HIGH COURT OF HIMACHAL PRADESH AT SHIMLA FAO(MVA) No.: 142 of 2005 Reserved on: 24.6.2009 Decided on: 25.6.2009 Shiv Karan ………Appellant. Versus Uttam Chand and others ………Respondents. Coram: The Hon’ble Mr.Justice V.K. Ahuja, Judge. Whether approved for reporting? No. For the appellant: Mr.Ashok Sood, Advocate. For respondents No.1 & 7: Mr.Dushyant Dadwal, Advocate. V.K. Ahuja, J: This is an appeal filed by the appellant/claimant under Section 173 of the Motor Vehicles Act against the order passed by the learned Motor Accident Claims Tribunal, Hamirpur, (here-in-after referred to as the learned Tribunal) on 10.1.2005, vide which the petition filed by the appellant under Section 166 of the Motor Vehicles Act as against the respondents for the grant of compensation was dismissed. Briefly stated the facts of the case are that the appellant as petitioner/claimant filed a claim ___________ 1.Whether reporters of Local papers may be allowed to see the judgment? Yes. - 2 - petition under Section 166 of the Motor Vehicles Act originally against respondents No.1 and 2 and Insurance Company not named. It was alleged by the petitioner that the petitioner got loaded his bricks and cement from Kaloor to Mawalanghat for the construction of stairs and house and was traveling in the tractor alongwith the said goods. It was alleged that the tractor was being driven rashly and negligently by respondent No.2. It was further alleged that at a place near the house of one Amar Singh, the trolley came out, the tractor took speed and respondent No.2 jumped out and the tractor turned turtle. The petitioner came under the tractor and suffered injuries in his stomach. He got himself treated at various places, applied for disability certificate which was found to be permanent to the extent of 20%. He alleged that he was doing the profession of a Photographer and due to disability, he is not able to do the said work and hence claimed compensation to the extent of Rs.15.00 lacs for injuries including for the treatment he got done at PGI and other places. Respondent No.2 i.e. the alleged owner and driver denied the allegations that any accident took place or the petitioner suffered injuries. It was pleaded that it was learnt that the petitioner fell from a tree and was admitted in the hospital for treatment and, therefore, they are not liable. Respondent No.1 also denied the ownership of the tractor. During the trial of the case, respondents No.4 to 7 were impleaded as owners of the tractor, who did - 3 - not contest the case and they were proceeded against ex parte. On the pleadings of the parties, the learned Tribunal framed two issues. Parties led evidence and the learned Tribunal, vide its impugned judgment, dismissed the claim petition filed by the petitioner. I have heard the learned counsel for the parties and have gone through the record of the case. The submissions made by the learned counsel for the appellant were that since the petitioner failed to prove as to who was the registered owner, therefore, during the pendency of the present appeal, the appellant had examined one witness to prove that respondents No.4 to 7 were the registered owners and as such the claim petition deserves to be allowed accordingly as against the registered owners. On the other hand, the learned counsel for respondents No.1 and 7 submitted that there is no evidence as against these respondents and since the petitioner had failed to prove his case, the findings of the learned Tribunal do not call for an interference by this Court. The first question to be determined by the learned Tribunal was as to whether the petitioner had suffered injuries while traveling in the tractor and that the said tractor was being driven rashly or negligently by respondent No.2 i.e. the driver of the tractor. To prove these assertions, the petitioner stepped into the witness box as PW-2 and stated that he was going in the tractor - 4 - being driven by Fajji Ram alias Devender. The said driver could not control the tractor and the trolley overturned. He thereafter stated that he had been taken to PGI, spent money for medical treatment, telephone bills and taxi charges. However, his statement does not establish that the tractor was being driven by respondent No.2 or that the accident took place due to rash or negligent driving of respondent No.2. His statement that it was being driven by Fajji alias Devender does not establish that he is making this deposition against respondent No.2. He did not identify the driver also in the court nor stated that it was being driven by respondent No.2 or that the tractor was being driven rashly or negligently. He stated that he had been taken to hospital at Nadaun by the villagers and then to Hamirpur and then for treatment to Dr.Gloda and thereafter, he was referred to PGI, Chandigarh. He did not produce the records from any of these hospitals including from Nadaun Hospital where he was firstly taken. He could not produce the record from Nadaun Hospital as to what history was given by him there when he was admitted in the hospital immediately after the accident. He did not state as to why he did not lodge the report about the accident. He denied having told the hospital authorities that he had suffered the injuries as a result of fall from a tree. He admitted that there was a discharge certificate given from Nadaun Hospital, but the same has not been produced by him. Therefore, his own statement does not establish that the - 5 - vehicle was being driven by respondent No.2 or that it was being driven rashly or negligently. PW-3 Amar singh has admitted that he was the brother of the petitioner and stated that the accident took place at a distance of 50 yards from his house. He went there, pulled out the petitioner and the vehicle was being driven by a person named Fajji. He did not state that it was being driven by respondent No.2 or that it was being driven rashly or negligently. He stated in cross examination that he had not gone to Hospital at Nadaun alongwith the petitioner. In case, he was present at the spot, had witnessed the accident and was also related to the petitioner being his brother, he must have gone to the hospital alongwith the petitioner, which suggests that he was not present at the spot and had been produced subsequently. He admitted that he did not lodge any report with the police in this regard and did not give any explanation in regard to non-lodging of the FIR. The statement of PW-1 Dr.N.S.Dogra only shows that he proved the certificate Ext.PW-1/A in regard to disability and admitted that it was not given for the purposes of Court. PW-4 Dr.Vipin Sharma had also proved the disability certificate Ext.PW-4/A and stated that the disability does not affect the profession of the petitioner as a Photographer. From the above discussion, it is clear that no report was lodged by the petitioner in regard to the accident nor he has been able to furnish any reasons for - 6 - non-lodging of the said report and the evidence led by the petitioner was not sufficient to prove his case. Therefore, the findings of the learned Tribunal in this regard do not call for an interference by this Court. The evidence led by the appellant/petitioner during the pendency of the present appeal, by examining AW- 1 Kuljeet Singh, Registration Clerk, only proves that the vehicle was registered in the name of the persons, namely, respondents No.4 to 6, but that does not change the net result of the case since the petitioner had failed to prove issues No.1 and 2 framed by the learned Tribunal. In view of the above discussion, I accordingly hold that there is no merit in the appeal filed by the appellant which is dismissed accordingly, with no order as to costs. June 25, 2009. (V.K. Ahuja), (TILAK) Judge.