Bajaj Allianz General Insurance Co Ltd v. Dharmu Saroj & Ors.

1. The present Appeal under Section 173 of the Motor Vehicles Act, 1988 has been filed on behalf of the Insurance Company to challenge the Award dated 06.07.2018 vide which compensation in the sum of Rs. 26,94,000/- along with interest @ 9% p.a. has been granted to the Claimants/Respondents, on account of demise of Sh. Haripal Saroj in a road accident on 13.03.2014.

2. The fundamental ground of challenge of the Award is that neither the involvement nor the negligence of the driver driving the alleged offending vehicle No. UP-17T-4878 has been proved by the Claimants.

3. The FIR was registered after 5 days by the son of the deceased under Section 308 IPC. The testimony of PW-2, Sh. Amit Ranjan,the eye witnesswho gave his statement for the first time after 14 days, is not reliable. Even otherwise, his testimony suffers from material contradictions and does not inspire confidence.

4. The Claimants have failed to prove either the involvement of the offending vehicle or the negligence of the driver and, therefore, the impugned Award is liable to be set aside.

5. Learned Counsel on behalf of the Claimants has submitted that though the FIR was registered under Section 308 IPC, but the Charge Sheet was filed under Section 304A/427 IPC. The learned Tribunal has given cogent reasons for concluding the involvement of the offending vehicle as well as negligence of the driver. There is no merit in the present Appeal which is liable to be dismissed.

6. Cross Appeal MAC. APP. 262/2019 has been filed on behalf of Respondent Nos.[1] to 5/Claimants who have sought the enhancement of the compensation, on the following grounds:i. that the deceased was survived by his wife and four children. Even though the three children were married, but one daughter was unmarried and dependent upon the deceased. Therefore, the deduction on account of dependency, should be 1/3rd and not 1/2nd; and ii. the Loss of Consortium has been granted only in the sum of Rs.40,000/- when in fact it should have been given in the sum of Rs.40,000/- each to all the five claimants.

7. The learned counsel on behalf of the Insurance Company has submitted that though the daughter was unmarried but she was a major and, therefore, cannot be held as a dependent upon the deceased.

8. Submissions Heard.

9. The first aspect under challenge is the involvement and the negligence of the driver who was driving the offending vehicle. Pertinently, the FIR was registered after 5 days by the son of deceased under Section 308 IPC, but it has been explained by the learned Tribunal that the lodging of the FIR is the initiation of the police investigations and is necessary to put the police machinery into motion. It is only after the police investigates into the facts and on the basis of evidence so collected, is the final Charge Sheet filed. Merely because the FIR initially was registered under Section 308 IPC, in itself is not sufficient to show that it was not a case of motor accident, particularly when finally the Charge Sheet got filed under Section 304A/427 IPC, thereby establishing that it was a road accident. Mere initial registration of FIR under a different Section would not take away the factum of road accident.

10. In so far as delay in registration of FIR is concerned, it is again of little consequence as the delay has been sufficiently explained to the effect that the Claimants had to go to Delhi for treatment immediately and therefore could not register the FIR on the date of accident.

11. The third aspect under challenge is that the eye witness, PW-2, Amit Ranjan in his testimony has made material contradictions and, therefore, his testimony was not reliable.

12. PW-2, Amit Ranjan, had deposed that he was travelling by an autorickshaw just behind the motorcycle of the deceased at the time of the accident. He saw the offending vehicle being i.e. Innova car bearing No. UP- 17T-4878 driven by its driver, Sh. Madan Lal Saini, in a rash and negligent manner at a high speed of about 70-80 Kms per hour, hit the motorcycle with great force because of which injuries were sustained by the deceased. He along with the driver of Innova, took the injured to the hospital and also furnished his name and address in the hospital register which led the police to him and his statement got recorded.

13. PW-2 in the cross examination,has further explained that the offending Innova car overtook their Auto, before the accident. The Innova car was being driven at a speed of 70-80 Km/hr while the speed of their Auto was about 30-40 km/hr. There was not much traffic on the road at that time. He further volunteered that Innova car struck against the motorcycle very hard and both, the car as well as the motorcycle, were badly damaged. After the accident, the car stopped after 100 metres from the spot of accident.

14. PW-2 has further explained that he along with the driver remained in the hospital for about half an hour. He did not take the contact number of the driver of the Innova car nor did he enquire about the credentials of the injured person. He also deposed that he did not enquire from the Auto driver whether he was having any mobile, not even after the accident.

15. The presence of the eye witness at the scene of accident is sufficiently established. Pertinently, he has also been cited as an eye witness in the Charge Sheet filed by the police. Merely because his statement was recorded by the police after 14 days in the given circumstances, cannot cast any doubt on his presence at the scene of accident especially when he had taken the injured to the hospital.