FAO No.4395 of 2002 -1- IN THE HIGH COURT FOR THE STATES OF PUNJAB AND HARYANA AT CHANDIGARH FAO No.4395 of 2002 Date of Decision.16.11.2010 New India Assurance Co. Ltd., Regional Office, SCO No.36-37, Sector 17-A, Chandigarh through its duly constituted attorney ......Appellant Versus Brij Mohan s/o Sh. Rajinder Parshad Sharma aged 55 years r/o VPO Sanghora, Distt. Kurukshetra and others ......Respondents 2. FAO No.4396 of 2002 New India Assurance Co. Ltd., Regional Office, SCO No.36-37, Sector 17-A, Chandigarh through its duly constituted attorney ......Appellant Versus Smt. Kamlesh Rani, widow of Sh. Jaswant Singh aged 28 years son of Paras Ram and others ......Respondents Present: Mr. Inderjit Sharma, Advocate for Mr. Pradeep Bedi, Advocate for the appellant. Mr. Gaurav Goel, Advocate amicus curiae. Mr. H.S. Sran, Addl. Advocate General with Mr. Kunal Garg, AAG, Haryana. CORAM:HON'BLE MR. JUSTICE K. KANNAN 1. Whether Reporters of local papers may be allowed to see the judgment ? 2. To be referred to the Reporters or not ? 3. Whether the judgment should be reported in the Digest? -.- K. KANNAN J.(ORAL) 1. The appeals in FAO Nos.4395 and 4396 of 2002 relate to the same accident, one against the award of compensation for death and FAO No.4395 of 2002 -2- another against an award for compensation for injury. The insurance company is on appeal challenging the liability on the ground that the insured vehicle had not been involved in the accident and the claim petition was on account of collusion between the claimants and the owner/driver of the vehicle. 2. In support of his contentions, the learned counsel appearing for the insurance company would point out that the accident is supposed to have resulted by three persons including the deceased travelling in the same motor vehicle and collided with the insured's truck. The accident was said to have taken place on 27.09.1999. The FIR had been lodged at the instance of Brij Mohan, who was a pillion rider but he gave no details of the vehicle number or the name of the driver. The following day after the complaint, Rajesh Kumar, who was another pillion rider had his statement recorded by the police that the vehicle number was either HYK 8330 or 8320. Nothing came on this statement and the deceased Jaswant's wife Kamlesh had given a statement one and half months later to the police which was recorded under Section 161 Cr.P.C. to the effect that the vehicle that had been involved was a truck bearing registration No.HR37-7867. Kamlesh is reported to have given a statement that one Ram Kumar informed her about the details of the vehicle which was really involved in the accident. Ram Kumar's statement is said to have been recorded by the police but Ram Kumar was himself not examined before the Tribunal. The invovlement of the insured's vehicle was, therefore, sought to be proved through the evidence of Kamlesh whose statement was only hearsay and by the mere fact that a criminal case had been lodged FAO No.4395 of 2002 -3- against the owner and driver. The owner of the alleged vehicle and the driver had been served through notice through Court but none of them appeared. 3. In view of the fact that the case involved the death of party and a claim for injuries, I had appointed Sh. Gaurav Goel as amicus curiae to assist the Court and represent the case of the claimants, since the claimants had not put in appearance despite the service. I have later directed the notice to be issued to Investigating Officer in FIR No.138 dated 27.09.1999 and requisitioned all the records of the Criminal Court. The records with the translated copies have been produced before me. I have noticed that the criminal case ended in an acquittal before the Criminal Court. All the so-called eye-witnesses had turned hostile. I will not take the fact of acquittal of the case before the Criminal Court as material any more than for a mere finding that a case had been registered and there was an acquittal for the charges against the driver for rashness and negligence but I have only wanted to make sure that the complaint to the police and the Criminal Court proceedings offer a credible story that the insured's vehicle had been involved in the accident. The Tribunal took the registration of a criminal case as relevant for proving prima facie the involvement of the vehicle but the fact is that the course of criminal case came to nothing. . 4. There were no eye witnesses to the accident and if the case were to rest only on a hear say evidence of the wife of the deceased then I am afraid that the finding of involvement of the vehicle cannot be sustained and the award passed by the Tribunal cannot also be FAO No.4395 of 2002 -4- sustained. 5. The awards are set aside and the appeals by the insurance company are allowed. I had the benefit of assistance of learned counsel Sh. H.S. Sran, appearing for the State who had brought the Criminal Court record and assisted me with the details of the investigation carried out by the police in the case registered against the insured's driver. I place my sincere appreciation for his efforts as well as the assistance of the amicus curiae Sh. Gaurav Goel. The latter shall be paid as per the scales admissible from the amicus curiae fund. (K. KANNAN) JUDGE November 16, 2010 Pankaj*