IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH F.A.O. No. 144 of 1995 Date of Decision : April 28, 2010 Rajan Sabikhi ....Appellant Versus Dalbir Singh and another .....Respondents CORAM : HON'BLE MR. JUSTICE T.P.S. MANN Present : Mr. Jagdish Manchanda, Advocate for the appellant. None for respondent No.1. Mr. Vinod Chaudhary, Advocate for respondent No.2. T.P.S. MANN, J. The claimant has filed the appeal for challenging the award dated 15.9.1994 rendered by learned Motor Accidents Claims Tribunal, Kurukshetra whereby the petition preferred by him under Section 166 of the Motor Vehicles Act, 1988 for the grant of compensation to the tune of Rs.2,21,442.59 Ps for damage to his tanker bearing registration No.DEG- 4981, was dismissed. In his claim petition, the claimant had averred that on 30.10.1992, his tanker was driven by Balvinder Singh slowly on his correct FAO No. 144 of 1995 -2- side on the G.T. Road. It was going from Sikandrabad to Patiala for supplying milk to Milk Food, Patiala. The milk was loaded in the tanker. When the tanker reached near village Sharifgarh, a truck bearing No.AMN-3126 driven by respondent No.1 rashly and negligently came from opposite side, i.e. Ambala side. A Swaraj tractor was also moving in front of truck No. AMN-3126. When the truck was in the process of overtaking the tractor, it came on the wrong side and caused the accident by striking against the claimant's tanker. Due to the impact, the tanker turned turtle on the left side of the G.T. Road. The tanker was totally damaged and whole of the milk was spilled from the tanker due to the accident. The accident was caused due to rash and negligent driving of respondent No.1. However, a false case was registered against Balvinder Singh, driver of the tanker, whereas the fault was of respondent No.1, owner-cum-driver of the truck. Respondent No.2 was the insurance company with which the truck stood insured. Respondent No.1 filed his written statement. The claim was challenged on the ground of maintainability and for non-joinder of necessary parties. It was set up that the claimant intentionally did not implead the insurer of the tanker as party in the claim petition even though it was a necessary party. It was inter-alia pleaded that the accident in question took place due to rash and negligent driving of the driver of the tanker. Elaborating it further, it was averred that an FIR under Sections 279 and 337 of the Indian Penal Code was registered against Balvinder Singh, driver of the tanker. It was also pleaded that on the relevant date, he FAO No. 144 of 1995 -3- had started from a Dhaba situated in village Rattangarh, Tehsil Thanesar after staying for the night. He was to go to Lucknow(U.P.). The truck was being driven on the correct side of the road at a slow speed. When the truck reached within the area of village Sharifgarh, a tractor was going ahead of the truck. In the meantime, the tanker driven by Balvinder Singh in a rash, negligent and in a zig-zag manner came to its wrong side, i.e. on its extreme right side and first hit the tractor and then it dashed against the truck of respondent No.1. Respondent No.2-Insurance Company disputed the locus standi of the claimant as also cause of action in its favour. It was inter-alia pleaded that the accident in question took place due to the sole negligence of the driver of tanker No. DEG-4981 and hence story put forward by the claimant was a concocted and an afterthought. The police thoroughly investigated the matter on FIR against the driver of the tanker. In the alternative, it was pleaded that the truck was not being driven by respondent No.1 nor he was holding valid driving licence. Liability of the insurance company was also averred to be limited to the extent of Rs.6,000/- only in case of third party damages caused to the property or goods in the accident. On the pleadings of the parties, the Tribunal framed the following issues:- 1. Whether respondent No.1 caused damage to tanker DEG-4981 while driving truck No. AMN-3126 in FAO No. 144 of 1995 -4- the area of village Sharifgarh?OPP. 2. In case issue No.1 is proved, to what amount of compensation the claimant is entitled to and from whom?OPP. 3. Whether the petition is bad for non-joinder and mis- joinder of the necessary parties?OPR. 4. Whether the petition is not maintainable in the present form?OPR. 5. Whether respondent No.1 was not having driving licence at the time of alleged accident?OPR. 6. Relief. After hearing learned counsel for the parties and going through the evidence, the Tribunal held that the claimant had badly failed to prove that the accident was caused due to rash and negligent driving of truck No. AMN-3126 by respondent No.1. The claim petition was also found to be bad for non-joinder of the insurance company with which the tanker stood insured as that company was also an essential party. Accordingly, the claim petition was dismissed. Learned counsel for the parties have been heard and the evidence perused. To prove his case, the claimant had examined PW4 Ram Dayal, who had deposed that he, alongwith Balvinder Singh, was going to Patiala from Sikandrabad in the tanker driven by the latter. When they FAO No. 144 of 1995 -5- reached near village Sharifgarh, the offending truck came from the opposite side, which was being driven by respondent No.1 in a zig-zag manner. A tractor was going ahead of the truck. The truck while trying to overtake the tractor struck