F.A.O.NO. 847 OF 2005 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH F.A.O.NO. 847 OF 2005 Date of decision:20th September, 2010 Oriental Insurance Company Limited, through its Assistant Manager, Sector 17-A, Chandigarh. .......Appellant Versus Smt. Sherbee and others ........Respondents BEFORE: HON'BLE MR. JUSTICE K.KANNAN Present: Mr. Ashwani Talwar, Advocate, for the appellant. None for respondent Nos. 1 to 6. Mr. Kunal Garg, AAG, Haryana, for respondent Nos. 7 and 8. None for respondent Nos. 9 ad 10. 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. The Insurance Company of private vehicle bearing Registration No. HR-20-F-8134, is in appeal challenging the involvement of the vehicle. The Insurance Company had the benefit of defence under Section 170 of the Motor Vehicles Act. 2. The accident pleaded by the claimants was that the insured's vehicle ran over the deceased and when he was lying on the F.A.O.NO. 847 OF 2005 2 road, the police vehicle bearing Registration No. HR26E-4333 also ran over him. At the trial an alternative evidence was tendered consistent with a police investigation which was said to have revealed an aspect which was at variance with the First Information Report. The FIR had been lodged by a street side vendor to the effect that the vehicle bearing Registration No. HR-26E-4333 that belonged to the State had been involved in the accident. The author of the FIR was not examined. However, it was sought to be contended that there was no mistake with reference to the details given in the FIR and the vehicle that actually ran over the deceased was the insured's vehicle. This version was sought to be supported by PW-3 Sher Mohd. another street vendor. 3. The driver of the insured's vehicle Iqbal examined who said that his vehicle was not involved in the accident and that the vehicle that had been seized and arrest of the driver shown more than a month after the incident. The driver of the police jeep was not however, examined. The Tribunal sought to reconcile the conflicting versions by observing that it was irrelevant that the driver of the police jeep was not examined to deny the involvement of the vehicle, since, after all PW-3 Sher Mohd. who was street vendor had given such evidence. I cannot approve of this reasoning. A person who is said to be a street vendor vending fruits on a rehri is invariably at the mercy of the police. If a police were to discount the details in the FIR and would want them to be discarded with reference to the involvement F.A.O.NO. 847 OF 2005 3 of its vehicle, it could have been best displaced only by the evidence of the driver of the police jeep itself. When a positive assertion is made by driver of a private jeep denying involvement of his vehicle, unless it is matched by a denial and proof at the trial by the driver of the police jeep, the version of a street vendor could not have been believed to discredit the evidence of the driver of private jeep. The police had formidable facts to explain:- (i) The FIR gave the name of the police vehicle, registration no. of the police vehicle as having been involved; (ii) The author of the FIR must have been cited as a witness by the police itself to explain the mistake, if the number given in the FIR was an inadvertent error; (iii) The evidence of the driver of the police jeep denying involvement could not have been discarded and the evidence of Sher Mohd. Believed and (iv) The non examination of the driver of the police jeep must have been duly explained by the police. 4. With all these handicaps, the Tribunal could not have entered a finding that the insured's jeep was involved. The Tribunal ought to have found that it was only the police jeep whose Registration No. had also been recorded in the FIR was involved in the accident. 5. The award of the Tribunal is set aside and the liability to satisfy the claim of the claimant will rest only with the State Government which owned the vehicle Registration No. HR-26E-4333. If any portion of the award has already been recovered against the F.A.O.NO. 847 OF 2005 4 insurer, the insurer shall have a right of recovery against the State in execution proceedings. The appeal is allowed to the above extent. [K.KANNAN] JUDGE 20th September, 2010 Shivani Kaushik