FAO No.3902 of 2008 (O&M) 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH FAO No.3902 of 2008 (O&M) Date of decision: 24.9.2009 New India Assurance Co. Ltd ......Appellant(s) Versus Jagdeep Singh s/o Jaswant Singh and others ......Respondent(s) FAO No.3903 of 2008 (O&M) New India Assurance Co. Ltd ......Appellant(s) Versus Smt. Baljinder w/o Satnam Singh and others ......Respondent(s) FAO No.3904 of 2008 (O&M) New India Assurance Co. Ltd ......Appellant(s) Versus Smt. Kamaljit Kaur w/o Surjit Singh and others ......Respondent(s) FAO No.3905 of 2008 (O&M) New India Assurance Co. Ltd ......Appellant(s) Versus Smt. Shepinder Kaur @ Sukhwinder Kaur and others ......Respondent(s) FAO No.3906 of 2008 (O&M) New India Assurance Co. Ltd ......Appellant(s) Versus Smt. Baljit Kaur and others ......Respondent(s) FAO No.3907 of 2008 (O&M) New India Assurance Co. Ltd ......Appellant(s) Versus Balwant Singh and others ......Respondent(s) FAO No.3908 of 2008 (O&M) New India Assurance Co. Ltd ......Appellant(s) Versus Smt. Charanjit Kaur and others ......Respondent(s) FAO No.3909 of 2008 (O&M) New India Assurance Co. Ltd ......Appellant(s) Versus FAO No.3902 of 2008 (O&M) 2 Smt. Amarjit Kaur and others ......Respondent(s) FAO No.3910 of 2008 (O&M) New India Assurance Co. Ltd ......Appellant(s) Versus Maninderpreet Singh and others ......Respondent(s) FAO No.3911 of 2008 (O&M) New India Assurance Co. Ltd ......Appellant(s) Versus Smt. Baljit Kaur wife of Sh. Pal Singh and others ......Respondent(s) FAO No.3912 of 2008 (O&M) New India Assurance Co. Ltd ......Appellant(s) Versus Karam Singh and others ......Respondent(s) FAO No.3913 of 2008 (O&M) New India Assurance Co. Ltd ......Appellant(s) Versus Kuljeet Kaur and others ......Respondent(s) FAO No.3914 of 2008 (O&M) New India Assurance Co. Ltd ......Appellant(s) Versus Smt. Kamaljit Kaur wife of Sh. Surjit Singh and others ......Respondent(s) CORAM:- HON'BLE MR.JUSTICE RAKESH KUMAR GARG * * * Present: Mr. Ashwani Talwar, Advocate for the appellant-Insurance Company. Mr. Tekwinder Singh, Advocate for respondent-Gurnam Singh. Mr. Vikas Mehsempuri, Advocate for respondent-Gurmeet Singh. Mr. Bhavyadeep Walia, Advocate for respondent-Kuldeep Singh. Rakesh Kumar Garg, J.(Oral) These appeals have been filed by the Insurer challenging the FAO No.3902 of 2008 (O&M) 3 impugned award whereby the claimant-respondents have been awarded compensation on account of death of Smt.Davinder Kaur and others in a motor vehicular accident caused due to rash and negligent driving of offending vehicle (i.e. Tempo Trax Toofan No.PB-11-V (T)-0447 by Surinder Singh-respondent No.7. This judgment shall dispose of all the aforesaid 13 appeals i.e. FAO Nos.3902 to 3914 of 2009 as all these appeals have arisen out of one common award passed in claim petitions which were filed by the claimants for causing death and injuries to Davinder Kaur and others in the motor vehicular accident that took place on 4.11.2005 between Tempo Trax Toofan No.PB-11-V (T)-0447 and Mini Bus bearing registration No.PB-32- D-4511. Moreover, in all these appeals, the appellant-Insurance Company has challenged the findings of the Tribunal only on issue No.1 which is common to all the appeals. Brief facts which are necessary for disposal of these appeals are that on 4.11.2005, Smt. Davinder Kaur was travelling in the offending vehicle along with others. The said vehicle was being driven by Surinder Singh rashly and negligently and at a very high speed. When the said jeep reached within the area of village Rakhra, Tehsil & District Patiala, a mini bus bearing registration No.PB-32-D-4511 being driven rashly and negligently by Gurnam Singh came from the opposite side and both the vehicles collided head on. As a result of this accident, all the occupants of the jeep as well as some occupants of mini bus sustained injuries. Six persons including Smt. Davinder Kaur died on the spot on account of injuries suffered in this accident. The injured persons were taken to Amar Hospital, Patiala and thereafter, the post mortem on the dead body of the deceased was conducted at Rajindra Hospital, Patiala. FIR No.650 dated 4.12.2005 was registered under Sections 304-A, 279, 337, 338 and 427 FAO No.3902 of 2008 (O&M) 4 IPC at Police Station Sadar, Patiala. The claimants filed petitions for grant of compensation on account of death and