FAO No.4803 of 2010 (O&M) 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH FAO No.4803 of 2010 (O&M) Date of decision: 31.10.2011 United India Insurance Company Ltd. ...Appellant Versus Smt.Renu and others ...Respondents CORAM: HON'BLE MR.JUSTICE JITENDRA CHAUHAN Present: Mr.V.Chaudhri, Advocate for the appellant. Mr.Ashit Malik, Advocate for the claimants/respondents No.1 to 5. Mr.Baljinder Singh, Advocate for respondent Nos.6 & 7. **** Jitendra Chauhan, J. (Oral) The appellant -Insurance Company has preferred the present appeal, assailing the impugned Award dated 18.5.2010, passed by the learned Motor Accident Claims Tribunal, (FTC), Karnal, (for brevity 'the Tribunal') vide which the claim petition was allowed and the appellant was held liable to pay the compensation. Brief facts of the case are that on 12.9.2005, Chander Parkash (now deceased) was going towards Nilokheri from Karnal side on his motorcycle bearing registration No.HR-05M 4689. Just before Roxy Bridge, near G.V.Rice Mills on GT Road, Teroari, his motorcycle struck against a tractor-trolley, which was lying parked in the middle of the road without having any indicator /parking lights or any other indication. He fell down on the road and sustained multiple grievous injuries. He was rushed to Arpana FAO No.4803 of 2010 (O&M) 2 Hospital, Madhuban and thereafter, he was referred to PGI, Chandigarh, where he succumbed to the injuries. In this regard, an FIR No.186 dated 18.9.2005, under Sections 283, 279, 337 of the Indian Penal Code was registered at Police Station Taraori, against the driver of the tractor-trolley, on account of rash and negligent driving and death of Chander Parkash. The claimants, being the dependents of the deceased file the claim petition, which was allowed and the appellant was held liable to pay the amount of compensation. Learned counsel for the appellant contends that the learned Tribunal, without considering the material facts, has wrongly held the appellant liable to pay the compensation. He further states that there is a delay of six days in lodging the FIR. He further states that the it is a case of contributory negligence, because the motorcycle struck against a stationery tractor trolley. He further states that the leaned Tribunal did not consider the application under Section 170 of the Motor Vehicles Act with regard to the assertion of the appellant with regard to collusion of the claimants, owner and driver of the tractor-trolley. He further states that the income assessed by the Tribunal is on the higher side, as no income tax returns were placed on record. On the other hand, the learned counsel for the claimants- respondents states that the learned Tribunal after considering all the aspect of the matter, rightly determined the compensation. I have heard the learned counsel for the parties and perused the record. There is no force in the arguments raised by the learned counsel FAO No.4803 of 2010 (O&M) 3 for the appellant. Admittedly, the death of Chander Parkash caused on account of rash and negligent driving of Major Singh, the driver of the tractor-trolley. Earlier Chander Parkash suffered multiple grievous injuries and he remained unconscious and admitted in hospital at Mathuban and thereafter, he was referred to PGI, Chandigarh, where he died on 24.9.2005. The accident occurred on 12.9.2005 and the FIR was lodged on 18.9.2005. Therefore, there is minor delay. The Hon'ble Supreme Court in Civil Appeal No. 1926 of 2011 (Arising out of S.L.P. (C) No.11974 of 2008, titled as Ravi versus Badrinarayan & others, decided on 18.2.2011, has held as under:- “20. It is well-settled that delay in lodging FIR cannot be a ground to doubt the claimant's case. Knowing the Indian conditions as they are, we cannot expect a common man to first rush to the Police Station immediately after an accident. Human nature and family responsibilities occupy the mind of kith and kin to such an extent that they give more importance to get the victim treated rather than to rush to the Police Station. Under such circumstances, they are not expected to act mechanically with promptitude in lodging the FIR with the Police. Delay in lodging the FIR thus, cannot be the ground to deny justice to the victim. In cases of delay, the courts are required to examine the evidence with a closer scrutiny and in doing so; the contents of the FIR should also be scrutinized more carefully. If court finds that FAO No.4803 of 2010 (O&M) 4 there is no indication of fabrication or it has not been concocted or engineered to implicate innocent persons then, even if there is a delay in lodging the FIR, the claim case cannot be dismissed merely on that ground. 