IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH. FAO No.1120/2008 Date of Decision: 30.5.2009. The Oriental Insurance Company Limited ..........Appellant Versus Chhabil Dass and others ..........Respondents CORAM: HON'BLE MR.JUSTICE JASWANT SINGH. Present: Mr. Naveen Kapur,Advocate for the appellant-Insurance Company Mr.Anand Kumar Bishnoi,Advocate for the respondents-claimants in FAO Nos.1120 to 1126, 1128,1130, 1132 to 1135/2008. Mr.Sandeep Kotla,Advocate for respondent in FAO No.1136/2008. JASWANT SINGH,J This order will dispose of 17 FAO Nos.1120 to 1136 of 2008 and C.R.No.2210 of 2008, arising out of common award dated 5.12.2007 passed by the learned Motor Accident Claims Tribunal, Hisar (hereinafter referred to as the Tribunal) whereby the claim petitions filed by the respondents-claimants (in the aforesaid FAOs) were partly allowed and they were granted compensation on account of injuries suffered by them/ death of their kith and kin in a motor vehicular accident that took place on 1.9.2004 involving the offending truck bearing registration No. HR-46A-1061 (hereinafter referred to as the offending vehicle) insured by the appellant-Insurance Company, and a Four Wheeler (Matador) bearing registration No.HR-22A/1674 (hereinafter referred to as the ill fated vehicle). At the outset, it may be noticed that the application under Section FAO No.1120/2008 -2- 170 of the Motor Vehicles Act,1988, moved by the appellant-Insurance Company was allowed by the learned Tribunal vide its order dated 5.4.205 (Annexure P/1), to contest the award on all the grounds available to it. However, in these appeals filed by the appellant Insurance Company, the factum of accident, casualties and injuries suffered by the claimants/their kith and kin, dependency arrived at in individual claim petition and multiplier applied, are not in dispute and only the issue of contributory negligence has been agitated. Briefly stated the facts emerging from the impugned award that on 1.9.2004, the claimants/their deceased kith and kin after attending the marriage ceremony of one Umed @ Maida son of Tirkha Ram were returning from Village Milathal to Rawalwas. At about 8.30 p.m., when they reached near the bus stand of village Sikanderpur, the offending vehicle allegedly being driven in a rash and negligent manner came and struck against the ill fated vehicle, as a result of which its 9 occupants died on the spot, one in Civil Hospital, Hansi (thus total casualties were 10)and other occupants of the ill fated vehicle received injuries. The accident was alleged to have taken place on account of rash and negligent driving of the offending vehicle by Krishan Lal (owner and driver). With these allegations the respondents/claimants filed 19 claim petitions, which were partly allowed vide impugned award dated 5.12.2007. Aggrieved against the same, the appellant-Insurance Company has preferred the aforesaid 17 appeals and C.R.No.2210 of 2008. I have heard learned counsel for the parties and perused the record FAO No.1120/2008 -3- carefully. It is contended by the learned counsel for the appellant-Insurance Company that the accident had taken place due to rash and negligent driving of the ill fated vehicle and the learned Tribunal has erred in holding that the driver of the offending vehicle was rash and negligent. It has also been contended that the accident being a head on collusion it was a case of contributory negligence. Reference has been made to the testimony of Ram Phal-PW4, an eye witness to the accident. Reliance has also been placed on Basant Rani and another v. Ran Singh and others, 1995(3)The Punjab Law Reporter,408; Mahendri and others v. Tanjit Singh and another, 2007ACJ 122 and Bhai Shamsher Singh (Died) and others v. Punjab State Through General Manager,Punjab Roadways, Moga, 1993(1) The Punjab Law Reporter,757. On the other hand, learned counsel for the respondents-claimants have submitted that it was not a head on collusion, and as such the insurance company cannot be absolved of its liability to pay the entire amount of compensation. It is further submitted that the present appeals and Civil Revision is not maintainable as the recovery rights have already been granted to it. I have heard the learned counsel for the parties and perused the records carefully. So far as the first contention of the learned counsel that it was a head on collusion is concerned, I do not find any merit therein. FAO No.1120/2008 -4- In support of this contention learned counsel for the appellant has referred to the cross examination of PW-4 Ram Phal son of Sada Sukh, an occupant of the ill fated vehicle and hence any eye witness to the accident. In order to appreciate the merits of the first contention of the learned counsel for the appellant, the cross examination of said Ram Phal PW4 is reproduced hereunder:- “I am illiterate. I do not know what is written in my affidavit Ex.PW4/A. It is incorrect that accident took place due to rash and negligent and carelessness driving of matador/four wheeler bearing No.HR-22A- 1674 by its driver Vijay Pal. It is incorrect that the abovesaid matador was at a high speed. It is incorrect that the driver Vijay Pal of abovesaid matador struck its matador with truck with negligent and speed and carelessly and accident took place sole the fault of abovesaid matador driver. I was sitting in four wheeler No.HR-22A-1674 on the back side in the trolley. There were 14/15 passengers in the matador. The four wheeler driver was driving at a moderate speed and on its left side. I saw the truck from about 2 to 4 killas. I studied upto 5th standard. The registration number of the truck was in Hindi Language. The road was wide enough and two vehicles can pass simultaneously. It was head on FAO No.1120/2008 -5- collision. The right side