FAO NO. 3340 of 2009 1 IN THE HIGH COURT OF PUNJAB & HARYANA AT CHANDIGARH FAO NO. 3340 of 2009(C&M) Date of order: 04.11.2011 Smt. Jogindero Devi and others ..... Appellants Versus Rajesh Kumar and another ..... Respondents CORAM: HON'BLE MR. JUSTICE VIJENDER SINGH MALIK Present: Mr. Ravinder Malik Ravi, Advocate for the appellants. Ms. Vandana Malhotra, Advocate for the insurance company. **** Vijender Singh Malik, J. CM No.14855 of 2009 The delay of 18 days in filing the appeal is marginal. As no serious exception to the same is taken on the other side, who have even failed to file a reply to the application, the same is condoned. FAO No.3340 of 2009 This is an appeal brought by the claimants challenging the award dated 10.02.2009 passed by learned Motor Accidents Claims Tribunal, Yamuna Nagar at Jagadhri (for short 'the Tribunal), vide which the claim petition has been dismissed with no order as to costs. The claim petition has been brought by the claimants under the provisions of section 163-A of the Motor Vehicles Act, 1988 (for short 'the Act') on the following averments:- FAO NO. 3340 of 2009 2 On 09.09.2006 Anil Kumar, deceased was returning from Bilaspur to his village on a motorcycle bearing chassis no.06GACC- 01975, engine no.06GACM-01956 , which was driven by Rajesh Kumar. Ram Lal was also with them on a separate motorcycle. At about 10.00 PM, when they were near petrol pump on Bilaspur-Jagadhri road, an Indica car white colour came from their back side and while the same was overtaking the motorcycle of Ram Lal, it had hit the motorcycle, on which the deceased was travelling from behind. On account of the same, Rajesh Kumar and Anil Kumar fell down and suffered multiple injuries. They were taken to General Hospital, Jagadhri. The condition of Anil Kumar was very critical. He was referred to PGI, Chandigarh without providing any treatment and he succumbed to the injuries on the way to PGI Chandigarh. Anil Kumar is claimed to have been of the age of 18 years at the time of his death and he was earning Rs.3200/- per month. A sum of Rs.8,00,000/- has been claimed as compensation on the death of Anil Kumar. Rajesh Kumar, who was driving the motorcycle on which the deceased was travelling has been arrayed as respondent no.1 and insurer of his motorcycle i.e. Bajaj Allianz General Insurance Company Ltd. has been arrayed as respondent no.2. Respondent no.1 has denied the very accident as well as involvement of the vehicle in question in the accident. It is further claimed that delayed FIR on false facts has been lodged after due deliberation against him. He has, however, added that his vehicle was FAO NO. 3340 of 2009 3 insured at the time of the accident. After filing the written statement, he did not care to pursue his defence and was proceeded against ex-parte on 01.10.2006. The insurer has denied the maintainability of the petition against it. According to it, no such accident ever took place with the motorcycle in question which is said to have been falsely involved in this case. It is also averred that the deceased did not die in a road side accident. It is claimed that no post mortem examination on the dead body of Anil Kumar was conducted to establish that he died due to the accidental injuries. Respondent no.1 was even denied to hold a valid and effective driving licence at the time of accident. The other averments of the claimants were denied and the petition was prayed to be dismissed. On the pleadings of the parties, the following issues were framed by the Tribunal:- “1- Whether the death of Anil Kumar had taken place due to use of a motor vehicle i.e. Motorcycle in question ?OPP 2- If issue no.1 is proved, to what amount of compensation, the claimants are entitled to?OPP 3- Who is liable for making payment of compensation?OPP 4- Whether the claim petition is not maintainable?OPR2 FAO NO. 3340 of 2009 4 5- Whether the insured had willfully violated the terms and conditions of the insurance policy, if so, to what effect?OPR-2 6- Relief” The parties led their respective evidence and hearing learned counsel representing them, learned Tribunal has dismissed the claim petition holding under issue no.1 that the claimants have failed to prove that the death of Anil Kumar took place in an accident occurring on 09.09.2006 on account of the use of motorcycle in question. I have heard Mr. Ravinder Malik Ravi, learned counsel for the appellants and Ms. Vandana Malhotra, learned counsel for respondent no.2 and have gone through the record. Learned counsel for the appellants has submitted