SANJEEV PRAKASH SHARMA,J. - (1.) The appellant-Insurance Company has assailed the judgment and award dated 15.01.2018 whereby the compensation has been awarded to the claimants which is stated to have occurred allegedly by one Jeep bearing No.RJ19 UA 3512 wherein the deceased Pradeep Kumar who was driving a motorcycle was hit by the said vehicle resulting in his death due to the injuries in the hospital where he was brought by one eye witness Udai Lal.
(2.) Learned counsel for the appellant-Insurance Company submits that in the FIR, which was registered by brother of the deceased, the vehicle number was not mentioned and it was stated that by unknown vehicle, the accident has been caused and thus, there is a doubt about the involvement of the vehicle. It is submitted that the eye witness Udai Lal who has deposed as AW-2 before the learned Tribunal, states that he had brought the injured to the hospital after calling ambulance and left the place after the police personnel and the concerned relatives had arrived in the hospital. Thus, he had an ample opportunity to inform the police as well as the members of the family of the number of the Jeep but he has not informed them about the Jeep having caused accident and it is later on as an afterthought the number of Jeep has been mentioned before the police by the concerned person Udai Lal. Learned counsel submits that from the mechanical inspection report, it does not appear that the concerned Jeep was involved in the accident. It is submitted that the mechanical inspection report was conducted after about one month i.e. 13.07.2016 whereas the accident said to have occurred on 15.06.2016 and thus, the report stating that there is a fresh mark of abrasion on the body of the vehicle, could not be related to the said accident. Learned counsel further submits that the first version which has been said in the FIR shows that the vehicle, which had hit the deceased was unknown and the concerned Jeep has been introduced subsequently. Learned counsel relies on United India Insurance Co. Ltd. Vs. Pawan Tikkiwal & Ors. reported in 2008 R.A.R. 56 (Raj.), to submit that subsequent improvement in the statement cannot be made as a basis for grant of compensation and holding that the Jeep was involved.
(3.) Per contra, learned counsel appearing for the claimants submits that the Insurance Company has taken a plea before this Court, which was not taken before the learned Tribunal. Learned counsel has taken this Court to the written statement filed by the Insurance Company and the additional plea taken therein to submit that the stand of the Insurance Company before the learned Tribunal was only to the effect that the deceased had met with the accident on account of his own negligence and careless driving and having driven his vehicle without helmet. Learned counsel also points that the Insurance Company has taken an alternate plea that if the court reaches to the conclusion that the accident has been caused by the insured vehicle then it should be treated that there was a contributory negligence of the deceased, who was driving the motorcycle. Learned counsel thus, submits that in the present appeal, a different plea to that taken before the tribunal in written statement cannot be allowed to be accepted. Leaned counsel further submits that in the cross examination of Udai Lal conducted by the Insurance Company, no such suggestion has been put forward by the counsel for the insurance company that the vehicle was not involved or that he had given false number to the police. He also submits that the police after investigation has registered a case under Section 304-A against the driver and the vehicle was seized. In the inspection report, it has come out that there is a dent in the centre on the front bumper body of the vehicle. Thus, the stand taken by the eyewitness of the Jeep having caused direct hit on the motorcycle is also proved from the inspection report Exhibit-9. ;