FAO No. 454 of 2011 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH FAO No. 454 of 2011 Date of decision 12.7.2011 Smt.Hemlata and Others Appellants v. Sh.Uma Shankar and Others Respondents CORAM: HON'BLE MR.JUSTICE JITENDRA CHAUHAN Present: Mr. Jagdish Manchanda,Advocate for the appellants .... JITENDRA CHAUHAN.J(ORAL) This appeal has been filed by the appellants-petitioners against the Award dated 7.6.2010, passed by the Motor Accident Claims Tribunal, Faridabad (for short the Tribunal). The brief facts of the case are that Umesh Kumar (deceased) was working as Executive (Marketing ) with M/s Windsor Exports, Faridabad, and was getting a salary of Rs. 25005/- p.m. On 2.5.2008, at 5.30 p.m. when he was coming back from his work place on motor cycle, alongwith his colleague Ravi Gupta, in the area of Valley View Estate, BSF Flats on Gurgaon-Faridabad Road, some unknown vehicle came from the side of Gurgaon, and hit the motor cycle from behind. Both of them fell from the motor cycle. Ravi Gupta suffered minor injuries, whereas he sustained grievous injuries all over his body and head. He succumbed to his injuries on the way to hospital. The said, Ravi Gupta could not see the unknown vehicle and by the time, he got up, the vehicle disappeared. On the basis of statement made by him, an FIR No. 15 dated FAO No. 454 of 2011 2 3.5.2008 was registered under section 279/337/304-A IPC against the unknown driver of the unknown vehicle . However, on 15.9.2008, another version of the accident came through one Babir Singh Negi, who claimed himself to be an eye-witness to the accident. He has narrated that on 2.5.2008, i.e the day of the accident, he was coming from Gurgaon on his motor cycle. He was hardly 100 yards from the scence of accident, when he saw one Tata 407 bearing registration No. HR-38-C-1044, overtaking his bike and hit the motor cycle of Ravi Gupta from behind. He tried to catch hold of the driver of Tata 407 but the driver (respondent No.1) accelerated and fled away. Balbir Singh noticed that the driver of the offending vehicle was aged about 25-26 years and of dark complexion. He noted down the number and colour of the offending vehicle on a chit. After some time, the incident faded away from his memory and he lost the said chit as well. On 2.9.2008, he met Dinesh (PW- 7), employed as driver with DAV College, Faridabad, and a distant cousin of claimant No.1,(wife of deceased Umesh Kumar). During the conversation, he came to know that brother-in-law of Dinesh met with an accident on 2.5.2008, at about 5.30 p.m on Gurgaon-Faridabad road and that the accident was caused by some unknown vehicle, which disappeared from the spot after causing the accident. Balbir Singh Negi recollected all the facts of the accident and informed Dinesh that he had witnessed that accident. The claimant-petitioner No.1 contacted Balbir Singh Negi at the instance of Dinesh Kumar. On 15.9.2008, Balbir Singh Negi posted his complete statement of the accident to S.H.O. P.S. DLF, Phase-I Gurgaon and gave another copy of the statement to claimant No.1. The concerned Investigating Officer refused to take any action on the application, as he has FAO No. 454 of 2011 3 already completed the case. The claimant No.1 got the address of the driver of the offending vehicle from the office of Registration Authority, Fariabad and on the basis of the same which, case was filed against respondent No.1, driver-cum-owner of Tata 407, HR-38-C-1044. Respondent No.1 filed the written statement and denied the accident. It was submitted that the pleas taken in the petition are concocted and an afterthought version, filed with a malafide intention to extract money from him. He further asserted that had there been an accident, there would have been an FIR, lodged against him instantly and the police would have taken his vehicle into custody. He submitted that he sold the vehicle in question to one Lekh Raj on 22.8.2010. The Ld. Tribunal perused the record produced before it and examined the prosecution witnesses. The material witness PW1, Balbir Singh Negi, who supported the case of the claimants-appellants stated that on 2.5.2008, he was coming back from Gurgaon to Faridabad, on his motor cycle at about 5.30 p.m. When he reached near BSF Flats, Valley View Estate, he noticed a motor- cycle with pillion, was going ahead of him. A Tata 407 came from behind and hit the motor cycle going ahead of him. The occupants of the bike fell down. He further stated that instead of stopping the vehicle, the driver of Tata 407 accelerated and ran away from the spot. He chased the vehicle upto some distance and could see the driver. He noted down the number of