“1. Whether the Motor Vehicle Accident That Vs. Mustaq Ahmed and Others --respondents - Court Judgment

IN THE HIGH COURT OF PUNJAB & HARYANA AT CHANDIGARH FAO No.1405 of 2002 (O&M) Judgement Reserved on 13.8.2014.

Date of Pronouncement: 20.08.2014.

Nabli & others --Appellants Versus Mustaq Ahmed & others --Respondents CORAM:- HON'BLE MR.JUSTICE TEJINDER SINGH DHINDSA.

Present:- Mr.Amit Jain, Advocate for the appellants.

Mr.Suvir Dewan, Advocate for respondent no.3.

*** TEJINDER SINGH DHINDSA.J The instant appeal lays a challenge to the order dated 2.11.2001, passed by the M.A.C.T., Gurgaon, whereby the claim petition preferred by the claimants/present appellants, has been dismissed.

Brief facts are that the present appellants filed a claim petition under Section 166 of Motor Vehicles Act claiming compensation in the sum of Rs.20 lacs for the death of Yasin in a road traffic accident that was stated to have occurred on 7.8.2000 on account of rash and negligent driving of truck bearing registration No.HR-38-A-4440.

It had been pleaded in the claim petition that on 7.8.2000 Yasin along with Hussain Khan was going on a tractor driven by Hussain Khan and the truck as noticed herein above came from the back side and struck the tractor.

As a result, Yasin (deceased) fell down and sustained multiple injuries on his spine and right hip.

He was stated to have been taken initially to General Hospital, Palwal and from where he was referred for specialized treatment to Delhi i.e.Indian Spinal Injuries Centre, Vasant Kunj, Delhi.

Yasin is stated to have Lucky remained admitted in such Centre from 8.8.2000 to 14.9.2000 and he 2014.08.21 10:33 I attest to the accuracy and integrity of this document chandigarh FAO No.1405 of 2002 (O&M) -2- underwent several operations.

A sum of Rs.3,50,000/- was stated to have been spent on his treatment.

On 14.9.2000 Yasin was stated to have been shifted to Safdarjung Hospital, New Delhi, where he died on the same day.

Yasin was stated to be 28 years old, an agriculturist by profession having a monthly income of Rs.7,000/- and had left behind the claimants as his legal heiRs.The accident had been reported to Police Station, Hathin and F.I.R No.226 was recorded on 9.8.2000 for offences punishable under sections 279, 337, 338 I.P.C and section 304-A I.P.C was added later on.

Respondents no.1 and 2 i.e.driver and owner of the vehicle chose not to contest the petition and were proceeded ex-parte.

The claim was contested by respondent no.3 i.e.the United India Insurance Company LTD.Upon the pleadings of the parties, the following issues were framed by the Tribunal:- “1.

Whether the motor vehicle accident that took place on 7.8.2000 is an outcome of rash and negligent driving of truck No.HR-38-A-4440 by respondent no.1?.OPP2 Whether the petitioners are entitled to compensation for the death of Yasin in the aforesaid accident.

If so in what amount?.OPP3 Whether respondent no.3 is entitled to repudiate the contract of insurance on the grounds alleged?.OPR.

4.

Relief.”

.

In so far as Issue no.1 is concerned, the same was decided against the claimants by the Tribunal vide impugned award holding that there is no evidence to prove that the accident which led to the death of Yasin was on account of rash and negligent driving of truck bearing registration No.HR-38-A-4440.

FAO No.1405 of 2002 (O&M) -3- Inspite of having been duly served, the owner and driver of the truck did not put in appearance during the couRs.of proceedings in the instant appeal and accordingly were ordered to be proceeded ex-parte on 1.5.2014.

Learned counsel for the appellants as also for the Insurance Company have been heard.

A perusal of the impugned award dated 2.11.2001 would make it apparent that Issue no.1 has been decided against the claimants on the reasoning that the author of the F.I.R had not been examined and the F.I.R itself was not a piece of substantive evidence as regards the accident and to hold the death of Yasin to be the outcome of rash and negligent driving of the truck in question.

This Court is of the considered view that such reasoning adopted by the Tribunal is erroneous and cannot sustain.

It has gone unrebutted that F.I.R no.226 dated 9.8.2000 registered at Police Station, Hathin under sections 279, 337, 304-A I.P.C was duly proved as per statement of Rakesh Kumar, Additional Ahlmad in the court of J.M.I.C., Palwal.

Such witness had further stated that charges had been framed in the case against driver on 5.3.2001.

Still further, the owner and driver of the offending vehicle i.e.respondents no.1 and 2 chose not to even appear in the proceedings before the Tribunal inspite of having been duly served and as such, there was no rebuttal to the allegations and assertions made by the claimants as regards the manner of the accident.

At this stage, it would be useful to advert to the dictum laid down by the Hon'ble Supreme Court in case of Bimla Devi and others versus Himachal Road Transport Corporation & otheRs.2009 (3) R.C.R FAO No.1405 of 2002 (O&M) -4- (Civil).805, wherein it was held that strict proof of an accident caused by a particular vehicle in a particular manner may not be possible to be done by the claimants and the claimants were obligated merely to establish their case on the touchstone of preponderance of probability.

It was further held that the standard of proof beyond reasonable doubt would not have any application and the Tribunal concerned is expected to take a holistic view of the matter.

It would be apposite to notice that even though Issue no.1 was decided against the claimants, yet, the Tribunal has proceeded further on returning findings as regards Issue no.2 and has noticed that Yasin after having suffered injuries in the accident had been taken to Indian Spinal Injuries Centre, Vasant Kunj, Delhi and he remained there up to 14.9.2000.

A statement of Dr.

Harinder Nath Bajaj, PW-2 has been noticed, wherein the doctor had stated that the patient was on a downhill journey despite treatment and on account of the cost factor at the specialized centre, Yasin (deceased) had been shifted to Safdarjung Hospital, New Delhi on 14.9.2000.

Ex.P3 is the death report of Yasin and as per which he died on 14.9.2000.

Dr.

Bajaj has further stated that Yasin died on account of the injuries for which he was under treatment at the specialized centre from 8.8.2000 to 14.9.2000.

Accordingly, the Tribunal returned findings that Yasin had died on account of the injuries suffered in the aforesaid accident.

Finally, it has been concluded while deciding Issue no.2 by the Tribunal and a sum of Rs.4,45,000/- has been assessed as the loss suffered by the claimants on account of the death of Yasin.

Yet, they have been held not entitled to such amount on account of findings having been returned against them as per Issue no.1.

FAO No.1405 of 2002 (O&M) -5- Under such peculiar circumstances, the instant appeal is partly allowed.

The findings as regards Issue no.1 contained in the impugned award dated 2.11.2001 are set aside and the matter is remanded back to the Tribunal to consider the matter afresh in the light of the observations made by Hon'ble Supreme Court in Bimla Devi's case (supra).Needless to observe that it would be open for the respondents/Insurance Company to raise all pleas before the Tribunal as may be available to them in accordance with law.

Parties to appear before the Motor Accident Claims Tribunal, Gurgaon on 15.9.2014.

Appeal disposed of in the aforesaid terMs.(TEJINDER SINGH DHINDSA) JUDGE August 20th, 2014.

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