21. The purpose of lodging the FIR in such type of cases is primarily to intimate the police to initiate investigation of criminal offences. Lodging of FIR certainly proves factum of accident so that the victim is able to lodge a case for compensation but delay in doing so cannot be the main ground for rejecting the claim petition. In other words, although lodging of FIR is vital in deciding motor accident claim cases, delay in lodging the same should not be treated as fatal for such proceedings, if claimant has been able to demonstrate satisfactory and cogent reasons for it. There could be variety of reasons in genuine cases for delayed lodgment of FIR. Unless kith and kin of the victim are able to regain a certain level of tranquility of mind and are composed to lodge it, even if, there is delay, the same deserves to be condoned. In such circumstances, the authenticity of the FIR assumes much more significance than delay in lodging thereof supported by cogent reasons.” Therefore, in the present case, the delay in lodging the FIR is not so alarming that it could fatal the claim. So far as the application under Section 170 of the Act, which FAO No.4803 of 2010 (O&M) 5 was rejected by the learned Tribunal, the claimants had already made the parties to the driver and owner of the tractor trolley. The Hon'ble Supreme Court in United India Insurance Co. Ltd. vs. Shila Datta and others , it has been held as under:- “10. Section 170 of the Act does not contemplate an insurer making an application for impleadment. Nor does it contemplate the insurer, if he is already impleaded as a party respondent by the claimants, making any application seeking permission to contest the matter on merits. Section 170 proceeds on the assumption that a claim petition is filed by the claimants, or is registered suo moto by the tribunal, with only the owner and driver of the vehicle as the respondents. It also proceeds on the basis that in such a proceeding, a statutory notice would have been issued by the tribunal to the insurer so that the insurer may know about its future liability in the claim petition and also resist the claim, on any of the grounds mentioned in section 149(2). Section 170 of the Act also assumes that the tribunal will hold an inquiry into the claim, where only the claimants and the owner and driver will be the parties. Section 170 provides that if during the course of such inquiry, the tribunal finds and satisfies itself that there is any collusion between the claimant and the owner/driver or where the owner/driver has failed to contest the claim, the tribunal may suo moto, for reasons FAO No.4803 of 2010 (O&M) 6 to be recorded in writing, direct that the insurer who may be liable in respect of the claim, who was till then only a notice, shall be treated as a party to the proceedings. The insurer so impleaded, without prejudice to the provisions of section 149(2), will have the right to contest the claim on all or any of the grounds that are available to the driver/owner. 11. Therefore, where the insurer is a party- respondent, either on account of being impleaded as a party by the tribunal under section 170 or being impleaded as a party- respondent by the claimants in the claim petition voluntarily, it will be entitled to contest the matter by raising all grounds, without being restricted to the grounds available under section 149(2) of the Act. The claim petition is maintainable against the owner and driver without impleading the insurer as a party. When a statutory notice is issued under section 149(2) by the tribunal, it is clear that such notice is issued not to implead the insurer as a party-respondent but merely to put it on notice that a claim has been made in regard to a policy issued by it and that it will have to bear the liability as and when an award is made in regard to such claim. Therefore, it cannot, as of right, require that it should be impleaded as a party-respondent. But it can however be made a party-respondent either by the FAO No.4803 of 2010 (O&M) 7 claimants voluntarily in the claim petition or by the direction of the Tribunal under section 170 of the Act. Whatever be the reason or ground for the insurer being impleaded as a party, once it is a party-respondent, it can raise all contentions that are available to resist the claim.” Regarding the income of the deceased, he was working with Anand International, which is amply proved from the documents Ex.PW7/A, attendance register, and had been getting a salary of Rs.10,000/- per month as copy of the salary register Ex.PW7/B. The annual income of the deceased falls within the non-taxable slab tax, therefore, he might be not filing income tax return. No other point has been urged or agitated by the counsel for the parties. In view of the above discussion, no interference is warranted in the well reasoned impugned Award passed by the learned Tribunal. As such, the present appeal is dismissed. 31.10.2011 (JITENDRA CHAUHAN) gsv JUDGE