Ambala Road, car bearing registration No.DL-1CB-4253, owned by respondent No.2 and insured with respondent No.3, came from back side driven by respondent No.1 in a rash and negligent manner and hit Om Parkash from behind due to which Om Parkash suffered multiple grievous injuries and died on the spot. FIR No.208 dated 13.09.2000 was registered under Sections 279 and 304-A of the Indian Penal Code, 1860 (for short 'the IPC') in Police Station Mullana, District Ambala regarding the accident. 3.

While pleading that the deceased was 43 years of age and earning 6,000/- per month by working as mason at the time of his death and claiming themselves to be legal heirs dependent on the deceased, the claimants sought award of compensation of 15 lacs with costs and interest at the rate of 18% per annum against the respondents jointly and severally.

4.

The petition was contested by the respondents. In their joint written statement, respondents No.1 and 2 admitted the accident but pleaded that the same had occurred due to own negligence of the deceased and false FIR was registered by the police in connivance with the claimants. Respondents No.1 and 2 denied their liability pleading the car to be insured with respondent No.3. In its written statement, respondent No.3 took objections as to maintainability,

-3collusion between the claimants and respondents No.1 and 2, respondent No.1 not having valid and effective driving licence, breach of terms and conditions of the insurance policy, estoppel and concealment of material facts. Respondent No.3 also pleaded that the claimants had earlier filed the claim petition on account of death of Om Parkash before MACT, Ambala and got the same dismissed as withdrawn on 10.04.2003. Respondent No.3 controverted the material averments made in the petition and denied the accident and its liability to pay compensation.

5.

The Tribunal framed issues and recorded evidence produced by the parties. On perusal of the material on record and consideration of the submissions made by the learned Counsel for the parties, the Tribunal held that the involvement of the car bearing registration No.DL-1CB-4253 in the accident was not proved and accordingly dismissed the claim petition.

6.

Feeling aggrieved, the claimants have filed the present appeal.

7.

I have heard the learned Counsel for the appellants, learned Counsel for respondent No.1 and learned Counsel for respondent No.3-Insurance Company and gone through the record. 8.

Learned Counsel for the appellants has argued that to prove the accident the claimants examined Dharam Pal and Bal Krishan, who had witnessed the accident, as PW-3 and PW-4 who testified that Om Parkash died due to injuries suffered in the accident caused by rash and negligent driving of car No.DL-1CB-4253 by

-4respondent No.1. In their joint written statement respondents No.1 and 2 admitted involvement of the car in the accident and death of Om Parkash due to injuries suffered in the accident but denied negligence on the part of respondent No.1 and pleaded that the accident took place due to negligence of the deceased. Respondents No.1 and 2 have not examined respondent No.1 or produced any other evidence to prove that the accident took place due to negligence on the part of the deceased. Respondent No.1 was prosecuted by the police for causing death of Om Prakash by rash and negligence driving of the car. The respondent No.3 did not produce any evidence to prove that the car was not involved in the accident and failed to rebut the evidence produced by the claimants.

By the oral and documentary evidence produced by the claimants it is proved that Om Parkash died due to injuries suffered in accident caused by rash and negligent driving of the offending car by respondent No.1. The Tribunal did not properly appreciate the evidence produced on record and wrongly dismissed the claim petition. The findings of the Tribunal, being against facts and law, are perverse and liable to be set aside. Therefore, the appeal may be allowed, the impugned award may be set aside and just and adequate compensation may be awarded to the claimants.

9.

On the other hand, learned Counsel for respondent No.1 has, while refuting collusion between the claimants and respondents No.1 and 2, argued that the accident took place due to negligence of

-5the deceased and the respondent No.1 is not liable for payment of any compensation for his death.

10.

