IN THE HON’BLE HIGH COURT OF HIMACHAL PRADESH, SHIMLA. FAO(MVA) Nos.98 and 240 of 2006 Judgment Reserved on: 12.10.2009 Date of decision:24.11.2009 1. FAO(MVA) No.98 of 2006. United India Insurance Company …Appellant Versus Kuldeep Singh & Others …Respondents 2. FAO(MVA) No.240 of 2006. Satish Kumar Sharma …Appellant Versus Kuldeep Singh & Others …Respondents Coram: The Hon’ble Mr. Justice Dev Darshan Sud, J. Whether approved for reporting?1 No. FAO(MVA) No.98 of 2006. For the Appellant: Mr.Harish Behl, Advocate. For respondents No.1 & 2: Mr.Ramakant Sharma, Advocate. For Respondent No.5: Mr.J.R. Poswal, Advocate. For Respondents No.3 & 4: Mr.Naresh Kaul, Advocate. FAO(MVA) No.240 of 2006. For the Appellant: Mr.J.R. Poswal, Advocate. For respondentsNo.1 & 2: Mr.Ramakant Sharma, Advocate. For Respondent No.5: Mr.Harish Behl, Advocate. For Respondents No.3 & 4: Mr.Naresh Kaul, Advocate. Dev Darshan Sud, J. Both these appeals are being decided together as they arise out of the same accident. The 1 Whether Reporters of Local Papers are allowed to see the judgment? Yes. 2 undisputed facts are that on 19.11.2002, Bhupender Singh, who was aged about 19 years, met with an accident while he was driving Scooter No.PBN-9700 and as a result of the injuries, he died, despite the fact that he was rushed to Civil Hospital at Nurpur, which was near to the site of the accident. The dispute centers around the fact whether the accident was caused by Tractor or by a Maruti Car No.DL-3516 belonging to Satish Kumar Sharma, appellant in FAO No.240 of 2006. It is undisputed that prior to the institution of the present claim petition, earlier claim petition No.8 of 2003 was filed by the claimants in which the allegation was that the accident had occurred because of the negligent act(s) on the part of one Tractor belonging to S/Shri Ashok Kumar and Khemdi Ram. This petition was dismissed in default on 1.9.2006 vide mark `X’ and a fresh petition out of which the present proceedings arise was instituted. The copy of the claim petition has been filed on the record as mark `y’. The point for consideration before this Court as urged by learned counsel appearing for the Insurance Company as also for appellant Satish Kumar is that claim petition out of which this appeal arises is the result of fraud. Learned counsel for the Insurance Company has urged that fraud vitiates all transactions. In addition, in FAO No.240 of 2006 it 3 has been urged that Maruti Car No.DL-3516 was never involved in the accident and there is no evidence on record to establish this fact. Learned counsel appearing for the Insurance Company submits that mark `Y’ which was the earlier petition instituted by the claimants, only stated that the accident was the result of collision between Scooter and Tractor No.HP-38-7803 belonging to S/Shri Ashok Kumar and Khemadi Ram. According to the allegations made therein, the Tractor was being driven in a negligent manner by Ashok Kumar, respondent and as a result of the accident the deceased fell down on a hard surface sustaining multiple injuries resulting in his instant death. However, in the second petition it is urged that the accident was the result of collision of two vehicles namely, the tractor and the Maruti Car No.DL-3516. Learned counsel submits that this fact was within the knowledge of the claimant(s) and they have intentionally withheld this fact in order to defraud the Insurance Company since the Tractor was not insured and the intention of the petitioner was to recover the amount from the Insurance Company on the pretext that the accident occurred as a result of negligence of the Car driver. Learned counsel Shri Harish Behl has urged that the case squarely falls within the legal parameters of the maxim suppressio veri and suggestion falsi. It was in the knowledge of the claimants as to how and in what 4 manner the accident occurred and they have intentionally withheld such information. I have heard learned counsel for the parties and have gone through the record. It is undisputed that in the earlier petition it was not pleaded that the car was involved in the accident. However the averments in the second petition that car was involved in the accident, cannot be said to be fabricated or manipulated. In Ex.PW-3/A which is the First Information Report, a clear mention has been made with respect to the car No.DL-3516. It is a different matter altogether that no police challan was put up; rather there is no evidence as to whether such challan was filed. The pleading in the second petition is not that it is car which is solely responsible. In paragraph-18 of the petition, the plea is that respondents No.1 and 2 have tried to shift the blame on respondent No.3. The allegation is that either of the vehicles is involved in the accident which the evidence may establish and liability be fixed accordingly. The evidence of PW-2 Shri Ajit Singh and PW-5 Shri Ram Singh, who are witnesses to the accident, is clear and unequivocal that it was because of the rash and negligent driving of the car that the accident has occurred. Moreover FIR Ex.PW-3/A also mentions the fact that car No.DL-3516 was involved in the accident. Learned counsel appearing for the car owner submits 5 that at the relevant point of time this car was never involved in the accident. He has referred to the evidence of the owner who says that his car was never involved in any accident. Besides a terse and bald denial by the owner who has appeared as RW-1, there is no evidence on the record to show that the car was not involved in the accident. The learned Tribunal, while dealing with the occurrence has very clearly held that Ex.PW-3/A clearly establishes this fact which is corroborated by the evidence of two witnesses as noted above that it was the car which was involved in the accident. Learned Court also holds that there is no evidence on the record to hold to the contrary. I can not persuade myself to take any other view. The submission that the claim petition is a result of forgery and fabrication thus cannot be accepted. It is not as if the mention of the involvement of the car has been made for the first time in the petition. The First Information Report, Ext.PW3/A incorporates the fact as to the involvement of the car. No other point has been urged before me. In the facts and circumstances of the case, I find no merit in the appeals preferred by the Insurance Company as also the owner which are accordingly dismissed. There shall be no order as to costs. November 24, 2009. (Dev Darshan Sud) (aks) Judge.