FAO No.2795 of 2001 -1- IN THE HIGH COURT FOR THE STATES OF PUNJAB AND HARYANA AT CHANDIGARH FAO No.2795 of 2001 Date of Decision.17.11.2010 United India Insurance Company, Regional Office, 136, Feroze Gandhi Market, Post Box No.352, Ludhiana through its duly constituted attorney ......Appellant Versus Smt. Joginder Kaur w/o Sh. Jagdish Singh and mother of deceased Shri Jagraj Singh and others ......Respondents 2. FAO No.2796 of 2001 United India Insurance Company, Regional Office, 136, Feroze Gandhi Market, Post Box No.352, Ludhiana through its duly constituted attorney ......Appellant Versus Shri Gurdev Singh son of Shri Chand Singh father of deceased Naib Singh and others ......Respondents Present: Mr. R.C. Gupta, Advocate for the appellant. Mr. H.S. Dhindsa Advocate for respondent Nos.1 to 3. None for respondent Nos.4 and 5. Mr. Neeraj Khanna, Advocate for respondent No.6. 3. FAO No.146 of 2002 Smt. Joginder Kaur w/o Sh. Jagdish Singh and mother of deceased Shri Jagraj Singh and another .....Appellants Versus Roshan Lal alias Lachhman Nepal son of Sh. Om Parkash, Green Roadays, Ludhiana and others 4. FAO No.147 of 2002 Shri Gurdev Singh son of Shri Chand Singh father of deceased Naib Singh and another .....Appellants FAO No.2795 of 2001 -2- Versus Roshan Lal alias Lachhman Nepal son of Sh. Om Parkash, Green Roadays, Ludhiana and others Present: Mr. H.S. Dhindsa, Advocate for the appellants. None for respondent Nos.1, 2 and 5. Mr. R.C. Gupta, Advocate for respondent Nos.3. Mr. Neeraj Khanna, Advocate for respondent No.4. 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 two appeals are at the instance of the insurer of the vehicle, which was a truck bearing registration No.PAT 7557 and it was said to have been involved in an accident in a collision with yet another vehicle in which two persons among others were travelling, both of whom died in the accident. The claim petitions were at the instance of the representatives of the respective deceased. Both the deceased persons were police personnel said to have been involved in election duty. The claimants are also in cross appeals in FAO No.146 and 147 of 2002 for enhancement of claims. 2. The parties went to trial on a pleading given by the claimants that the deceased were travelling in Maruti Car No.PB-2D-3759 and when the vehicle was going at a slow speed being driven by the deceased Naib Singh, with the other deceased Jagraj Singh seating in front seat of the car, the insured's truck coming in the opposite FAO No.2795 of 2001 -3- direction at a very high speed and without blowing any horn or without headlights, came on the wrong side and struck against the vehicle PB- 2D-3759. It was also stated in the petition that the said vehicle in which the deceased was travelling was being followed by yet another vehicle bearing registration No.PB-10H-0089. 3. The written statement had been filed on behalf of the driver and the owner denying the involvement of the vehicle and further denying that the 1st respondent was not working as driver in the truck No.PAT 7557. The person cited as a driver of the vehicle was one Roshan Lal son of Lachchman Nepali. It was contended by the 2nd respondent owner that the driver of the vehicle No.PAT 7557 was one Som Nath son of Jagan Nath. 4. After the statement was filed, the petition was dismissed for default. Later an application had been filed for restoration and it was restored. Evidence when it was tendered, the person who spoke about the accident was PW3, one Sukhdev Singh. He said that he was travelling from Mullanpur to Sudhar when the deceased Naib Singh was driving the car bearing registration No.PIM 35 that belonged to SHO Gurmit Singh. He said that the other deceased Jagraj Singh was sitting by his side on the front side of the car and that he was sitting on the rear seat of the car. The other vehicle which was said to have been following their car was PB-10H-0089 and when they had come to the area of village Rakba then the insured's truck struck against the vehicle that resulted in the fatal injuries. This reference to PIM 35 as the vehicle in which they were said to be travelling was at once inconsistent with the pleadings already made by the claimants. The FAO No.2795 of 2001 -4- cross-examination, however, proceeded on the basis of the pleadings and the witness also made reference to the truck as having struck only the vehicle PB-02D-3759 and the witness corrected himself later to say that he did not remember the registration number PIM 35 and it was told to him by the inspector and it was only at his instance he gave the number. About the details of the accident, he could not state any more than contending that the accident had taken place on the left side of the road and after the collision, the vehicle has stopped and he had become unconscious. He would, therefore, state that he did not know the number of persons in the truck or the person who was driving the vehicle. Joginder Kaur was PW4, who was the mother of the other deceased Jagraj Singh and her evidence does not go anywhere to track the involvement of the insured's truck. Som Nath was examined as RW-1 said that he did not cause any accident on the date alleged and that the police had taken possession of the truck for election rally on 11.01.1994. The cross-examination was merely a suggestion that he was deposing falsely. 