Learned Counsel for respondent No.3 has argued that the onus of proving that Om Parkash died due to injuries suffered in accident caused by rash and negligent driving of car bearing registration No.DL-1CB-4253 by respondent No.1 was on the claimants. Mere registration of FIR and prosecution of respondent No.1 was not by itself sufficient to prove rashness and negligence on the part of respondent No.1 and the claimants were required to prove the same by producing cogent and reliable evidence. The petition was filed by the claimants in collusion with respondents No.1 and 2. The petition filed by the claimants earlier was got dismissed as withdrawn without assigning any plausible reason for withdrawal thereof. Present petition was filed after more than 5 years since dismissal of the abovesaid petition as withdrawn.

PW-3 Dharam Pal and PW-4 Bal Krishan were procured witnesses and did not deliberately appear in the criminal case to depose against respondent No.1. In the criminal case respondent No.1 was acquitted on the ground of there being no evidence. The car and respondent No.1 were not involved in the accident and have been falsely implicated. The findings of the Tribunal are based on proper appreciation of the evidence and are not perverse and do not call for any interference. The claim petition was rightly dismissed and the impugned award is not liable to be set aside. Therefore, the appeal may be dismissed.

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It is now well settled that proof of negligence on the part of driver or owner is necessary before the owner or the insurer of a motor vehicle can be held to be liable for payment of compensation in a motor vehicle accident claim case under Section 166 of the M.V. Act, 1988. (see Reshma Kumari and Others Vs. Madan Mohan and another, 2013 (2) RCR (Civil) (Supreme Court) 660). While in criminal cases negligence has to be proved beyond reasonable doubt, in civil/motor accidents claim cases the negligence has to be proved on preponderance of probabilities. (See Bimla Devi and others Vs. Himachal Road Transport Corporation and others 2009 (3) RCR (Civil) (Supreme Court) 805 and Parmeshwari Devi Vs. Amir Chand and others 2011 (2) RCR (Civil) (Supreme Court)153).

The normal rule is that the onus of proving negligence on the part of the driver of the offending vehicle lies on the claimants. (see Surender Kumar Arora and another Vs. Dr. Manoj Bisla and others : 2012(4) SCC 552). However, the normal rule results in 'hardship' to the claimant in some cases where the true cause of the accident is not known to him but is solely within the knowledge of the driver who caused it and the claimant can prove the accident but cannot prove how it happened to establish negligence on the part of the driver. In such cases where the accident speaks for itself the hardship is avoided by applying the principle of res ipsa loquitur so that it is sufficient for the claimant to prove the accident and nothing more.

It will then be for the driver to establish that the accident happened due to some other cause than his own negligence.

-7Parshottam Udeshi v. M/S Ranjit Ginning & Pressing Co. Pvt. Ltd., AIR 1977 SC 1735). The question of negligence in a motor accident claim case has to be determined on the basis of evidence led by the parties and mere registration or non-registration of criminal case of negligence against a party to accident is of no consequence nor it can be taken to be conclusive evidence of negligence. Even judgment of conviction or acquittal passed by the criminal court is not binding on the tribunal. (See Ram Karan Vs. Zile Singh 2001(3) RCR (Civil) (Punjab and Haryana High Court) 582 and Kiran Rani and others Vs. PEPSU Road Transport Corporation and others, VOL.CXLV (2007-1) the Punjab Law Reporter (Punjab and Haryana High Court) 507).

12.

On appreciation of the evidence produced by the parties, the Tribunal held that no accident took place with the offending car allegedly driving by respondent No.1 in a rash and negligent manner as alleged by the claimants and the witnesses examined by them. The question which arises is as to whether the findings of the Tribunal are based on proper appreciation of the evidence or not. 13.

It may be observed at the very outset that in the present case FIR No.208 dated 13.09.2000 copy Ex.P-1 was registered under Sections 297 and 304-A of the IPC in Police Station Mullana. On completion of investigation respondent No.1 was charge-sheeted by the police vide report copy Ex.P-3 to face trial under Sections 279 and 304-A of the IPC but on trial respondent No.1 was acquitted by the Judicial Magistrate Ist Class, Ambala Cantt. vide judgment dated

