M/S NATIONAL INSURANCE COMPANY LTD vs MS. SAVITA & ORS.

$~43
* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Date of decision: 5th February, 2024
+ MAC.APP. 83/2024
M/S NATIONAL INSURANCE COMPANY LTD
….. Appellant
Through: Ms. Rakhi Dubey and Mr.
Sandeep Kumar Dubey, Advs.
versus
MS. SAVITA & ORS. ….. Respondents
Through: None.
CORAM:
HON’BLE MR. JUSTICE DHARMESH SHARMA
DHARMESH SHARMA, J. (ORAL)
CM APPL. 6626/2024 (Ex.)

1. Allowed, subject to all just exceptions.
2. The application stands disposed of.

MAC.APP. 83/2024 & CM APPL. 6625/2024 (Stay)

3. The appellant/Insurance Company is assailing the impugned
judgment-cum-award dated 10.11.2023 passed by the learned
Presiding Officer, Motor Accident Claims Tribunal-02, Shahdara,
Karkardooma Courts, Delhi1 primarily on the ground that the learned
Tribunal erred in finding the involvement of the offence vehicle
bearing registration No. RJ-02CB-8286 in the accident resulting in the
death of the deceased/motorcycle rider, Mr. Rajesh Kumar Sharma.
4. Learned counsels for the appellant referred to the contents of
the First Information Report2 vis-a-vis testimony of R3W1/IO-SI Om
Prakash from Police Station Kotwali District Sambhal, Uttar Pradesh

1 Tribunal

2 FIR
3 IPC

besides that of PW-2 Mahender Singh, who was produced as an eye
witness to the accident. It was submitted that in the FIR No. 177/2015
under Section 279/337/304A of the Indian Penal Code, 18603 Police
Station Sahibabad, Ghaziabad no details about the offending vehicle
were given and it was also reported that the deceased motorcyclist was
struck by some unknown vehicle and when he fell down there was
another vehicle, which came from behind and crushed the head of the
injured motorcyclist and fled away from the spot leading to the death
of the injured at the spot. It was also urged that that testimony of
R3W1 i.e. the Investigating Officer was based on the information by
the secret informer, thereby enabling him to trace the whereabouts of
the offending vehicle as well as the registered owner is not
fathomable. While, the PW-2 in his testimony does not inspire
confidence as to the manner in which the accident had occurred.
5. The aforesaid submissions on the part of the appellant/Insurance
Company have been dealt with by the learned Tribunal in the
impugned judgment-cum-award vide paragraph (14) and it would be
expedient to reproduce the same, which goes as follows:

“14. Having considered the submissions and going through the
evidence of R3W 1, the fact that involvement of offending vehicle
has been made belatedly in the investigation of criminal case on the
basis of information given by secret informer, ipso facto cannot be
considered to be a reason for concoction or fraudulent involvement
of vehicle when nothing has come on the judicial record. It is
matter of record that driver/respondent no. l of the offending
vehicle bearing no.RJ-02CB-8286 faced prosecution in the
criminal case. Certified copy of criminal case documents are on
record. Moreover PW2 is the eye witness who also deposed

consistently regarding the manner in which accident taken place.
Thus on the basis of evidence of PW2 coupled with documents on
record, there is sufficient evidence available on record to prove that
accident has taken place due to rash and negligent driving of
respondent no. l. Issue thus decided in favour of petitioner and
against the respondents.”

6. On a careful perusal of the material on the record, this Court
finds that the learned Tribunal has correctly appreciated the evidence
that was brought on the record. Incidentally, R3W1/SI Om Prakash
was a witness for appellant/insurance company only, whose testimony
goes as under:-

