FAO No. 550 of 2009 1 IN THE PUNJAB AND HARYANA HIGH COURT AT CHANDIGARH FAO No. 550 of 2009 Date of Decision : 21.1.2010 Sudesh .......... Appellant Versus Virender Singh & others ...... Respondents CORAM : HON'BLE MR. JUSTICE VINOD K. SHARMA Present : Mr. Sudhir Mittal, Advocate for the appellant. Mr. Ashok Kumar Sharma, Advocate for respondent No.1. Mr. M.B. Jain, Advocate for respondent No.4. **** VINOD K. SHARMA, J. (ORAL) This appeal by the claimant is directed against the award passed by the learned Motor Accident Claims Tribunal, Jind ( hereinafter referred to as “the Tribunal”) vide which the claim petition filed by the appellant under Section 166 of the Motor Vehicles Act, stands dismissed. The appellant filed the claim petition on the pleadings, that on 4.8.2006 at about 9.30 A.M. the injured / claimant had boarded bus No. HR- 56-2957 from Narwana bus stand for going to C.R.K. College Jind. When at 9.30 A.M. the bus reached opposite C.R.K. College, Jind, and the appellant was alighting from the main door of the bus, the bus driver all of sudden without receiving any signal from the conductor drove the bus, due to which the appellant fell down on the road and rear wheel of the bus crushed the FAO No. 550 of 2009 2 left leg of the appellant. He was shifted to G.H. Hospital Jind by Nakul, fellow student for treatment, where he was given first aid, and shifted to hospital of Dr. Rajesh Gupta at Narwana, which was being run by his father. He was shifted from there to Chawla Hospital, Hisar, where he remained admitted upto 31.8.2006, when his left leg was amputated. It was the case of the appellant that accident occurred due to the rash and negligent driving of respondent No.1 i.e. the Driver of the bus. The claim petition was contested by taking a plea that the petition was false, frivolous and vexatious and filed to extract money from the respondents on flimsy grounds. The factum of accident was denied. No criminal case was registered against the respondent / Driver. The stand taken was that no injury was caused to the appellant in the accident. Similarly other respondents also took the plea, that no accident had taken place on the alleged date , therefore, the appellant was not entitled to any compensation. On the pleadings of the parties, the learned Tribunal framed the following issues :- “1. Whether the accident in question has occurred due to the rash and negligent driving of respondent No.1 Virender Singh while driving the bus No. HR-56-2957 resulting into the causing of injuries to the petitioner, if so to its effect?OPP 2. If issue No.1 is proved in affirmative, whether the petitioner is entitled to the amount of compensation, if so, how much amount and from whom, he is entitled to recover?OPP 3. Whether the petition is not maintainable in FAO No. 550 of 2009 3 the present form?OPR 4. Relief.” Issue No.1 was decided against the appellant, by recording the following finding :- “9. To prove this issue, the petitioner has appeared in the witness box as PW1 and he has placed on record his affidavit as PW1/A in which he has deposed that he is a student of C.R.K. College Jind. On 4.8.2006, he had boarded a bus No. HR-56-2957 from Narwana Bus Stand for going to C.R.K. College, Jind, when at about 9.30 AM the aforesaid bus reached opposite C.R.K. College Jind, the petitioner was alighting from the main door of the bus but all of sudden the driver started the bus without getting any signal from the conductor due to which the petitioner fell down on the road and rear wheel of the bus crossed over his left leg and he received crushed injuries on his body. He was shifted to General Hospital Jind by his fellow student Nakul (PW2) for treatment and there Dr. Rajesh Gupta gave first aid to him and referred him to his own hospital at Narwana being run by his father B.C. Gupta, however, on seeing the critical condition of the deponent, he was referred to Chawla Hospital Hisar, where he remained admitted upto 31.8.2006. During this period his leg was amputated. He has deposed that despite repeated request for registration of a criminal case, the police did not register it. To corroborate his testimony, the petitioner has examined Nakul s/o Dinesh Chander as PW2 who deposed in his affidavit Ex.PW2/A that on 4.8.2008 he was going from Narwana in a bus HR-56-2957 FAO No. 550 of 2009 4 alongwith Sudesh and when the bus had reached near C.R.K. College Jind at 9.30 AM, Sudesh was alighting from the bus from its main door but all of sudden driver of the bus started the bus without receiving signal from the conductor due to which Sudesh fell down on the road and sustained crushed injuries and he deposed that he was an eye witness of the accident which was caused by the driver of the bus No. HR-56-2957 and deposed that accident occurred due to rash and negligent driving of driver of the bus i.e. Respondent No.1. 10.On the basis of the aforesaid evidence Ld. Counsel for the petitioner contended that the rash and negligent driving of the driver of the bus is fully proved and it is proved on record that the accident in question had occurred due to rash and negligent driving of the bus drive i.e. respondent No.1. But to my mind the aforesaid evidence on record is not sufficient t o prove this issue that the accident in question had occurred due to the rash and negligent driving of the bus being driven by the respondent No.1 in which the petitioner had sustained injuries. No doubt the petitioner as PW1 and his fellow student Nakul PW2 have deposed about the version put up by the petitioner in the petition but the question is as to how far reliance can be placed on the testimony of the aforesaid witnesses to prove t he negligence of the respondent No.1. It is important to note that the petitioner while deposing as PW1 in his affidavit Ex.PW1/A nowhere stated that Nakul PW2 was also accompanying him for going to C.R.K. College FAO No. 550 of 2009 5 Jind. He has also mentioned that