-815.05.2009 copy Ex.R-3. In view of the observations in Ram Karan Vs. Zile Singh 2001(3) RCR (Civil) (Punjab and Haryana High Court) 582 and Kiran Rani and others Vs. PEPSU Road Transport Corporation and others, VOL.CXLV (2007-1) the Punjab Law Reporter (Punjab and Haryana High Court) 507 mere registration of FIR and prosecution of respondent No.1 for commission of offences punishable under Sections 279 and 304-A of the IPC is not sufficient to prove that Om Prakash died due to injuries suffered in the accident caused by rash and negligent driving of car bearing registration No.DL1CB-4253 by respondent No.1 and the questions as to involvement of car bearing registration No.DL-1CB-4253 in the accident and causing of the accident by rash and negligent driving of the same by respondent No.1 are required to be determined on the basis of evidence produced by the parties.

14.

It may be observed here that FIR copy Ex.P-1 was registered on statement of Kaka Singh against unknown vehicle and driver. In the FIR it was mentioned that on 13.09.2000 Kaka Singh slept in his tube well in the night. At about 7 A.M. he woke up and went on the road and saw some unknown person lying dead. Some unknown vehicle had caused death of that unknown person in the night by causing accident due to rash and negligent driving. The particulars as to number of the offending vehicle and name of the driver were mentioned by PW-3 Dharam Pal in his statement made to the Investigating Officer of the criminal case during investigation on 14.09.2000 asserting that Om Parkash died due to injuries suffered in

-9the accident caused by rash and negligent driving of car bearing registration No.DL-1C-4253 by respondent No.1. 15.

To prove their case, the claimants have examined Dharam Pal as PW-3 and Bal Krishan PW-4. PW-3 Dharam Pal has stated that on 13.09.2000 at about 5:00 a.m. he was coming back to his village Jandmangouli in District Patiala from Jagadhri on his scooter while PW-4 Bal Krishan has stated that on the above-said date and time he was going from his house in Ambala City to Village Khera near Jagadhri, District Yamuna Nagar to attend marriage of his sister-inlaw. PW-3 Dharam Pal and PW-4 Bal Krishan have both testified that when they reached near T-Point, Hema Majra within the area of Mullana Tehsil Barara, District Ambala, on Ambala to Jagadhri Road they saw that Maruti car bearing registration No.DL-1CB-4253 came driven by respondent No.

1 in rash and negligent manner and hit the deceased, who was going on the extreme left side of the road, from behind due to which the deceased fell on the road with his face and chest towards the earth. Respondent No.1 stopped the car after covering the distance of 20-30 yards and came to the injured person and on inquiry by PW-3 Dharam Pal disclosed his name and address and on seeing the serious condition of the injured fled from the spot. PW-3 Dharam Pal has further testified that on the next day in the morning when he reached Manav Chowk Ambala for his masonry work he came to know about the death of Om Parkash near Rice Sheller Mullana Road on which he went to his house and saw his funeral was yet to be performed.

-10accident. After cremation of the dead body, on request of family members of Om Parkash, he went to Police Station Mullana and disclosed the manner in which the accident took place and name of the driver and registration number of the offending car. 16.

Ex-facie this evidence appears to be sufficient to warrant a finding that Om Parkash died due to injuries suffered in accident caused by rash and negligent driving of the car by respondent No.1, but on closer scrutiny the material on record inevitably leads to the conclusion of both these witnesses being introduced/planted witnesses and the petition having been filed by the claimants in collusion with respondent No.1 driver and respondent No.2, owner of the car. 17.

In the first place in the FIR registered at the instance of Kaka Singh the accident was stated to have been caused by some unknown vehicle in the night while PW-3 Dharam Pal and PW-4 Bal Krishan have stated that the accident was caused by rash and negligent driving of the car in question by respondent No.1 on 13.09.2000 at 5:00 a.m. but at such an early hour presence of both PW-3 Dharam Pal, a resident of village Jandmangouli in District Patiala and PW-4 Bal Krishan, a resident of Ambala City on the spot in the area of village Hema Majra at the time of the accident appears to be highly improbable. Further the presence of PW-4 Bal Krishan on the spot at the time of the accident is doubtful for other reasons also. PW-3 Dharam Pal has stated that the accident was also witnessed by Bal Krishan but PW-3 Dharam Pal did not mention in his statement made to the police during investigation of the criminal case that PW-4

