Full Text
HIGH COURT OF DELHI
Date of Decision: 27th November, 2024
KOTAK MAHINDRA GENERAL INSURANCECO LTD .....Appellant
Through: Ms. Heeba Ansari, Advocate.
Through: Mr. Anupam Kumar Singh, Adv. for respondent no. 1 & 2
JUDGMENT
1. An Appeal under Section 173 of the Motor Vehicle Act, 1988 has been filed on behalf of the Insurance Company against the Award dated 07.02.2023, on the ground that the Claimants have failed to prove the involvement of the alleged Offending Vehicle Tractor Trolley in the accident.
2. It is submitted on behalf of the Appellant that the eye witness/Ms. Pinki, who was the pillion rider and also got injured in the accident, had stated that she had noted the number of the Tractor Trolley/Offending Vehicle, in Claim Petition filed by her in Jhajjar Court. However, in her testimony recorded in the present Claim Petition (for Deceased/ Sh. Suraj) she had deposed that she cannot give the Registration number of the Tractor Trolley. Thus, there are inherent contradictions in her testimony and the same which cannot be relied upon especially when there is no other cogent evidence to establish the involvement of the Tractor Trolley in the accident.
3. The other ground of challenge is that even if it is accepted that the Tractor Trolley was involved in the accident, and then too generally the speed of Tractor Trolley is not more 20-30 KMs per hour. It is a clear case of contributory negligence on the part of the vehicle of the victim/Suraj.
4. Learned counsel for Respondent No. 2 submits that the Impugned Award dated 07.02.2023 had been made rightly passed by considering the involvement of the offending vehicle and the same does not merit any interference.
5. Submissions heard and record perused.
6. Briefly stated, on 31.03.2018 at about 02:30 P.M, Sh. Suraj (deceased) was driving a motorcycle bearing No.HR77 1461 with Ms. Pinki on the pillion sea. When they reached in front of S.R. Bhatta, Girawad Road, Haryana, one Tractor Trolley/offending Vehicle bearing registration No.HR- 13M-3348, which was being driven by its Driver/Pradeep in a rash and negligent manner, hit the motorcycle from the front, resulting in fatal injuries to Suraj while the pillion rider Pinki suffered grievous injuries. FIR No.277/2018 under Section 279/337/304-A IPC 1806 P.S. Jhajjar, Haryana was registered. After investigation, the Chargesheet was filed against the driver Pradeep.
7. The Impugned Award dated 07.01.2023 has been assailed on behalf of the Insurance Company on the main ground that there is no cogent evidence to establish the involvement of the Tractor Trolley in the accident.
8. It would be pertinent to refer to the testimony of PW[1] Ms. Pinki,the pillion rider, who also suffered injuries in this accident. She deposed about the manner of the accident, as narrated above. She further disclosed that though she was unable to note the number of the Tractor Trolley, but it was of blue color with “Jai Baba Mohan Ram Ki” printed on the front of the Tractor. It was on her statement that the FIR No.277/2018 was registered.
9. Though PW1/Ms. Pinki had admitted in her testimony that she had not noted the number of the Tractor Trolley, but has described it by its color and the identifying mark and the Investigating Officer on the same day i.e. 01.04.2018 was able to trace the Offending Vehicle. The Notice under Section 133 of the Motor Vehicle Act, 1988 was given to its owner/Mahabir who had produced the Tractor Trolley, which was seized by the Police on 04.04.2018 and the Driver was arrested, though admitted to Police bail.
10. Ms. Pinki, the eye witness has been consistent in her testimony about the manner in which the accident was caused by the offending Tractor Trolley.
11. Though, the Insurance Company had claimed that the Tractor Trolley was not the Offending Vehicle, but has failed to adduce any cogent evidence to this effect. In fact, no material contradictions could be highlighted in the testimony or the cross-examination of PW1-Pinki, the eye witness.
12. The learned counsel on behalf of the Insurance Company had argued that there are material contradictions in the testimony of Ms. Pinki as she in her Claim Petition under Section 166 of the Motor Vehicle Act, 1988, filed in the Tribunal before the Jhajjar Court had deposed that she had noted the number of the Tractor Trolley.
13. However, in the Affidavit of Evidence as filed in the Jhajjar Court she again had deposed on similar lines that the Offending Tractor was of blue color with the words printed on its front side. She nowhere stated that she had noted down the number of the vehicle. Rather in her cross-examination she had admitted that even in the FIR she had not mentioned the number of the offending Tractor. She also admitted in her cross-examination that she had not noted down the number of the Tractor Trolley.
14. The contentions on behalf of the Insurance Company that there were inherent contradictions in the testimony of PW[1] Ms. Pinki the eye witness in different proceedings, is not corroborated by the documents and her copies of the evidence as placed on record.
15. Pertinently, while the Insurance Company is claiming that the vehicle has been falsely implicated, but the Driver/Owner had failed to step into the witness box to claim the false implication of the Offending Vehicle. This non-stepping into the witness box, leads to drawing of adverse inference against him.
16. The factum of accident is further supported by the Site Plan and the investigations carried out by the Police in the FIR which led to the filing of the Chargesheet. It is during the investigations that the Offending Vehicle has been identified by the Police and it cannot be said that this Tractor Trolley has been falsely involved in this accident.
17. In the case of National Insurance Co.,vs Pushpa Rana 2009 ACJ 287 Delhi, it has been held that filing of Chargesheet is sufficient proof of the negligence and involvement of the Offending Vehicle. Similar observations have been made in the case of United India Insurance Co. Ltd. v. Deepak Goel and Ors., 2014 (2) TAC 846 Del.
18. The Apex Court has opined in the judgment of Mangla Ram vs. The Oriental Insurance Company Ltd., AIR 2018 SC 1900 that the key-point of negligence of the driver as set up by the Claimants is required to be decided on the touchstone of preponderance of probabilities and not by the standard of proof beyond reasonable doubt. Thus, filing of chargesheet against the driver of the offending vehicle prima facie points towards the complicity in driving the vehicle negligently and rashly. The subsequent acquittal of the accused may be of no effect on the assessment of the liability required in motor vehicle accident cases.
19. Another plea has been raised by the Insurance Company that the Deceased had contributed to the accident and thus, amount is liable to be deducted towards contributory negligence. However, in the present case neither the driver/Owner of the Green DTC bus, allegedly the joint tortfeasor, has not been made a party nor any evidence has been led to prove that it was because of the overtaking by the DTC Bus, which actually caused the Deceased to swerve his scooter in front of the Offending Vehicle.
20. In the present case, the testimony of the eye witness stands fully corroborated by the Chargesheet and the documents filed therein. The learned Tribunal has rightly concluded that it was the Driver/Inder Dutt Salwan who had caused the accident while driving the Offendign Vehcile in the rash and negligent manner.
21. The second ground of challenge raised by the Insurance Company is that because it is a case of head-on collision, the motorcyclist also has to be held responsible for having contributed to the accident.
22. However, merely a head-on collision is no criteria to assume contributory negligence on the part of the motorcyclist. There is no evidence led by the Insurance Company to explain the factors attributable to the deceased, which may have contributed to the happening of the accident. This argument sans the evidence has no merit and has to be rejected.
23. There is no merit in the present Appeal, which is hereby dismissed.
24. The Appeal along with the pending Application(s), if any, stands disposed of.
JUDGE NOVEMBER 27, 2024