injuries of occupants of the aforesaid vehicle. Upon notice, the petitions were contested by the respondents. The owner and driver of the mini bus denied the allegations levelled against them and stated that a false case has been registered against them. It was further submitted that the accident was caused due to rash and neligent driving of Surinder Singh, driver of the offending vehicle. The appellant-Insurance Company in its separate written statement raised preliminary objections that the drivers of both the vehicles were not holding a valid and effective driving licence at the time of accident and the claim petition was not maintainable. However, it was admitted that the offending vehicle was insured with the appellant. It was further denied that the accident was caused due to rash and negligent driving of Surinder Singh, rather it was stated that the accident was caused due to rash and negligent driving of the driver of Bus No.PB-32-D- 4511 who took the bus on the wrong side and struck against the offending vehicle which was coming on its correct side and at a normal speed. Appellant-Company had denied all other allegations levelled in the claim petitions and had prayed for dismissal of the claim petitions. After perusing the evidence on record, the Tribunal held that the accident was caused due to rash and negligent driving of the offending vehicle by Surinder Singh. It was further held that there was not an iota of evidence on the record to prove that the drivers of both the vehicles were not holding valid driving licence and thus, this issue was held against the appellant-Insurance Company and resultantly, the claim applications were allowed and the claimant-respondents were awarded compensation. The only argument raised before this Court by the learned FAO No.3902 of 2008 (O&M) 5 counsel for the appellant is that the findings of the Tribunal on issue No.1 to the effect that the same was caused due to rash and negligent driving of the offending vehicle by its driver Surinder Singh, are erroneous and are not supported by evidence on record and thus, are liable to be reversed and in the result, the appellant is entitled to be absolved from its liability to pay compensation. In support of his argument, learned counsel for the appellant has argued that the Tribunal has failed to appreciate the fact that the FIR in the present case was registered at the behest of Pal Singh son of Gurdial Singh, who was travelling in the offending vehicle and he has clearly mentioned in the FIR that the accident had taken place on account of rash and negligent driving of the mini bus by its driver-Gurnam Singh. Even in the investigation conducted by the police, it was found that the driver of the mini bus was negligent and he was challaned for committing offence under Sections 304-A, 279, 337, 338 and 427 IPC. It is the further argument of the learned counsel for the appellant that Pal Singh, author of the FIR, was not examined before the Tribunal and thus, the most material witness of the accident was purposely withheld. Learned counsel for the appellant also referred to the site report Ex.AW-16/A to argue that after the accident, the mini bus struck the offending vehicle on back side which clearly shows that it was the driver of the mini bus which was driving the vehicle rashly and negligently and thus, on the basis of the aforesaid evidence, the findings on issue No.1 are liable to be reversed in favour of the appellant. I have heard learned counsel for the appellant and perused the impugned award. FAO No.3902 of 2008 At the outset, it is necessary to mention that vide order dated 10.6.2008, the application filed by the appellant-Company under Section FAO No.3902 of 2008 (O&M) 6 170 of the Motor Vehicles Act, 1988 was allowed and the Insurance Company was allowed to take all the grounds/defence in MACT No.8 dated 10.3.2006 titled as Jagdeep Singh and others v. Gurnam Singh and others ( i.e.in FAO No.3902 of 2008). Since the appellant-Insurance Company has been granted permission to raise all the defence in MACT No.8 of 10.3.2006, the present appeal i.e. FAO No.3902 of 2008 filed by the Insurance Company is being decided on merits on the issue of negligence. The argument of the learned counsel for the appellant as noticed in the foregoing paragraphs though seems to be attractive but is without any merit. The