F.A.O.NO. 2344 OF 1997 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH F.A.O.NO. 2344 OF 1997 Date of decision:23rd July, 2010 United India Insurance Company Ltd. .......Appellant Versus Amit Jain and others ........Respondents BEFORE: HON'BLE MR. JUSTICE K.KANNAN Present: Mr. Sukhwinder Pal Singh, Advocate, for the appellant. Ms. Kiran Bala, Advocate with Mr. Amrinder Singh, Advocate, for the respondents. 1. Whether Reporters of local papers may be allowed to see the judgment? Yes/No 2. To be referred to the Reporters or not?Yes/No 3. Whether the judgment should be reported in the Digest? Yes/No K.Kannan, J.(Oral) 1. The Insurance Company is in appeal challenging the accident and the quantum awarded to the claimant. The accident took place by the claimant as having occurred by collision of the car which he was driving with the truck belonging to the insured. The driver and the insured remained ex parte. There was only the testimony of RW-1 who supported the various accident and the injuries that had been suffered. No counter evidence has been given by the insurer. The Tribunal therefore, found that the accident is true and the injuries arose out of the use of a motor vehicle. F.A.O.NO. 2344 OF 1997 2 2. Learned counsel challenges the finding of the Tribunal on the ground that there was no FIR, no DDR and even without reference of any police record the court has accepted the sole testimony of the claimant. It is not the number of witnesses examined or the volume of documentary evidences that are produced which are relevant. It is the character of such evidence that is relevant. In this case, if the accident itself is not denied in the written statement and the evidence of the claimant is not challenged in the cross examination, it will have futile to contend that by the fact that the FIR is not registered, the injury was not out of the use of the motor vehicle. 3. In this case, the Insurance Company did not also make out a case of any collusion between claimants and the owner of the vehicle before the trial court. An application is taken for the first time before this Court. A plea of collusion is invariably an issue of fact that must be taken before the trial court and cannot be urged for the first time by means of an application before this Court. Since the learned counsel was contending that the accident itself had not taken place, I was prepared to examine the fact as a jurisdictional issue for even without an express permission under Section 170 of the Motor Vehicles Act, it should still be possible for the insurer to say that the injury was not out of use of motor vehicle and therefore, the appeal itself was not maintainable under the Motor Vehicles Act. I am convinced by the evidence that has come before the Court that the accident did occur and the injuries were out of the use F.A.O.NO. 2344 OF 1997 3 of a motor vehicle. 4. Even as regards quantum, if there is no collusion and if the finding for injuries were out of use of motor vehicle then the issue of quantum cannot be a matter which the insurer could urge. There is no scope for interference. The appeal is dismissed. [K.KANNAN] JUDGE 23rd July, 2010 Shivani Kaushik