National Insurance Co Ltd v. Subhash & Ors.

1. The present appeal has been filed by the appellant challenging the Award dated 28.11.2017 (hereinafter referred to as the „Impugned Award‟) passed by the learned Motor Accidents Claims Tribunal, North-West District, Rohini Courts, Delhi (hereinafter referred to as the „Tribunal‟) in MACT Case no.450128/2016.

2. The above Claim Petition was filed by the respondent nos.[1] to 7 claiming that on 10.01.2003, at about 08:40 AM, the deceased-late Shri Birpal was crossing the road towards Shakur Pur, J.J. Colony, Delhi, when a scooter, bearing no. DL-1-SE-0268 (hereinafter referred to as the „Offending Scooter‟) came from the side of Wazirpur Depot towards Punjabi Bagh. The Offending Scooter was being driven at a fast speed and rashly and negligently in a zig-zag manner. It hit the deceased with great force leading to the deceased suffering grievous injuries. The deceased was taken to Babu Jagjivan Ram Memorial Hospital, Jahangir Puri by the police, from where he was referred to STC on 11.01.2003, where the doctors declared him „Brought Dead‟.

3. The learned Tribunal, by way of the Impugned Award, placing reliance on the registration of the FIR and the Charge-Sheet against respondent no. 8 herein, and the testimony of PW-1- Shri Subhash, son of the deceased, and PW-3- Shri Raju, the alleged eye-witness to the accident, held that by way of preponderance of probability, it stood proved that the deceased met with the accident due to the Offending Scooter being driven in a rash and negligent manner by the respondent no. 8 herein. The learned Tribunal awarded compensation of Rs. 8,61,000/- along with interest @ 9% per annum in favour of the respondent nos. 1 to 7.

4. The learned counsel for the appellant contends that the learned Tribunal has erred in holding that the accident in question, wherein the father of the respondent no.1 lost his life, was caused by the Offending Scooter belonging to the respondent no.9 and driven by the respondent no.8 herein, which was insured with the appellant.

5. The learned counsel for the appellant submits that the fatal accident had taken place on 10.01.2003 at about 8.40 a.m., when the deceased was crossing the road towards Shakurpur, J.J. Colony, Delhi. He submits that, admittedly, the police did not find any eyewitness to the accident at the time of reaching the spot. It was, in fact, one Mr. Lovleen Jethley, who gave a statement to the Investigating Officer- SI Samar Pal on 11.01.2003, that he was an eye-witness to the accident and the same had taken place with one Maruti Van, which, while being driven in a rash and negligent manner, had hit the deceased and also the scooter. Based on this statement, the Investigating Officer also prepared the Site-Plan, which depicted that the accident had taken place due to an unknown Maruti Van.

6. The learned counsel for the appellant submits that almost after a month from the accident, PW-3/Mr.Raju (hereinafter referred to as „PW-3‟) presented himself before the police, claiming himself to be the eyewitness to the accident and stating that the accident had taken place with the Offending Scooter hitting the deceased. The learned counsel for the appellant submits that in his cross-examination, PW-3 has admitted that he was not a summoned witness but had been called to depose by the counsel for the claimants. He submits that PW-3 also admitted that the deceased was known to him, as he used to reside in the same locality. PW-3 further stated that in his presence, the police came within 15 minutes of the accident and took the deceased in the PCR Van to the hospital. PW-3 also stated that he did not accompany the deceased and further admitted that after one month from the accident, his statement was recorded by the police in the Police Station, where the son of the deceased took him for identification of the driver of the offending vehicle/scooter. PW-3 stated that he informed the wife of the deceased about the accident immediately after the accident.

7. The learned counsel for the appellant submits that from the above statement of PW-3, it is apparent that PW-3 was planted as an eye-witness of the accident to somehow show the involvement of the Offending Scooter and the respondent nos.[8] and 9 herein in the accident. He submits that PW-3 was not a reliable witness and the learned Tribunal has erred in placing reliance on his testimony to find that the Offending Scooter had caused the accident while being driven in a rash and negligent manner.

8. He submits that, in fact, the respondent no.8/driver also stands acquitted of the offences under Sections 279/304-A of the Indian Penal Code, 1860, vide the order dated 04.09.2012 passed by the learned Metropolitan Magistrate, Rohini Courts, Delhi (hereinafter referred to as the „Metropolitan Magistrate‟) in FIR No.15/2003. He submits that in spite of the acquittal of the respondent no.8/driver, the learned Tribunal has held that the accident had taken place by the Offending Scooter being driven by the respondent no.8 in a rash and negligent manner, by placing reliance only on the fact of the registration of the FIR and the charge-sheet, while ignoring that the respondent no.8 already stood acquitted in the criminal case on the date of the judgment of the learned Tribunal.

