Full Text
HIGH COURT OF DELHI
Date of Decision: 01.11.2023
NATIONAL INSURANCE COMPANY LIMITED..... Appellant
Through: Mr.Manoj Ranjan Sinha, Adv.
Through: Mr.Shashi Pratap Singh, Mr.Sparsh Agarwal, Ms.Shreya
& Ms.Urvashi, Advs. for R-1 to R-3.
JUDGMENT
1. This appeal has been filed by the appellant challenging the Award dated 24.12.2020 (hereinafter referred to as the ‘Impugned Award’) passed by the learned Motor Accident Claims Tribunal, North District, Rohini Courts, Delhi (hereinafter referred to as the ‘Tribunal’) in MAC Petition NO. 574/2018 titled Smt.Seema Singh & Ors. v. Sh.Sunil Kumar & Ors.
2. Before the learned Tribunal, it was the case of the claimants, that is, the respondent nos.[1] to 3 herein, that on 19.02.2018 at about 8:00 AM, the deceased, that is, Sh.Alok Kumar Singh, along with his sister -Ms.Reeta Singh and sisterin-law- Ms.Medhawi Singh was travelling in his Vento Car bearing registration no. UP-16AN-4253. When they reached near village Nagla Jawahar, District Firozabad, Uttar Pradesh, the said car collided with an ambulance bearing registration no. UP-32T-4683. It was the case of the claimants that the said ambulance was being driven in a rash and negligent manner by the respondent no.4 herein. It was further claimed that the ambulance, which was being driven in the middle of the road, suddenly turned towards the right side of the expressway and the car in which the deceased was travelling collided with the back side of the ambulance leading to fatal injuries to the deceased.
3. The learned Tribunal in its Impugned Award has held that as the FIR and later a Charge-Sheet for offences under Sections 279/304A of the Indian Penal Code, 1860 have been registered against the respondent no.4 herein; the respondent no.4 herein has not preferred any complaint to any higher authorities alleging his false implication in the accident; and coupled with the fact that there was nothing on record to support the ocular deposition of the respondent no.4 or the respondent no.5, the owner of the ambulance, that the accident had taken place when the ambulance was parked on the left side of the highway and it was the car that rammed into it from behind, there was sufficient evidence on record to conclude that the accident had taken place due to the negligence of the respondent no.4.
4. Being aggrieved of the above finding of the learned Tribunal, the appellant has filed the present appeal.
5. The learned counsel for the appellant submits that it was the categorical case of the respondent no.4 herein that the ambulance had developed a certain mechanical problem, because of which he had parked the same on the left side of the road and had gone to get a mechanic. When he came back, the accident had already taken place and in the said accident even the owner of the ambulance, that is, the respondent no.5 herein, had been injured. He submits that, therefore, the story of the respondent nos.[1] to 3 herein, that the ambulance was being driven in the middle of the road and had suddenly turned towards the right side leading to the accident in question, cannot be believed. In support, he draws my attention to the site plan prepared by the police after the accident, which shows the place of the accident as being on the left side of the road.
6. He also draws my attention to the photographs of the ambulance that were produced by the respondent no.4 in his evidence as Ex.R1W1/1 (colly). He submits that even the photographs would show that the damage to the ambulance was on the back side, which could have occurred only with the car hitting the ambulance on the right back side, while the ambulance was in a stationary position on the left side of the road.
7. He further submits that the driver of the Vento Car, that is, Sh. Sanjay Malan, had appeared as PW-2 before the learned Tribunal. In paragraph 4 of his evidence by way of an affidavit, he admitted that the ambulance was standing in the middle of the road. He submits that, therefore, even as per the evidence of PW-2, he had hit a standing/stationary vehicle. He submits that it has been wrongly held by the learned Tribunal that the accident had taken place due to the ambulance being driven in a rash and negligent manner.
8. On the other hand, the learned counsel for the respondent nos.[1] to 3 submits that the manner of the accident has been duly proved through the testimony of PW-2. He submits that the Evidence by way of an Affidavit of PW[2] has to be read as a whole. He submits that PW-2 in his evidence by way of an affidavit had clearly stated that the ambulance was in the middle of the road and had suddenly turned towards the right side, because of which, in spite of PW-2 applying brakes, he had hit the ambulance from behind.
9. He further submits that the photographs produced by the respondent no.4 themselves show that the ambulance was damaged from the back side and the right back side. The same could have taken place only with the ambulance moving towards the right side in a sudden manner.
