FAO No.2619 of 2004 -1- IN THE HIGH COURT FOR THE STATES OF PUNJAB AND HARYANA AT CHANDIGARH FAO No.2619 of 2004 Date of Decision. 10.12.2010 National Insurance Company Ltd., SCONo.332-334, Sector 34-A, Chandigarh through its Asstt. Manager ......Appellant Versus Himmat Randhawa son of Shri K.S. Randhawa, resident of House No.1207, Sector 18-C, Chandigarh, unconscious and in non- communicable condition through his parents and natural guardians and others ......Respondent Present: Mr. L.M. Suri, Senior Advocate with Mr. Neeraj Khanna, Advocate for the appellant. Mr. Harsh Bhungar, Advocate for the respondents-claimants. 2. FAO No.3206 of 2004 Himmat Randhawa son of Shri K.S. Randhawa, resident of House No.1207, Sector 18-C, Chandigarh, unconscious and in non- communicable condition through his parents and natural guardians i) Sh. K.S. Randhawa ii) Mrs. Prabhdeep Randhawa wife of shri K.S. Randhawa, residents of House No.1207, Sector 18- C, Chandigarh. ......Appellants Versus Priptal Singh son of Shri Baldev Singh resident of House No.141, Sector 11, Chandigarh (driver of motorcycle No.CHT-8963) and others ......Respondent Present: Mr. Harsh Bhungar, Advocate for the appellant. Mr. L.M. Suri, Senior Advocate with Mr. Neeraj Khanna, Advocate for the insurance company. 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? -.- FAO No.2619 of 2004 -2- K. KANNAN J. 1. Both the appeals are in respect of the same claim petition, the former at the instance of the insurance company denying liability and the latter at the instance of the claimant seeking for enhancement of compensation. 2. The insurance company had the benefit of defence under Section 170 of the Motor Vehicles Act and would also deny the quantum of compensation as assessed. The primary contention in defence by the insurance company was that the accident had taken place by the claimant dashing against a tree that had fallen across the road and he was himself responsible for the accident and the claim petition seeking for compensation was not maintainable at all. The claim petition, however, had been filed on an averment that the motor cycle was driven by a person by name Pritpal Singh and he was a pillion rider. The accident as narrated in the claim petition was said to have taken place on 24.01.997 in the evening, when the claimant had been travelling in a motor cycle and when there was a vehicle coming from the opposite direction with the light on, the driver of the motor cycle Pritpal Singh had not seen the tree that had fallen across the road, dashed against it which resulted in both of them falling down. The claimant suffered head injury and was taken to hospital. The driver, Pritpal Singh himself was said to have suffered some minor injuries, also took some treatment but left the place immediately. 3. The suspicion in the whole narration of incident as far as the appellant is concerned came through the fact that the police itself had FAO No.2619 of 2004 -3- not registered any FIR but the entry in the DDR had been made merely with reference to the fact that there had been a motor accident at the place where it was mentioned within the city of Chanidgarh but they had recorded the incident as though it was a case of the claimant dashing against a fallen tree and suffering injuries. No criminal case had been registered against the driver Pritpal Singh. The evidence with regard to liability had been led on both sides and I shall proceed to refer to the aspects of the case as narrated by each one of the witnesses. 4. PW-1 Harman Jeet Singh gave evidence to the effect that he was coming along Sector 11 on 24.01.1997 when he noticed yet another motor cycle, namely the insured's motor cycle No.CHT-8963 overtaking him and being driven in a rash and negligent manner. He was following the vehicle when he noticed after some time that the motor cyclist and the pillion rider had dashed against a tree, fallen down and suffered serious injuries. He was supposed to have picked up both the persons, taken them to the hospital at PGI, left them at the emergency gate where the claimant was laid down on stretcher and taken inside. PW-1 was reported to have gone to the claimant's house, having noted the address of the claimant and informed the residents of the house that there was an accident and the claimant had suffered serious injuries. In the cross-examination, it was elicited that the witness did not know the claimant Himmat Randhawa earlier before the accident and to a suggestion that he had not noticed yet another person driving the motor cycle, he denied the same. Interestingly, the suggestion put to PW1 was that the accident had FAO No.2619 of 2004 -4- taken place due to the falling of the light of high beam in the eyes of Pritpal Singh and also due to rash and negligent driving of Pritpal Singh. This is a strange suggestion for the insurance company to adopt in a case where it was trying to deny that Pritpal Singh was not driving the motor cycle at all. 5. PW-2 Prabhdeep Randhawa gave evidence to the effect that PW-1 had come to his house around 9.30 pm and told him that his son was involved in an accident and that he had been admitted in the hospital. He was reported to have told at that time that his son did not know the driving of motor cycle to which he was informed that yet another person was driving the vehicle and he had seen the accident immediately after the incident and that he had taken the claimant and the other person to the