the Tata 407 on a slip, which was misplaced and the accident faded from his memory. On 11.9.2008, he met his friend Dinesh, a cousin of claimant- Hemlata, and the conversation with him refreshed his memory. That slip, on which number of Tata 407 was noted down, was also traced. He FAO No. 454 of 2011 4 contacted Smt. Hemlata, who took him to her counsel, who recorded his statement Ex. P1 and sent a copy to the Police Station. During the cross-examination, PW-1 Balbir Singh Negi, stated that he did not know the claimants or the deceased. He neither noted the number of the motor cycle going ahead of him, nor did he inform the police or give anything in writing regarding the azccident. He stated that the police post or PCR might have fallen in the way, but he did not see or lodge any report. He denied the suggestion that he never witnessed the accident occurred on 2.5.2008 or that he had deposed falsely. PW2, Ravi Gupta, deposed that on the day of accident, he was driving motor cycle bearing registration No. HR-51-N-4534 and Umesh Kumar was the pillion rider. When they reached near Valley View Estate, some vehicle hit motor cycle from behind, they struck against a tree, fell down and became unconscious. He gained consciousness in the hospital, where he came to know that Umesh Kumar had died. On the basis of his statement, FIR Ex.P1/A was recorded. During cross-examination, this witness stated that he neither saw the driver nor the vehicle at the time of accident. PW5, SI Raj Pal brought the summoned record and admitted the complaint dated 15.9.2008, Ex.P1, made by Balbir Singh Negi. The matter was enquired into by ASI Ram Avtar. Notice under section 160 Cr.P.C. Was sent to Hemlata (claimant-petitioner) and also to Balbir Singh Negi to join them in the enquiry. He further deposed that no truth was found during the enquiry in the complaint of Balbir Singh Negi. Prior to this complaint, the matter was investigated by SI Ram Avtar and an untraced report, Ex. R-1, was prepared after verification by SHO, P.S. DLF, Phase I, FAO No. 454 of 2011 5 Gurgaon. During cross-examination, PW-5 stated that he visited the spot of accident and no witness of the occurrence could be found. There was no shop around the place of occurrence. No further investigation is pending in the matter. Respondent No.1 Uma Shanker, driver-cum-owner of the vehicle HR-38-C-1044 appeared and stated that he ply his vehicle on Faridabad-Ballabgarh Road. He had purchased the vehicle in 2003, and till date, his vehicle never met with an accident. He stated that on the date of accident, he did not ply the said vehicle , as he did not have any booking for outside that day and it was parked at the Ballabgarh Tempo stand. He admitted that police recorded his statement but his vehicle was never impounded. The Tribunal disbelieved the statement of PW1, Balbir Singh Negi, made after a gap of 4/1-2 months from the date of accident, being a concocted version. During cross-examination, his testimony was found to be shaky. It was observed that the police,after receiving the statement of Balbir Singh Negi on 15.9.2008, enquired into the matter afresh, but found no truth therein. It was also noticed that apart from the bald statement of PW1, Balbir Singh Negi, made after a long gap of 4-1/2 months, there is nothing on the record to connect the driver-respondent No.1 with the accident. Even, PW2 Ravi Gupta, during cross-examination, stated that he neither saw the driver nor the vehicle at the time of accident. After appraisal of the entire evidence on record, the Tribunal was of the view that the claimants failed to prove the nexus of vehicle Tata 407 No. HR-38-C-1044 with the accident. The Tribunal observed that as the involvement of the said vehicle itself is not proved, so the question of FAO No. 454 of 2011 6 causing the accident by the driver, in a rash and negligent manner, did not arise. Therefore, the claimants are not entitled to any compensation against its driver, owner or the insurer. Consequently, the claim petition of the claimants was dismissed vide Award dated 7.6.1994. The only submission made by the Ld. counsel for the Appellant is that the Ld. Tribunal committed an error in not properly appreciating the statement of PW1 Balbir Singh Negi. But this Court is not inclined to accept this argument, as the Ld. Tribunal disbelieved the statement of PW1, Balbir Singh Negi, after considering the entire record and detailed discussion. No other point has been raised. In view of the above, no ground is made out to interfere in the Award dated 7.6.1994 passed by the Tribunal. The appeal fails and is dismissed in limine. (JITENDRA CHAUHAN) JUDGE 12.7.2011 ms