against the tanker after coming on the wrong side of the road. As a result of the impact, Balvinder Singh, driver of the tanker, lost its control and the tanker turned turtle. The tanker suffered heavy loss and the milk, which was loaded in it, got spilled on the road. Balvinder Singh, driver of the tanker, succumbed to his injuries lateron in the hospital. The witness, namely, Ram Dayal also received injuries and became unconscious. The accident in question had taken place due to rash and negligent driving of truck No. AMN-3126 by Dalbir Singh-respondent No.1. In cross-examination, he stated that he and Balvinder Singh had started from Sikandrabad at about 9.00/10.00 p.m. and stopped on the way 2/3 times. They had started from Sikandrabad after taking meal and stopped at Karnal for one hour for taking tea. They had not stopped anywhere else after leaving from Karnal. Earlier they had stopped on Delhi-Haryana border for about one and a half hours. The distance from Sikandrabad to Delhi was about 100 kilometers. Both of them had not slept during the night preceding the night of the accident. He had seen the truck coming from the opposite direction when it was at a distance of 20/25 feet. There was no vehicle moving in front of his vehicle, i.e. tanker. They had no chance to take their tanker to the kacha portion as the truck suddenly came from the opposite side and struck against the tanker while overtaking the tractor. The right side of both the vehicles, i.e. the tanker FAO No. 144 of 1995 -6- and the truck had struck against each other. He had informed the owner of the tanker on the next day regarding the accident. This witness had also filed a claim petition on account of the injuries received by him in the accident but the same was dismissed as he failed to appear. He denied the suggestion that the accident had taken place on account of the negligence of the tanker driver, who was under the effect of sleep and after hitting the tractor, struck against the truck by going to the wrong side of the road. He also denied the suggestion that the truck driver tried his best to avoid the accident but the tanker driver was negligent and after hitting the tractor, dashed the tanker against the truck. He further denied that the tanker was being driven by Balvinder Singh in a rash and negligent manner and at a high speed when he was feeling sleepy. On the other hand, respondent No.1-Dalbir Singh stepped into the witness box as RW1 and deposed that on the date of the accident, he was coming from Jalandhar and going to Lucknow while driving truck No. AMN-3126 at about 10.00 p.m. Prior to the date of the accident, i.e. preceding the night of the accident, he had stopped at a dhaba situated near Shahabad Markanda. He slept at the dhaba situated in village Rattangarh for the night and, thereafter, started his journey on the said truck to Lucknow. He was driving the truck at a very slow speed and on the correct side of the road by observing all traffic rules. He had started from village Rattangarh at about 7.00 a.m. and when he had covered a distance of about 8/10 kilometers and reached within the area of village Dhantori, a tractor was seen going ahead of his truck. The tractor was at a distance of 1½ FAO No. 144 of 1995 -7- acres from his truck. A tanker was coming from Delhi side at a very high speed after being driven in a zig-zag manner. He took the truck on the kacha portion of his side of the road after seeing the tanker coming at a high speed and in a zig-zag manner. He had put the truck in neutral gear at that time. The tanker driver first hit the tractor and then hit his truck on front side. Due to the impact, the truck was pushed backwards and turned turtle. The accident had been caused due to rash and negligent driving of the tanker driver. The police had registered an FIR against the tanker driver. In cross-examination, he stated that the width of the road was 16 feet. According to him, only two vehicles could pass easily at the place of the accident. He had seen the tanker from a distance of about 3 killas. No other vehicle was ahead of the tanker. However, a tractor was going ahead of the truck. The tractor was also damaged in the accident. The driver side of the truck was damaged. The cleaner was sitting with him in the cabin of the truck. Both of them had received only minor injuries. He denied the suggestion that at the time of the accident, he was in the process of overtaking the tractor and struck against the tanker. His truck was loaded with whisky. He also denied the suggestion that the accident had taken place due to his own rash and negligent driving of the truck or that the tanker driver was not at fault. The Tribunal rejected the version of PW4 Ram Dayal on the ground that his presence at the spot was highly doubtful. The following reasons were given to doubt his presence:- FAO No. 144 of 1995 -8- “i) He states that he was taken to a Civil Hospital, Shahabad for treatment as he had received multiple injuries. His medico-legal report could have been produced to prove his presence with the tanker and of receipt of injuries because of the accident; ii) Admittedly, he had filed a claim petition about the alleged injuries suffered by him in the accident. The said claim petition was dismissed; iii) The Investigating Officer was not examined by the claimant. Examination of such Investigating Officer would have also proved presence or absence of Ram Dayal PW4 at the site; iv) Ram