hospital. He also gave evidence to the effect that the police came and made enquiries with him. 6. PW-6 Balwant Singh was examined to state that he happened to be at the PGI emergency along with his friend whose relative had been admitted on 24.01.1997 and he happened to see one sikh gentleman pushing a trolley (stretcher) carrying Himmat Randhawa to the emergency ward at PGI. The sikh gentleman is reported to have told him that his name was Pritpal Singh and that the accident had taken place when he was driving a motor cycle. He gave evidence to the effect that he was present at the time when the doctor at the PGI asked who had brought Himmat Randhawa to PGI and one Brig J. S. Sandhu was recorded by the doctor as the person, who had brought him. His mother was also in the meanwhile sent for and she was under a shock. She was not in the position to sign her name as a FAO No.2619 of 2004 -5- witness and he, therefore, signed as a witness. He also gave evidence to the effect that Pritpal Singh was not present at the time when the doctor recorded the details of admission and asked who brought him at that time. 7. Balwant Singh was put through a searching cross examination of the fact that the claimant Himmat Randhawa was known to him through his friend Buddy and that he had known the family of Randhawa through his friend Buddy. Since on his own admission Balwant Singh was supposed to have gone to the hospital for seeing some other patient and he chanced to be there at that time when the claimant was brought to the hospital in serious condition, he was cross-examined also on the details about the person whom he was visiting to which he replied that his relative Jimmi had been admitted in the emergency and ultimately he did not even meet his relative. He was also cross-examined on whether he informed the house of Himmat Randhawa on that day and he admitted that he did not give any such information to the family of Himmat on that day immediately after he saw that Himmat was getting admitted in the hospital. He also admitted that he did not even inform Buddy on that day through whom he was supposed to have known even the claimant for the first time. He was no eye witness and therefore, the evidence of this witness is only relevant to the fact that he was supposed to have seen the sikh gentleman bringing the claimant at that time to the hospital. 8. PW7, Brig J. S. Sandhu whose name finds place in the admission register as a person who had admitted the claimant Himmat Randhawa would state that on 24.01.1997, he had visited S. Dharam FAO No.2619 of 2004 -6- Singh, the grandfather of the claimant and he was at his residence when PW-1 came and reported that Himmat Randhawa had met with accident. He would also give evidence to the effect that he met with Balwant Singh PW-6 for the first time at the emergency ward at that time. He would also state that at the PGI, he came to know that Pritpal Singh was driving the motor cycle and that Himmat was sitting as a pillion rider in the vehicle. He would also state that Pritpal Singh had left immediately when he arrived and he did not know his whereabout on that day. In the cross-examination curiously this witness would state that he did not know who came to inform them about the accident and that he had known the claimant's mother Ms. Randhawa for the first time only on 24.01.1997. The evidence regarding how his name was got recorded is rather intriguing “I did not record my presence stating that I had brought injured Himmat Randhawa to the hospital but my name was recorded for admission of patient before I had gone there, the injured was not admitted. I reached there at about 10.30 PM. I came to know about the accident at about 10.00 PM. At that time I was sitting in Sector 18. I stayed at PGI for about three hours. I did not opt to get the matter recorded to the police station during the period of three hours." 9. RW-1 Pritpal Singh is the most crucial witness, for it should have been possible for the insurance company which was interested in denying the manner of the accident to elicit from him that he had not known or he was not in any way involved in the accident. In his evidence Pritpal Singh would say that he gone to the house of Col Randhawa on that day i.e. on 24.01.1997, who was his friend and FAO No.2619 of 2004 -7- when he was about to return Col. Randhawa requested him to drop "his nephew" in Sector 18. He had not known the claimant earlier and that he was taking him on a motor bike when he dashed against a tree, unable to see properly by a maruti car coming from the opposite direction flashing its lights on his eyes. He fell on the left side of the road as the motor bike dashed against the fallen tree and Himmant Singh fell on the right side of the road. He was reported to have looked around, when yet another person was coming on that way by car and he took the claimant into the car and that person drove them to PGI and left them at the emergency ward. In the cross- examination, it was elicited that the person who came by the car was one Harman Jeet Singh and he came to know that his name when enquired about him. He stated that the vehicle on which he was taking the claimant along with him belonged to one Avtar Singh who had later transferred to one Mr. Sandhu. The accident was reported to have taken place somewhere near the residence of an advocate Rajeev Lamba and the witness was not able to say whether any other person had seen the accident. The witness