10. He further submits that the story of the respondent no.4 that the ambulance had broken down because of which he had gone to get a mechanic cannot be believed, as there are material contradictions in this regard in the testimony of the respondent no.4 and the respondent no.5. He further relies on the mechanical inspection of the ambulance to submit that there is no report of any problem with the engine of the ambulance.
11. He submits that merely because the position of the accident has been shown to be on the left side of the road in the Site Plan, the same cannot cast a doubt on the testimony of the PW[2]. He submits that the appellant did not confront the PW[2] with the Site Plan. He submits that it could also be that the site plan was prepared on basis of the position where the ambulance was parked post the accident.
12. I have considered the submissions made by the learned counsels for the parties.
13. At the outset, it is to be remembered that in a Claim Petition seeking compensation on account the death or injury suffered due to a motor accident, the claimants are not to prove their case beyond reasonable doubt; it has to be proved only on the touchstone of preponderance of probabilities.
14. In the present case, PW-2 in his evidence by way of an affidavit has stated as under: -
15. Clearly, the statement of PW-2 that the ambulance was standing in the middle of the road appears to be a mistake in translation or improper English, as immediately subsequent thereto, PW[2] had stated that the ambulance suddenly moved towards the right side of the road. He had also stated that the ambulance was being driven in a rash and negligent manner resulting in the accident. Therefore, no mileage can be drawn by the appellant by this stray sentence in the evidence by way of the affidavit of PW-2. The evidence has to be read as a whole and not in such bifurcated form.
16. In Jagdish Prasad Patel & Anr. v. Shivnath & Ors. (2019) 6 SCC 82, the Supreme Court has held as under:
17. In Shahaja v. State of Maharashtra 2022 SCC OnLine SC 883, the Supreme Court has held as under:
18. PW-2 was also cross-examined not only by the appellant but also by the respondent nos.[4] and 5, however, in his crossexamination his testimony could not be shaken and no doubt could be cast on the same.
19. He was not confronted by the site plan prepared by the police. In the absence of such confrontation, no reliance can be placed on the mere fact that in the site plan, the ambulance has being shown to be on the left side of the road. The learned counsel for the respondents submits that the site plan may have reflected the position of the vehicle post the accident. This could have been explained by PW-2, if he was confronted with the same, or by the Investigating Officer if he had been summoned by the appellant or by the respondent nos.[4] and 5 to prove their case that the ambulance was standing stationary on the left side of the road at the time of the accident. In the absence of any such evidence being led by the appellant or by the respondent nos.[4] and 5, in my opinion, their case that the ambulance was standing stationary on the left side of the road at the time of the accident cannot be believed.
20. The photographs that have been relied upon by the learned counsel for the appellant also tell a different story. There is damage on the right back side of the ambulance, which, in my opinion, clearly reflects that the impact had taken place with the car hitting the back and the right back side of the ambulance. The said damage would have taken place only with the ambulance moving towards the right side at the time of the accident and not with the car hitting the ambulance only from the back while the ambulance was in a stationary position on the left side of the road.
21. It is also relevant to note that even the Mechanical Inspection Report shows that the engine of the ambulance was in a satisfactory position. This itself belies the stand of the respondent nos.[4] and 5 that there was some mechanical problem in the ambulance because of which it was parked on the left side of the road.
22. From the above, I find no infirmity in the learned Tribunal holding that the accident had taken place due to the ambulance being driven in a rash and negligent manner.
23. No other challenge has been laid by the appellant to the Impugned Award.
24. Accordingly, the appeal alongwith the pending application stands dismissed. There shall be no orders as to costs.
25. The statutory amount deposited by the appellant shall be released in favour of the appellant along with interest accrued thereon.
26. This Court by its order dated 16.07.2021 had directed the appellant to deposit the entire awarded amount with the learned Tribunal. It had further been directed by this Court that the Tribunal shall not disburse the amount to the claimants till the next date of hearing and shall keep the same in an interest bearing FDR. By a subsequent order dated 02.03.2023, this Court had directed the learned Tribunal to release a sum of Rs.10,00,000/- in favour of the respondent nos.[1] to 3. The learned counsel for respondent nos.[1] to 3 submits that the said amount is yet to be released.
27. Be that as it may, as now the appeal stands dismissed, the awarded amount deposited by the appellant with the learned Tribunal shall be released in favour of the respondent nos.[1] to 3 in accordance with the schedule of disbursal prescribed by the learned Tribunal in the Impugned Award.
28. The Trial Court Record be returned back to the learned Tribunal.
NAVIN CHAWLA, J NOVEMBER 1, 2023/rv/AS