FAO No.1374 of 2007 -1- IN THE HIGH COURT FOR THE STATES OF PUNJAB AND HARYANA AT CHANDIGARH FAO No.1374 of 2007 Date of Decision. 26.08.2010 United India Insurance Company Limited, (Divisional Office) Sector 1, Naya Nangal, Tehsil Anandpur Sahib, Distt. Ropar, through its Branch Manager, (Insurer of scooter No.PB-16-B-1640) through authorized signatory of Regional Office, SCO No.123-124, Sector 17-B, Chandigarh. ......Appellant Versus Yogesh Vohra son of late Rajinder Nath Vohra and another ......Respondents Present: Mr. Inderjit Sharma, Advocate for Mr. Pradeep Bedi, Advocate for the appellant. Mr. K.V.S. Kang, Advocate amicus curiae for claimants. 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 insurance company is on appeal, having had the benefit of defence under Section 170 of the Motor Vehicles Act denying the accident said to have been caused resulting in injury to the claimant. The accident is supposed to have taken place when the claimant was travelling as a pillion rider in a motor cycle owned and driven by its owner, who was arrayed as the 1st respondent in the petition. In support of the claim that there was an accident injury, the claimant had made reference to the entry in the DDR, where the 1st respondent had given a statement that there was an FAO No.1374 of 2007 -2- accident involving his motor cycle by striking against the pavement slab near an octroi outpost. The claimant is alleged to have taken treatment immediately after the accident at the hospital at Mehatpur and later at Nangal before he was advised treatment for better clinical management at the Government Hospital at Chandigarh. The owner of the vehicle had filed a written statement admitting the accident. The insurance company, however, denied the accident contending that the DDR did not make any reference to a pillion rider as having travelled along with the owner-driver of the motor cycle. There was no evidence according to the insurer than the ipse dixit of the claimant that he was travelling in motor cycle and that he had suffered injuries on account of the careless driving of the motorcyclist. 2. The Tribunal found the insured responsible for the accident and awarded compensation for injuries that was said to have resulted in 40% disability to the claimant where the amount of Rs.1,03,000/- was determined as compensation payable. 3. In appeal, the learned counsel appearing for the insurance company contends that in the case where there was a denial of the accident and the claimant's case was been contested on the ground that there was an act of collusion with owner, the Tribunal could not have merely relied on the sole testimony of the claimant to find that he had suffered injuries only by the involvement of the motor cycle belonging to the 1st respondent. Learned counsel appearing for the respondent, who is an amicus curiae appointed by this Court, has taken me through the entire documents filed by the claimant to FAO No.1374 of 2007 -3- show that the medical records produced by him shows that he had suffered the injuries only in a roadside accident that took place on 21.02.2005. He would contend that the case must be seen in the context of how even the record maintained by the hospital at Chandigarh, there has been a reference to a roadside accident on 21.02.2005 and if it had been due to any other form of accident or injury, there would not have been reference to the particular date. He would also support the reasoning of the Tribunal, which has held that the accident injury could have resulted only by the involvement of the 1st respondent's vehicle by pointing out that the injured- claimant was said to be travelling along with the owner for doing some duty assigned to him and when the complaint of accident was given by the owner, it would not have deliberately made reference to a pillion rider only to save himself from any criminal prosecution. If there was yet another vehicle involved and another person was responsible for the accident, he would have given full expression to the whole facts even referring to a pillion rider also. In this case, the best of evidence could have been placed by the claimant by the treatment that he had taken immediately after the accident at the hospital at Mehatpur or at the hospital at Nangal. Again the accident was said to have taken place only near the octroi post and there ought to have been even several persons at that place, who could have spoken about the incident of an accident when the scooterist struck against the pavement of the roadside and claimant suffering injuries. 4. If the case were to be supported by the reasoning of the FAO No.1374 of 2007 -4- Tribunal, which if it was adequate, I would find no cause for intervention. If the case were to be only decided by how the Tribunal has seen the accident as true then I should have affirmed the basis as a reasonable approach by the Tribunal. While I can understand the Tribunal's reasoning that the owner might not have made reference to a pillion rider merely for a fear of prosecution in a criminal case on account of the incident, the claimant who was prosecuting a case for his own benefit would not provide to the Tribunal the easiest evidence possible of his admission at the hospital immediately at Mehatpur or at Nangal. The hospital record at Government Hospital at Chandigarh that makes a reference to an injury of roadside seems too difficult to find a nexus with the accident that is said to have taken place on 21.02.2005. I have observed already that it is not as if the accident had taken place at the thick of the night when there was no witnesses. It had taken place at an octroi outpost and some evidence ought to have been therefore available through the witnesses at the spot. Even at the time of trial, the petitioner failed to secure the medical evidence but rest contended with production of the disability certificate with no effort to prove the nature of disability that he had suffered. The injury seems to have been serious enough where there had been implants and there had been reduction of the movement of his legs. Again no attempt was made by the claimant to substantiate the nature of injuries, the type of disablement and how it would impair any of his activities that would have a bearing to his income or how it had impacted the amenities of his life. FAO No.1374 of 2007 -5- 5. The evidence is far too skeletal to deserve a favourable consideration in favour of the claimant. Learned counsel arguing on behalf of the claimant makes persuasive contentions that the documents filed before Court were credit worthy and the documents proved for themselves. He refers to admissibility of documents such as the hospital records and the disability certificate. There is no appropriate evidence to find in the first place that the claimant had suffered accident injuries in the particular accident involving the particular vehicle. I place my sincere appreciation on record for the good effort that the amicus curiae had put in for bringing the case of the respondent to a worthy result in his favour. I am afraid, I cannot sustain the award of the Tribunal for what is so seriously deficient in its approach in its appreciation of facts. I, therefore, set aside the award and allow the appeal filed by the insurance company. 6. There are also arguments made by the learned counsel on issue of liability that the driver-owner of the vehicle did not have valid driving licence and that again the quantum of compensation determined was not with reference to any medical evidence acceptable. I do not address these issues because they do not improve the cause of the claimant whose case of the involvement of the vehicle I have found to be not acceptable. 7. The award is set aside and the appeal is allowed. Learned counsel Sh. K.V. S. Kang appointed as amicus curiae shall be entitled to the remuneration as per the scales out of the amicus curiae fund. If ever any amount has already been recovered by the claimant from the insurer, the insurer shall make good the loss by proceeding FAO No.1374 of 2007 -6- against the owner-insured only and shall not press the recovery rights against the claimant. (K. KANNAN) JUDGE August 26, 2010 Pankaj*