was also cross-examined about what happened to the motor bike to which the witness replied that he did not go back to take the motor cycle but he had informed Mr. Sandhu that the motor cycle had met with an accident and he should take back the motor cycle on his own. He was reported to have informed Mr. Sandhu only the next morning. He was also cross- examined about the fact whether he had suffered any injuries to which he replied that he had injuries and he took treatment at the hospital. He volunteered also the information that the medicines and FAO No.2619 of 2004 -8- bandages were also applied and he informed the doctor at the hospital that he had brought the claimant to the hospital. He had, however, admitted that he had not brought any prescription along with him. He would also state that he did not meet the police to give any information regarding the accident. 10. RW-3 was the investigating officer, who said that a DDR No.34 dated 24.01.1997 merely contained a record of an accident having taken place in which Himmat Randhawa was himself driving the motor cycle at the time of the accident. RW-4 was one Mahavir Singh, who said that he was posted at the police station 19 and at the time when an information from PGI was received about an accident that was reported to have taken place on 24.01.1997, he went to PGI and he sought an opinion from SMO, PGI as to whether the injured was in a fit condition to make a statement. The doctor informed that the injured was not in a position to give any statement. Thereafter, he went to Sector 18, Chandigarh where the accident had taken place and he inspected the spot. He would also state that he enquired from the neighbourhood regarding the occurrence and he was told that a person by name Balwant Singh had taken the injured to PGI. He also gave evidence that in the course of investigation, it was not known that any other person was driving the vehicle and particularly the Pritpal Singh was not told to be driving a motor cycle and that Himmat Randhawa was accompanying him as a pillion rider. He also stated that no person named Pritpal Singh told him at any time that he had brought the injured at hospital. He volunteered to state that if any one had stated that Pritpal Singh was driving the vehicle and that the FAO No.2619 of 2004 -9- accident had taken place by hitting the tree, he would have registered a complaint. It was also elicited in the cross examination that advocate Sanjeev Lumba was unable to tell the whereabouts of the Balwant Singh but he told that on his asking the man had told him that one Balwant Singh had taken the claimant to the hospital. 11. RW5, Ramesh Kumar, Clerk had brought the record from the hospital that showed that the claimant Himmat Randhawa was brought to the hospital on 24.01.1997 and Brig. J.S. Sandhu and Balwant Singh were seen as persons having admitted him as per records available at PGI. He also gave evidence to the effect that admission register is recorded with the outpatient ticket, which is prepared immediately on the arrival of the patient and that was marked as R4. He had also stated that at the time of admission, the name of the person, who had brought the person is always recorded in the hospital records and names of only two persons accompanying the patient were recorded. He was unable to say whether the entry in the admission card had been made at 9:16 pm when the patient was brought or at 12.29 AM when he had been taken as an outpatient. Further details were elicited in the cross examination, which is to the following effect: “.....The card is made at the first instance. When the card is made the registration official writes the name and age of patient and time and date of his arrival. The card is then written and filled by the doctor attending on the patient. The investigation advised by the doctor to the patient are written first on the card and then after the investigation the noting of admission is made on the card. I do not know FAO No.2619 of 2004 -10- whether the catscanning was done from private hospital but it is correct to say that the machine in PGI used to remain out of order during those days.......” 12. From the manner in which the evidence was led it can be seen that most crucial witness was PW1, who was supposed to have seen Pritpal Singh driving the motor cycle and the claimant sitting as a pillion rider. It must be remembered that PW1 himself did not know either the identity of Pritpal Singh or even the identity of the claimant at the time when he saw him. His evidence was to the effect that he had taken both Pritpal Singh and the claimant to the hospital and left them at the emergency ward and that he was the first one to come back to the claimant's mother to report about the accident. Brig J.S. Sandhu, whose name finds a place in the admission card as a person, who had admitted him and who claimed that he was in the house of the grandfather of the claimant at the relevant time when an information was given to him ought to have, therefore, known that PW1 had come and informed the mother of the claimant that an accident had taken place. Curiously Brig J.S. Sandhu who has been examined in this case would say that he did not know who came and repoprted the fact of accident to the mother of the claimant. If Pritpal Singh had been present at that time and he had taken the claimant to the hospital, he would have admitted the patient and recorded his name as the person who had brought the claimant. I have already referred to the fact that a person who came from the hospital RW-5 Ramesh Kumar gave substantial evidence about the procedure involved in recording the name of the person, who brings the patient FAO No.2619 of 2004 -11- to the hospital. If Pritpal Singh had been present at that time and in a nasty incident where a pillion rider was seriously injured and driver of the motor cycle Pritpal Singh had also suffered injuries, significantly the fact that he did not have a prescription or there was no document that showed that he had any injuries on that date becomes relevant to assess whether he would have been present at the time when the accident had taken place. 