FAO No. 1940 of 2009 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH FAO No. 1940 of 2009 (O&M) Date of decision 3.3.2010. Charanjit Kaur and others ...... Appellants. versus Sohan Lal and another ...... Respondents. Present : Mr. Ashwani Arora, Advocate for the appellants. Mr. V.M.Gupta, Advocate for Insurance Company. K.C.PURI. J. Claimants-appellants-Charanjit Kaur and others have filed this appeal against the Award dated 2.2.2009 passed by Motor Accident Claims Tribunal, Rupnagar vide which the claim petition filed by them claiming compensation on account of death of Jagtar Singh due to injuries sustained by him in the motor vehicular accident, stood dismissed. The facts recapitulated in brief from the records are that on 17.11.2006 deceased-Jagtar Singh was going from village Bindrakh on Bajaj Chetak scooter bearing registration No.CH-0IV-1030 towards Kurali via Balmagarh Madwara and Bhinder son of Gurdial Singh was following deceased on his motor cycle bearing registration No.PB-27B-3571 and when deceased Jagtar Singh reached at some distance ahead of Balamgarh Madwara Nadi, then from the opposite direction one unknown vehicle FAO No. 1940 of 2009 2 which was driven in a rash and negligent manner struck against the scooter of deceased Jagtar Singh and as a result of its impact, Jagtar Singh fell down on the road and received multiple grievous injuries. He was immediately taken to Civil Hospital, Kurali from where he was referred to PGI, Chandigarh where he remained admitted from 17.11.2006 to 22.11.2006 and ultimately died on 22.11.2006 in PGI, Chandigarh. It has been further alleged that the accident took place out of use of Bajaj Chetak No.CH-01V- 1030. Deceased Jagtar Singh was 45 years of age only and was self- employed earning Rs.3300/-per month. FIR No.257 dated22.11.2006 under Sections 279, 427 and 304-A, of the Indian Penal Code (in short- the IPC) was registered at Police Station Sadar Ropar. The claimants being the legal representatives of deceased Jagtar Singh have claimed compensation to the tune of Rs.15lacs along with interest which the respondents are liable to pay jointly and severally. On notice, respondent No.1 did not put in appearance and was ordered to be proceeded against ex-parte. Respondent No.2 in its written statement has taken preliminary objections, denying the accident in question as the owner of scooter Bajaj Chetak No.CH-01V-1030 did not inform regarding the alleged accident immediately; the claim petition is not maintainable as Section 163-A of the Motor Vehicles Act is applicable to third party and insured does not come under the definition of third party. Denying other averments, respondent No.2 prayed for dismissal of the claim petition. Following issues were framed :- (1)Whether Jagtar Singh had died due to the injuries sustained in a motor vehicular accident dated 17.11.2006 at about 3 FAO No. 1940 of 2009 3 p.m. in the area of village Balamgarh Madwara which took place out of use of Bajaj Chetak scooter bearing No.CH- 01V-1030 ?OPP. (2)Whether driver of Bajaj Chetak Scooter No.CH-01V-1030 was not holding a valid and effective driving licence at the time of alleged accident ? If so, its effect?OPR. (3) Is the petition not maintainable as alleged ?OPR. (4) Whether the claimants are the legal representatives of deceased Jagtar Singh and are entitled to get compensation ? If so, to what amount and from whom ?OPP. (5) Relief. The parties have led their respective evidence. On the basis thereof, the learned Motor Accident Claims Tribunal, Rupnagar held that the claimants have failed to prove that Jagtar Singh had died due to injuries sustained by him in a motor vehicular accident on 17.11.2006 at 3.00p.m. in the area of village Balamgarh Madwara, and the claimants are not entitled for grant of any compensation and dismissed their claim petition. Feeling dis-satisfied with the aforesaid award, the claimants- appellants preferred for grant of compensation. I have heard the learned counsel for the parties and have gone thorough the records of the case. Along with appeal claimants have moved an application under Order 41 Rule 27 of the Code of Civil Procedure (in short – the CPC) read with Section 151 of the CPC for leading additional evidence so as to produce on file the seizure memo dated 31.12.2006 regarding scooter No.CH-01V-1030 and driving licence No.30051 and Annexure A-2, seizure memo regarding scooter No.CH-01V-1030 both dated 31.12.2006. The learned counsel for the appellants has submitted that FIR FAO No. 1940 of 2009 4 No.257 dated 22.11.2007 has been registered against unknown vehicle. In the said FIR, it is clearly mentioned that deceased Jagtar Singh was driving the scooter. The said scooter was taken into possession vide memos Annexure A-1 and A-2. So, in these circumstances, the learned Tribunal has wrongly held that claimants have failed to prove that deceased was not driving scooter No.CH-01V-1030. So, the finding of Tribunal on issue No.1 needs to be decided in favour of claimants. Bhinder Singh, author of the FIR, has appeared as witness for the claimants and has categorically stated that deceased was driving the said scooter. The Tribunal should have accepted his testimony. I have carefully considered the said submission but do not find any force in that submission. The occurrence has taken place on 17.11.2006. The FIR was got recorded on 22.11.2006 by none else but the real brother-in-law of deceased Jagtar Singh son of Gurdial Singh. It is mentioned in the FIR that Jagtar Singh was going on his scooter Bajaj Chetak. The number of the said scooter has not been mentioned in the FIR. The additional evidence now sought to be produced in the form of Annexures A-1 and A-2 will not improve the case of the claimants in any manner. No reason has been given for not mentioning the number of the scooter in the FIR or even upto 31.12.2006 i.e. about 1½ months after the occurrence. The Tribunal rightly held that Sohan Lal belonging to Chandigarh and the claimants have failed to prove how the deceased came into possession of scooter No. No.CH- 01V-1030 and in which capacity. It so seems that since the scooter was Bajaj Chetak and it was mentioned in the FIR that the scooter driven by the FAO No. 1940 of 2009 5 deceased was Bajaj Chetak, the said scooter was insured and in order to get compensation after 1½ months the number of the scooter has been mentioned. Needless to say that Jagtar Singh, being brother-in-law is introduced to get the compensation in favour of the claimants. Since the claimants are failed to prove issue No.1, so in these circumstances, the application for additional evidence as well as the appeal are without any merit and the same stand dismissed. A copy of this judgment be sent to the trial Court for strict compliance. ( K.C.PURI ) JUDGE March 3rd, 2010 sv