Dayal PW4 does not make a mention at all that he made any statement to the police of his own or the police had recorded his statement. Had he been present at the site and injured in the accident, to be examined by Medical Officer of Civil Hospital, Shahabad, later, there was no reason of his statement having not been recorded by the police particularly this being a road side accident case; v) The claimant could have examined the Medical Officer, Incharge of Civil Hospital, Shahabad, who attended on Balvinder Singh, driver of the tanker and Ram Dayal PW4, who could have made the things clear. The doctor was duty bound to report the matter to the police and it is presumed, he did report the matter to the police. Had Ram Dayal, PW4 been present, his presence could have been FAO No. 144 of 1995 -9- vouched-saved by the Medical Officer, Shahabad, and Investigating Officer of the case; vi) Ram Dayal PW4 does not make even a whisper about the accident or of alleged negligence of respondent No.1 to the claimant, owner of the tanker or to the higher authorities of the police. It is for the first time that while appearing as a witness on 28.4.1994 after more than a year or 1¼ year of causing of the accident and of filing of the petition that he has cheeks to aver that a false case was registered against Balvinder Singh, driver of the tanker, in collusion with the Shahabad Police Station; vii) In whole of the petition the claimant does not mention Ram Dayal PW4 to be an occupant of the tanker and having received injuries in the accident; viii) Even deposition of Ram Dayal PW4 in his cross- examination made in non-committal terms in respect of material points is significant. The said portion of his deposition is appended verbatim in its relevant portion as under:- “I do not know whether the tractor was damaged or not in this accident. I also do not know whether the tractor turned turtle or not.” All the circumstances as indicated above are sufficient to indicate that Ram Dayal PW4 was not present at the spot.” It is true that neither the claimant nor PW4 Ram Dayal FAO No. 144 of 1995 -10- produced the medical report qua the injures said to have been suffered by Ram Dayal at the time of the accident but that would not be sufficient to disbelieve his presence alongwith Balvinder Singh, driver of the tanker, at the time of the accident. It is the admitted case of both the parties that the driver's side of the truck had hit the driver's side of the tanker. The tanker was being driven by Balvinder Singh whereas PW4 Ram Dayal claimed to be sitting with him by his side. Apparently, he would not have received serious injuries on his person on account of the initial impact. Further, on account of the impact of the accident, the tanker as well as the truck turned turtle. A reference to the photographs proved on record by PW1 Shiv Chander, Surveyor-cum-Assessor would reveal that neither the tanker nor the truck had turned upside down. They had fallen on their sides. Even under these circumstances, Ram Dayal would not have received serious injuries on his person which would have required his medico-legal examination in Civil Hospital, Shahabad. Only first aid treatment was needed for the minor injuries received by him. According to Ram Dayal, he had also filed a separate claim petition for the injuries received by him but the same was dismissed as he failed to appear in the same. Therefore, it cannot be said that the dismissal of his claim petition was on merits. As the FIR stood registered against Balvinder Singh, the driver of the tanker, the police would not have bothered about the presence or otherwise of Ram Dayal as he was not at all responsible for the accident. FAO No. 144 of 1995 -11- Moreover, in respect of the FIR, the police must have associated only Dalbir Singh-respondent No.1 in the investigation without bothering about the presence of Ram Dayal at the time of the accident. During his cross-examination, PW4 Ram Dayal stated that he had not told about the accident or regarding the sequence of events as to how and in what manner the accident had taken place to his owner when he met him in the hospital on the same evening but on the next day of the accident, he had apprised him about the same. Therefore, it cannot be said that it was only for the first time when he appeared as PW4 that he deposed about the manner in which the accident had taken place. The claimant while appearing as PW2 had stated in his examination-in-chief that Balvinder Singh, who was the driver of the tanker, had died in the accident whereas Ram Dayal, the other driver had received multiple injuries. He had also mentioned in the claim petition that at the time of the accident, there were two other persons sitting in the truck besides, Balvinder Singh, driver and they had received multiple injuries. The Tribunal, thus, erred in observing that the claimant had nowhere mentioned about the presence of Ram Dayal at the time of the accident. It was not the case of Ram Dayal that in the accident, the tanker had turned upside down whereas, according to Dalbir Singh, the tanker first hit the tractor and, thereafter, his truck and in the process all the three vehicles turned turtle. In none of the photographs Exs.P2 to P13, the tractor is shown to have been hit or lying turtled at the spot. Apparently, FAO No. 144 of 1995 -12- the tanker had not dashed against the tractor initially before hitting the truck driven by