I am summoned witness and have brought the summoned record
i.e. copy of case diary which was attested by me as original is filed
in Ld. ACJM-8, Ghaziabad Court. On 20.2.2015, I got lodged the
FIR and Investigation was marked to me. I recorded statement of
Subhash Chand. In FIR, the name of driver and number of
offending vehicle is mentioned. On 24.2.2015, I further
investigated the case but there was no clue regarding the offending
vehicle. On 26.2.2015, I recorded statement of witness of
Punchnama. On 2.3.2015, I had taken the PM report of deceased
and thereafter on 18.3.2015,I got mechanical inspection report of
vehicle which was driven by the deceased. On 28.4.2015, I again
conducted investigation of the case and made efforts to search out
the offending vehicle as well as driver. During investigation, one
informer (mukhbir) informed me that the vehicle involved in
accident dated 19.2.2015 was bearing no. RJ 02CV 8286 and
owned by Rajnish Kumar R/o Alwar, Rajasthan and presently was
residing at C-80, DLF, Dilshad Garden, Delhi and driver of
vehicle at the time of accident was Sunil. I was further informed
that Sunil was going to his village by this vehicle and caused this
accident on the way which was witnessed by one Mahender S/o
Dharam Singh R/o village Nistoli, Loni, Ghaziabad, UP who was
behind the offending vehicle at the time of accident and was going
to his village after selling out of milk at Delhi. I recorded statement
of Mahender on 28.4.2015. I conducted the investigation on the
basis of informer including arrest of accused/driver and
impleadment of witnesses and then filed chargesheet before the
concerned court. I do not know whether SI Jayant Singh was
posted with PS in which I was posted at the time of this

investigation. I filed charge-sheet on 23.5.2015. Copy of case diary
is Ex.R3W1/A (colly. 23 sheets)
XXXXXXXXXXX by Ms.Sulekha Thakur, counsel for petitioner
Nil. Opportunity given for cross examination.
XXXXXXXXX by respondent No. 1 &2
Both are ex-parte.”

7. First things first, the aforesaid testimony was allowed to remain
on the record, without any request by the insurance company to treat
the witness as hostile and there was no request for cross-examination
on the part of the insurance company. Although the provisions of
Indian Evidence Act,18724 are not strictly applicable in summary
proceedings like the present one, Section 114 of the IEA raises a
presumption that the police official during the course of the
investigation unearthed the relevant facts in the ordinary course of his
official duties. It is the categorical testimony of R3W1 that during the
course of investigation he was able to locate the offending/insured
vehicle bearing registration No. RJ-02CB-8286, which was owned by
Mr Rajesh Kumar, a resident of Alwar, Rajasthan, who disclosed that
at the time of the accident, vehicle was driven by one Mr. Sunil and
the accident was also witnesses by one Mr. Mahender Singh S/o Sh
Dharam Singh. Evidently, R3W1 had no ulterior motive to depose
falsely on the matter in issue. Further, Mr. Mahender Singh was
examined as PW-2 and his testimony on the record also categorically
brings out that the motorcycle which was being driven by the
deceased, was hit by the offending car bearing No. RJ-02CB-8286
when it was trying to overtake the motorcycle from the left side.
Merely because PW-2 was not able to recall the registration of the

4 IEA

motorcycle or that his statement was recorded by the police after 4-5
days of the accident, is hardly of any significance when it was his
categorical testimony that he had informed the Police Chowki about
the accident and his address was taken by the police. It was explained
by PW-2 that he had left the deceased at the spot and went to the
police chowki which was about half a kilometre to inform them about
the accident and his conduct cannot be said to be unnatural or tainted
in any manner. As a matter of fact, PW-2 was able to give a vivid
description about the place of occurrence as well, which was not
challenged in his cross-examination. There is no evidence on the
record that he was a planted witness.
8. As regards the plea that some other vehicle had hit the
deceased, the said aspect was not brought to the fore by the
appellant/insurance company during the inquiry/trial nor any witness
was prodded about the same. In any case, the primary responsibility
for the accident lies in the rash and negligent driving of the offending
insured vehicle.
9. In view of the foregoing discussion, I find that the impugned
judgment-cum-award passed by the learned Tribunal does not suffer
from any illegality, infirmity or incorrect approach in law.
10. Accordingly, the present appeal is dismissed in limine.
11. The application also stands disposed of.

DHARMESH SHARMA, J.
FEBRUARY 05, 2024
Sadique