-11Bal Krishan had also witnessed the accident. PW-4 Bal Krishan admitted in his cross-examination that he did not make any statement to the police or Magistrate regarding the accident before recording of his evidence by the Tribunal. PW-4 Bal Krishan was not cited as an eye witness in the criminal case and even in the claim petition PW-4 Bal Krishan was not mentioned to have witnessed the accident. There is no plausible explanation for these omissions which justify the inference that he was introduced at the stage of production of evidence of the claimants before the Tribunal for the first time as the person having witnessed the accident which makes his testimony also unreliable.

18.

Further, the conduct of PW-3 Dharam Pal and PW-4 Bal Krishan on the spot was also wholly unnatural. Both PW-3 Dharam Pal and PW-4 Bal Krishan previously knew deceased Om Parkash. PW-3 Dharam Pal admitted that he knew Om Parkash who had been working with him and he had worked with Om Parkash as a mason with different persons many times. PW4 Bal Krishan admitted that he knew Nirmala Devi since 2000 and his house is situated near the house of Nirmala Devi may be within 2-3 yards. As per their own version, PW-3 Dharam Pal and PW-4 Bal Krishan saw from opposite directions the deceased going on katcha portion of the road and the offending car hitting him on the extreme left side of the road in katcha portion but both of them claimed that they could not identify him as he fell with face and chest towards the earth. Both of them stopped on the spot. PW3 Dharam Pal has admitted that he remained on the spot for

-12about 10 minutes. Even respondent No.1 is stated by both of them to have come to the injured and to have fled from the spot on seeing his serious condition. However, both of them did not attend to the injured at all, did not try to see who the injured was, what kind of injuries he had suffered, did not care to provide any medical aid to him, did not seek help of any person present in the rice sheller nearby and did not report the matter to police. Both of them stated that they were in hurry and they went to their respective destinations which explanation does not warrant credence.

Apathy of the passerby to victims of road accidents is not unknown but in the present case conduct of PW-3 Dharam Pal and PW-4 Bal Krishan in stopping on the spot yet not even trying to see and care for the injured who was previously known to them and feeling contended in merely noting down the registration number of the car and name of the driver is wholly unnatural and contrary to ordinary human behavior and adversely affects the veracity of their testimony as their presence seems to have been introduced only for the purpose of implicating the car in question and respondent No.1.

19.

Furthermore, evidence of PW-3 Dharam Pal and PW-4 Bal Krishan as to identification of the car in question and respondent No.1 as driver thereof is not cogent and convincing. PW-3 Dharam Pal has stated that after the accident the car driver respondent No.1 stopped his car after covering a distance of 20-30 yards and came to the injured person. On inquiry by him, respondent No.1 disclosed his name and address and on seeing the serious condition of the injured,

-13respondent No.1 fled away from the spot along with his car. PW-4 Bal Krishan has also deposed in this regard in akin terms and has further stated that he wrote the registration number of the car on a paper and gave the said paper to PW-3 Dharam Pal. However, strangely enough, PW-3 Dharam Pal and PW-4 Bal Krishan have both admitted in their cross-examination that they could not read and write English which shatters the veracity of testimony of PW-3 Dharam Pal as to having noted registration number of the car and testimony of PW-4 Bal Krishan as to writing of the registration number of the car on a paper and giving of the same to PW-3 Dharam Pal. The only inevitable inference which arises is that the number of the car and name of the driver were given to the police by some other person who has not been examined by the claimants.

PW-3 Dharam Pal has also stated that he identified the offending car and respondent No.1 during identification parade in the Police Station Mullana on 25.09.2000 but in the absence of any documentary evidence to corroborate the same this testimony of PW-3 Dharam Pal could not be relied upon and was rightly disbelieved by the Tribunal.

20.