when he had fallen down and crushed under the wheel of the bus, Nakul student of his college had taken him to G.H. Jind but Nakul while appearing as PW2 has deposed that he was accompanying petitioner Sudesh from Narwana in the aforesaid bus. Thus the contradictory statements of the witnesses examined on behalf of the petitioner creates doubt in the version of the petitioner. Further more it is unbelievable that if the accident had occurred as he has explained by the petitioner and when the petitioner was taken to G.H. Jind then why a criminal case was not registered in the police station Jind. Both the witnesses have given time of accident as o.30 AM and the place of accident in front of C.R.K. College Jind. It is admittedly a busy place and it can be safely presumed that at that hour of the day i.e. 9.30 AM there must be several persons present at the spot who must had seen the accident in question. Moreover, there must be other passengers also in the aforesaid bus being driven by the respondent No.1 who must had also seen the accident. But neither any of the passerby or passengers had come forward to substantiate the version of the petitioner. 11. It is important to note that the petitioner has not examined the conductor of the bus in question who could have deposed that respondent No.1 bus driver had started the bus all of sudden and when the petitioner was alighting from the main gate of the bus and he had not given signal by whistle to the driver to start the bus. In these circumstances, FAO No. 550 of 2009 6 the conductor of the bus was the best witnesses who could have deposed on the lines of the petitioner. Non examination of the conductor of the bus has further created doubt in the version of the petitioner. Furthermore, it is more important to note that although the petitioner have deposed that his uncle Sanjay had tried his level best to get recorded the FIR against the driver of the bus for his rash and negligent driving but if the require FIR was not registered then who prevented the petitioner or his relatives to file the complaint in the Court regarding the accident. The complainant has placed on record a copy of application allegedly written to the Superintendent of Police by his uncle Sanjay Parkash but the same has not been proved on record, therefore, it cannot be said that any such application was written to the Superintendent of Police Jind. It is strange to note that the petitioner has not even examined his uncle who had allegedly attempt to lodge FIR in the Police Station and thereafter he had written a letter to the Superintendent of Police and other authorities. Further more from a perusal of the copy of MLR of the petitioner which has been placed on record as Ex.P2 it reveals that it is of dated 1.9.2006 but no MLR of the date of accident i.e. 4.8.2006 has been placed on record. If the petitioner was taken to GH Jind just after the accident then the doctor attending him i.e. Dr.Rajesh Gupta could have appeared in the witness box on behalf of the petitioner at least an he could have deposed that the petitioner was brought to him in an FAO No. 550 of 2009 7 injured condition and that it was a case of accident and that he had referred him to his personal nursing home at Narwana but the petitioner did not examine the aforesaid doctor or other doctor of Narwana for the reasons best known to him. 12. Therefore, looking from any angle the petitioner has miserably failed to prove that the accident in question had occurred due to the rash and negligent driving of the bus driver i.e. respondent No.1, in which he sustained grievous injuries. T here is no MLR, FIR, DDR and Investigation Report. There is no report u/s 173 Cr.P.C. There is no mechanical report of the bus in question. There is no independent corroboration to the version of the petitioner, therefore, this issue is decided against the petitioner.” The claim petition was accordingly ordered to be dismissed. Mr. Sudhir Mittal, learned counsel appearing on behalf of the appellant challenged the findings by the learned Tribunal on issue No.1 by alleging that apart from the statement of the appellant, there was evidence of Nakul son of Dinesh Chander, in support of accident. The contention of the learned counsel for the appellant was that even in cross-examination, the evidence of PW2 Nakul could not be shaken as his presence was proved by the bus pass Ex.P-3. The learned counsel for the appellant also contended that the learned Tribunal wrongly held that there was contradiction in the statements of PW-1 and PW-2, whereas these were of not of any consequence. The contention further was that non- filing of the FIR was not a ground to non-suit the appellant. Similarly, the non-examination of any other passenger was not a ground to reject the FAO No. 550 of 2009 8 claim. On consideration, I find no force in the contentions raised by the learned counsel for the appellant. The story put up by t he claimant on the face of it is not believable, as it cannot be believed by any stretch of imagination that when a student suffers an injury in front of the college then the bus could not be allowed to go from the spot. The time of accident was said to be 9.30 A.M., when there is heavy rush and traffic and there were number of people. This fact coupled with the other circumstances that no MLR was recorded and nothing was shown as to why the appellant was not taken to the hospital or as to why the college authorities were not informed about the accident, which was said to have taken place in front of the college, are sufficient to hold that the findings recorded by the learned Tribunal do not call for any interference by this Court. The appellant having failed to connect the injury with the accident, could not claim compensation from the respondents. No ground, therefore, is made out to interfere with the award passed by the learned Tribunal. No merit. Dismissed. 21.1.2010 ( VINOD K. SHARMA ) 'sp' JUDGE