claimants in support of their case have examined Kuljit Kaur-PW-5, Shepinder Kaur-PW-6, Amarjit Kaur-PW-7, Baljit Kaur-PW- 10, Charanjit Kaur-PW-14 and Satnam Singh-PW-15 as eye witnesses of the accident. These PWS have deposed on oath regarding the accident and the fact that accident had occurred due to rash and negligent driving of Surinder Singh i.e. driver of offending vehicle. These eye witnesses who were traveling in the offending vehicle have also received injuries. Nothing could be elicited from the cross-examination of these Pws to make their statements unbelievable. No doubt, Surinder Singh, driver of the offending vehicle, had appeared before the Tribunal who had stated that accident had occurred due to the fault of mini bus driver but no other evidence has been placed on record by the appellant to rebut the overwhelming evidence placed on record by the claimants in the shape of their testimonies. Even Gurnam Singh driver of mini bus, had appeared and countered the version of Surinder Singh, driver of the offending vehicle. Not only this, the appellant-Insurance Company was given permission to take all defence as available to the driver and owner of the offending vehicle, yet the appellant- FAO No.3902 of 2008 (O&M) 7 Company has not placed on record any evidence to rebut the evidence placed on record by the claimants. Though it has been argued that Pal Singh who was travelling in the offending vehicle is the author of FIR and he had stated in his statement before the Police that accident took place due to rash and negligent driving of Gurnam Singh, the driver of the mini bus yet the respondents have not taken any steps to summon the aforesaid Pal Singh, to examine him. The appellant-Company was also free to rebut the evidence of the claimants by placing on record the alleged evidence collected by the Police in investigation of the FIR in the case yet the appellant-Company has not made any effort to bring this evidence on record. Thus, the appellant cannot take benefit of its own wrong. While deciding the negligence, the Tribunal is to consider the substantial evidence produced before it. The eye-witnesses who were travelling in the offending vehicle and had also received injuries had deposed regarding the negligence of Surinder Singh, driver of the offending vehicle. The appellant-Company has failed to place on record any evidence to rebut the aforesaid evidence. Thus, no fault can be found with the findings of the Tribunal on issue No.1 and therefore, the Tribunal was right in law while holding that accident in question was caused due to rash and negligent driving of the offending vehicle by its driver Surinder Singh. The appeal is, thus, without any merit. FAO Nos.3903 to 3914 of 2008 Though learned counsel for the appellant has stated that in all the claim petitions arising out of the aforesaid accident, similar applications for permission under Section 170 of the Motor Vehicles Act, were filed. However, learned counsel for the appellant was unable to produce/place on record such applications filed by the appellant or the orders allowing it to take all defence as provided under Section 170 of the Motor Vehicles Act FAO No.3902 of 2008 (O&M) 8 as granted, in the case of Jagdeep Singh and others v. Gurnam Singh and others and therefore, these appeals i.e. FAO Nos.3903 to 3914 of 2004 of 2008 are liable to be dismissed as in the absence of permission under Section 170 of the Motor Vehicles Act, 1988, as the appeal of the Insurer on the question of negligence of the driver of the offending vehicle is not maintainable. Be that as it may, since the issue raised in all these appeals challenging the findings of the Tribunal on the question of rash and negligent driving by the driver of the offending vehicle is common and has been decided against the appellant-Insurance Company, this Court need not go into the question of maintainability of these appeals i.e FAO Nos.3903 to 3914 of 2008 in the absence of permission under Section 170 of the Motor Vehicles Act to the appellant-Insurance Company and these appeals are held to be without any merit on the basis of the findings arrived at on the same issue in FAO No.3902 of 2008. No other point has been argued. Thus, I find no merit in any of the appeals. Resultantly, all the appeals are dismissed. September 24, 2009 (RAKESH KUMAR GARG) ps JUDGE