In these facts and circumstances of the case the only inference that can be justifiably drawn therefrom on preponderance of probabilities is that PW-3 Dharam Pal and PW-4 Bal Krishan were not present at the time of the accident and were introduced/planted as witnesses to enable the claimants to claim compensation from the insurer of the car implicated in collusion with respondents No.1 and 2 to have caused the accident.

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It may be added here that there are other important circumstances which point to collusion between the claimants and respondents No.1 and 2. Earlier, the claimants filed claim petition registered as MACT case No.243 dated 04.11.2000 titled Nirmla Devi and others Vs. Narender Kumar and others before the tribunal at Ambala, which was got dismissed as withdrawn on 10.04.2003 at the stage of evidence of the claimants after examination of three witnesses including claimant No.1 without assigning any reason and without seeking permission to file fresh petition on the same cause of action. Present petition was filed on 03.01.2009 after expiry of more than 5 years without disclosing the facts regarding filing and withdrawal of earlier claim petition. No doubt, due to the M.V.

Act being beneficial social legislation and inapplicability of Order 23 Rule 1 of the Code of Civil Procedure, 1908 to the claim petitions under the M.V. Act fresh petition was not barred. (See Smt. Suresh Devi and others Vs. Jasbir Singh : 2013 (15) RCR (Civil) 436 and FAO No.1867 of 2012 (O&M) titled New India Assurance Co. Ltd. Vs. Rajesh Kumar decided on 08.01.2019). However, withdrawal of the earlier petition and filing of the subsequent petition after more than five years points to collusion between the claimants and respondents No.1 and 2. In their written statement respondents No.1 and 2 admitted the accident and merely denied negligence on the part of respondent No.1 without unfolding their defence as to how the accident occurred and the respondent No.1 did not enter into the witness-box and respondents No.

-15defence. PW-3 Dharam Pal did not appear as prosecution witness in the criminal case to depose against respondent No.1 who was acquitted vide judgment dated 15.05.2009 on the ground of there being no incriminating evidence on record against him and it was only after the acquittal of respondent No.1 in the criminal case that PW-3 Dharam Pal appeared as witness before the Tribunal in the claim case on 20/26.10.2009 to depose against him.

22.

It may be added here that for some time past a malpractice has been prevalent in the region, which has even led to registration of several criminal cases against the persons involved, of introducing some other comprehensively insured vehicle, in cases of accidents caused by unknown vehicles, as the offending vehicle in collusion with the alleged driver and owner under some package deal/mutual understanding as a part of which the driver and owner to facilitate the claimants in getting compensation from the insurance company either admit the accident or do not contest the claim by suffering themselves to be proceeded against ex-parte or by not producing any evidence before the tribunal and the complainant and other eye witnesses do not appear or turn hostile and do not identify the offending vehicle and the driver thereof in the criminal case before the Court of Judicial Magistrate.

Reference in this regard may be made to order dated 05.01.2017 passed by Hon'ble Supreme Court in SLP (C) No.23628 of 2016 titled Safiq Ahmad Vs. ICICI Lambard General Insurance Co. Ltd.

-16which prima facie may require investigation and to prevent filing of such fabricated cases.

23.

In United India Insurance Company Limited Vs. Rajinder Singh and others Vol.CXXV-(2000-2) The Punjab Law Reporter 787 (Supreme Court) Rajendra Singh and his son Sanjay Singh filed two separates claim petitions before the Motor Accident Claims Tribunal, Bulandsahar in 1994 for compensation in respect of accident caused on 09.11.1993 by Ambassador car bearing registration No.DL 2C-9793 driven by Jai Parkash with their motorcycle driven by Sanjay Singh with Rajendra Singh as pillion rider. The claim petitions were allowed and the award became final. On information the Divisional office of the Insurance Company obtained copies of report prepared by the Sub-Inspector of Police, Subzi Mandi Police Station, Delhi, on 09.11.

