FAO No.2295 of 2008(O&M) [ 1 ] IN THE HIGH COURT FOR THE STATES OF PUNJAB & HARYANA AT CHANDIGARH ... FAO No.2295 of 2008(O&M) Decided on : September 10, 2009 The Oriental Insurance Company ... Appellant VERSUS Smt.Sudesh and others ... Respondents CORAM : HON'BLE MR.JUSTICE A.N.JINDAL Present: Mr.Naveen Kapur, Advocate for the appellant. A.N.JINDAL, J.- This is Insurance Company's appeal directed against the award dated 9.4.2008 passed by Motor Accident Claims Tribunal, Jind awarding a compensation to the tune of Rs.5,68,220/- to the claimant – respondents No.1 to 3 (herein referred as the claimants) on account of the death of Rajinder Kumar in a motor vehicle accident. The allegations in nutshell are that on 10.11.2005 at about 6.30 p.m, Rajinder Kumar (deceased) was coming from Municipal Council, Narwana to his house at village Dablain, on his motorcycle bearing Reg.No.HR32A-8527. Then, Maha Singh – respondent No.4 (herein referred as respondent No.4) while driving Jeep bearing Reg.No.HR56- 3117 rashly and negligently came and struck against his motor cycle, as a FAO No.2295 of 2008(O&M) [ 2 ] result of which the deceased suffered injuries. He was removed to General Hospital, Narwana, where, he was declared `dead'. The First Information Report was registered on the same day. The claim petition was contested by the Insurance Company – appellant as well as the owner and driver of the offending jeep (respondent No.4). The Insurance Company in its written statement averred that the claimants in collusion with respondent No.4 for wrongful gains have filed this petition. No such accident took place with the said jeep and that the jeep was involved in the case on the basis of suspicion. Respondent No.4 was not holding a valid driving licence. From the pleadings of the parties, the following issues were framed:- “1. Whether the accident in question has occurred on 10.11.2005 at 6.30 PM while the respondent No.1 was found driving the Jeep bearing Registration No.HR-56-3117 in a rash and negligent manner resulting into the causing of death of Rajinder Kumar, as alleged? OPP 2. If issue No.1 is proved in affirmative, whether the petitioner is entitled to the relief of compensation, if so to what amount and from whom? OPP 3. Whether the respondent No.1 was not holding a valid and effective driving licence at the time of alleged accident, if so its effect? OPR-3 4. Relief.” FAO No.2295 of 2008(O&M) [ 3 ] The parties led evidence. Ultimately, the Tribunal accepted the claim petition and awarded the compensation. Arguments heard. Record perused. The onus to prove the rashness and negligence of respondent No.4 (respondent No.1 in the claim petition) was upon the claimants. In order to shift the onus, it was obligatory on their part to examine an eye- witness or bring on record other admissible evidence, but they have failed to shift the onus. They have placed on record, the copy of the First Information Report, registered under Sections 279/304-A of the Indian Penal Code at Police Station City Narwana (Ex.P1), wherein, the accident has been reported as `hit and run case'. Neither the name of the driver, nor the registration number of the offending vehicle is recorded therein. The author of the First Information Report, namely Ishwar Singh, though appeared as PW2, yet he has given the improved version as he got recorded in the FIR that he was not present at the spot and when he reached near the place of occurrence, he saw the deceased (his brother) lying on the ground. Thus, the implication of the Jeep owned by respondent No.4, which is stated to be the offending vehicle, is an after-thought. The reasons are obvious that the driver/ owner of the jeep was introduced later on knowing fully well that the vehicle was insured one, and the Insurance Company would be held liable to pay the compensation. Therefore, the admission made by Maha Singh – respondent No.4 in his statement appears to be in collusion with the claimants. Resultantly, on the basis of the evidence examined by the Tribunal, this Court is unable to hold that the accident took place due to rash and negligent driving of the Jeep bearing FAO No.2295 of 2008(O&M) [ 4 ] Reg.No.HR56-3117 by respondent No.4. Consequently, the findings returned by the Tribunal on issues No.1 and 2 stand reversed and these two issues are decided against the claimants and in favour of the appellant. However, it may be observed that since respondent No.4 has admitted the accident in favour of the claimants, therefore, he could be held liable to pay the compensation. Under these circumstances, this appeal is partly accepted. The impugned judgment is set aside and the claimants are held entitled to claim compensation only from respondent No.4 Maha Singh, who is driver/ owner of the alleged offending jeep, and that the Insurance Company – appellant would be entitled to get refund of the amount deposited by it. No order as to costs. September 10, 2009 ( A.N.JINDAL ) `gian' JUDGE