respondent No.1. On the other hand, it confirms the stand of the claimant as supported by PW4 Ram Dayal that the truck driven by respondent No.1, while overtaking the tractor, had dashed against the tanker and both the truck and the tanker turned turtle. Another indication available on perusal of the photographs Ex.P2 to P13 is that the tanker after having turned turtle was lying on its correct side of the road whereas that further shows that it was the truck driven by respondent No.1, which had come to the wrong side of the road and caused the accident. While referring to the testimony of PW4 Ram Dayal when he stated that he and Balvinder Singh had not slept in the night preceding the night of the accident, the Tribunal held that on account of feeling sleepy, it was Balvinder Singh, driver of the tanker, who was responsible for the accident. As per the testimony of PW4 Ram Dayal, he and Balvinder Singh had left from Sikandrabad, which was at a distance of 100 kilometers from Delhi, at about 9.00/10.00 p.m. Before reaching the spot, they had stopped 2/3 times. The accident had taken place near village Sharifgarh, situated between Shahabad Markanda and Karnal. After driving upto Karnal, both Ram Dayal and Balvinder Singh had taken a stop for one hour and consumed tea. Therefore, it could not be said that Balvinder Singh must have been feeling sleepy at the time of the accident FAO No. 144 of 1995 -13- and was, thus, responsible for causing the same. The accident in question had taken place, as per the testimony of RW1 Dalbir Singh, at about 7.00 a.m. Moreover, the Tribunal read too much in the statement of PW4 Ram Dayal when he stated that he and Balvinder Singh had not slept during the night preceding the night of the accident. If the said stand is examined in its proper perspective, it meant that during the night before the accident, they had slept but a night before, they had not slept. In view of the above, I have no hesitation to reverse the findings of the Tribunal on issue No.1 and to hold that it was respondent No.1, who had caused damage to the tanker while driving his truck in the area of village Sharifgarh. In the claim petition, the claimant had averred that on account of the accident, his tanker was totally damaged and whole of the milk contained in the tanker was spilled. Resultantly, he suffered a loss of Rs.2,21,442.59 Ps. While appearing as PW1, Shiv Chander, Surveyor- cum-Assessor deposed that as per the survey conducted by him on 1.11.1992, he assessed the loss/damage to the tanker to the tune of Rs.1,14,490.94 Ps, which included labour and spare parts. Similarly, the claimant while appearing as PW2 testified that on the date of the accident, his tanker was carrying 12½ tonnes of milk from Sikandrabad to Patiala and the cost of the milk was about Rs.75,000/- out of which milk worth Rs.85,000/- was lost. The worth of the milk lost in the accident to be Rs.85,000/-, as stated by PW2, was apparently a slip of tongue as he had FAO No. 144 of 1995 -14- already given the cost of total milk as Rs.75,000/-. The claimant had also examined PW3 Naresh Kumar, Manager of Vikram Roadways, Patiala, who stated that the claimant had taken the contract for supplying the milk and a notice dated 3.11.1992 Ex.P33 was received from Milk Food, Patiala regarding the loss of milk in the tanker on account of the accident, which took place on 31.10.1992. As per notice Ex.P33, the loss of the milk spilled in the accident was Rs.55,794.65 Ps. According to the claimant, his tanker remained idle for one month and, accordingly, he suffered loss of income amounting to Rs.10,000/-. In view of the above, the claimant is entitled to receive compensation to the tune of Rs.1,80,284/- (Rs.1,14,490/- + Rs.55,794/- + Rs.10,000/- = Rs.1,80,284/-). According to the claimant, his driver Balvinder Singh was not at fault in causing the accident, rather, it was Dalbir Singh-respondent No.1, who was driving the offending truck and responsible for causing the accident. Therefore, the claimant was not required to join the insurance company of his vehicle. Moreover, the respondents did not bring any material on the record to show that the claimant already stood compensated for the loss suffered by him in the accident by claiming it from the insurance company with which his vehicle stood insured. It is true that the liability of the respondent-insurance company was only to the extent of Rs.6,000/-. However, in order to secure FAO No. 144 of 1995 -15- the payment of the compensation amount to the claimant, directions can be issued to the insurance company to pay the entire amount of compensation to the claimant in the first instance and, thereafter, to recover the amount beyond Rs.6,000/- from respondent No.1, i.e. owner-cum-driver of the offending truck. Resultantly, the appeal is accepted, the impugned award passed by the Tribunal is set aside and the claim petition filed by the appellant is accepted by granting him an amount of Rs.1,80,284/- as compensation. The liability of the insurance company shall be to the extent of Rs.6,000/-. However, the insurance company shall pay the entire amount of compensation alongwith interest at the rate of 7.5% per annum from the date of filing of the claim petition till its payment, to the claimant in the first instance and, thereafter, to recover the compensation amount beyond Rs.6,000/- from respondent No.1. No order as to costs. ( T.P.S. MANN ) April 28, 2010 JUDGE ajay-1