1993 on the statements which contained the narration that the injuries were sustained by Rajendra Singh and Sanjay Singh in the accident which happened when the tractor trolley had slipped into the pit and thereafter moved the Tribunal with two petitions purportly under Sections 151, 152 and 153 of the Code of Civil Procedure, 1908 for recall of the awards dated 15.01.1998 on the revelation of new facts regarding the injuries sustained by the claimants. The petitions were dismissed by the Tribunal and writ petition filed against the orders of the Tribunal was dismissed by Hon'ble Allahabad High Court.

-17regarded as powerless to recall its own order if it is convinced that the order was wangled through fraud or misrepresentation of such a dimension as would affect the very basis of the claim. 24.

In Divisional Manager, United India Insurance Co. Ltd. Vs. Basappa 2012 (33) RCR (Civil) (Karnataka High Court) 660, the Court noticed that in four cases which came up before the Bench the police had adopted the same method of changing the number of vehicle initially stated by the complainants to have caused the accident by recording further statements of complainants on the very same day the complaints were lodged to assist the claimants to foist false cases to get compensation from insurer of the vehicles totally different from the ones which were said to have caused the accident initially. The owners of such vehicles appeared through Counsel but, choose not to contest the same and were supportive of the fraudulent litigation.

While rejecting the claim on the ground of fraudulent act of implicating unrelated vehicle the Bench observed that the Courts cannot be blind to reality and they cannot follow the fixed path. If that is done, it is akin to the saying 'in search of wood, missing the tree' i.e., while concentrating on the rights of the parties for awarding just and proper compensation ignoring the fraudulent act committed by them to achieve the same.

25.

No doubt acquittal in criminal case is not by itself sufficient to warrant rejection of motor accident claim for the simple reason that in criminal cases the guilt of accused is required to be proved beyond reasonable doubt and in motor accident claim cases negligence on the

-18part of the driver of the offending vehicle is required to be proved on preponderance of probabilities. This difference in standard of proof justifies ignoring the judgment of acquittal passed by the Court of Judicial Magistrate on the ground of guilt of accused not having been proved beyond reasonable doubt. However, in cases where the accused is completely exonerated of having caused the accident on the ground of the complainant and eye witnesses turning hostile and deposing that the accident did not take place with the vehicle in question or that the driver charge-sheeted was not the person who was driving the vehicle at the time of the accident, it will be wholly improper to ignore judgment of acquittal as the same would furnish substantive evidence of collusion between the parties and making of fraudulent claims and false statements by them so as to even warrant review in appropriate cases even after the award has attained finality as observed by Hon'ble Supreme Court in United India Insurance Co. Ltd. Vs. Rajendra Singh and others 2000 (2) PLR (Supreme Court) 787.

26.

In the present case admission of the accident by respondents No.1 and 2 coupled with their failure to produce any evidence in their defence and deposition of PW-3 Dharam Pal before the Tribunal on 20/26.10.2009 as to causing of accident by rash and negligent driving of the car in question by respondent No.1 after his acquittal in the criminal case on 15.05.2009 coupled with his nonappearance before the Criminal Court and consequent acquittal of respondent No.1 in criminal case on the ground of there being no

-19incriminatory evidence against him and withdrawal by the claimants of the petition filed at Ambala and filing of the petition at Ropar after more than five years lead to the only inevitable inference of collusion between the claimants and respondents No.1 and 2 and warrant rejection of their claim for compensation.

27.

In these facts and circumstances of the case the claimants must be held to have failed to prove that Om Parkash died due to injuries suffered in the accident caused by rash and negligent driving of the car in question by respondent No.1. The findings of the Tribunal on issue No.1 are based on sound understanding of the facts and proper appreciation of the evidence produced on record and not being contrary to the facts, evidence on record and law on the subject, cannot be said to be perverse and do not call for any interference. Therefore, the impugned award is not liable to be set aside and the appeal, being devoid of any merit, is liable to be dismissed. 28.

In view of the above discussion, the appeal is dismissed leaving the parties to bear their own costs.

(ARUN KUMAR TYAGI) JUDGE ___.05.2019 Kothiyal Whether Speaking/reasoned Yes/No Whether Reportable Yes/No