9. The learned counsel for the appellant further submits that PW-3 in his statement, has clearly mentioned that the deceased was crossing the road at a place where there is no zebra crossing, and, in fact, there was a grill installed at the divider of the road. As per PW[3], the deceased was crossing the road through a passage between the grill. He submits that, in fact, the Site-Plan would show that there was no such gap in the said grill, and the deceased was, in fact, jumping over the grill while trying to cross the main road, leading to the fatal accident. He submits that, therefore, the accident had not occurred due to the scooter being driven in a rash or negligent manner.

10. On the other hand, the learned counsel for the respondent nos.1,2,4,[6] and 7 submits that the statement of PW-3 has been rightly relied upon by the learned Tribunal. He submits that PW-3 was the eye-witness to the accident. He submits that merely because the respondent no.8 stood acquitted in the criminal case, would not be sufficient to cast a doubt on the statement of PW-3 inasmuch as the burden of proof in a criminal case is vastly different from the proceedings before the learned Tribunal, which is in the nature of an inquiry.

11. I have considered the submissions made by the learned counsels for the parties.

12. First of all, reliance on the statement of PW-1 by the learned Tribunal to hold that the accident had taken place with the Offending Scooter hitting the deceased, is unsustainable. PW-1, admittedly, was not an eye-witness to the accident. His testimony, therefore, cannot be relied upon to determine whether the accident indeed took place with the Offending Scooter.

13. As far as PW-3 is concerned, he, in his Evidence by way of Affidavit, states that he knew the deceased as he was his neighbour. He states that “someone informed the police” about the accident. He states that it was the PCR van who took the deceased to the hospital. He further states that he came to the house of the deceased to inform his family about the incident. He states that on 12.02.2003, that is, after one month of the date of the accident, he went to the Police Station to enquire about the progress of the case, when he saw a person standing in the Police Station and he identified the said person as the same who had caused the accident resulting in the death of the deceased. On his statement, the respondent no.8 was arrested. In his cross-examination, recorded by the learned Tribunal on 10.05.2016, he stated as under: “I am not a summoned witness. I was called to depose by the counsel for the petitioner. The witness has produced his Election I Card and Aadhar Card to show his identity. Original seen and returned. I am Freelancer. I have studied upto 12th class. I was standing at the bus stop near Britannia Factory, Delhi. Volt. There are bus stands on the opposite sides of the road. It is correct that there was no Zebra crossing, subway or the overhead bridge at the place of accident at that time. Volt. The divider on the road was having grills at that time and there was a passage in between the grills and people used to cross through it. I do not know whether it was authorized passage or not. It is wrong to suggest that Maruti Van was the offending vehicle. Volt. It was a scooter. There was not much traffic at that time. There was no known person of mine at the place of accident. I did not call police after accident. I do not know who called police. It is correct that the deceased namely Birbal was known to me as he used to reside in the same locality. It is wrong to suggest that I am deposing falsely in order to favour petitioner as deceased was known to me. Police came within 15 minutes in my presence. PCR took the deceased to hospital. I did not go there. After one month of the incident, my statement was recorded by police in police station. Subhash took me to police station for identification of driver of offending vehicle. I informed the wife of deceased about the accident immediately after the accident. My statement was recorded by other court in criminal case concerning this accident. It is wrong to suggest that Maruti Van hit the deceased Birbal as well as scooterist Ashish Sharma. It is wrong to suggest that I have falsely identified Ashish to be the offender in this case after one month of the incident. It is wrong to suggest that accident occurred due to the own negligence of deceased.” (Emphasis supplied)

14. A bare perusal of the statement of PW-3 would show that the witness had admitted that the deceased was known to the witness, as he used to reside in the same locality and was his neighbour. In spite of the same, the said witness did not accompany the deceased to the hospital nor gave his statement to the police immediately after the accident, which, according to the witness, came to the spot in his presence after 15 minutes of the accident. The police, on the other hand, recorded that no eye-witness was found at the site of the accident. He did not even give his version of the accident to the police till almost after a month from the accident. Though he states that he informed the wife of the deceased about the accident, even then the family of the deceased did not make any effort to take the witness to the police for his statement to be recorded. This is an unnatural conduct of a person who claims to be known to the deceased and had witnessed the accident. It is also unnatural conduct of the family of the deceased who knows the eye-witness to the accident, however, takes no steps while the police is proceeding on the basis of a hit-and-run case and is searching for the vehicle with which the accident had taken place.

15. In my view, therefore, the testimony of PW-3 could not be relied upon by the learned Tribunal to hold that the accident had taken place with the Offending Scooter.