5. After the examination of witnesses, an application for amendment had been made on 10.05.2001 seeking for amendment of the particulars with reference to the registration number of the vehicle as PIM 35. The Tribunal passed the order on 12.05.2001 by stating that the trial had already concluded and there was no fresh evidence necessary. The Tribunal had also observed that it ought to be fairly liberal in allowing application for amendment. To this amended petition, a reply was filed denying that the vehicle PIM 35 as involved at all in the accident and that the insured's truck was also not FAO No.2795 of 2001 -5- involved. This amendment has come about only subsequent to the evidence placed on the side of the respondents that the particular vehicle in which the deceased were travelling was not even a car and it was a scooter and therefore, the accident could not have been caused in the manner in which it was alleged. I see from the original records that even before the commencement of the trial when negotiations for a compromise were being undertaken, the insurance company stated before the Tribunal on 29.04.1998 that the vehicle which is said to have been involved in the accident and in which the deceased was said to be travelling was not a car and it was a scooter. It was only after this fact was stated in the Court, the petition was allowed to be dismissed for default. The Tribunal found the involvement of the respondent's vehicle to have been established and awarded compensation on the basis of evidence let in as regards the income in favour of the claimants. 6. In appeal, it is contended on behalf of the insurer that the whole case is set up by the claimants could not be true, for, one, in the first place, the particular vehicle in which the deceased was supposed to be travelling was not a car and a scooter and PW3, who was said to be a co-passenger in the same vehicle bearing registration No.PB-02D-3759 could not be speaking the truth for the said vehicle was not a car. Secondly, it is contended that evidence with reference to the involvement of vehicle No.PIM 35 was spoken to only through PW3 but in the cross-examination referred to the involvement of the vehicle No.3759 and take corrected it as PIM 35. The evidence is suspect since the owner of the vehicle who was said to be another FAO No.2795 of 2001 -6- policeman was not examined nor was it even shown during trial that there was any claim by the owner of the said vehicle for the damages that were said to have been caused to the vehicle in a collision with the truck. 7. Learned counsel appearing for the claimants would support the awards stating that they were not substituting a new registration number in the vehicle, which they had alleged as responsible for causing the accident. The mistake was only as regards the vehicle which the deceased was driving and the amendment was brought in line with the facts and to be consistent with the evidence of witness PW-3 and the actual state of affairs. 8. In this case, I find that there are several loose ends which cannot be tied up easily to make a credible story. It was an accident purportedly arising out of an collision of two vehicles. The deceased was a driver of another vehicle, which was alleged to have struck against the insured's vehicle. Two passengers in the vehicle had died. The accident was again a head on collision of the insured's truck alleged to be coming from the opposite side. An accident as serious as to cause injuries also to persons sitting on the back seat could have resulted serious damage to the vehicle involved in the accident. When it is alleged that the insured's vehicle was not at all involved in the accident and the person, who claimed that he was the driver for the particular vehicle had never caused the accident, the version could have been proved only by the involvement of the other vehicle which was alleged to have been driven by the deceased. Assuming for arguments sake that the mistake in referring to the registration FAO No.2795 of 2001 -7- number of the car occurred by inadvertence, then even the involvement of the car was required to be proved. It could not have been by mere oral assertion and the best evidence that