that the claim petition had been brought under the provisions of section 163-A of the Act, where the claimants were only required to prove that the accident has occurred on account of the use of motorcycle. According to him, on the evidence on record, the accident in hand can certainly be said to have occurred on account of the use of the motorcycle. He has submitted that learned Tribunal had been too technical in appreciating the evidence and has taken hyper-technical view to reject the evidence. According to him, Ram Lal had been an eye witness of the accident and he had even lodged FIR Ex.P-1 and his statement was sufficient to prove that the accident in which Anil Kumar lost his life, had occurred on account of the use of the motorcycle. He has, therefore, prayed for reversing the finding of learned FAO NO. 3340 of 2009 5 Tribunal on issue no.1 and for either assessing compensation payable to the claimants or remitting the case back to learned Tribunal for deciding the claim petition after recording findings on the other issues on merits. Learned counsel for respondent no.2 has submitted that learned Tribunal has been fully justified in reaching the conclusion on issue no.1 that the death of Anil Kumar is not proved to have taken place on account of the accident dated 09.09.2006, occurring on account of use of the motorcycle. The first aspect that makes the case of the claimants suspect is the discrepancy in the age of the deceased. Claimants had come to learned Tribunal with the plea that Anil Kumar was aged 18 years. Dharminder Dolia, Clerk of Civil Hospital, Jagadhri was examined, who had brought the bed head ticket of Anil Kumar admitted to the hospital on 09.09.2006. He has stated that the age of Anil Kumar as per the bed head ticket was 30 years. The gap in the age as per the claimants and as mentioned in the bed head ticket is large and, therefore, irreconcilable. The claimants have examined Dr.Rana Singh, PW-5, who had medicolegally examined Anil Kumar. He has mentioned that he had examined an unknown patient, aged 22 years male at 10.30 PM on 09.09.2006. The problem comes when it is examined in the backdrop of the fact that the patient was brought to the hospital by Rajesh Kumar. If this Rajesh Kumar is respondent no.1, then he was fully acquainted with Anil Kumar. It could not have been that he did not mention the name of FAO NO. 3340 of 2009 6 the injured to Dr. Rana Singh. The fact that the person examined by Dr. Rana Singh was unknown would clearly show that Rajesh Kumar was not acquainted with him. If Rajesh Kumar was not acquainted with injured, then it cannot be believed that he was travelling on the motorcycle driven by Rajesh Kumar. Thus, the case of the claimants suffers fatal blow in the statement of Dr. Rana Singh, PW-5. If it is a matter of giving other reasons for upholding the award of learned Tribunal, the person examined by Dr. Rana Singh on 09.09.2006, brought by some Rajesh was found to have two lacerated wounds of size 3 x 2 cm, one each on upper and lower lips and an abrasion of the size of 2 x 5 cm on the right fore arm. He was not having any other injuries. With the aforesaid injuries, Anil Kumar can never be said to be in critical state and also cannot be said to have died of the injuries without even reaching the hospital to which he was referred. Considering the fact that no post-mortem examination on the dead body of Anil Kumar was conducted would make the situation worse for the case of claimants and it cannot be said that death of Anil Kumar is due to injuries suffered in any such accident. Assuming the entire case of the claimants to be correct, the accident had been caused by a Tata Indica Car, the identity of the driver or owner of which or the registration number of which was not known to the claimants. Had Ram Lal, PW-4 been an eye witness of the accident, he could not have failed to notice the number of the offending vehicle. Even if it is believed that he could have failed to notice the FAO NO. 3340 of 2009 7 registration number of the offending vehicle, I fail to understand as to how the liability to pay compensation would come to Rajesh Kumar, respondent no.1 and insurer of his vehicle. For all these reasons, the appellants have been rightly held to have failed to prove the accident to have occurred on account of use of the motorcycle in question. The finding recorded by learned Tribunal on issue no.1 is, thus, unexceptional. Therefore, finding no merit in the appeal, the same is dismissed. (VIJENDER SINGH MALIK) JUDGE 04.11.2011 dinesh