Accident; Oriental Insurance Company Vs. Dalwinder Singh [Punjab-Haryana High Court, 17-05-2016]

Motor Accident Claims Tribunal – Evidentiary value of pendency of criminal proceedings against the driver, in a case of compensation under the Motor Vehicles Act.


IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH

CORAM:- HON’BLE MR.JUSTICE HARINDER SINGH SIDHU

Date of Decision: May 17, 2016

FAO No.1538 of 2016(O&M)

The Oriental Insurance Company Ltd. …Appellant

Versus

Dalwinder Singh @ Bhupinder Singh and others …Respondents

and

FAO No.1557 of 2016(O&M)

The Oriental Insurance Company Ltd. …Appellant

Versus

Gursewak Singh and others …Respondents

Present: Mr.D.P.Gupta, Advocate for the appellant – Insurance Company. Mr.Munish Gupta, Advocate for the respondents – claimants.

HARINDER SINGH SIDHU, J.

This judgment shall dispose of two appeals i.e. FAO Nos.1538 and 1557 of 2016, as both have been filed by the Insurance Company (The Oriental Insurance Company Limited) against two different awards dated 15.1.2016 passed by

Motor Accident Claims Tribunal

Hoshiarpur (for short `the Tribunal), but arising out of the same accident, which occurred on 27.1.2015, wherein, Harwinder Kaur and Harpreet Kaur had lost their lives.

Two different claim petitions were filed by the legal heirs of the deceased. The Tribunal awarded compensation of Rs.10,85,000/- and Rs.11,45,000/- for the deaths of Harwinder Kaur and Harpreet Kaur, respectively.

Brief facts of the case are that on 27.1.2015, Harwinder Kaur and Harpreet Kaur were returning back to village Tutomazara after taking medicine from Mahilpur on Activa Scooter No.PB-07AT-1145. The scooter was driven by Harwinder Kaur, while Harpreet Kaur was the pillion rider. They were followed by Jarnail Singh resident of Tutomazara on his scooter No.PB-07J-2051. At about 2.30 PM, when they reached near the turning of village Tutomazara, a Bolero No.PB-11AK-2828 being driven rashly and negligently by respondent No.5 came from back side and struck against the Activa Scooter, as a result of which, both the occupants of the scooter fell down on the pucca portion of the road and sustained serious injuries. The scooter got entangled with the Bolero Jeep and it was dragged for quite a long distance. Harwinder Kaur and Harpreet Kaur died at the spot due to accidental injuries. FIR No.11 dated 27.1.2015 under Sections 304-A, etc. IPC was registered in Police Station Chabewal against respondent No.6 – Bhupinder Singh alias Sonu.

The legal heirs of the deceased filed claim petitions before Motor Accident Claims Tribunal, Hoshiarpur (for short `the Tribunal).

The Tribunal returned a finding that the accident had been caused due to rash and negligent driving of the Bolero Jeep by its driver Bhupinder Singh. It assessed the income of the deceased at Rs.5000/- per month and considering that both the deceased were less than 40 years at the time of their accidental death, also added 50% to the income towards future prospects. Besides, the Tribunal also awarded Rs.1,00,000/- towards `loss of consortium’ and Rs.25,000/- for `funeral expenses’.

Learned counsel for the appellant- Insurance Company has challenged the award on the following grounds:-

1. Since the statement of the eye-witness Jarnail Singh is contradictory, therefore, the Tribunal has erred in returning the finding of rash and negligent driving of the Bolero Jeep against respondent No.6.

2. The determination of the income of the deceased at Rs.5000/- per annum is on higher side, and

3. No evidence of any employment of the deceased was produced, therefore, the Tribunal was not justified in granting the benefit of future prospects towards income.

Dealing with first argument, the onus to prove the rash and negligence on the part of the driver of the Bolero Jeep was on the claimants. Jarnail Singh – eye witness (AW1) tendered into evidence his affidavit as Ex.AW1/A, wherein, he attributed rashness and negligence to the driver of the Bolero Jeep. He deposed on the same lines as pleaded in the claim petition that on 27.1.2015 both the deceased were riding Activa Scooter on the correct side of the road. It was being driven by Harwinder Kaur, while Smt.Harpreet Kaur was sitting on the pillion seat. This witness was following them on his scooter No.PB-07J-2051. Secondly, an FIR was also registered against respondent No.6 in Police Station Chabewal on the same day. Some contradictions in the statement of the eye-witness cannot shatter the case of the claimants, which is also fortified by registration of an FIR against respondent No.6 on the day of accident itself.

In

Girdhari Lal vs. Radhey Shyam and others, 1993(2) PLR 109

the evidentiary value of pendency of criminal proceedings against the driver, in a case of compensation under the Motor Vehicles Act, was discussed as under:-

“xxx xxx xxx

There is no denial that Radhey Shyam respondent was being tried on account of rash and negligent driving by the Additional Chief Judicial Magistrate in a case State v. Radhey Shyam. Thus, it is prima facie safe to conclude that the accident occurred on account of rash and negligent driving of Radhey Shyam respondent in which the claimant suffered injuries.

xxx xxx xxx”

In case of

Mallamma vs. Balaji and others, 2004 ACJ 368

the Karnataka High Court while reversing the finding of the Tribunal on the issue of negligence, held as under:-

“12. Therefore, under these circumstances, I am of the considered view that the Tribunal has wrongly come to the conclusion and held that the claimant has not proved the negligence on the part of the driver of the milk van involved in the accident. Filing of the charge-sheet against the driver is also a prima facie case to hold that the driver of the said lorry was responsible for the accident and burden shifts on him to prove the same.”

In The United India Insurance Co. Ltd. vs. Deepak Goel and others, MAC.APP.No.750/2006, decided on 24.01.2014, while taking note of the decisions of the Hon’ble Supreme Court, it was observed by the Delhi High Court as under:-

“xxx xxx xxx

In a criminal case in order to have conviction, the matter is to be proved beyond reasonable doubt and in a civil case the matter is to be decided on the basis of preponderance of evidence, but in a claim petition before the Motor Accident Claims Tribunal, the standard of proof is much below than what is required in a criminal case as well as in a civil case. Undoubtedly, the enquiry before the Tribunal is a summary enquiry and, therefore, does not require strict proof of liability.

21. Nonetheless, in a case, where FIR is lodged, charge-sheet is filed and specially in a case where driver after causing the accident had fled away from the spot, then the documents mentioned above are sufficient to establish the fact that the driver of the offending vehicle was negligent in causing the accident particularly when there was no defence available from his side before the learned Tribunal. Thus, the claimants have proved negligence of the driver of the offending vehicle”

In view of the above factual and legal position, the finding of the Tribunal that the accident was caused due to rash and negligent driving of the Bolero Jeep cannot be interfered with.

So far as the determination of the income of the deceased at Rs.5,000/- per month is concerned, both the deceased were home makers and were enjoying good health. In