was possible was to establish that PIM 35 had been really damaged and therefore, a claim or complaint about damage by the owner of the vehicle had been made against the insurer or against its own insurer. I am prepared to go one step more as also believe that here was a benevolent person who was not prepared to claim anything for damage caused to his own vehicle. In such an eventuality, I would have expected owner of the vehicle to come to the Court to say that his vehicle was involved in the accident. It is also on record that the insured's vehicle had been taken by the police on election duty and it was possible for the police to claim custody of the vehicle easily. One thing has to be noticed that all the persons involved in the accident were in some way connected with police. As enforcers of law, it would not have been difficult for the police to collect the best evidence possible. The most important material object is the vehicle that was involved in the accident and that could not be merely the vehicle against whom the fault was attributed but also the vehicle which was said to have been involved in the accident and in which the deceased were travelling. 9. I cannot accept a plea that the amendment could have been made since there was no new evidence necessary. Evidence invariably follows pleadings and not vice versa. It will be placing the cart before the horse if it were to be contended that evidence was led about the involvement of PIM 35 and therefore, amendment could be allowed subsequently. If the involvement of PIM 35 was to be taken through FAO No.2795 of 2001 -8- the evidence, in the first place, such evidence could not have been given without an amendment being there and a pleading available to place an evidence upon. In my view, the fact of falsity of the case attributed to the involvement of the insured's vehicle stands exposed not merely by the original pleading that vehicle No.PB-02D-3759 was involved in the accident and it incidentally was the number which was recorded in the DDR but even the fact that PIM 35 had been involved in the accident and that vehicle was being driven by one of the deceased was not established. The involvement of the vehicle PIM 35 if it had been shown through the evidence of the owner of that vehicle it would have brought in a semblance of credibility but even that is not established. 10. In a case of collision between two vehicles, it is like clap of two hands coming together. There could not have been a collision with just vehicle and if there was a collision with another vehicle, if it is shown that yet another vehicle was not involved at all in the accident, it becomes even doubtful whether the involvement of other vehicle against whom negligence was attributed could be taken as established. 11. The whole case of the claimants is built on a shallow edifice and it cannot stand a judicial scrutiny. The claim petitions ought to have been dismissed for want of proof of the involvement of the insured's vehicle and the awards passed cannot, therefore, be sustained. The awards set aside and the appeals are allowed. 12. The death of the claimants, if they have come through injury sustained in a motor accident, and the actual culprit has not been FAO No.2795 of 2001 -9- established, the remedy of the claimants would be to secure the relief as provided under Section 163 of the Motor Vehicles Act under the fund constituted by the State Government for hit and run and cases and it will be at liberty for the claimants to secure the relief by moving an appropriate application and if such a proceeding is adopted, the State shall not take up the issue of limitation and will not also question the fact that the death arose out of the involvement of a motor vehicle. Those two aspects shall be taken as established in the cases that were brought before the Tribunal. Subject to this alone, the claimants shall fail and the appeals by the insurance company shall stand allowed. 13. Having regard to the fact that I find that the involvement of the insured's vehicle was not established and neither the insurer nor the insured could be made liable, I do not think it is necessary to examine the issue of enhancement of the claim for there cannot be an enhancement without identifying also the person against whom it could be awarded. In the light of the decision that I have come to in the other two connected cases in FAO No.2795 and 2796 of 2001, the appeals filed for enhancement in FAO Nos.146 and 147 of 2002 shall also fail and are dismissed. 14. It is stated that the amounts have been ordered to be released in favour of the claimants on furnishing appropriate security. It will be open to the insurance company to enforce the security in accordance with law. (K. KANNAN) JUDGE November 17, 2010 Pankaj*