F.A.O.NO. 2481 OF 2009 and 1 F.A.O.NO. 2482 OF 2009 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH F.A.O.NO. 2481 OF 2009 Date of decision:6th August, 2010 United India Insurance Company Limited, Jind .......Appellant Versus Kanta Devi and others ........Respondents F.A.O.NO. 2482 OF 2009 United India Insurance Company Limited, Jind .......Appellant Versus Renu and others ........Respondents BEFORE: HON'BLE MR. JUSTICE K.KANNAN Present: Mr. Ravinder Arora, Advocate, Mr. Vivek Singal, Advocate with Mr. Neeraj Khanna, Advocate, for Insurance Company. Mr. Jai Bhagwan, Advocate, for the claimants. 1. Whether Reporters of local papers may be allowed to see the judgment? Yes/No 2. To be referred to the Reporters or not?Yes/No 3. Whether the judgment should be reported in the Digest? Yes/No K.Kannan, J.(Oral) 1. Both the appeals arise out of the same accident at the instance of the Insurance Company. The Insurance Company contends that in a case of collision involving a jeep and a car, the jeep driver is found wholly liable for the accident and F.A.O.NO. 2481 OF 2009 and 2 F.A.O.NO. 2482 OF 2009 consequently, its insurer who is the appellant has been made liable. The contention is that amongst passengers the driver of the car died and a passenger got injured which was the subject of a claim before the Tribunal. Learned counsel appearing for the Insurance Company refers to the fact that permission had been given under Section 170 of the Motor Vehicles Act to defend the case on all grounds and would therefore, urge that the finding both as regards quantum and negligence are erroneous and they would require to be set aside/modified. 2. On the question of negligence of the driver of the car, the learned counsel would state that in a case of collision the principle of res ipsa loquittor will apply and the liability must have been apportioned between both the vehicles with respect to insurance. Learned counsel would also rely on statement alleged to have been given by the passenger in the car PW-2 that it was foggy night and the accident had taken place when the visibility was relatively poor. Both the drivers must therefore take the liability for the accident. The insurer also produced the statement alleged to have been given by PW-2 Kanta Devi before the police and summon the record through RW-1 Atinderjit a constable at the police station at Barnala. 3. Learned counsel appearing for the claimants would contend that she had denied giving any statement to the police and that she was ever examined by the police. She also denied the suggestion that it was a foggy night and the visibility was poor. In a case where the only proof of negligence was sought to F.A.O.NO. 2481 OF 2009 and 3 F.A.O.NO. 2482 OF 2009 be made by the insurer on statement alleged to have been given by the mechanic then the alleged statement itself ought to have been ignored. The Statement recorded in DDR was not confronted to PW-2 when she was cross examined. The person who brought the record from the police station himself was not present who had recorded the DDR. He gave evidence admitting the fact that he was not present at the time when the alleged statement had been given. He also admitted that he never worked with Pritam Singh ASI at any time before whom the statement was alleged to have been given. Entry in DDR does not become evidence proprio vigore, it can obtain relevance only for contradiction or corroboration and if that document itself is not put to present at the time when she was examined and in a case of denial when the person who was alleged to have been taken statement was also not examined. It shall not be possible for the insurer to rely on the recitals of the DDR as constituting admission that the negligence was to be cast on the drivers of both the vehicles. 4. In this case apart from the fact that the statement in DDR had not been specifically confronted with reference to the document to PW-2, the driver of the jeep who has found to be negligent was also not produced before Court to explain the circumstances under which the accident had taken place. It must be noticed that the driver of the car had himself died, the only passenger who survived in the accident apart from the driver of the jeep was the passenger in the car and she had given evidence F.A.O.NO. 2481 OF 2009 and 4 F.A.O.NO. 2482 OF 2009 to the effect that the jeep alone was responsible. The Tribunal was justified therefore, in its conclusion that it was only the driver of the jeep who was responsible in the accident. The amount of compensation which was apportioned for which the insurer is liable has sought for by the learned counsel for the insurer cannot be accommodated. The plea on the other hand is rejected and the finding of the Tribunal is confirmed. Both the appeals are dismissed. [K.KANNAN] JUDGE 6th August, 2010 Shivani Kaushik