IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH FAO No.5828 of 2009 (O&M) Date of decision:03.05.2011 Krishan ...Appellant versus Gayatri and others ....Respondents CORAM: HON’BLE MR. JUSTICE K. KANNAN ---- Present: Mr.Ashish Yadav, Advocate, for the appellant. Mr. Gurinder Pal Singh, Advocate, for respondents 1 to 4. Mr. Sarfraj Hussain, Advocate, for respondent No.5. ---- 1. Whether reporters of local papers may be allowed to see the judgment ? No. 2. To be referred to the reporters or not ? No. 3. Whether the judgment should be reported in the digest ? No. ---- K.Kannan, J. (Oral) 1. The appeal is by the first respondent before the Tribunal contending that he had been falsely implicated in the case. The accident involving the death of a scooterist with the JCB machine bearing registration No.HR-55A/3389 that was owned by the respondent 1-B is an admitted fact. It was originally alleged in the petition that it was driven by the appellant, who was also incidentally the brother of the owner. An amendment to the petition was brought impleading one Hasam son of Ismail as respondent No.1-C in view of the fact that he had been challaned as a driver for the vehicle subsequent to the accident. FAO No.5828 of 2009 (O&M) - 2 - 2. It was, however, contended at the trial that the vehicle was driven only by the appellant-Krishan. The claimants relied on the evidence of PW4, who was an eyewitness and who had registered a complaint, on the basis of which, FIR was registered. The FIR made reference to the fact that soon after the accident, Krishan was apprehended by the crowd and handed over to the police. The amendment was brought in the pleadings only because the police proceeded subsequently against Hasam which, according to the petitioner, was on account of the influence of the owner to extricate the brother of the owner from criminal prosecution. The Tribunal found that only Krishan was the driver of JCB machine and after assessing the compensation held that both respondents 1-A and 1-B were jointly and severally liable to satisfy the claim. 3. The learned counsel for the appellant states that PW4 admitted in evidence that he saw the driver of the vehicle from 10-15 paces away from the scene of the accident and if he had noticed the driver at such a close range, there was no necessity to file the case against Hasam Khan and array him respondent 1-C. This aspect of the case has been dealt with by the trial Court itself by observing that the impleadment became necessary in view of the fact that the police had challaned him. I do not think, an impleadment of a person will conclude the issue, for, if it became necessary to enter a finding as to who was driving the vehicle and who must be made liable for satisfying the award, the Tribunal is required to give an adjudication as regards the same. The statement immediately recorded after the accident that contained a FAO No.5828 of 2009 (O&M) - 3 - reference to the name of the first respondent and the fact that the respondent No.1-A was also soon caught at the place of the accident and handed over to the police, are sufficient circumstances for the Tribunal to come to the conclusion that it was only the respondent 1-A, who was driving the vehicle at that time. Significantly, in this case, Hasam Khan, did not appear despite notice. This cannot be used as a circumstance in favour of respondents 1-A and 1-B. If it were to be contended by the owner that his driver was Hasam Khan, he was bound to produce him in evidence in Court to support his defence. The petitioner cannot be expected to examine his adversary as his witness. The respondents could have at least brought the evidence of Investigating Officer himself in the criminal case. If there was a justification for challaning Hasam Khan as a driver, it seems to me to be stage managed by the owner and the first respondent to make someone else to share the liability to defeat the claims of the claimants. The award passed against respondents 1-A and 1-B in the petition was perfectly justified and the liability cast on the appellant was also in conformity with the evidence brought before the Tribunal. The appeal itself is a vexatious exercise and deserves to be dismissed and it is, accordingly, dismissed. (K.KANNAN) JUDGE 03.05.2011 sanjeev