of the four wheeler was detached by the truck due to this impact. I do not know the speed of the truck coming from opposite direction. After the accident I am unemployed. I keep the record of my salary, which I can produce if required. It is incorrect that the accident was caused due to rash and negligent driving of four wheeler and the driver of whom of suggested by the passengers to drive slowly.” From the above cross examination of said Ram Phal it is evident that except stating that “It was head on collision” he had fully corroborated the case of the claimants. This Court cannot lose sight of the fact that some of the injured claimants also examined themselves as PWs 9 to 11. In their examination-in-chief, the categoric stand of the injured eye-witnesses PW-9, PW-10 and PW-11 was that the accident took place due to rash and negligent driving of Krishan Lal-driver of the offending vehicle. They were cross examined by the learned counsel for respondents but nothing could be extracted which may go to show that it was a head on collusion due to contributory negligence on the part of both the drivers. Injured eye witness, Dalip PW-9 in his cross examination stated that “It is incorrect that the accident took place in the middle of the road and it was head on collision..... It is incorrect that accident took place due to rash and negligent driving of matador/four wheeler and driver of the matador was at fault.” FAO No.1120/2008 -6- Another eye-witness claimant-Sandeep-PW 10 in his cross examination also denied the suggestion that the accident had taken place due to rash and negligent driving of matador/four wheeler and driver of the matador was at fault. Similar is the version given by another injured eye witness claimant-Ashok Kumar-PW11, that “It is incorrect that the accident had taken place on head on collusion. Volunteered that the truck stuck the four wheeler on the rear side of the four wheeler. The driver of the four wheeler was driving at the speed of 20/30 k.m.p.h., because there was a turn on the road...” From a perusal of the testimonies of the aforesaid claimants- respondents, it is evident that except said Ram Phal, all other PWs unequivocally stated that driver of the offending vehicle was rash and negligent due to which the accident took place. The slight deviation in the cross examination of said Ram Phal, in my considered opinion, is not enough to brush aside the testimony of other injured eye-witness PWs who have categorically stated that the accident took place due to rash and negligent driving on the part of Krishan Lal, driver cum owner of the offending vehicle. It is also worth noticing that the appellant insurance company did not produce any evidence viz. site plan, photographs of the accident etc., from where it could be ascertained that it was a case of contributory negligence Learned counsel for the appellant has not been able to refer any other piece of evidence which may point towards the negligence on the part of the driver of the ill fated vehicle. FAO No.1120/2008 -7- It is also pertinent to mention that arising out of the same accident, dependants of two other deceased (Vikram and Kiriya) filed claim petitions before the learned Motor Accident Claims Tribunal, Fatehabad, which were partly allowed vide award dated 15.5.2006. It is not disputed that the said award has not been challenged either by the Insurer or driver/owner of the offending truck, meaning thereby that said award has attained finality. Learned counsel for the appellant-Insurance Company has not been able to point out the basis on which despite having similar set of facts and circumstances, the insurance company did not prefer any appeal. The authorities relied upon by the learned counsel for appellant- Insurance Company are not applicable to the facts and circumstances of the present case. In the reported case, the Motor Accident Claims Tribunals, on the basis of evidence, have found that accidents had taken place due to contributory negligence of the respective drivers. It is in these circumstances that this Court held both the drivers equally liable. However, in the case in hand, the appellant-Insurance Company and/or driver/owner of the offending vehicle have miserably failed to show that it was a case of contributory negligence. Hence the driver/owner of the ill fated vehicle cannot be held equally liable to pay the compensation awarded by the learned Tribunal. It is also not disputed by the learned counsel for the appellant- Insurance Company that regarding the negligence on the part of the offending/ ill fated vehicle the following issues were framed:- “1. Whether the accident took place due to rash and negligent driving of truck bearing registration FAO No.1120/2008 -8- no.HR-46A/1061 by respondent no.1 Krishan Lal? OPP. 9(a) Whether the accident took place on account of negligent driving of driver of vehicle no.HR20A/1674? OPR. 9(b)Whether the petition is bad for mis-joinder and non- joinder of the necessary parties? OPR. Claimants-respondents (PW-8 Rohtash, PW-4 Ram Phal, Dalip PW-9, Sandeep PW-10 and Ashok Kumar-PW11) as already noticed above, led sufficient evidence to prove that the accident took place due to rash and negligent driving on the part of driver of the offending vehicle. However, respondents, did not lead any evidence in support of issue nos.9(a) and (9b) above. Once having failed to avail the opportunity of proving negligence on the part of the driver of the ill fated vehicle, now the appellant-Insurance Company, in the absence of any evidence worth the name, cannot be permitted to challenge the impugned award. No other point has been urged. For the reasons stated above,finding no merit in these appeals/ Civil Revision, the same are hereby dismissed. No costs. 30.5.2009. (Jaswant Singh) joshi Judge