13. In cases of accidents, report of accidents and claims before Motor Accident Claims Tribunal, perhaps extracting standard of proof may not be necessary. I am merely looking for an evidence that Pritpal Singh drove the vehicle on that day and an accident had taken place. If Pritpal Singh's evidence must be accepted then I would look for only the minimum proof that Pritpal Singh must have been present there at the time when the claimant was taken to the hospital. His presence would be known by the fact that he had admitted him in the hospital. If I were to assume that he was smitten by some kind of guilt for involving any other person in a serious accident and therefore, he did not admit the claimant in the hospital, I cannot still omit to note the fact that he was supposed to have suffered injuries at the same time and even bandages were said to have been applied to him at the hospital. If this fact were to be true, there must be some document to show that he had some medical treatment at the hospital and that evidence is not available here. At least, I would have expected that a complaint had been immediately given by some person, who was immediately connected to the claimant to have complained to the police about the person, who had brought him there to the hospital FAO No.2619 of 2004 -12- whose presence was said to have been noticed by other persons. At least Col J.S. Sandhu and the mother who were present at relevant time when the hospital records were prepared, they may have taken steps to report the matter to the police that the person, who brought him to the hospital had made himself scarce. It is not as if the person who was driving the motor cycle was an utter stranger. On the other hand, the evidence of Pritpal Singh itself is that he had gone to Col Randhawa's house on that day as an acquaintance and that it was at his instance that the claimant was taken as a pillion rider. Col. Randhawa must have, therefore, known the identity of Pritpal Singh and must have reported the matter to the police. 14. Even if the report to the police itself was not seen as necessary, I would have expected at least the owner of the vehicle either Avtar Singh or yet another Sandhu, who has been arrayed as respondent to give evidence as to how the vehicle had gone to the hands of Pritpal Singh and how on that particular day, he had allowed some person to drive the vehicle and in what capacity he knew Pritpal Singh, who was supposed to have driving the motor cycle. We find in this case that the owner of the vehicle has not been examined. It may not be necessary for the claimant to examine the owner of the motor cycle but at least RW-1 Pritpal Singh, who comes to Court to support the case of the claimant that he was driving the vehicle must have secured presence of the owner himself for he was not really an adversary to the claimant's case. On the other hand, he was supporting the case of the claimant. The 2nd respondent or the 3rd respondent, who had been referred to as owner and transferee of the FAO No.2619 of 2004 -13- vehicle must have come to Court to give evidence. If it was not possible, the Tribunal itself could have examined, if there was any doubt about the involvement of the vehicle. 15. In the manner in which the evidence was led, I am not satisfied about its quality, that on that relevant date, Pritpal Singh was driving the motor cycle and that the owner of the motor cycle had given to the vehicle to Pritpal Singh to drive it and that the claimant was pillion rider in the motor cycle. Ultimately it turned out that the police in its own investigation did not find any material to infer that Pritpal Singh was driving the vehicle. On the other hand, the investigating officer as well as the person, who had immediately inspected the spot after receiving information from the hospital that an accident had taken place, could not elicit from local evidence that Pritpal Singh was driving. In fact he would say that if he had known that Pritpal Pal Singh was the driver or if any one implicated him, he would have registered a FIR. The case had merely gone with a DDR entry and it was not found necessary to investigate the matter further. 16. With evidence being so skeletal and the evidence of Pritpal Singh himself being so artificial, to anchor a case of Pritpal Singh and the accident through the evidence of PW1 seems very fragile. If it is a criminal case that requires a different standard of proof, the result would have been different. In this case, the Tribunal which had examined the witnesses felt convinced about the quality of their evidences, despite all their fallibilities. As an appellate court, I would not make an intervention, unless there is perversity in approach. More so, in a poignant situation, where the boy has